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Al-Qawid Al-Fiqhiyyah

(Legal Maxims of Islamic Jurisprudence)


A Translated Compilation

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Part I.

A Historical Glance at Al-Qawid Al-Fiqhiyyah


The Most Significant Madhhib Books
Sources, mission and positions of Al-Qawid AlFiqhiyyah

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Definition of Al-Qidah

Al-Qidah ( ) literally means a concrete or abstract maxim or base;


Is the ruling of Al-Qidah Al-Fiqhiyyah all-inclusive ( ) or preponderant
(?)
In Ar-Rokk's words: Al-Qidah Al-Fiqhiyyah is an all-inclusive rule based on
legal evidence written accurately in comprehensive words, and it includes all
or most particles, Juziyt ( cases pertaining to Fiqh) which come under
it.1
The first group of scholars:
Al-Qidah is an all-inclusive rule (or Hukm , , which is a verdict pertaining
to Fiqh)) which includes all the related jurisprudence (fiqh) branches (or
Fur). Examples of these scholars are: Imams As-Sad At-Taftazniy2, Ab AlBaq3 and Al-Maqqariy.4
The second group of scholars:
Al-Qidah is a preponderant rule which includes most of the related
jurisprudence (fiqh) branches (or Fur).

Dr. Muhammad Ar-Rokk, Nazariyyat-ut-Taqd Al-Fiqhiy wa tharuh f Ikhtilf Al-Fqah, p. 48. Morocco,
Casablanca :An-Najh Al-Jaddah Press, 1st. ed., 1414/1994.
2
Sad-ud-Dn, Masd Ibn Umar Ibn Abdullh a great scholar of Arabic sciences, (d.791A.H./approx.1389AD).
See Al-Alm by Khair-ud-Dn Az-Zarkkal, Vol. 7, p. 219. Beirut, Lebanon: Dr Al-Ilm lel-Malayn Press.
Volume 5, 5th. ed., 1411/1991.
3

Ayyb Ibn Ms Al-Huseiny Al-Kafaw Al-Hanafiy among the magistrates of Al-Ahanf (d.1094/1683). See AlAlm by Az-Zarkkal, Vol. 2, p. 38.
4

Ab Abdullh Muhammad Ibn Muhammad Ibn Ahmad Ibn Ab Bakr Al-Qurashiy At-Tilmisn a great scholar of
Mlikkiyyah (d.758/1357). See Al-Alm by Az-Zarkkal, Vol. 7, p. 37.

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Examples of these scholars are: Imm As-Subkkiy5 and Imm Al-Hamawiy.6


Imm Ash-Shtibiy supported a reconciliation between the two definitions,
where If there were a particle jurisprudence matter (or Juziyyah) that were
an exception to a maxim (or a Qidah), that that would not cancel the
comprehensiveness and the inclusion of such a Qidah; for that particle (or
Juziyyah) could be a branch of another Qidah. 7
Legal maxims, or Al-Qawid Al-Fiqhiyyah are different in scholars
agreement on them, and in the level of their inclusiveness.
Legal maxims, or Al-Qawid Al-Fiqhiyyah can be divided into four types:
1. Al-Qawid Al-Qulliyyah Al-Kubr ( , Normative Legal
Maxims)
- Agreeable to all scholars and all Madhhib.
- Have the highest degree of inclusiveness (of related branches of Fiqh).
Example:


(Al-mashaqah tajleb at-taiysr): Hardship begets ease.

Abdul-Wahhb Ibn Al Ibn Abdul-Kf Ab Nasr among the greatest magistrates, historians and researchers of
his time born in Cairo (d.771/1370). See Al-Alm by Az-Zarkkal, Vol. 4, p. 148.
6

Ahmad Ibn Muhammad Mekk Ab Al-Abbs Shihb-du-Dn AL-Huseiniy one of the scholars of Hanafiyyah
(d.1098/1687). See Al-Alm by Az-Zarkkal, Vol. 1, p. 239.
7

Dr. Muhammad Sedkk Ibn Ahmad Ibn Muhammad Al-Born, Al-Wajz f Idh Qawid Al-Fiqh Al-Kulliyyah,
pp.16-21. Beirut, Lebanon: Ar-Rislah Foundation Press, 1416/1996.

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2. Al-Qawid Al- Juziyyah Al-Kubr ( , Partial


Normative Legal Maxims)
- Agreeable to all scholars and all Madhhib.
- Have the highest degree of inclusiveness (of related branches of Fiqh).
- Fall under one of the Normative legal Maxims or Al- Qawid Qulliyyah
Kubr,
Example:

(Ad-darurt tubh al-mahzurt) Necessities permit the prohibited


Falls under the Qidah


(Al-mashaqah tajleb at-taiysr) Hardship begets ease.
3. Al-Qawid Al-Qulliyyah Ghair Al-Kubr ( , NonNormative Legal Maxims)
- Agreeable to most scholars and Madhhib.
- Have a high degree of inclusiveness (of related branches of Fiqh).
Example:




(At-tasarruf al ar-raiyyah mant be al-maslahah) Rulers' decisions
must be in favor of the people.

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4. ADDawbit Al- Fiqhiyyah (called ADDawbit (


, controllers): the
plural of ADDbit (
, a controller)) or The jurisprudential
Controllers
-

Difference in opinions about them by scholars.

- Mostly related to specific Madhhab or school of thought.


- Have a low degree of inclusiveness (of related branches of Fiqh).
Example:




(Kull kaffarah sababuha maseiyyah fahiya ala al-fawr): Every Kaffrah8
by disobedience is supposed to be fulfilled immediately. 9

Certain punishment upon the people who committed sins. Some kinds of Kaffrah are: Fasting, feeding the poor
and freeing a slave.
9

Al-Born, Al-Wajz, pp. 26-28.

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Islamic Jurisprudential Maxims


The Jurisprudential Controllers

Non-Normative Legal
Maxims

Normative Legal Maxims


Partial Normative Legal Maxims

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Chapter 1


The Establishment of Al-Qawid Al-Fiqhiyyah and How they


Developed

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The Foundation stage


The foundation of Al- Qawid Fiqhiyyah is primarily found in the Noble
Quran, the authentic Sunnah of the Messenger of Allh , the saying
of the (
, the companions) , and the saying of the Taben ( ,
Followers of the Companions).
Examples:
Narrated Ab Sad Al-Khudr : Allh's Messenger said:





(l darar wa l dirr f al-Islm) Islm forbids people to cause detriment
on themselves or on others10
Umar Ibn Al-Khattb said:



(Maqti al-huqq ind ash-shurtt) Rights decisively lean on
provisions.11
Al Ibn Ab Tlib said:
10

It is Sahh (authentic) Hadth according to the criterion of Sahh Muslim but he did not report it. See "Talkhs AlMustadrak al as-Sahhiyyn," chapter: Bargains, 2345.ed. by Muhammad Ibn Ahmad Ibn Uthmn Ibn Qiymz
adh-Dhahab (d.748/1347) in Al-Mustadrak al As-Sahhiyyn, by Muhammad Ibn Abdullh Ab Abdullh AlHkim an-Niysabouriy. Beirut, Lebanon: Dr Al-Kutub Al-Ilmmiyyah Press, Volume 4, 1st. ed. 1411/1990.
11

Muhammad Ibn Isml Ab Abdullh Al-Jaf Al-Bukhr, Al-JmiAs-Sahh Al-Mukhtasar (Sahh AlBukhar), chapter: 6 "Conditions of Mahr at marriage contract", p. 969, Vol.2.. Verified by Dr. Mustaf Db AlBagh. Beirut, Lebanon: Dr Ibn Kathr Press. Volume 6, 3 rd. ed., 1407/1987.

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(Mann qsam ar-rebh fal damn alaih) There is no guarantee upon
whom shares profits12, and so on.
From the ( , Followers of the Companions), Shuraih Ibn Al-Hrith AlKindiy (d.76/695) said:


(Mann sharat tian ghair mukrah fahuwa aliyh) Whoever optionally,
and without coercion, stipulates a certain condition on himself, must
fulfill this condition.
Jubair Ibn Nuaim13 said:


(Mann aqarr indan be shai alzmnh iyh) Whoever states something,
should be responsible for it14, and so on.

After ( , the followers of the Companions), many legal maxims were


initiated or repeated by different scholars in their books. Examples can be
found in the book: Al-Khardj, written by Imam Ab Yusuf15:
12

Ab Bakr ibn Hammm as-Sanniy Abdur-Razzq, Musannaf Abdur-Razzq, chapter: Sales 15113, verified
by Habbur-Rahmn Al-Azam. Beirut, Al-Maktab Al-Islmiy, 2nd. Ed. Vol. 11.
13
Ibn Murrah Al-Hadramiy Al-Masriy a great magistrate in Egypt (d.137/754). See Al-Alm by Az-Zarkkal, Vol.
2, p. 326.
14

Ab Bakr Muhammad ibn Khalaf ibn Hiyn ibn Sadaqah Ad-Dabbiy Al-Baghdd Wak, Akhbr Al-Qudh,
verified and authenticated by Abdul-Azz Al-Margh, vol.1, p. 321. Cairo, Egypt: Al-Maktabah At-Tejariyyah AlKubr Press. Volume 3, 1st. ed., 1366/1947.

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(At-tazr il al-imm al qadr izam al-jurm wa seghareh)
Discretionary punishment entrusted with the state leader relies on
the extent of the crime.16





(Koll mann mt min al-Muslimn l writh lah fa mluh le bait al-ml)
Should a Muslim die and have no one to inherit him, his wealth is
assigned to the public treasury of a Muslim state.17
Other examples can be found in the book: Al-Asl, written by Imm Muhammad
Ibn Al-Hasan:18





(Kawn al-whid hujjah f amr ad-dn idh kn adl) For ones words to be
accepted, one must be honest and have a good reputation in the matter
of religion19

15

Yaqb Ibn Ibrahm Ibn Habb Al-Ansriy Al-Kfiy a close friend and disciple of Ab Hanfah born in Kfah,
Baghdd (d.182/798). See Al-Alm by Az-Zarkkal, Vol. 8, p. 193.
16

Yaqb Ibn Ibrahm Ab Yusuf, Al-Kharj, vol.1, p. 182. Cairo, Egypt: As-Salafiyyah Press.

17

Ab Yusuf, Al-Kharj, p.202.

18

Muhammad Ibn Al-Hasan Ibn Farqad Al-Shaibniy a close friend and disciple of Ab Hanfah was born in Kfah
Baghdad (d.189/805). See Shazart-udh-Dhahab by Ibn Al-Imd, Vol. 2, pp. 409-410.
19

Muhammad Ibn Al-Hasan Ash-Shiybniy, Al-Asl, Vol. 3, p, verified by Abl-Waf Al-Afghniy. India,
Hyderabad. Volume 4, 1st, ed.

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In the same manner, Imm ash-Shfi (d.204/819) wrote his book Al-Omm
from which many Qaw'id can be extracted:



(Ar-rukhas l yutad beh mawadih) Allowances of Allh must not go
beyond their limits20





(Ar-rukhas l takn ill le mut fa amma al siy fal) The allowances
of Allh are restricted for the obedient only.21
Malim As-Sunan, written by Imm Suleimn Ahmad Ibn Muhammad AlKhattb Al-Bustiy (d.388/998), is one of many books that explained the
Sunnah and contained many of the legal maxims. An example would be:


(Ash-shakk l yazham al-yaqn) Doubt does not refute certainty.
The author deducted it from the Hadth:









:
-

- ( :

.)

20

Imm Muhammad Ibn Idrs Ash-Shaf, Al-Omm, Vol. 1, p. 80. Beirut, Lebanon: Dr Al-Marifah Press. Volume
8, ed., 1393/1973.
21

The previous source, Vol. 1, p. 226.

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Narrated Al that Suf yn that Az-Zuhr that Sad ibn al-Musiyb that Abbd
Ibn Tamm's cousin that the Prophet had advised a person
who would continuously imagine something happening to him in his Salh.
Should an individual imagine something happening to him in his Salh, he
should not leave his Salh unless he hears sound or smells something.22
Another example is the book, At-Tamhd lem f Al-Muwatt men Al-Man wa
Al-Asand, written by Imm Ab Umar Ibn Abdul-Bar Al-Qurtubiy Al-Malikiy
(d.463/1070) also paid more attention to Al-Qawid Al-Fiqhiyyah. Here, one
of its Qawid:

(Mann wajab lahu shai men al-ashya lam udf anh wa lam utasawr
alaih ill be idhnih) Should one have a right, this right must not be
extracted from him except by his permission.
The author inferred it from the Hadth:

.) ( :





.



.
Narrated Abdullh ibn Yusuf that Mlik that Ab Hzim ibn Dinr that Sahl Ibn
Sad as-Sid said:
A drink of (milk, water, and so on) was offered to Allh's Messenger
and after he drank some of it, he wished to give the elder persons sitting on
22

Sahh Al-Bukhr, chapter: Al-Wud (Ablution), 112.

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his left side first, but there was a young man (or a boy) sitting on his right side.
Allh's Messenger asked the young man, Could I be excused from
giving you first (the drink)?, No, by Allh, O Allh's Messenger! I cannot
prefer others to drink after you directly over me, the young man has kindly
given an excuse. Therefore, Allh's Prophet gave it to him.23

23

Sahh Al-Bukhr, chapter: The Oppressions, 2319.

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The Recording Stage


The Fourth Century
History has testified that jurists of Hanafiy Madhhab preceded others in
collecting, paraphrasing and recording Al-Qawid Al-Fiqhiyyah and the
Dawbit (controllers) of Fiqh. Imm Ab Thir Ad-Dabs24had collected
seventeen Qidah Qulliyyah as Imm As-Seyt and Imm Ibn Nujaim told us.
Imam Al-Karkhiy, Ad-Dabs's friend, might have recorded these Qawid and
added to other Qawid to be thirty-nine in his book (Usl Al-Karkhiy) which
was the first work in this field. Furthermore, Imm Muhammad Ibn Hrth AlKhushn Al-Malikiy (d.361/971) wrote a book under the title Usl Al-Futy
including more Qawid and wide-ranging subjects of Fiqh .

The fifth Century


In that time, Imam Ad-Dabsiy Ubiydullh Ibn Umar Ibn s Al-Qd
called Ab Zaid Ad-Dabsiy (d.430/1038) added a great scientific fortune in
his book Tass An-Nazar. In addition, Imm Al-Haramain Abdul-Malik Ibn
Abdullh Ibn Yusuf Ash-Shfiiy Imm Al-Haramain Al-Juwain (d.478/1085)
methodologically planted a series of Al-Qawid Al-Fiqhiyyah in his book AlGheyth,

The Sixth Century


This period had more than a few written works, following are some of
them:
a) Idh Al-Qaw'id by Imm Al-ud-Dn Muhammad Ibn Ahmad AsSamarqandiy (d.570/1174) and,

24

Muhammad Ibn Muhammad Ibn Sufyn collected 17 Qidah of Hanafiy Madhhab, see Tabaqt Al-Fuqah by
Ab Is-hq Ibrhm Ibn Al Ash-Shirz, p.142. Verified by Ihsn Abbs. Beirut, Lebanon: Dr ar-Rid AlArabiy Press, 1st. ed., 1389/1970.

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b) Al-Muqadimt wa Al-Mumahidt by Imm Ab Al-Wald Muhammad


Ibn Ahmad Ibn Rushed (d.520/1126).
Besides, Imm Fakhr-ud-Dn Al-Farghaniy Al-Hasan Ibn Mansr Ibn Mahmd,
called Qadikhn, (d.592/1159) were among those who explicated books of AlQawid Al-Fiqhiyyah.

The Seventh Century


The science of Al-Qawid Al-Fiqhiyyah in this period, had crystallized
but had not yet reached maturity. The greatest writers at this time were:
a) Imm Mun-ud-Dn Ab Muhammad Ibn Ibrahm Al-Jajarmiy AsSahlakiy Ash-Shfiiy (d.613/1216) in his book Al-Qawid AlFiqhiyyah f Fur Ash-Shafiiyyah ,
b) Imm Izz-ud-Dn Ibn Abdus-Salm (d.660/1261), in his book Qawid
Al-Ahkm f Maslih Al-Anm,
c) Imm Muhammad Ibn Abdullh Ibn Rshid Al-Bakr Al-Qafas
(d.736/1336) in his book, Al-Madhhab f Dabt Qaw'id Al-Madhhab
and,
d) Imm Ab Al-Mahmid Mahmd Ibn Ahmad Ibn Abd-us-Sayed Jamlud-Dn Al-Husair (d.363/973) in his book At-Tahrr Sharh Al-Jmi AlKabr.
The book, in addition, Al-Majm Sharh Al-Madhhab by Imm Ab
Zakariyyah Muhiy-ud-Dn Yahy Ibn Sharaf an-Nawaw (d.676/1277) and the
book Anwr AL-Borq f Anw Al-Furq by Imm Shihb-ud-Dn Al-Qarfiy is
said to have numbers of Qawid.

The Eighth Century


Recording the science of Al-Qawid Al-Fiqhiyyah flourished in this
century and it became the golden age of this field of knowledge, and scholars
of Shfiiyyah were in advance of other scholars. Examples were as follows:

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a) Al-Ashbh Wan-Nazir by Ibn Al-Wakl Ash-Shfiiy(d.716/1316),


b) Majm Al-Fatw by Ahmad Ibn Abdul-Halm Ibn Abdus-Salm Ibn
Abdullh Ibn Tiymiyyah Abdul-Halm Ibn Tiymiyyah (d.728/1350),
c) Al-Qawid by Al-Maqqariy Al-Malikiy (d.758/1328),
d) Al-Ashbh Wan-Nazir by Tjj-ud-Dn As-Subkkiy (d.771/1369),
e) Al-Manthr f Al-Qaw'id by Badr-ud-Dn Muhammad Ibn Bahdir Ibn
Abdullh Az-Zarkkashiy (d.794/1391),
f) Al-Qawid f Al-Fiqh by Zain-ud-Dn Abdur-Rahmn Shihb-ud-Dn
Ahmad Ibn Rajab Al-Hanbaliy (d.794/1391) and,
g) Al-Qawid f Al-Fur by Ali Ibn Uthmn Al-Ghazz, the Damascene
and Hanafiy, (d.799/1369) are the most significant books of this stage.

The Ninth Century


Like the previous phase, a significant number of new books were
authored:
a) Al-Ashbsh Wan-Nazir by Ibn Al-Mulaqqen Serj-ud-Dn Ab Hafs
Umar Ibn Ab Al-Hasan Al Ibn Ahmad Ibn Muhammad Ibn Abdullh
(d.804/1401),25
b) Asna Al-Maqsid f Tahrr Al-Qaw'id by Ibn Al-Khadr Muhammad Ibn
Muhammad Ibn Muhammad Az-Zubairiy Al-Aithariy (d.808/1405),26
c) Al-Qawid Al-Manzmah by Shihb-ud-Dn Ahmad Ibn Muhammad
Ibn Imd Al-Masriy Ibn Al-Him Al-Maqdesiy (d.815/1412),27

25

Abul-Falh Abdul-Hiy Ibn Al-Imd, Shazart-udh-Dhahab f Akhbr men Dhahab, Vol. 9, p. 71. Shazart-udhDhahab f Akhbr man Dhahab, verified by Mahmd Al-Arnat and authenticated by Abdul-Qdir Al-Arnat.
Damascus: Dr-Ibn Kathr Press, Volume 11, 1st. ed. 1406/1986.
26

The previous source, Vol. 9, p. 117.

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d) Al-Qawid by Taqiy-ud-Dn Ab Bakr Al-Husniy (d.829/1452),28


e) Nazm Adh-Dhkhir f Al-Ashbh Wan-Naz'ir by Sharaf-ud-Dn
Abdur-Rahman Ibn Al Ibn Is-hq Al-Khalliy Al-Muqdesiy, called
Shuqair, (d.876/1471) and,
f) Al-Qawid wa Ad-Dawbit by Yusuf Ibn Hasan Ibn Ahmad called Ibn
Al-Mabred As-Slah Abdul-Hd (d.880/1475).

The Tenth Century


a) Imm Jallud-dn as-Seyt (d.911/1505) who collected scattered
Qawid in his book Al-Ashbh Wan-Nazir,
b) Imm Ab Al-Hasan Ar-Raqq An-Najbiy Al-Malikiy (d.912/1506) who
rearranged Al-Qawid from the old books and
c) Imm Ibn Nujaim (d.970/1562) were the prominent scholars who
emerged during this century.
Recording, organizing and paraphrasing Al-Qawid Al-Fiqhiyyah gradually
became successful, but they were mixed with other sciences. The most
significant event of the last part of the 11th century A.H. was the collecting of
Al-Qawid Al-Fiqhiyyah and putting them in Majallat Al-Ahkm Al-Adliyyah
by the prominent jurists in the age of Sultan Abdul-Azz Khn Al-Uthmniy
so as to be applied as laws in the different courts. The Majallah helped to
instigate and further the movement of Al-Qawid Al-Fiqhiyyah. It included
1851 articles in 16 volumes, and was explicated more than once in different
works:
a) Mirt Majallatul-Ahkm Al-Adliyyah by Sud Afand in Arabic, but
the Qawid were written in Turkish, and published in (1299/1881).

27

The previous source, Vol. 9, p. 163.

28

The previous source, Vol. 9, p. 273.

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b) Durar Al-Hkkm Sharh Majallat Al-Ahkm by Al Hiydar, it was


translated from Turkish to Arabic by Fahm Al-Husain, a lawyer.
c) Sharh Al-Majallah was recorded by Imm Khlid Ibn Muhammad Ibn
Abdus-Sattr Al-Ats (d.1326/1908) and his son Muhammad
completed this work after his father's death.

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The Most Significant Madhhib Books



Hanafiy Madhhab
The Hanafiy Madhhab is considered the oldest Madhhab and it has a number
of books in this field:
a) Usl Al-Karkhiy was written by Imm Abaidullh Ibn Al-Hasan Ibn
Dall known as Ab Al-Hasan Al-Karkhiy from Iraq (d.340/951). Each
Qidah begins with a word Al-Asl (in principal) and includes 36
Qidah. 29
b) Tass An-Nazar was written by Ubaidullh Ibn Umar Ibn s Al-Qd
called Ab Zaid Ad-Dabsiy (d.430/951) from ad-Dabsiyyah (a small
town), between Bukhar and Samarqand, and the book comprised 68
Qidah.30
c) Al-Ashbh Wan-Nazir was written by Imm Zain-ud-Dn Ibn Ibrhm
Ibn Muhammad called Ibn Nujaim (d.970/1563) from Egypt. This book
includes 25 Qidah31 and it was explicated and commented by 25 books;
some of them are:

29

Muhammad Abd-ul-Hiy Ibn Muhammad Ibn Abd-ul-Hlm Al-Laknaw, Al-Fawid Al-Bahiyyah f Tarjim
Al-Hanafiyyah, pp. 108-109, in Al-Qawid Al-Fiqhiyyah Mafhmuh Nashatuh Tatawuruh Drsit
Mualaftuh Adillatuh Muhemmatuh Tatbiqtuh, ed. by Dr. Al Ahmad An-Nadaw, pp. 162-163. Damascus:
Dr Al-Qalam Press, 6th. ed., 1425/2004.
30

Az-Zarkkal, Al-Alm, Vol. 4, p. 109.

31

Al-Fawid Al-Bahiyyah, by Al-Laknaw, p. 135, in Al-Qawid Al-Fiqhiyyah, ed. by Dr. An-Nadaw, pp. 169170.

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- Tanwr Al-Basir al Al-Ashbh Wan-Naz'ir was written by Imm


Abdul-Qdir Ibn Barakt Ibn Ibrahm known as Sharaf-ud-Dn Al-Ghazz
or Ibn Habb (d.1005/1597)32and
- Ghamz Uyn Al-Basir Sharh Al-Ashbh Wan-Nazir was written by
Imm Ahmad Ibn Muhammad Al-Hamawiy (d.1098/1687).33
d) Khtimet Majmi Al-Haqiq was written by Imm Muhammad Ibn
Muhammad Ibn Mustaf Al-Khadem known as Ab Sad Al-Khadem
(d.1176/1762).34
e) Qawid Majallat-ul-Ahkm Al-Adliyyah was written by a committee
of scholars of the Ottoman State.

32

Az-Zarkkal, "Al-Alm, Vol. 4, p. 162, in Al-Qawid Al-Fiqhiyyah, ed. by Dr. An-Nadaw, p.172.

33

Abdullh Mustaf Al-Margh, Al-Fath Al-Mubn f Tabaqt Al-Usliyyn, Vol. 3, p. 110, in Al-Qawid AlFiqhiyyah, ed. by Dr. An-Nadaw, pp.172-173.
34

Al-Fath Al-Mubn, by Al-Margh, Vol. 3, p. 116, in Al-Qawid Al-Fiqhiyyah, ed. by Dr. An-Nadaw,
pp.176-177.

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Mlikiy Madhhab
a) Usl Al-Futiy f Al-Fiqh al Madhhab Al-Imm Mlik was written by
Imm Muhammad Ibn Hrith Ibn Asad Al-Khushan (d.361/972). He
would frequently consider a word Kull
( , all or every) as Qidah
or Dbit. 35
b) Anwr AL-Borq f Anw Al-Furq, is a splendid work including 548
Qidah by Imm Ab Al-Abbs Ahmad Ibn Abul-All Idrs Ibn AbdurRahmn who was called Al-Qarafiy (d.684/1285) from Egypt. 36
c) Al-Qawid by Imm Muhammad Ibn Muhammad Ibn Ahmad AlMaqqariy (d.758/1357) from Maqqr (a town in Africa) and it includes
1200 Qidah.37
d) Idh Al-Maslik el Qawid Al-Imm Malik by Ahmad Ibn Yahiy Ibn
Muhammad At-Tilmisaniy Al-Wanshrsiy called Al-Wenshrisiy
(d.914/1508). The book includes 118 Qidah most of them serve his
Madhhab.38
e) Al-Isf be at-Talab Mukhtasar Sharh Al-Manhaj Al-Muntakhab al
Qaw'id Al-Madhhab. The one who wrote the book Al-Manhaj AlMuntakhab al Qaw'id Al-Madhhab was Ab Al-Hasan Al Ibn AlQasm az-Zaqq Al-Fasiy (d.912/1506); yet the one who wrote the book

35

Muhammad Ibn Hrth Ibn Asad Al-Khushan, Usl Al-Futy f Al-Fiqh al Madhhab Al-Imm Mlik, p.31,
in Al-Qawid Al-Fiqhiyyah, ed. by Dr. An-Nadaw, p. 190.
36

Dr. Bakr Isml, Al-Qawid Al-Fiqhiyyah, pp. 22-23.

37 The previous source, p. 23.


38 The previous source, p. 24.

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Al-Isf be at-Talab (Al-Mukhtasar) was Ab Al-Qasm Ibn Muhammad


Ibn At-Tawan, a contemporary Malikiy scholar.39

Muhammad ibn Muhammad Makhlf Shajarat-un-Nr az-Zakiyyah f Tabaqt Al-Mlikkiyyah, p.274 in AlQawid Al-Fiqhiyyah, ed. by Dr. An-Nadaw, p. 208.
39

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Shafiiy Madhhab
a) Qawid Al-Ahkm f Maslih Al-Anm by Imm Izz-ud-Dn Ibn Abdus-Salm (d.660/1262)40
b) Al-Ashbb Wan-Nazir by Muhammad Ibn Umar Ibn Makkiy called
Ibn Al-Wakl Ash-Shfiiy (d.716/1316), but it was recorded by his
brother's son, Zain-ud-Dn (d.838/1434).41
c) Al-Majm Al-Madhhab f Qaw'id Al-Madhab by Imm Khall Kikild
known as Ab Said Al-Ali (d.761/1360), and he explained the fifth
Qawid Kulliyyah Kubr and did not go beyond more than other 20
Qidah.42
d) Al-Ashbh Wan-Nazir by Imm Abdul-Wahb Ibn Al Ibn Abdul-Kf
Ibn Al Ibn Tamm As-Subkkiy called Tj-ud-Dn (d.771/1369)43
e) Al-Manthr f Tartb Al-Qaw'id Al-Fiqhiyyah or Al-Qawid f AlFur by Imm Muhammad Ibn Bahder Ibn Abdullh known as Badrud-Dn Az-Zarkkashiy (d.745/1344).44 This book includes 100 Qidah.
f) Al-Ashbh Wan-Nazir by Imm Umar Ibn Al Ibn Ahmad Al-Ansriy,
called Ibn Al-Mulaqqen (d.804/1401).45

40 Ibn Al-Imd, Shazart-udh-Dhahab, Vol. 7, p. 522.


41

Abd-ul-Wahhb Ibn Al Ibn Abd-ul-Kf As-Subkkiy, Tabaqt ash-Shafiiyyah Al-Kubr, Vol. 9, pp. 255253, in Al-Qawid Al-Fiqhiyyah, ed. by Dr. An-Nadaw, p. 215.
42

Ibn Al-Imd, Shazart-udh-Dhahab, Vol. 9, pp. 28-29.

43

The previous source, Vol. 8, p. 378.

44

The previous source, Vol. 8, p. 572.

45

The previous source, Vol. 9, p. 71.

| P a g e 24

g) Al-Ashbh Wan-Nazir by Imm Abdur-Rahmn Ibn Ab Bakr Ibn


Muhammad As-Seyt, called Jall-ud-Dn but known as As-Seyt
(d.911/1505).46

46

The previous source, Vol. 10, pp. 75.

| P a g e 25



Hanbaliy Madhhab
a) Al-Qawid An-Nurniyyah Al-Fiqhiyyah by Imm Ahmad Ibn AbdulHalm Ibn Abdus-Salm Ibn Abdullh Ibn Tiymiyyah.47
b) Al-Qawid Al-Fiqhiyyah by Ahmad Ibn Al-Hasan Ibn Abdullh called
Sharaf-ud-Dn, and known as Ibn Qd Al-Jabal (d.871/1467). Most of
the Qawid of this book support the Madhhab.48
c) Taqrr Al-Qaw'id wa Tahrr Al-Fawid by Imm Abdur-Rahmn Ibn
Shihb Ibn Ahmad Ibn Ab Ahmad Rajab called Ibn Rajab Al-Hanbaliy
(d.795/1393). He constructed his researches on 260 Qidah.49
d) (Khatimah) Mughn Dhuw-ul-afhm an Al-Kutob Al-Kathrah f AlAhkm by Yusuf Ibn Hasan Ibn Ahmad Ibn Abdul-Hd was surnamed
by Jaml-ud-Dn, and called Abdul-Hd (d.909/1503)50
e) Qawid Majalat al-Ahkm Ash-Shariyyah al Madhhab Al-Imm
Ahmad Ibn Hanbal by Ahmad Ibn Abdullh Ibn Sheikh Muhammad
Bashr Al-Qr (d.1359/1940).51

47

Ibn Al-Imd, Shazart-udh-Dhahab, Vol. 8, pp. 142.

48 The previous source, Vol. 8, pp. 376.


49 The previous source, Vol. 8, pp. 396.
50 The previous source, Vol. 10, p. 62.
51

The researchers' preface of the book Qawid Majalat-ul-Ahkm Ash-Shariyyah al Madhhab Al-Imm
Ahmad Ibn Hanbal, pp.64-67, in Al-Qawid Al-Fiqhiyyah, ed. by Dr. An-Nadaw, p. 262.

| P a g e 26

Chapter 2

The Sources, Mission and Position of Al-Qidah Al-Fiqhiyyah in


issuing Fatwa

| P a g e 27

Sources of Al-Qawid Al-Fiqhiyyah


1. The Quran and the Sunnah text ():
a. yah (, verse) or Hadth that has been taken as a Qidah Fiqhiyyah
or,
b. yah or Hadth that includes general ruling from which the jurists
obtained a Qidah Fiqhiyyah or more.

Examples for (a):


From the Quran:
Allh ( )says in the Noble Qurn:
...

...(

..and Allh has permitted trading and forbidden Rib (


, usury)52
(Srah 2. Al-Baqarah, yah 275)

This yah permits lawful trading and forbids usury.


From the Sunnah:





:

. ) ( :



.) ( :



52

Usury, which is of two major kinds: (a) Rib an-Nasah, i.e. interest on lent money; (b) Rib al-Fadl, i.e. taking
a superior thing of the same kind of goods by giving more of the same kind of goods of inferior quality, e.g., dates of
superior quality of dates of inferior quality in greater amount. Islam strictly forbids all kinds of usury.

| P a g e 28

Narrated Is-hq that Khlid that Ash-Shiybn that the father of Sad ibn
Burdah that Ab Ms Al-Ashar : Allh's Messenger said,:
Kull musker harm [Every musker ( , whatever intoxicates or causes
drunkenness) is Harm ( ,
unlawful)]53.

An Example for (b):


The maxim, Qidah,:



(Al-umr be maqsideh) Acts are judged by the intention behind them
or take the will for the deed,
Is extracted from a number of texts from the Qurn and the Sunnah.

2. The Analogy Qiys ():


The maxim,Qidah, :


(Al-majhl kal-madm) An unknown object is similar to a nonexistent
one,
if an unknown object was compared against a nonexistent object, both of them
take the same judgment since neither can be obtained.

53

Sahh Al-Bukhr, chapter: Rulers assigned in one place should cooperate with one another, 4087; and Sahh
Muslim, 5332.

| P a g e 29

3. The Indication Dallah ():


(literally means asking for evidence or proof54; however, it
Istidll )
practically (in this field) means giving evidence or proof which does not
,
directly extracted from a text (from the Qurn or Sunnah), Ijm (
consensus) or Qiys.
An example of that is a maxim, Qidah says:


(Al-asl bartudh-dhimmah) Non-liability or man is absolved from guilt,
blame or responsibility for any wrong deed in principle,.

4. The Favouring Tarjh ( ) :


When evidence hinders one another, one of them tends to take priority over
the other, in the eyes of the Faqh (, a jurist).55

54

Al Ibn Muhammad Ibn Al Aj-Jerjn, At-Tarift, p. 193. Beirut, Lebanon: Dr Al-Kitb Al-arabiy Press, 1st.
ed., 1405/1985.
55

A learned man who can give religious verdicts.

| P a g e 31

Mission of Al-Qawid Al-Fiqhiyyah


Familiarity with the Qawid Fiqhiyyah may save a person from committing
the branches (Fur) and particles (Juziyt) to his memory, Imm Al-Qarfiy
said.56 Imm Az-Zarkkashiy, in addition, stated that Al-Qawid Al-Fiqhiyyah
are the way to preserve the Fiqh and assemble its different parts.57 Imm AsSeyt stated that Al-Qawid Al-Fiqhiyyah enable a jurist to answer dissimilar
Nawzel (
, new questions related to recent events).58
The mission of Al-Qawid Al-Fiqhiyyah can be stated as follows:
i.

To Simplify and to assemble the branches (Fur) of Islamic Fiqh.

ii.

To extract and organize different branches of rulings (Ahkam) under


one topic in order to avoid contradictions.

iii.

To assist scholars to infer replies to Nawzel.

iv.

To allow scholars to compare between various Madhhib.

v.

To prove that Islamic Fiqh encompasses any community, everywhere


anytime and everytime.

56

Al-Qarfiy, Anwr AL-Borq, Vol. 1, p. 7.

57

Ahmad Ibn Abdullh Ibn Hamd, the researcher (in his preface) of the book Al-Qawid, ed. by Muhammad Ibn
Muhammad Ibn Ahmad Al-Maqqriy, Vol. 1, p.114. Saudi Arabia: Omm Al-Qur University, Islamic Researches
Institute, printed no. 4000250.
58

As-Seyt, Al-Ashbh Wan-Nazir, p.326 .

| P a g e 31



The Position of Al-Qawid Al-Fiqhiyyah in Issuing Fatwa and Ahkm
Is it permissible to consider Al-Qawid Al-Fiqhiyyah as one of the
Adellah Shariyyah?59
Can Al-Qawid Al-Fiqhiyyah be among the proofs that infer Ahkm
( , Judgments)?
Al-Qawid Al-Fiqhiyyah have been the focus of scholars' attention, and their
Fatwa ( , legal opinions of Islamic Law) continuously until our present
time. Numerous Qawid Fiqhiyyah included in the books of Imms (who give
Fatwa) and the magistrates are not in the books of Usl Al-Fiqh, Imm AlQarfiy stated.60

Is it permissible to consider Al-Qawid Al-Fiqhiyyah as one of


the evidences (Adellah Shariyyah) for judgments (?)
Sheikh Mustaf Az-Zurqq stated that Al-Qawid Al-Fiqhiyyah handle Fiqh and
have many exceptions, but they are not Nuss ( , texts from the Qurn or
Sunnah) used for judgments.61

59

Shriah's sources i.e. Qurn, Sunnah and Ijmthere are other sources but there is no consensus on them.

60

Al-Qarfiy , Anwr AL-Borq, vol. 2, p.110.

61 Dr. Mustaf Ahmad Az-Zurqq, Al-Madkhal Al-Fiqhiy Al-mm, Vol. 2, pp.966-967, chapter 79, passage 4.
Damascus: Dr-Al-Qalam Press, 1418/1998.

| P a g e 32

A jurist can issue a Fatwa or a judgment based on a Qidah Fiqhiyyah, since


Al-Qawid Al-Fiqhiyyah are definitely based on direct/indirect evidence
coming from the Qurn or/and Sunnah.62
- If the maxim (Al-Qidah) was an exact text ( )from the Qurn or
the Sunnah ---- the maxim (Al-Qidah) can be used as a proof for a
judgment or ()
- If the maxim (Al-Qidah) was derived from fully agreed on proofs,
the Qurn, the Sunnah, or consensus ()---- the proof of the
maxim (Al-Qidah) can be used as a proof for a judgment or ()
- If the maxim (Al-Qidah) was derived from not fully agreed on
proofs, ( Qiys,

Istis-hb63,
Maslahah64 or Urf
65, etc.) ---- the proof of the maxim (Al-Qidah) can be used as a
secondary proof for a judgment or ()
- If the maxim (Al-Qidah) was derived by ways of Ijtihad, ---- the
proof of the maxim (Al-Qidah) can be used as a proof for a judgment or
().66

62 Dr. Ar-Rokk, Nazariyat-ut-Taqd Al-Fiqhiy, pp. 36-38.


63

The first state of a specific case or matter.

64

An unspecified public interest.

65

Tradition, custom, institution, and so on.

66

Dr. An-Nadaw, Al-Qawid Al-Fiqhiyyah, p.331.

| P a g e 33

Part II.

Al-Qawid Al-Fiqhiyyah (Legal Maxims of Islamic


Jurisprudence) and Related Vocabulary

| P a g e 34

(Al-Qidah Al-Fiqhiyyah and Ad-Dbit Al-Fiqhiy)


Differences between the Legal Maxim of Islamic Jurisprudence and
the Controller of Islamic Jurisprudence
Ad-Dbit ( )literally means a block, which prevents things or matters
from coming through or a controller that preserves and control strictly.67
In the context of Islamic law, Ad-Dbit (
)is defined as the total rule
which controls a set of branches (Fr( ))that belong to one chapter
of Fiqh.68
Scholars have differentiated between Al-Qidah Al-Fiqhiyyah and Ad-Dbit AlFiqhiy (
, a controller of Fiqh) as follows:
1. Imm Ibn Nujaim69 said, The difference between Ad- Dbit and AlQidah is that Al-Qidah Al-Fiqhiyyah has embraced Fr from several
chapters of Fiqh, whereas Ad-Dbit has included Fur from one chapter
of Fiqh.70

67

Muhammad Ibn Yaqb Al-Fairozabad, Al-Qms Al-Muht, p.911. Beirut, Lebanon: Dr Ihy Al-Turth AlArabiy, 2nd. ed., 1420/2000.
68

Dr. Musfir Ibn Al Ibn Muhammad Al-Qahtniy, Manhaj Istinbt Ahkm An-Nawzil Al-Fiqhiyyah AlMuahsirah, p.448. Saudi Arabia: Omm Al-Qur University, printed no. 30102000003768.
69

Zain-ud-Dn Ibn Ibrhm Ibn Muhammad among the greatest scholars of Hanafiy Madhhab (d.970/1562) and have
written several books such as Al-Ashbh wan-Nazir, Al-Bahr ar-Riq f Sharh Kanz Ad-Daqiq, Ar-Rasil azZeiniyyah, etc. See Al-Alm by Az-Zarkkal, Vol. 3, p. 64.
70

Muhammad Amm-ul-Ihsn Al-Barakt Al-Mujaddadiy, Qawid Al-Fiqh, p. 50. Karachi: As-Sudf Publishers
Press, 1407/1986.

| P a g e 35

2. Imm as-Seyt71 said, Al-Qidah Al-Fiqhiyyah includes Fr from


several chapters of Fiqh, whereas Ad-Dbit Al-Fiqhiy contains Fr from
one chapter.72
3. Perhaps the two previous definitions were taken from that of Imm AsSubkkiy who said, Most likely, Ad-Dbit Al-Fiqhiy is appointed to
organize similar cases of one chapter of Fiqh.73
Hence the main two distinctions between Al-Qidah Al-Fiqhiyyah and AdDbit Al-Fiqhiy are:
1. Al-Qidah Al-Fiqhiyyah is more general and comprehensive than AdDbit Al-Fiqhiy since the former includes several chapters of Fiqh,
whereas the latter contains only one.
2. Al-Qidah Al-Fiqhiyyah has more exceptions than Ad-Dbit Al-Fiqhiy
which controls one chapter of Fiqh, so there is not much room for
exceptions.
Some scholars, on the other hand, did not differentiate between Al-Qidah AlFiqhiyyah and Ad-Dbit Al-Fiqhiy. An example of those is Imm An-Nbolsiy74.
Following are some examples that demonstrate the difference between AlQidah Al-Fiqhiyyah and Ad-Dbit Al-Fiqhiy.

71

Abdur-Rahmn Ibn Ab Bakr Ibn Muhammad Ibn Sbiq-ud-Dn Al-Khudair Jall-ud-Dn among the greatest
scholars and historians and he authored about 600 books. Born in Cairo (d.911/1505). See Al-Alm by AzZarkkal, Vol. 3, p. 301.
72

As-Seyt, Al-Ashbh Wan-Nazir, p.47.

73

Abd-ul-Wahhb Ibn Al Ibn Abd-ul-Kf As-Subkkiy, Al-Ashbh Wan-Nazir, p. 21. Beirut, Lebanon: Dr
Al-Kutub Al-Ilmmiyyah Press, Volume 2, 1st. ed., 1411/1991.
74

Abdul-Ghan Ibn Isml Ibn Abdul-Ghan, a great scholar of religion and literature born in Damascus
(d.1143/1731). See Al-Alm by Az-Zarkkal, Vol. 4, p. 32.

| P a g e 36

Ad-Dbit Al-Fiqhiy from the Sunnah:


Each of the following Hadth represents Dbit Fiqhiy in its subject and covers a
specific chapter:







( :
:


.)

Narrated Qutiybah, Sufyn ibn Uyaynh and Abdul-Azz ibn Muhammad that
Ziyd ibn Aslam that Abdur-Rahmn ibn Walah that Ibn Abbs :
Allh's Messenger said, Whichever animal skins be tanned, they
grow Thir ( , pure or clean).75
The above Hadth stands for Dbit Fiqhiy in its subject (
, Tahrah or
purification) and covers an specific chapter of Tahrah.76






( :

.)
Narrated Suleimn ibn Harb that Shubah that Qatdah that Salh Ab Al-Khall
that Abdullh ibn Al-Hrith that Hakm Ibn Hizm :
Allh's Messenger said, The seller and the buyer have the right to
keep or return the goods as long as they have not parted or till they part. And
if both the parties spoke the truth and described the defects and qualities (of
75

It is hasan (good) hadth, Al-JmiAs-Shh Sunan At-Tirmidh, chapter: The dress, 1728, verified by Ahmad
Shker and others, and it is authenticated by Nsir-du-Dn Al-Albniy. Beirut, Lebanon: Dr Ihy At-Turth Alarabiy Press. Volume 5.
76

Dr. Muhammad Bakr Isml, Al-Qawid Al-Fiqhiyyah baiyn Al-Aslah Wat-Tawjh, p.8. Cairo, Egypt: Dr AlManr Press, 1st. ed., 1417/1997.Egypt: Dr Al-Manr Press, 1st. ed., 1417/1997.

| P a g e 37

the goods), then they would be blessed in their transaction, and if they told
lies or hid something, then the blessings of their transaction would be lost. 77
Similarly, the above Hadth represents a Dbit Fiqhiy in its subject (selling)
and covers a specific chapter of selling and trading.
Ad-Dbit Al-Fiqhiy from the sayings of the Fuqah ( , jurists):
It was narrated that Mujhid (a disciple of Ibn Abbs (d.104/722))78
said, There should be Ushr (a 10% levy) upon whatever is produced
from the ground, more or less, whether the soil be watered by the
overflow of rivers or by periodical rains.79
It is known in Malikiy Madhhab's books more than others that there is a
Dbit Fiqhiy that specifies: Water is Thir (pure or clean), as long as its
color, smell or taste does not change because of a substance which
cannot be separated.
It is noteworthy to mention that the terminologies of Al-Qidah Al-Fiqhiyyah
and Ad-Dbit Al-Fiqhiy were not distinguished by scholars except in later
centuries.

77

Summarized Sahh Al-Bukhar Arabic-English, chapter: Bargains, 996. by Dr. Khn, Muhammad Muhsin. Riadh,
Saudi Arabia: Dar-us-Salm Press, 1415/1994.
78

Mujhid Ibn Jbir Ab Al-Hajjj Al-Makkiy, one of the greatest Imms of Explanation of the Qurn, see Sayar
Alm An-Nubal , Muhammad Ibn Ahmad Ibn Uthmn Adh-Dhahab, Vol. 4, p. 449. Verified by Shuiyb AlArnat. Beirut, Lebanon: Ar-Rislah Foundation Press, 1413/1993.
79

Al-Qsim Ibn Salm, Kitb Al-Amwl, p. 674 in Al-Qawid Al-Fiqhiyyah by Dr. An-Nadaw, p. 49. Zakh
means a certain fixed proportion of the wealth (2 %) of every Muslim to be paid yearly for the benefit of the poor
in the Muslim community. The payment of Zakh is obligatory as it is one of the five pillars of Islam. Zakh is the
major economic means for establishing social justice and leading the Muslim society to prosperity and security.

| P a g e 38

(Al-Qidah Al-Fiqhiyyah and An-Nazariyyah Al-Fiqhiyyah)


Differences between the legal maxim of Islamic law and the theory
of Islamic law
An-Nazariyyah ( )literally means the theory, and it practically means:
The set of conceptions that are connected together, to prove the logical
relationship between a set of premises and their outcomes.
Following are two opinions of Scholars concerning An-Nazariyyah AlFiqhiyyah ()
The First one:
- It is the large constitutions and conceptions forming a legal subjective
system spreading in Islamic Fiqh. The elements of that system control
sorts of judgments relating to the subject of that system such as the
Notion of Ownership (and its reasons), the Notion of Contract (and the
rules and results of the contract), the Notion of the Legal Capacity (and
its opposites), and so on, Sheikh Mustaf Az-Zurq stated.80
- It is a group of similar judgments combined by one analogy or one
controller such as the Rules of Ownership (in Sharah) and the Rules of
Guarantee. It is the fruit of the separated parts of Islamic Fiqh that a
jurist ties them by Qidah (governs these separated parts) or by
Nazariyyah (combine them), Sheikh Muhammad Abu Zahrah stated.81
The Second one:
The theory or An-Nazariyyah ( )term does not come from our Sharah
and it does not represent a meaningful description as do the acceptable
80

Az-Zurqq, Al-Madkhal, Vol. 1, p.253

81

Muhammad Ahmad Mustaf Ahmad Ab Zahrah, Usl Al-Fiqh, p. 10, Dr AL-l-Fikr Al-Arabiy, 1377/1958.

| P a g e 39

Islamic terms and vocabulary. For example, we, Muslims, do not know
ownership through research or study rather through Islam: Allah, glory be to
Him, has granted His slaves the right of ownership and descended bases of
such in His Book and through His Messengers tongue ; the nearest
proof of that is this yah:
...

He it is Who created for you all that is on earth


(Srah 2. Al-Baqrah, yah 29)

, Tradition) is an Islamic secondary proof, in the eyes of


In fact, Al-Urf (
Usliyyn ( , Scholars trust texts) and Jurists, and is proved true as
Hujjah ( , a reliable proof) by many Adellah Shariyyah () . So, why
people should say,
, Theory of tradition) instead of Dall AlNazariyyah Al-Urf (

Urf (
, Proof comes from tradition),
, Right of making a contract) instead of not
Haqq Al-Aqd (
Nazariyyah Al-Aqd ( , Theory of making a contract),
Wjib Al-Iltizm (
, Duty of fulfillment) instead of Nazariyyah
, Theory of fulfillment) and so on.82
Al-Iltizm (

Therefore, Al-Qidah Al-Fiqhiyyah might be deemed Dbit (controller) of
Fiqh for An-Nazariyyah Al-Fiqhiyyah.
For instance, Qidah Fiqhiyyah saying:

82

Dr. Al-Born, Al-Wajz, pp.91-93.

| P a g e 41

(Al-ibrah f al-uqd be al-maqasid wa al-man l be al-alfz wa almabn) The crucial point in contracts is their goals and meanings not
their words or forms, is simply Dbit Fiqhiy in a particular aspect of
Nazariyyah al-Aqd and so on. The Nazariyyah Fiqhiyyah, thus, may embrace
Al-Qawid Al-Fiqhiyyah, and an-Nazariyyah may be preponderant Qidah
, plural of Nazariyyah) associated by one tie
including many Nazariyyt (
such as Nazariyyah ad-Darrah (
, Theory of necessity) and

Nazariyyah al-Urf (Theory of tradition) which encompass many Qaw'id.83 It
is important to note that there are scholars who never separate Al-Qidah AlFiqhiyyah from an-Nazariyyah Al-Fiqhiyyah.
In conclusion:
Al-Qidah Al-Fiqhiyyah are different from an-Nazariyyah Al-Fiqhiyyah in:
i. It is a Shriy ( , Islamic) Hukm/matter/case while an-Nazariyyah AlFiqhiyyah is a study that assembles subjects and Ahkm of Islamic Fiqh.
ii.

To establish Al-Qidah Al-Fiqhiyyah, it needs one of Islamic sources (i.e.


the Qurn, Sunnah or Ijm); however, an-Nazariyyah Al-Fiqhiyyah could
only need the study of written works of Islamic Fiqh.

iii.

An-Nazariyyah is a matter that is logically authenticated by proofs but


Al-Qidah is established by proofs or Adellah Shariyyah.

iv.

Scholars have inferred Al-Qawid from texts of the Qurn, Sunnah


and/or goals of Sharah for establishing Ahkm for clear questions and
cases. An-Nazariyyah, however, has been contingent on the souls and
intellects views, which are subjected to true/false.

v.

Al-Qidah Al-Fiqhiyyah contains, in itself, Hukm, which judges all


branches of such a Qidah. For example the Qidah :

83

The previous source, pp. 11-12.

| P a g e 41

vi.

(Al-yaqn l yazl be ash-shakk) (Certainty is not overruled by


doubt,, holds a Hukm in every case including certainty and doubt. Such
is contrary to an-Nazariyyah Al-Fiqhiyyah which does not hold Hukm in
itself like Nazariyyah Al-Melkiyyah ( , Theory of ownership)
and so on.
An-Nazariyyah Al-Fiqhiyyah includes pillars and conditions contrary to
Al-Qidah Al-Fiqhiyyah.

| P a g e 42

(Al-QidahAl-Fiqhiyyah and Al-Qidah Al-Usuliyyah)


The Differences between the legal maxim of Islamic law and the
legal maxim, which belongs to methodology in Islamic
jurisprudence
Perhaps, the first one who made a distinction between Al-Qidah Al-Fiqhiyyah
and Al-Qidah Al-Usuliyyah (methodology in Islamic Law) was Imm AlQarfiy84 who said, The great Sharah has included Usl ( plural of Asl:
origin) and Fur of Islamic Law. Besides, Usl of Sharah are divided into two
parts. The first part is called Usl Al-Fiqh ( methodology in Islamic
Law) and most of it are Qawid eliciting rules from Arabic words. These
Arabic words usually encounter An-Naskh ( , Abrogation) and Tarjh
( , favouring) such as Al-Amr ( , ordainment) that means obligation
and An-Nahyu (
, prohibition) that means prevention, and so on. The
second part is Qawid Fiqhiyyah Kulliyyah (Normative legal maxims) that
embraces secrets and the wisdom of the Sharah; and each Qidah contains
countless branches of Islamic Law which are not mentioned in Usl Al-Fiqh.85
Following are some of the differences between Al-Qidah Al-Fiqhiyyah and AlQidah Al-Usuliyyah:
1. Al-Qidah Al-Fiqhiyyah is an all-inclusive or a preponderant case and its
parts are some questions of Fiqh. Besides, its subject is always an action
of a man, whereas Usl Al-Fiqh are Dbit (a controller) of Fiqh and a
balance of correct deduction.
2. Al-Qawid Al-Usuliyyah are all-encompassing and general, including all
their parts and subjects; however, Al-Qawid Al-Fiqhiyyah are
84

Ab Al-Abbs Shihb-ud-Dn Ahmad Ibn Idrs As-Sanhjiy among the greatest scholars of Mlikkiyyah born
and died in Cairo (d.684/1285). See Al-Alm by Az-Zarkkal, Vol. 1, pp. 94-95.
85

Al-Qarfiy, Anwr AL-Borq, Vol. 1, p. 7.

| P a g e 43

preponderant, including most their parts and they have some


exceptions.
3. Al-Qawid Al-Fiqhiyyah, deals with branches of Islamic Law, while AlQawid Usliyyah is independent of Islamic Laws branches, since an
independent scholar must abide by them in order to infer one rule or
more from sources of Sharah.
4. Al-Qidah Al-Fiqhiyyah and Al-Qidah Al-Usuliyyah include Juziyyat.
5. Al-Qawid Al-Fiqhiyyah are the cases that Ahkm of Fiqh fall under.
These Ahkm of Fiqh are concluded by independent scholars based on
the methodologies of Usl Al-Fiqh. If a jurist considers them as partial
Ahkm, then they are not Qawid Fiqhiyyah. If, however, they were
considered as all-inclusive cases (under them partial Ahkm fall), then
they are Qawid Fiqhiyyah.

| P a g e 44




(Al-Ashbh Wan-Nazir)
Definition of the similar matters and the counterparts
)is the plural of Shebh ( ) or Shabah ( ) which
Al-Ashbh (
literally means similitude and resemblance.
Imam An-Nasafiy86 said, If an incident or a case, has no solution or an answer,
we resort to its Shabah (a similar) incident and case which already have a
solution or an answer.87
Al-Nazir ( ), on the other hand, is the plural of Al-Nazr (
)
which linguistically means an equal or a counterpart. Although linguists
, a similar one) and
consider Al-Mathl ( , match), Ash-Shabh (
An-Nazr (a counterpart) as having one meaning, jurists do not. They state
the difference between the terms as follows:
Al-Mumthalah ( , exact equivalence) necessitates equality on all
aspects of a particular matter.

, likeness) necessitates sharing in most aspects.


Al-Mushbahah (
Al-Munzarah ( , not exact equivalence) necessitates sharing at least
one aspect of a specific matter.

86

Nejm-ud-Dn Umar Ibn Muhammad Ibn Ahmad Ibn Isml Ab Hafs As-Samarqandiy An-Nasafiy
(d.537/1142). See Al-Alm by Az-Zarkkal, Vol. 5, pp. 60-61.
87

Nejm-ud-Dn Umar Ibn Muhammad Ibn Ahmad Ibn Isml Ab Hafs As-Samarqandiy An-Nasafiy, Talabt AtTalabah f Istilaht Al-Fuqah p. 130. Verified by Khlid Abdur-Rahmn. Beirut, Lebanon: Dr an-Nafis Press,
1st. ed. 1416/1995.

| P a g e 45

Numerous books were written under the title Al-Ashbh Wan-Nazir.


Following are some examples of these books:
i. Imm Muqtil Ibn Suleimn Al-Balkh (d.150/767), wrote Al-Ashbh
Wan-Naz'ir f Tafsr Al-Qurn Al-Azm in the first century A.H.
ii.

Al-Khlid Ibn Ab Bakr (d.380/990) and Ab Uthmn Sad


(d.390/1000) wrote Al-Ashbh Wan-Naz'ir men Ashr AlMutaqademn wa Al-Jahiliyyah wa Al-Mukhadramn.

iii.

Imam As-Seyt wrote Al-Ashbh wan-Naz'ir f An-Nahw.

iv.

At the beginning of the eighth century A.H., jurists wrote in Al-Qawid


Al-Fiqhiyyah such as Ibn Al-Wakl88 and Ibn Nujaim Al-Hanafiy.

v.

Some examples in the science of Al-Qawid Al-Fiqhiyyah, were written


by Imam Jallud-Dn As-Seyt in his book Al-Ashbh Wan-Naz'ir f
Qaw'id wa Fur Fiqh Ash-Shafiiyyah.

The studying of Al-Ashbh Wan-Nazir helps scholars develop the ability to


distinguish the exact meaning of words that could have the same meaning if
they were used alone in one context, and different meanings when they are
used in the same paragraph or context. Following are some examples of that:
, the
A. Faqr ( , the poor person who does not beg) and Miskn (
poor person who begs),89
, polytheist),
B. Kafr ( , disbeliever) and Mushrik (
88

Ab Abdullh Muhammad Ibn Abdullh Ibn Umar Ibn Makk ash-Shafiy born and died in Egypt called Ibn
Al-Murhal, a great Faqh and Poet (d.716/1316). See Al-Alm by Az-Zarkkal, Vol. 6, p. 314.
89

Imm Mlik said this explanation, in the book of ibn Sahnn; this is the fourth opinion out of nine opinions. See
Al-Jmi le Ahkm Al-Qurn by Ab Abdullh Muhammad ibn Ahmad Al-Ansriy Al-Qurtubiy (d.176/1273).
Cairo: Dr Ash-Shab, Volume 8.

| P a g e 46

, Faith and trust in Allh ) and Islm


C. Imn (
) is not similar to Al-M Al-Mutlaq (
) .


D. Mutlaq Al-M (
The former means water in general (pure/impure), but the latter means
specific water (pure water).
E. Opinions, in Usl Al-Fiqh, are varied in the meaning of An-Naskh ( ,
,
Abrogation) i.e. is it Raf ( , Termination) or Al-Bayn (
disclosure or revelation).

| P a g e 47

(Al-FurqAl-Fiqhiyyah)
Realizing separate matters between two similar questions
At the beginning of the fourth century, Al-Qawid Al-Fiqhiyyah became an
autonomous science. Through the following, we will try to realize the meaning
, Differences).90 Umar Ibn Al-Khattb was called Alof Furq (
)because he was the one who distinguished the true (Islm)
Farq (
from falsehood (disbelief).91
However, the science of Al-Furq practically means realizing separate matters
between two similar questions.92
Probably, the first one who had written in this topic was Imam Ibn Serdj93.
The mission of this science is to disclose the discrepancies of the causes and
rules in the fiqh questions that are closely related to each other, or the
questions that are similar only in their forms.
An example would be in the question whether a piece of speech is considered
a Shahdah ( , testimony) or a Riwyah ( , narration of the Hadth of the
news), but they are different in the
Prophet ) both are Akhbr ( ,
following:

90

Plural of Farq and it literally means differences.

91

Al-Fairozabad, Al-Qms Al-Muht, p.1215.

92

Muhammad Ysn Ibn sah Al-Fadn, Al-Fawid Al-Jenniyyah Hshiyat Al-Mawhib As-Sunniyyah al AlFarid Al-Bahiyyah, Vol. 1, p. 1 in Al-Qawid Al-Fiqhiyyah, ed. by Dr. Nn-Nadaw, p. 68.
93

Ahmad Ibn Umar Ash-Shfiiy the greatest Faqh of Shfiiyyah in his time born and died in Baghdad
(d.306/918). See Al-Alm by Az-Zarkkal, Vol. 1, p. 185.

| P a g e 48

1. Ar-Riwyah is a report from the Prophet , in contrast, AshShahdah belongs to the judge to prove judgments.
2. Ash-Shahdah needs more than one person, while Ar-Riwyah does not.
3. Ash-Shahdah requires only men in some cases, whereas Ar-Riwyah
does not.
4. Slaves are not allowed to bear the responsibility of Ash-Shahdah , while
in Ar-Riwyah they are allowed.
5. The one who repented from telling lies is not permitted to narrate
Hadth, but in Ash-Shahdah he is.
6. Ash-Shahdah comes after one person or some people file a lawsuit and
an official summons by the judge; however, Ar-Riwyah does not.
Finally, one can establish a similitude between Al-Furq Al-Fiqhiyyah and AlAshbh Wan-Naz'ir, where both of them handle branches of Fiqh or similar
questions. However, Al-Ashbh Wan-Nazir is wider in scope and it includes
Al-Furq Al-Fiqhiyyah.

| P a g e 49

Part III.




Al-Qawid Al-Kulliyyah Al-Kubr
(Normative Legal Maxims)

| P a g e 51

Al-Qawid Al-Kulliyyah Al-Kubr


(Normative Legal Maxims)
Most of the scholar agree on five maxims as Al-Qawid Al-Fiqhiyyah Al-the are
fifth Qawid as most scholars agree. A student may notice that Al-Qawid AlKubr. These five maxims or (Qawid) are considered the pillars of Islamic
Fiqh.
Imm As-Seyt mentioned that judge Hussein Ibn Muhammad Ibn Ahmad AlMardh (d.462/1070) summarized the entire Shafiiy Madhhab in four
maxims or (Qawid):

((-Al-yaqn l yazl de ash-shakk (Certainty



1. Qidah: ))
is not overruled by doubt)
((-Al-mashaqqah tajleb at-tiysr (Hardship
2. Qidah: ))
begets ease)
((- L darar wa l dirr (There is to be no harm,
3. Qidah: ))
and no reciprocating harm) and
4. Qidah: ))(( - Al-dah muhakkamah (Custom is the basis of
judgement).
Yet, many other scholars add the Qidah:
5. ))
((- Al-umr be maqsidih (Acts are judged by the
intention behind them or take the will for the deed).94

94

Al-Al stated that it is very good, in addition, ash-Shfiiy stated that this Hadth (the fifth Qidah) includes
two third of the knowledge. See As-Seyt, Al-Ashbh Wan-Nazir, p.8.

| P a g e 51

The First Qidah Kulliyyah Kubr

"
"

(Al-Umur be maqsidih)
Acts are judged by the intention behind them
Imms Ash-Shafi, Ahmad Ibn Hanbal, Ibn Mahd, Ibn Al-Madin, Ab Dawd,
ad-Daraqotn and others thought that the Hadth concerning An-Niyyah (,
intention) is a third or fourth of knowledge of Islm.95
Al-Qidah literally means that actions and behavior are judged by intentions.
In addition, it practically means that a person is accounted by his intention
and goal. Even though the maxim is self-evident, the Qurn and the Sunnah
are the main source for this Qidah.

First, from the Qurn:


Allh says:

Allh will not call you to account for that which is unintentional in your oaths,

but He will call you to account for that which your hearts have earned. And
Allh is Oft-Forgiving, Most-Forbearing.
(Srah 2. Al-Baqarah, yah 225)

Ibn Hazm commented on this yah saying that the soul is the object that is
being commanded to do acts; yet the body is its machine, so should the soul

95

As-Seyt, Al-Ashbh Wan-Nazir, p.40.

| P a g e 52

intend to do something by its machine (the body), there can be nothing except
what the soul has intended before.96

Second: from the Sunnah:












( :






.)
Narrated Al-Humaidi Abdullh ibn Az-Zubiyr that Sufyn that Yahiyah ibn
Said Al-Ansriy that Muhammad ibn Ibrhm At-Tiymiy that Alqamah ibn
Waqqs Al-Liysiy that Umar Ibn Al-Khattb:
Allh's Messenger said, The reward of deeds depends on the
intentions and every person will get the reward according to what he has
intended. So whoever emigrates for Allh and His Messenger, his emigration
will be for Allh and His Messenger and whoever emigrates for worldly
benefits or for a woman to marry, his emigration will be for what he
emigrated for.97
In another Narration:






( :
:











.)

96

Al Ibn Ahmad Ibn Sad Ibn Hazm, Al-Ihkm f Usl Al-Ahkm, Vol.5, p.132. Cairo, Egypt: Dr-Al-Hadth
Press. Volume 8, 1404/1984.
97

Summarized Sahh Al-Bukhr Arabic English, chapter: The Book of Revelation, 1.

| P a g e 53

Narrated Yahy ibn Qazah that Mlik that Yahy ibn Sad that Muhammad ibn
Al-Hrith Alqamah ibn Waqqs Al-Liysiy that Umar Ibn Al-Khattb :
Allh's Messenger said, The reward of a deed depends on the
intention and every person will get the reward according to what he has
intended. So whoever emigrates for Allh and His Messenger, his emigration
will be for Allh and His Messenger and whoever emigrates for worldly
benefits or for a woman to marry, his emigration will be for what he emigrated
for. 98

An applicable example for this Qidah


- The difference between an intended murder and a killing by accident.
Why must Niyyah be present?
a) To distinguish between a deed that is for the pleasure of Allah, or an
act of worship ( )and the deed that is not.
b) To distinguish between Ibadt themselves. Sawm ( )
99 or Hajj (,

pilgrimage to Makkah).
c) To distinguish between the Hukum of the deed, whether it a Wjib
(
)100, a Nafl ( , optional worship) or a vow to Allh, the Most
High.
Where is Niyyah ?
Except for Hajj and Umra, the heart is the place of Niyyah. However, ibn
Nujaim stated that: Uttering of what is in the heart is Bidah in all acts of
worship, comparing to Niyyah of Salh that is only better when determination
of a person is absent. 101

98
99

Sahh Al-Bukhr, chapter: The Book of Revelation, 4783.


Fasting, to abstain from food, drink and sexual intercourse before the break of the dawn till sunset.

100

Duty, obligation task, assignment, and so on.

101

Zain-ud-Dn Ibn Ibrhm Ibn Nujaim, Al-Bahr ar-Riq Sharh Kanz ad-Daqiq, Vol.2, p.346. Beirut: Dr alMarefah Press.

| P a g e 54

Should a man utter something which is different from what that is in his
heart, what is in his heart takes the priority over what he utters, all Madhhib
observe. In addition, avoiding Harm does not require Niyyah.102

102 The previous source, p. 171.

| P a g e 55

Qawid (Legal Maxims) come under the first Qidah Kulliyyah Kubr
(Normative Legal Maxims)

"
"
(Al-Umur be maqsidih)
Acts are judged by the intention behind them

| P a g e 56

Al-Qidahno.1

(Al-Ibrah f al-uqd be al-maqasid wa al-man l be al-Alfz wa almabn)


The essence in contracts is their goals and meanings not their words or
forms
This Qidah means that the words used in a contract are not as important as
their aims and meanings. Therefore, if there is a descripincy between the
terms and the meanings of a contract, the priority is given to the meanings.
Also, an invalid condition spoils a contract whether it was mentioned in the
contract or not, like Al-Muhalil ( ) 103 which is prohibited (Harm) in
Islm.104

Applicable examples for this Qidah


If a person says to another, I give you my yacht as Hebah () 105 in
return for a sum of money, this is not considered as Hebah but a sale, as
the price is stipulated.
If a person says to another, You render me a sum of money
immediately, and I will lend you a small amount of land this is

103

The man who marries an irrevocable divorcee in order to make her lawful for her former husband if he wishes to
marry her. Moreover, this marriage, with no condition in the contract, is correct according to Hanafiyyah but correct
and disliked according to Shfiiyyah. It, however, is Harm, even there is no condition on the contract, according to
Mlikiyyah and Hanabelah. See Al-Mawsah Al-Fiqhyyiah Al-Kuwaitiyyah. Kuwait: Ministry of Waqf and
Islamic Affairs. (2006-1984/1427-1404), Vol. 10, p257.
104
Muhammad Slih Ibn Uthiymn, Al-Qawid Al-Fiqhiyyah, p.72. Alexandria, Egypt: Dr-Al-Basrah Press,
1422/2002.
105

To give someone something immediately and without exchange.

| P a g e 57

considered to be a renting contract, Ijrah (


)
106 and not a lending
one, Irah (
, loan).

106

The use and enjoyment of property for a time, includes hire, rental, and lease.

| P a g e 58

Al-Qidah no.2





(Hall an-niyyah tukhasses al-lafz al-m aw tuammem al-lafz alkhss?)
Does intention particularize a general discourse or generalize a particular
discourse?
Mlikkiyyah and Hanabelah agree that an intention Niyyah particularize the
general words and may generalize the particular words. Ash-Shfiiyyah, on
the other hand, states that Niyyah could particularize general words, but it
may not generalize specific statements in oaths. Hanafiyyah considers that
Niyyah may possibly particularize general words when the matter is between
a person and Allh. But if the matter is between one person and others, Niyyah
does not particularize a general statement.

Applicable examples for this Qidah


When an owner of multiple companies says, I am dismissing the
entire workers; then, he says, In fact, I intended workers from a
particular company, the majority of scholars accept this Takhss
(
) 107.
If Y has taken an oath that he would not talk to people; then, he
claimed that he intended Z in particular, his oath is broken when he
speaks to any person other than Z, according to Mlikiyyah,
Hanabelah, Shfiiyyah and Al-Khessf (a scholar of Hanafiyyah). His
oath is legally violated, and he needs to pay the Kaffrah according to
the majority of Hanafiyyah.108

107

Specialization, specification, and so on.

108

The previous source, pp.152-153.

| P a g e 59

When a spouse says to his wife, If you wear a dress, you are
divorced; yet, after that he claims that he meant a particular dress, it
is religiously accepted. However, with respect to justice, there are
two opinions, according to the majority of Hanabelah.109

109

The previous source, pp. 152-153.

| P a g e 61

Al-Qidah no.3




(Hall El-Aiymn Mabniyyah al Al-Alfz aw al Al-Aghrd?)
Do oaths lean on discourses or on purposes?
,
Mlikkiyyah and Hanabelah concluded that words used in Al-Aiymn (
, intentions) whether the oath is
oaths) are based on the Niyyt (
appropriate for Zhir Al-Lafz ( , apparent meaning) or not.
On the other hand, the Hanafiyyah and Shfiiyyah observe that Al-Aiymn are
contingent on a discourse if the discourse is used in those Aiymn, otherwise
Al-Aiymn are built on Niyyah.

An Applicable example for this Qidah


If a person made an oath that he will not sell certain goods for ten
dollars, and yet he sold it for nine dollars or eleven dollars, his oath will
not be considered broken even if he intended to increase the price to
)
ten. Such is because there is no Hinth (
110 except by word/s
according to Hanafiyyah and Shfiiyyah111. His oath, however, is violated
according to Mlikkiyyah and Hanabelah112

110

Breaking/violating of the oath.

145

Ibn Nujaim, Al-Ashbh Wan-Nazir. p.57.

112

Dr. Al-Born, Al-Wajz, p.156.

| P a g e 61

Al-Qidah no.4


(Hall al-aiymn mabniyyh al al-urf ?)
Are the words employed in oaths built on tradition?
According to an opinion of Hanafiyyah and Hanabelah, Al-Aiymn (oaths) are
built on Urf (tradition) of the one who takes an oath, only if they are not based
, Islamic terms).
on the meaning of the Shar(
Mlikkiyyah observe that Oaths, or Al-Aiymn in general are contingent first
on a person's Niyyah, on motive (in case he has no Niyyah), on Urf (if he has
no motive) or on the linguistic rules.113

An Applicable example for this Qidah


If a person made an oath to dwell in a house (Bait)114 and still resides in
a tent, his oath will not be broken if he is of the people of the city; yet his
oath will be violated if he is among the Bedouins, since Bedouines surly
mean a built house when they reference the word Bait.

113

Ab Bakr Ibn Hasan Al-Kishnw, As-hal Al-Madrk Sharh Irshd Al-Maslik f Fiqh Imm Al-Aimmah
Mlik, Vol. 2, p.23. Cairo, Egypt: Is Al-Bbiy Al-Halabiy Press, 1st. ed.
114

A building which people, usually one family, live in.

| P a g e 62

Al-Qidah no. 5




(Hall al-aymnal niyyat al-half aw al niyat al-mustahlif ?)
Does an oath rely on the intention of the one who swears or on the
intention of the one who adjures another person to swear?

In court, Al-Yamn (oath) depends on the Niyyah of the one who swears if he is
innocent and on the judges (in court) if the person is guilty.115 For divorce or
emancipation, however, according to Hanafiyyah , Al-Yamn is contingent on
the Niyyah of the one who swears whether he is innocent or guilty.
Mlikkiyyah and Shfiiyyah believe that this is based on the Niyyah of the
magistrate, and it does not accept concealment or exceptions. Hanabelah
believe, on the other hand that it is built on the Niyyah of the one who takes an
oath, if he is not guilty and when it is linguistically accepted.116

-



.)

(







Narrated Yahy ibn Yahy and Amro an-Nqid say Yahy narrated that Hushiym
ibn Bashr that Abdullh ibn Ab Slih, and Amro says that Hushiym ibn Bashr
narrated that Abdullh ibn Ab Slih that his father that Ab Hurairah :
Allh's Messenger said, Your oath, which an opponent believes, is
contingent on the sense you mean.117
115

Al-Hamawiy, Ghamz Uon Al-Basir, p.89.

116

Dr. Al-Born, Al-Wajz, p.158.

117

Sahh Muslim, chapter: the oath of the one who takes it is contingent on the Niyyah of the oath seeker, 4373.

| P a g e 63

This Hadth means that the meaning of the oath is the conclusion that strikes
the mind of the opponent/s and it is mostly in harmony with the apparent
meaning. Therefore, most scholars observe., that the one who takes an oath
should speak without equivocation, otherwise his oath is a false oath,
immersing him in sin.
Mlikiyyah:
An oath depends on the Niyyah (, intention) of the oath seeker, Sahnn,
Asbagh and ibn Al-Mawwr stated. On the other hand, Ibn al-Qsim stated:
An oath depends on the one who swears, and he can use exception, so he is
not obliged to do Kaffrah, but that is forbidden,.
Shfiiyyah:
The oath is on the Niyyah of the oath requester on the condition that:
1. He is among those who have the right to hear Ash-Shahdh such as a
judge, an arbitrator, a ruler; however, ibn Abdus-Salm added the
opponent based on the Hadth mentioned above.
2. He is the judge or the like depending on a request from the rival; yet,
if there is no request from the opponent, the oath is contingent on
the Niyyah of the one who takes an oath.
3. He does not swear an oath of something (even if he tells the truth)
other than what the rival adjures him to take an oath of.
4. He swears to Allh except the claimant wants him to swear using
words of divorce (Hanafiy Madhhab). In that case, the oath will be on
Niyyah of the applicant.118

118

Al-Mawsah Al-Fiqhyyiah Al-Kuwaitiyyah, Vol. 7, p.305-307.

| P a g e 64





Excluded Qidah (A legal Maxim) from the First Qidah Kulliyyah
Kubr (Normative legal Maxims)

"
"

(Al-Umur be maqsidih)
Acts are judged by the intention behind them

| P a g e 65


(Mann Istajal ash-shaia qabl awnih uqeb be hermnih)
When someone rushes into something before its due time, he is punished
by depriving

This Qidah has come in more than a few paraphrases; however, all of them
bear the same meaning. The first one has been paraphrased by Hanafiyyah:



(Mann istajal m akhrah ash-shar yujz be raddih) Whoever hastens
what is postponed by Shar (teachings of Islm), is enforced by threat of
punishment to render it back, and the second one is worded by Mlikiyyah:


(Al-asl al-muamalah be naqd al-maqsad al-fsid) Whoever has a
corrupted aim (or act) perpetrating or trying to commit it, will be faced
with a reciprocal action under threat of punishment.

Applicable examples for this Qidah


If a person has deliberately taken his testators or legators life, he
will be deprived of inheritance.
When one, in last illness, divorces his wife, without her acceptance,
to prevent her from inheritance; then, he died during her Iddah
() 119, she will inherit her share of his inheritance.

119

A period of probation after the death of her husband or after her divorce.

| P a g e 66

When it is proved that a person bribes someone to do something, the


former is punished by depriving him from that thing.

| P a g e 67

The Second Qidah Kulliyyah Kubr



(Al-yaqn l yazl be ash-shakk)
Certainty is not overruled by doubt
This Qidah has been included in all chapters of Fiqh and the questions
which are being extracted from it are more than 3/4 of Fiqh, Imm As-Seyt
stated.120In addition, Imm Al-Qarfiy asserted that this Qidah is accepted by
scholars, and it means that suspected matters are supposed to be a
nonentity.121
Basically, the Qidah means that a matter which is certain cannot be removed
except by decisive evidence, and it must not be cancelled or abrogated by
mere suspicions.122

Degrees of Realization:
, certainty) is a confirmed frame based on a decisive
Al-Yaqn (
proof.
Al-Itiqd ( , belief) is a confirmed frame even without a decisive
proof.
Hesitance between two equal matters (A and B), which is referd to as
Shakk ( , doubt).

120

As-Seyt, Al-Ashbh Wan-Nazir, p.51.

121

Al-Qarfiy, Anwr AL-Borq, Vol. 1, p.111.

122

Khalid ibn Muhammad Al-Ats, Sharh Majalat Al-Ahkm Al-Adliyyah, Vol.1, p.32.

| P a g e 68

Choosing a matter (A) while still doubting (B) leads to Zunn ( ,


conjecture).
The abundance of (B) leads to Ghalabatuz-AZunn ( , a strong
probability).
If both matters were fragile but one of them was frailer than the
other, this leads to Wahm ( ,
illusion).123

Evidences from the Qurn:


Allh says:

And most of them follow nothing but conjecture. Certainly, conjecture can be
of no avail against the truth. Surely Allh is All-Aware of what they do.
(Srah 10. Ynus, yah 36)

, verses, signs, etc.) there are three degrees of realization:


In the next yt (
Allh says:

And because of their saying (in boast), We killed Messiah Jesus, son of Mary,

the Messenger of Allh , -- but they killed him not, nor crucified him,
but the resemblance of Jesus was put over another man (and they killed the
man), and those who differ therein are full of doubts. They have no (certain)
knowledge, they follow nothing but conjecture. For surely; they killed him not
(i.e. Jesus son of Mary): 158 But Allh raised him (Jesus) up (with his body
and soul) unto Himself (and he is in the Heavens). And Allh is Ever AllPowerful, All-Wise.
(Srah 4. An-Nis, yt 157-158)

123

Dr. Al-Born, Al-Wajz, p.168.

| P a g e 69

From the Sunnah:









.)
-
- ( :
Narrated Al that Suf yn that Az-Zuhr that Sad ibn al-Musiyb that Abbd
Ibn Tamm that Ibn Tamm's cousin Narrated Abdullh Ibn Yazd Al-Ansar
, that he asked Allh's Messenger about a person who
imagined to have passed wind during the Salh: Allh's Messenger
replied, He should not leave his Salh unless he hears sound or smells an
odour.124
Imm an-Nawaw asserted that this Hadth is among the Usl of Islm
meaning that things survive counting on their Usl until something
authenticated changes them, and unanticipated doubt has no influence on
them.125

Logically:
Certainty is stronger and wiser than uncertainty since it has an exact and a
decisive judgment; besides, it cannot be easily defeated by suspicions.126

Ghalabatuz-Zunn (very likelihood):


People should perform ordinances of Sharah relying on Al-Yaqn (certainty),
or on Ghalabatuz-Zunn (a strong probability) if they cannot.
The commands of Sharah are clear, but sometimes a person cannot fulfill one
of them with certainty. In that case, he can trust Ghalabatuz-Zunn of that
command since ordinances coming from Sharah are subject to man's
capability.

124

Summarized Sahh Al-Bukhar Arabic-English, chapter: Wud (Ablution), 112.


Mohyed-Dn Yahy Ibn Sharaf An-Nawaw (d.676/1277), Sharh An-Nawaw al Sahh Muslim, Vol.4, pp.4950. Beirut, Lebanon: Dr Ibn Ihy At-Turth Al-arabiy Press. Volume 9, 2nd. ed., 1392/1972.
126
Dr. Az-Zurqq, Al-Madkhal, Vol. 2, p.981, chapter 81, passage 6.
125

| P a g e 71

Evidence:
Allh says:

...

...

Allh burdens not a person beyond his scope.


(Srah 2. Al-Baqrah, yah 286)

- -



( :
. )
( : .





.)
Narrated Uthmn that Jarr that Mansr that Ibrhm that Alqamah that
Abdullh Ibn Masd :
The Prophet prayed (and the sub narrator Ibrahim said, I do not
know whether he prayed more or less than usual), and when he finished the
Salh he was asked, O Allah's Messenger! Has there been any change in the
Salh? He said, What is it? The people said, You have prayed such
and such. Therefore, the Prophet bent his legs, faced the Qiblah
( , the direction of Salh) and performed two prostrations (of , Sahw)
and finished his prayers with Taslm ( ).127 When he turned his face to us he
said, If there had been anything changed in the prayer, surely I would have
informed you but I am a human being like you and liable to forget like you. So
if I forget, remind me and if anyone of you is doubtful about his prayer, he
should do his best to reach the truth, complete his prayer accordingly,
finish it and do two prostrations of Sahw.128

127

Sahw, here, means forgetting how many Rakat a person has prayed, in which case he should perform two
prostrations of Sahw. This is after Taslm: On finishing the prayer; one turns his face to the right and then to the left
saying, Assalm Alaikum wa Rahmtullh (Peace and Mercy of Allh be on you).
128

Sahh Al-Bukhr, chapter: Facing the Qiblah, 392.

| P a g e 71

Commenting on he should do his best to reach the truth, one ought to


depend on Ghalabatuz-Zunn of the matter that comes into one's mind.
The considerable Zunn, here, must be constructed on the correct research into
evidence and inference, otherwise it should be neglected.129

Applicable examples for this Qidah


Chapters of Fiqh concerning removing Najsah ( , impurity) and sail
are based on Ghalabatuz-Zunn.
Numerical acts of worship, when one fails to recall one or some of them,
he has to build his decision on Ghalabatuz-Zunn. But if he cannot
remember anything that he did, he should construct his decision on the
least number.130
If a person suspects whether or not his new garment is Thir (pure or
clean), he should conclude that it is.

129

Wald Ibn Rashdn As-Saidn, Al-Iktif bel-Amal beghalabat-ez-Zunn f Al-Masil Al-Fiqhiyyah, p.6.

130

The previous source, pp. 6-7.

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Qawid (Legal Maxims) come under the second Qidah Kulliyyah
Kubr (Normative Legal Maxims)

"

"
(Al-yaqn l yazl be ash-shakk)
Certainty is not overruled by doubt

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Al-Qidah no. 1

(Al-Asl Bartudh-Dhemmah)
Non-liability or man is absolved from guilt, blame or responsibility for
any wrong deed in principle
This Qidah practically means that in principle, and to start with, a person is
innocent of any claims or accusations.

Applicable examples for this Qidah


Based on this maxim, a thought alone that one owes others is not by
itself a proof for that.131

131

Khawjah Amn Afand Al Hiydar Durar Al-Hukkm, Vol. 1, p. 20. Translated and verified by Fahmy AlHusain. Beirut, Lebanon. Volume 4.

| P a g e 74

Al-Qidah no. 2


(M thabat be yaqn l yartaf ill be yaqn)
Whatever is proved true with certainty, cannot be cancelled but by proof
There are some Qawid related to this Qidah:




(Mann shakk hall faal shai aw l fal-asl annahu lam yafalh) Whoever is
not sure whether he has done something or not, he certainly has not done
it.



(Mann tayaqan al-fal wa shakk f al-qall aw al-kathr humel al al-qall
laannahu al-mutayaqan) Whoever has certainly done something; then, he
doubts whether he did it more or less than required, his verdict is better to
be contingent on the lesser number as it is proved true.

Applicable examples for this Qidah


A doubt whether a person has performed Salh or not, doea not obligate
the person to repeat the Salh as long as its time has passed.
Should an individual not be certain how many Rakat he has
performed, the lesser number is counted as performed.132

132

As-Seyt, Al-Ashbh Wan-Nazir, p.55.

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Al-Qidah no. 3

(Al-asl al-adam aw al-asl f as-sift aw al-umr al-redh al-adam)


Occasional descriptions or matters are not reliable in principle

Practically, this Qidah shows that descriptions are of two kinds; genuine and
occasional. The genuine one is the early description of the described object
like the wealth of Al-Mudrabah (

)133 before investing in Al-Mudrabah.
An occasional description, on the other hand, is a late description of the
described object such as the wealth of Al-Mudrabah after incurring profit or
loss.134
Therefore, when two people differ in an accidental description of something
and one of them has negated that description, the negation has the priority
over the other opinion if it is confirmed by an oath.

Applicable examples for this Qidah


When one purchases a machine or a device with a certain basic
description; then, he finds that the item does not fit that description; he
has the right to be recompensed for the fault or to receive a refund,
since the specification did not match with what was agreed on.

133

A contract of copartnership, of which the one party (namely the proprietor) is entitled to a profit on account of the
stock, he being denominated Rab-ul-ml, or proprietor of the stock, and the other party is entitled to a profit on
account of his labor, and this last one is called the mudrib (or manager). A contract of mudrabah cannot be
established without participation in the profit. See Dictionary of Islamic Terms, Arabic-English by Deeb AlKhudraw, first ed. 1416-1995 Al-Yamamah Damascus.
134

Dr. Al-Born, Al-Wajz, p.184.

| P a g e 76

If a person claims that he owed another person some money or if there


was an evidence to confirm that; and if he then alleged that he had paid
off the debt and if the creditor renounced that, the ruling here, is in
favor of his rival after taking an oath. The debt is still incumbent on the
debtor, and that is the principle (Asl). Therefore, he is required to either
)or
pay the debt or to present evidences (Bayyinah (), Burhn (
Dall ( )) .135

135

Proof, evidence, demonstration, testimony, witness, and so on.

| P a g e 77

Al-Qidah no. 4



(Al-asl idfit al-hadath ill aqrab awqtih)
In principle, any new events shall be regarded as happening at the
nearest time to the present
Another form for this Qidah is:

(Al-asl f kull hadath taqdirih be aqrab zaman. When an incident takes place in
a couple of different times, and people doubt about the precise time, they need
to relate it to its nearest time.) Since the farthest time is questionable, the
nearest time is the one that counts.136

An applicable examples for this Qidah


In the event of noticing spots of sexual discharge on garments -and a
person does not remember the reason behind this, he/she shall take a
bath and repeat every Salh performed after the last period of sleep.

136

Al-Ats, Sharh Majalat Al-Ahkm, Vol.1, p.32.

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Al-Qidah no. 5



(Hal-asl f al-ashiy al-ibahah aw al-hurmah?)
Should things, in principal, be permissible or forbidden?
The strongest ruling that most of scholas of Islam are in agreement with, is that
things in principle are permissible.
Concrete proofs from the Noble Qurn:
Allh Al-Karm ( ) the Bountiful) says:
...

He it is Who created for you all that is on earth


(Srah 2. Al-Baqrah, yah 29)

In another place, Allh says:

(Say, (O Muhammad): Who has forbidden the adoration with clothes given by

, all kinds
Allh, which He has produced for his slaves, and At-Tayibt [(
of Halal ( ,
lawful) things] of food? Say: They are, in the life of this world,
for those who believe, (and) exclusively for them (believers) on the Day of
Resurrection (the disbelievers will not share them.
(Srah 7. Al-Arf, yah 32)

Moreover, Allh, Ar-Rahmn ( , The Most Beneficent) Ar-Rahm (


,
The Most Merciful) says:

| P a g e 79




(Say (O Muhammad ): I find not in that which has been inspired to me

anything forbidden to be eaten by one who wishes to eat it, unless it be


Maytah ( , a dead animal) or blood poured forth (by slaughtering or the
like), or the flesh of swine (pork, etc.) for that surely is impure, or impious
(unlawful) meat (of an animal) which is slaughtered as a sacrifice for others
than Allh (or has been slaughtered for idols, etc., or on which Allh's Name
has not been mentioned while slaughtering). But whosoever is forced by
necessity without wilful disobedience, nor transgressing due limits, (for him)
certainly, your Lord is Oft-Forgiving, Most Merciful.
(Srah 6. Al-Anm, yah 145)

Confirmation extracted from the Sunnah:





(:




.) }
{

Narrated Jafar ibn Muhammad Al Ash-Shiybn that Ahmad ibn Hzim AlGhefriy that Ab Nuiym that Asm ibn Raj ibn Hiywah that his father that
Ab ad-Dard :
Allh's Messenger said, Whatever Allh makes Hall in His Book, it
is Hall, whatever Allh makes Harm, it is Harm, and whatever Allh stops
talking about it, it is Mubh. So, accept what Allh makes permissible because
Allh forgets nothing; then, he recited the following yah: and your Lord is
never forgetful. [Surah19, Maryam, yah 64]. 137

137

It is Sahh (authentic) Hadth according to the criterion of Al-Bukhr and Muslim but they did not report it. See
"Talkhs Al-Mustadrak al as-Sahhiyyn," by adh-Dhahab, chapter: Interpretation of the Holy Qurn, 3419.

| P a g e 81

( :
:

.)
Narrated Abdullh ibn Yazd Al-Muqri that Sad that Aql that ibn Shihb
that Amir ibn Sad ibn Ab Waqqs that his father, Sad Ibn Ab Waqqs :
The Messenger of Allh said, The most sinful of Muslims is the one
who asks about something that is not Harm, but it has become Harm
because of his question.138
This maxim is applicable on everything except the acts of worships. In
principle, acts of worships are forbidden unless they are dcreed by Allah.

An applicable examples for this Qidah


If a new form of food is discovered by man, the ruling is that that food is
permissible to eat (halal).

138

Sahh Al-Bukhr, chapter: Taking shelter by the Holy Qurn and the Sunnah, 6859.

| P a g e 81

Al-Qidah no. 6

(Al-asl f al-abd at-tahrm)


In principle, legal sexual intercourse is absolutely forbidden except legal
ones
The Asl, here, refers to the basis that the Ahkm and Fatwa are based on.139
Having an intercourse with a woman is forbidden as Al-Asl, unless Allh makes
it Hall to the needs of a man. It is Hall by only two ways: marriage or the
female slaves whom the Muslims' right hands possess.140 So, if a man needs to
marry a woman, but he does not know whether she is Hall or Harm for him,
he has to stop and investigate thoroughly before he proceeds.141

139

Dr. Bakr Isml, Al-Qawid Al-Fiqhiyyah p.342.

140

A person would have slaves through purchasing, Hebah, inheritance, bequeath, etc. Islm found this system in
the world, so it exploits every chance to free slaves like Kaffarh, and urges the community to help slaves to get
their freedom. Allh orders the masters to treat slaves kindly and carry out their lawful needs, etc. That is Briefly
understood from Al-Mawsah Al-Fiqhyyiah Al-Kuwaitiyyah, Vol.23, pp.48-49
141

As-Seyt, Al-Ashbh Wan-Nazir, p.60.

| P a g e 82

Al-Qidah no. 7


(L ibrah be at-tawahum)
Rare and far imagination has no value in Sharah
The Ahkm of Sharah cannot be verified relying on far and rare imaginations,
and consequently if something is decisively and surely proven to be true, it
overrules what is imaginative and indecisive.142

An applicable example for this Qidah


If creditors prove their debts by witnesses, they should get paid
regardless of any remote or imaginable possibility that might refute
their claim . 143

142

Dr. An-Nadaw, Al-Qawid Al-Fiqhiyyah p.416.

143

Az-Zurqq, Sharh Al-Qawid, p.363.

| P a g e 83

Al-Qidah no. 8:


(L ibrah be az-zunn al-baiyen khatauh)
Assured mistaken conjecture has no value
Conjecture may be obvious or obscure false. If, however, it is plain wrong, no
Ahkm Shariyyah can rely on it.

An applicable examples for this Qidah


If a person strongly thought that some people deserved Zakh, however,
there were evidence showing that he was mistkaen, he should not give
his Zakh to them, since assured mistaken conjecture has no value.144

144

Dr. Bakr Isml, Al-Qawid Al-Fiqhiyyah, p.66.

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Al-Qidah no. 9:

(Al-mumtani dah kal-mumtani hqqah)


An unfeasible widespread matter resembles a subjectively impossible
matter
Things that are unlikely to happen are divided into two categories according
to Al-Usliyn ( , scholars who adopt texts) and Al-Mutakalimn
( , scholars who adopt views).
First: impossible matters in reality:
Like the impossibility of hving more than one Creater to the universe.
Second: impossible matters indah ( , habit, routine, practice, and so on):
The majority of scholars agree that there is no Taklf upon things which are
unlikely to happen -in dah- such as flying to the heavens without a vehicle.
An Exceptions:
Ab Yusuf, the companion of Ab Hanfah, excluded Al-Aiymn from this
Qidah. He stipulated that oaths are not deliberate except for the future
im/possible things. So, if a person swears by Allh that he will take
somebody's life thinking that that person is alive but he was in fact dead, his
oath is broken. Ab Yusuf did not differentiate between things that happen in
dah and things that happen in fact. Swearing by Allh to traditional
imaginary things is not believed to be true, according to Ab Yusuf.145

145

Dr. Al-Born, Al-Wajz, pp.214-215.

| P a g e 85

Deliberate oaths should be in something that will occur in the future, and they
can be fulfilled or broken, otherwise they are not deliberate oaths, the
majority of Hanafiyyah, Mlik, Ash-Shfiiy and Ahmad observed.146

146

The previous source.

| P a g e 86

Al-Qidah no. 10:





(L Hujjah maa al-ihtiml an-nshie ann dall)
No argument with possibility arising based on evidence
In the book Tass an-Nazar tha author syas: When a clear-cut accusation
smears an action, the action will be unsound, according to Ab Hanfah only,
not his two companions or ash-Shfi.147

An applicable examples for this Qidah


If a person in his last illness confessed to his heirs that he owed some
debts, his confession might not be ownered, if there was an evidence of
the possibility that he is planning on preventing his heirs fom his
inheritance.148

147

Ab Zaiyd Ad-Dabbsiy, Ubiydullh Ibn Umar, Tass-un-Nazar, p.19, in Sharh Al-Qawid, by AzZurqq, p.361.
148

Al-Ats, Sharh Majalt Al-Ahkm, pp.204-209.

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The Third Qidah Kulliyyah Kubr



(Al-mashaqqah tajleb at-tiysr)
Hardship Begets Ease
Imm Ash-Shtibiy stated that getting rid of hardship is proved true by
numerous decisive evidence in Sharah.149 The Qidah includes all Rukhas
( , the plural of Rukhsah,
) .150 Rukhsah is considered as an exceptional
Hukm from preventive Ahkm, and it is constricted by excuses confirmed by
Sharah, to lift human suffering.151

Evidence:
First: from the Qurn:
Allh says:
...

...

Allh intends for you ease, and He does not want make things difficult for
you
(Srah 2. Al-Baqrah, yah 185)

...

...

Allh burdens not a person beyond his scope.


(Srah 2. Al-Baqrah, yah 286)
149

Ab Ishq Ibn Ms Al-Lakhm Ash-Shtibiy, Al-Muwafaqt f Usl Ash-Sharah, Vol.1, p.340. Verified by
Abdullh Drz. Beirut, Lebanon: Dr Al-Marifah Press, Volume 4.
150

Plural of Rukhsah i.e. concessionary law.

151

Al Hiydar, Durar Al-Hukkm, Vol. 1, p.31, passage 17.

| P a g e 88

...

...

Allh does not want to place you in difficulty


(Srah 5. Al-Maidah, yah 6)

Second: from the Sunnah:





( :




.)

Narrated Muhammad ibn Bashr that Yahy ibn Sad that Shubah that Ab
At-Teyh that Anas (Ibn Mlik) :
Allh's Messenger said, Facilitate things for people (concerning
religious matters), and do not make it hard for them and give them good
tidings and do not make them run away (from Islm).152
In another Hadth







:

.

Narrated Abdullh that Muhammad ibn Musab that Al-Awz that Urwah
that ishah, Mother of the Believers said, Whenever two matters
were offered to the Prophet to choose between them, the Prophet
would always choose the easiest one unless it was Harm.153

152

Summarized Sahh Al-Bukhr Arabic-English, chapter: Knowledge, 63.

153

It is Sahh (authentic) Hadth authenticated by Shuiyb Al-Arnat. See Musnad Al-Imm Ahmad Ibn Hanbal by
Imm Ahmad Ibn Hanbal, no. 24593. Although this Isnd (The Chain of Transmission) is weak, Cairo, Egypt:
Qurtubah Foundation Press, Volume 6.

| P a g e 89

Types of Hardship:
1-Tolerable hardship:
An example is having a headache (a degree of pain), or feeling hungry due to
fasting (Sawm).
2-Intolerable hardship:
If, for instance, a human can only find a dead animal to eat, he should eat the
amount that keeps him alife. The extent of this situation is to protect one's life
or one's organs from deterioration. One must consume only the amount that
he needs.
3-Medium hardship:
An example is whether to do the acts of Wud once or three times in a cold
weather. It is when one has the choice to take Rukhsah or Azmah.
Imm Jallud-dn As-Seyt restricted Rukhsah in eight reasons: travel, illness,
coercion, forgetfulness, ignorance, hardship, a common hardship and
deficiency of mentality.
Rukhsah is classified by scholars into:
1. Rukhsah that cancels a command of Shr, a man can cancel Jumuah
Salh, Hajj, Jihd ( )
154 due to valid excuses.
2. Rukhsah that reduces Salh, like for a traveler, and so on.
3. Rukhsah that replaces a particular worship with another, like
performing Tayammum instead of Wud due to the lack of water or due
to a difficulty.

154

Fighting in the cause of Allh or any other kind of effort to make Allhs Word superior.

| P a g e 91

4. Rukhsah that delays doing something, like delaying the fasting of


Ramadn to another time due to sickness or travel.
5. Rukhsah of Darrah (necessity), eating a dead animal or pork to survive.
6. Rukhsah that changes a structure of Salh due to fear.155

155

As-Seyt, Al-Ashbh Wan-Nazir, p.82.

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Qawid Flow beneath the Third Qidah Kulliyyah Kubr



(Al-mashaqqah tajleb at-tiysr)
Hardship Begets Ease

| P a g e 92

Al-Qidah no. 1&2:




(Idh dq al-amr itasa wa idh itasa dq)
When a matter tightens, it will widen and vice versa
The first part of the Qidah means that whenever or wherever Muslims
experience unexpected hardship preventing them from applying some
Sharahs commands, Sharahs system simplifies this hardship. The second
part of the Qidah means that If a hardship ends, things should return to the
ordinary state or Hukm Al-Asl ( , the verdict of the origin).

Evidence:
Allh Ar-Rahmn (the Most Beneficent) says:

And when you (Muslims) travel in the land, there is no sin on you if you

shorten your prayer if you fear that the disbelievers may attack you, verily,
the disbelievers are ever unto you open enemies.101 When you (O Messenger
Muhammad) are among them, and lead them in prayer, let one party of them
stand up (in prayer) with you taking their arms with them; when they finish
| P a g e 93

their prostrations, let them take their positions in the rear and let the other
party come up which has not pray with you taking all the precautions and
bearing arms. Those who disbelieve wish, if you were negligent of your arms
and your baggage, to attack you in a single rush, but there is no sin on you if
you put away your arms as a result of the inconvenience of rain or because
you are ill, but take every precaution for yourselves. Verily, Allh has prepared
a humiliating torment for the disbelievers.102 When you have finished the
(congregational) prayer, remember Allh standing, sitting down, and lying
down on your sides, but when you are free from danger, offer prayers
perfectly ( , Iqmat-as-Salh). Verily, the prayer is enjoined on the
believers at fixed hours.102
(Srah 4. An-Nis , yh 101-103)

Examples:
When a debtor is poor, it is encouraged that he is given a period of time
wherein he can repay the money - even in installments.
Should a human have nothing to eat, he can eat a dead animal or make
use of some others' property in order to survive, but he ought to return
what he took when he can.
While on board, passengers can offer Salh even if they do not know
where the Qiblah is or they are not able to stand up.156

156

Dr. Al-Qahtniy, Manhaj Istinbt Ahkm An-Nawzil, p.950.

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Al-Qidah no. 3:


(Ad-darurt tubh al-mahzurt)
Necessity renders prohibited matters permissible

What is legally forbidden becomes legitimate due to dire need or

Darrah (necessity).

Evidence:
Allh says:
...



...

...While He has explained to you in detail what is forbidden to you, except


under compulsion of necessity?
(Srah 6. Al-Anm, yah 119)

In another place, Allh Al-Ghafr ( , The Oft-Forgiving) says:


...


...

But if one is forced by necessity without willful disobedience nor


transgressing due limits; then, there is no sin on him
(Srah Al-Baqrah, yah 173)

Allh Al-Afuww ( , the Oft-Pardoning) says:

Whoever disbelieved in Allh after his belief, except him who is forced

thereto and whose heart is at rest with Faith - but such as open their breasts
to disbelief, - on them is wrath from Allh, and theirs will be a great torment.
(Srah 16. An-Nahl, yah 106)

Moreover, there is Qidah that perfects this Qidah:



| P a g e 95

(M jz le darrah yuqadar be qadarih) What is permissible due to necessity


is restricted by it and should not transgress it.
Perhaps it was extracted from what Allh says:
...


...

But if one is forced by necessity without willful disobedience nor


transgressing due limits; then, there is no sin on him...
(Srah 2. Al-Baqrah, yah 173)

The conditions of Darrah ( ,


necessity) are:
It must be real, truthful and not fabricated, and it can actually remove the
difficulty in hand. Thus, for instance, if one has the choice either to spend
some years in jail for indebtedness or to take Rib (money to pay his debt), he
can take the Rib. That is because if he refuses to take Rib, he will be
imprisoned, mingling with criminals, and his family's affairs will deteriorate,
and so on.



:






.

Narrated Ahmad ibn Al-Miqdm that Khlid that Said that Qatdah that Anas
:
Allh's Messenger gave permission to Az-Zubair and Abdur-Rahmn
Ibn Awf to wear silk clothes owing to skin irritation.157
Three levels of Darrah are involved in this Qidah:
1- Darrah that makes the illegitimate, legitimate:
Like when someone fears death because of starvation, he must eat
anything that he can fin, even if it were a dead animal or Pig meat.

157

Sahh Al-Bukhr, chapter: Wearing silk clothes in war, 2762, Sahh Muslim, chapter: Wearing silk clothes for
who is afflicted by itching, 5550, and Ibn Uthiymn, Al-Qawid Al-Fiqhiyyah, p.26.

| P a g e 96

2- Drurah as a consequence. It does not legitimize the illegitimate.


Like If someone was forced to utter blasphemy or words of disbelief, he
can say them providing that his heart is full of faith. In this example, the
doer is not sinful, but the description of the act is still Harm. In this
type of Darrah or Rukhsah, should a person refuse what he is enforced
to do, it might be better for him.
3- Darrah that does not legitimize what is illegitimate.
Such as killing a sinless or Infallible blood person, dealing with parents
forcefully or violently, committing Zin ( , adultery, fornication), and
so on. In this type of Darrah, what is done is Harm, and the doer is
sinful and must recompense the victim. However, Al-Hudd ( ) 158
, suspicions). It is recorded that
are avoided by Ash-Shubuht (
Tarkhs ( , concession) removes sin but cannot remove Tahrm.
Examples:
It is permissible for a creditor to secretly take all or some of his money
from a debtor who wrongly declines to repay the money.
It is permissible to defend and kill an enemy who cannot be subdued
except by killing him.
Al-Muhrim can kill wild animals defending himself.159
Out of necessity, one can drink wine or urine (if there is no water) to
swallow food.160

158

Fixed punishments by Sharah.

159

Alud-Dn Ab al-Hasan Al ibn Suliymn Al-Mardw al-Hanbaliy (d.885/1480) At-Tahbr Sharh at-Tahrr
f Usl Al-Fiqh,Vol.8, p.3847, verified by Dr. Abdur-Rahmn Al-Jibrn and others. Saudi Arabia: Riyadh, Ar-Rusd
Press, Volume 8, 1421/2000.
160

The previous source and the same page.

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Al-Qidah no. 4:





(Ad-drurah tuqadar be qadariha or m ubh le drurah yuqadar be
qadarih)
Necessities have limits that should not be exceeded
Darrah (
,
necessity) that is blockaded by sieges should not
exploit Rukhsah. The Dbit (,
the controller), here, that limits the Darrah
is a dangerous matter or severe hardship that human beings cannot endure.161

Evidence:
Allh ays:
...


...

But if one is forced by necessity without willful disobedience nor


transgressing due limits; then, there is no sin on him...
(Srah 2. Al-Baqrah, yah 173)

Should Rukhsah be restricted by a definite time, a man cannot go beyond that


time.
Examples:
Suppose a person, in order to save his life, was forced to eat a dead
animal, he is no allowed to consume more than he actually needs to
survive.
A doctor should not look at the private parts of a man's body except
what is necessary.
If someone is starving, and another person, who has more than his
immediate needs, refuses to provide the starving person with food, the
161

Abdur-Rahmn As-Sad, Rislah Latfah wa Jmiah men Usl Al-Fiqh Al-Muhemmah, p. 103. Beirut,
Lebanon: Dr Ibn Hazm Press, 1412/1992.

| P a g e 98

hungry person has the right to take it by force, and to recompense him
later.

| P a g e 99

Al-Qidah no. 5:


(M jz le udhr batal be zawlih)
Should something become legal by a valid excuse, it becomes illegal
when the excuse ends
If something (Y) has become lawful by an accepted excuse (X), Y is going to
become unlawful when X ends. Unlawful here equals nonexistent since when
X is absent, Y must stop.162
Examples:
In the event of making Tayammum instead of Wud, because there is
no water, a man will make Wud when he finds water.
Returning to his country, a traveler should not make Qasr
shorten) Salh.

( ,

A widow in her Iddah should stay in her house until the Iddah ends
except if she needs to work to get money. However, if she finds money,
she has no right to look for work or to work within this period of time.

162

Dr. Al-Born, Al-Wajz, p.241.

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Al-Qidah no. 6:




(Al-hjah tanzil manzil ad-drurah mmah aw khssah)
General/Particular need, can develop into necessity
Hjah (
,
need) is lesser than Darrah (
,
necessity) and Sharah
divides man's needs into three categories:
1- Darrah:
It is Circumstances where one or more of the five objectives of Sharia is
violated, (protection of faith, life, intellect, honor, and wealth).
2- Hjah:
It is Circumstances where one or more of the five objectives of Sharia may
be violated.
) 163:
3- Kamliyt (
It is extra comadities that are neither necessary nor needed (luxurios
comadities).
Note
When a general Hjah befalls someone or a group of people, it becomes a
Darrah that needs to be removed by Rukhsah for all people. Hjah turns to
Darrah not for one person only but for all people, members of a particular
occupation or citizens of a certain country. A forbiden matter becomes
allowable by Darrah, and it ends when the Darrah ends, and human/s
can benefit from it. Matters that are used as a pretext for committing
Harm become Harm; however, Darrah renders them Hall.164

163

Luxuries, articles of luxury; nonessentials, and so on.

164

The previous source, p.26.

| P a g e 111

When people are afflicted by a particular hardship which can destroy their
life, they take exactly what they need even if it is Haram, Ghiyth, Imm
Al-Haramain (d.478/1085) stated. The group of scholars who advocates
this trend and his leader Al-Juwiyn Imm Al-Haramain said, When there
is no way for people except to take or commit Haram, three provisos
must be adhered to:
i. Hjah must be true, not unreal. Hjah here means removing a certain
hardship people are suffering from.
ii.

iii.

When there is no escape except taking or committing Haram.


People must only take what they really and precisely need since
there is no room (in that case) to live in comfort and luxury.165

Examples:
166
Al-Ijrah (
Al-Jilah () ,
),

168 and As 167 Al-Hiwlah ( )


Salam ( ) 169 are not analogous to Sharah, but they are legalized
owing to the public Hjah of people. Although one has not to sell nonexistent objects, Al-Ijrah and As-Salam are exceptions to this principle
because of the Hjah of people. Al-Jilah includes ignorance of its
affairs, and Al-Hiwlah is to trade a debt with another debt and that is
null and void, but they are allowed thanks to the public Hjah of people.
Because of people's need, it is permissible to appoint a broker and to
pay for him such and such a sum of money although Al-Qiys disallows

165

Ahmad Al-Kf, Al-Hjah Ash-Shariyyah Hudduh wa Qawiduh, pp.115-117. Beirut, Lebanon: Drul
Kutub Al-Ilmmiyyah Press, 1st. ed., 1424/2003.
166

The use and enjoyment of property for a time, includes hire, rental, and lease.

167

A reward given to a person for doing something.

168

The transference of a debt from one person to another. It is an agreement whereby a debtor is released from a
debt by another becoming responsible for it.
169

The synonym of salaf means a sale in which the price is paid at once for goods to be delivered later.

| P a g e 112

that deal and dictates that the broker should take the wage of the like of
him.170
Out of necessity, Sharah allows the witness or the judge to look at a
woman's face, even if he certainly knows that this matter causes him a
very strong sexual desire.171

170

Az-Zurqq, Sharh Al-Qawid, p.211.

171

Alud-Dn Al-Kasniy (d.587/1191), Badi as-Sani f Tartb ash-Shari, Vol.5, P.122, Beirut: Dr alKitb Al-arabiy, 1982, Volume 7.

| P a g e 113

Al-Qidah no. 7:

(Al-idtirr l yubtil haqq al-ghair)


People's rights are not devoured because of necessity

"
This Qidah limits Qidah: "

(Ad-darrt tubih al-mahzurt) Necessity knows no law, namely whether
a matter is Darrah or Hjah, man ought not to seize others' rights. In
addition, it is not permissible to remove detriment by drawing another
detriment. Therefore, if starving, a person is obliged to consume others' food
yet he is onligated to repay the valur of the food to the owner when starvation
is removed. If a person has been brutally forced and threatened to commit
Harm, the one who commanded him will be the oppressor who will be held
accountable for the act and who must compensate the victims. When a person
is forced to take somebody's life, he should not do it. However, if he did, he
and the one who commanded him will both be responsible for the crime. It is
believed that coercion is not a valid excuse for committing murder.172
Examples:
When someone on board a means of transportation throws others'
baggage in the ocean to reduce the load, he has to make up to those
people for the damage.
When somebody slays a camel defending himself, he does not reimburse
its owner, according to Shfiiyyah and Hanabelah.173 However, he
should make up for it to its owner as people's rights are not devoured
172

173

Dr. d Al-Born, Al-Wajz , p.244.


Al-Ats, Sharh Majalat Al-Ahkm, Vol. 1, p.76.

| P a g e 114

owing to necessity, unless it is commonly known as a wild animal and


his owner does not keep it back from attacking people, Hanafiyyah
observe.174 Hanafiyyah believe that Al-Ibhah (
, permission) does
not thwart the guarantee.175

174

Dr. Al-Born, Al-Wajz, pp.244-245.

175

Muhammad Amn ibn Umar ibn Abel-Azz ad-Dimeshqiy Ibn Abdn, a great scholar of Hanafiyyh
(d.1836/1252), Hshiyat Radd Al-Mukhtr Al Addurr Al-Mukhtr Sharh Tanwr Al-Absr Fiqh Ab Hnifah
Vol.6, p. 663. Beirut, Lebanon: Dr Al-Fikr Press, Volume 8,1421/2000.

| P a g e 115

Al-Qidah no. 8:



(Idha taadhar al-asl yusr il al-badal)
When Al-Asl (that must be first) is not available, we proceed to Al-Badal
(alternative)
First, we need to talk about categories of Al-Ad ( , which is fulfilled
immediately) and Al-Qad (
, which is fulfilled later).
Kinds of Al-Ad:
1. Complete Ad like one who offers Salh at its time in congregation.
2. Partial Ad like one who offers Salh alone.
3. Ad that looks like Al-Qad, for instance, a person came later to offer
congregational Salh, so he performs what he has missed; this is called
Qad and in the same time it is named Ad since he has performed
Salh with the Imm.176
Kinds of Al-Qad:
1. Complete Qad, when, for example, somebody steals something and
devours it fully, he must repay its value or its like.
2. Incomplete Qad, when, for instance, a person takes something that
does not have a counterpart, but it can be valued, he must pay its cost.177
The Qidah says that if one cannot do Azmah, he should resort to Rukhsah
called Badal ( , an alternative).
176

Al-Mawsah Al-Fiqhyyiah Al-Kuwaitiyyah, Vol.2, p.327.

177

Dr. Al-Born, Al-Wajz, p.248.

| P a g e 116

This Badal is divided into three types:


1-a Badal that exist but only in the future and after the time ends:
Imagine the time of Salh is about to end and there is no water (but it will
possibly appear after the time of Salh terminates), a man would make
Tayammum.
2-a Badal which is not limited by time:
A Muslim will not leave Kaffrah178 and avail himself of Badal if he has the

ability to do Kaffrah since these sorts of Kaffrt (
, plural of Kaffrah

, expiation) are not constrained by time. Even if he dies, his heirs on his
behalf can do Kaffrah from his property.
3- a Badal is equivalent to the two previous kinds of Badal:
For expiation of Zihr ( )
179, for instance, a man can do penance later since
it is not controlled by a definite time, as the majority of scholars state180, or he
can turn to Badal (fulfilling the Kaffrah) if that postponement wrongs him.181

Evidence:
Allh the One Who loves those who make themselves clean and pure says:


...

...

And if you are ill, or on a journey, or one of you comes after answering the

call of nature, or you have been in contact with women (be sexual relations)

178

Certain punishment upon the people who committed sins. Some kinds of Kaffrah are: Fasting, feeding the poor
and freeing a slave.
179

Signifies the likening of a woman to a within the prohibited degrees. The usual formula is: "You are to me as my
mother's back." Before Islam, Zihr stood as a divorce, but Islam changed it to a temporary prohibition, for which
expiation must be performed, viz. either freeing a slave, or two months' fast, or feeding sixty persons. See
Dictionary of Islamic Terms, Arabic-English by Deeb Al-Khudarawi.
180
Some, however, stated that he is sinful when he delays doing of kaffrah of az-Zihr till the end of his life. See
Al-Mawsah Al-Fiqhyyiah Al-Kuwaitiyyah, Vol.10, pp. 14-15
181

Dr. Al-Born, Al-Wajz, p.248-249.

| P a g e 117

and you find no water, then perform Tayammum with clean earth and rub
therewith your faces and hands (Tayammum)
(Srah 4. An-Nis, yah 43)

In another position, Allh the Most Beneficent says:


...

...

Then if you are in safety and whosoever performs the Umrah in the

months of Hajj, before (performing) the Hajj (i.e. Hajj-at-Tamattu and AlQirn
animal, i.e. a sheep, a cow
) , he must slaughter a Hady (
or a camel, etc.) such as he can afford, but if he cannot afford it, he should fast
three days during the Hajj and seven days after his return (to his home),
making ten days in all...
(Srah 2. Al-Baqarah, yah 196)

Examples:
In the event of argument between a couple of suitors and the guardian
of a woman, they will adhere to the Mahr ( , dower) of her
counterparts.
If the spouses differ in the dowry and none of them has Bayyinah (),
the dowry of the like of women should be there.
Concerning Al-Waqf ( , endowment), if there is no Bayyinah, we ought
to return to treatment of the persons who were responsible for Al-Waqf
in the past.

| P a g e 118

The Fourth Qidah Kulliyyah Kubr




(L darar wa l dirr)182
Or (Ad-darar yuzal)
There is to be no harm, and no reciprocating harm, or harm must be
eliminated
This Qidah states that a human must not hurt others (creating ,
Darar),
and others should not reply too (producing ,
Dirr), Imm Ibn Al-Athr
(d.606/1209) observed183. In addition, it shows how Islm encourages
people's security, spreads peace by dismissing evil from their life and forbids
detriment among them. Several chapters of Fiqh are based on this Qidah

such as: Al-Khayart (
),184 Al-Hajr, ash-Shufah () ,185 Al-Qiss

182

It is Sahih le ghaireh (i.e. Hadth Hasan comes from more than one narrator) Sunan Ibn Mjah, on the authority

of Ibn Abbaas
chapter: Judgments; Hadth No. 2341. Verified by Muhammad Fud Abdul-Bq and

authenticated by Al-Albniy. Beirut, Lebanon: Dr Al-Fikr Press. Volume 2.


183

Ab As-Saadt Al-Mubrik ibn Muhammad Al-Jazar Ibn Al-thr, An-Nihyah f Gharb Al-Hadth walAthar, Vol.3, p. 81. Verified by Thir Ahmad Az-Zw and Mahmd Muhammad at-Tanh. Beirut, Lebanon: AlIlmiyyah Press, 5st. ed., 1399/1979.
184

All sorts of options of contracts.

185

Adjunction. The right of pre-emption is a power of possessing property that is for sale. It applies not to
movable property but to immovable property ( aqr). This right of pre-emption appertains in the first place to
the co-sharer or partner in the property; secondly, to a sharer in the immunities and appendages of the property such
as the right to water, or to roads; and thirdly, to the neighbor. See Dictionary of Islamic Terms, Arabic-English by
Deeb Al-Khudarawi.

| P a g e 119

(
),186 Al-Hudd, Al-Kaffrt, guarantee of damages, division of common
property, appointing of leaders, Ahkm, and so on. Causing difficulties is
Harm counting on the evidence of this Qidah in the coming pages. Although
applying Hadd ( ,
penalty) generates Darar, it is not Harm as Allh
prescribes it so that people can survive in peace.
If a human wishes to injure someone for no reason, this is completely Harm.
Commonly, to act freely in ownership, there two statements are: a person
deals conclusively with his possession since it is his pure right, according to
Ab Hanfah, Ash-Shafi and others. A person has no right to proceed
independently in his ownership like a man who builds a high building
depriving his neighbour from sun and air, etc., according to Mlik (in some
cases), Ahmad and others.187

Evidence:
First, from the Qurn:
Allh the One Who comprehends all things in mercy and knowledge says:
...


...

No mother shall be treated unfairly on account of her child, nor father on


account of his child

(Srah 2. Al-Baqrah, yah 233)

Allh the One to Whom is the final return says:


...

...

The divorce is twice, after that, either you retain her on reasonable terms or
release her with kindness

(Srah 2. Al-Baqrah, yah 229)

Allh the All-Knower of everything says:


186

(Retaliation) is that punishment which, although fixed by the law, can be remitted by the person offended against,
or, in the case of murdered person, by his heirs. Moreover, arsh means estimated compensation to be given to
injured person by another person.
187

Zainud-dn Abdur-Rahmn ibn Ahmad al-Hanbaliy Ibn Rajab (d. 1393/795), JmiAl-Ulm wal-Hikam f
Sharh Khamsn Hadth men Jawmial-Kalim, Vol.3, p.921. Verified by Dr. Muhammad Al-Ahmad Ab An-Nr.
Dr as-Salm press., Volume 3, 2nd. ed. 2004/1424.

| P a g e 111

...

...

And when you have divorced women and they have fulfilled the term of their

prescribed period, either take them back on reasonable basis or set them free
on reasonable basis. But do not take them back to hurt them

(Srah 2. Al-Baqrah, yah 231)

Second, from the Sunnah:













(:


:

.)

Narrated Ab Al-Abbs Muhammad ibn Yaqb that Al-Abbs ibn Muhammad


Ad-Duwri that Uthamn ibn Muhammad ibn Uthmn ibn Rabah ibn Ab
Abdur-Rahmn ibn Abdul-Azz ibn Muhammad ad-Durawrad that Umar ibn
Yahy al-Mzn that his father that Ab Sad Al-Khudr :
Allh's Messenger said, L Darar wa l Dirr (do not injure others
and others should not reciprocate), and whosoever hurts others, Allh hurts
him, and whosoever places others under difficulties, Allh places him under
difficulties.188
Moreover, Samurah Ibn Jundab narrated that a man had a tree in
another person's orchard and the tree's owner incurred a continuous pain
because he constantly entered the orchard. The orchard's owner complained
to the Prophet of Allh who commanded the tree's owner to take an
alternative to it or leave it for charity, but he vetoed. Therefore, Allh's
Messenger ordained the owner of the orchard to remove that tree,
and said to the tree's owner, You are nothing except harmful.189
188

It is Sahh Hadth on the criterion of Imm Muslim, but he did not report it. See "Talkhs Al-Mustadrak al AsSahhiyyn," by adh-Dhahab, chapter: Bargains no. 2345.
189

It is Df (weak) Hadth. See Sunan Ab Dwd, no. 3636.

| P a g e 111

Examples:
When the period of a lease expires before harvest, the lessee can stay
until he harvests his plants because collecting crops before their exact
time damages them; however, he should pay an extra rental fee for the
additional period he stays.
There is no harm if the government incarcerates those who are well
known for prostitution and corruption to guard the community, in case
it cannot legally prove their corruption.190

190

Dr. Az-Zurqq, Al-Madkhal, Vol. 2, pp.966-967, chapter 81, passage 20-29.

| P a g e 112


Qawid come under the fourth Qidah Kulliyyah Kubr



(L darar wa l dirr)
There is to be no harm and no reciprocating harm

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Al-Qidah no. 1:

(Ad-darar yudfa be qadr al-imkn)


Harm should be avoided as much as possible
Before undergoing hardship, detriment must be averted by all available
means without incurring harm as much as possible, according to the Maslih
Mursalah (
).191

Evidence:
Allh Al-Azz ( , the All-Mighty) says:




...

And Make ready against them all you can of power, including steeds of war

(tanks, planes, missiles, artillery, etc.) to threaten the enemy of Allh and your
enemy
(Srah 8. Al-Anfl, yah 60)

Examples:
Interests for the community:
Al-Jihd is legalized by Sharah to avoid the enemies' evils, and Hudd
and Tazr192 are legally recognized to avert crime and tighten security
against it.
Should all the money in the world become Harm because of unlawful
dealings and extorted property that was mingled with one another, rich
and poor people are given what is sufficient for them all. However, if
191

The previous source, Vol. 2, pp.993-1000, chapter 81, passage 20-29.

192

Discretionary punishments.

| P a g e 114

they have been provided with what is barely sufficient, the entire world
would gradually be obliterated.193
Interests for private rights:
Ash-Shufah is sanctioned to forestall unanticipated troubles from a new
neighbor.
Hajr is officially authorized to preclude damage that may be generated
from hazardous financial deals.

193

Muhammad Ibn Muhammad Ibn Muhammad Ab Hmid Al-Ghazl, Al-Mankhl f Taliqt Al-Usl, p.369.
Verified by Dr. Muhammad Hasan Ht. Damascus: Dr Al-Fikr Press, 1400/1980.

| P a g e 115

Al-Qidah no. 2:

(Ad-darar yuzal)
Harm should be eliminated
Detriment should be overruled when it takes place.
Examples:
, options) such as KhayrulNumerous pacts including Khayart (
Aib (
),194 or Khayrul-Ghabn ( ),195 and so on, are legalized
in order to remove difficulties that may happen to the contracting
parties.196
If a tree extends to the neighbor's wall engendering trouble, the tree's
owner should eliminate the damage.
One ought to recompense others when detriment is incurred by him.

194

The option of dissolving the contract on discovery of a defect.

195

The option of deception.

196

Dr. Az-Zurqq, Al-Madkhal,Vol.2, p.993, chapter 81, passage 20.

| P a g e 116

Al-Qidah no. 3:


(Ad-darar l yuzl be ad-darar or d-darar l yuzl be mithlih)
Harm should not be overruled by another harm or by the same harm
Detriment should be overridden by the least harm and without drawing
parallel or much harm.
Examples:
When a Muslim is being forced to murder another Muslim, he must not
take the person's life since it is not permissible to get rid of oppression
by means of similar oppression.
In case of starvation, it is not permitted for a person who wishes to save
his life to seize someone else's food who also needs to survive.
The mortgagee, by the permission of the ruler, can spend on the
mortgaged object keeping it in a good state when the mortgagor
declines to expend on it; yet, the mortgagee's expenses will be the
mortgagor's debt.197

197

Az-Zurqq, Sharh Al-Qawid, p.195.

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Al-Qidah no. 4:


Ad-darar al-ashadd yuzl be ad-darar al-akhaff)
Severe harm is removed by lesser harm
, varied questions or branches) of Fiqh and Ahkm, people take
In Fur (
shelter from life's difficulties. In fact, this Qidah has been utilized in many
significant ways:



(Yukhtr ahwan ash-sharriyyen aw akhaff ad-darariyyen)





(Idh tarad mafsadatn raiy azamahum darar be irtikb akhffahum)



(Idh ijtama dararn usqqit al-asghar al-akbar).
In principle, the three Qawid above have comparable meanings saying when
you are between the devil and the deep blue sea, choose the lesser of two
evils.

Evidence:
A man who is distressed by a couple of equal calamities or cases (calling on
him to commit Harm) can elect whatever he is able to endure. However,
when both are not the same, he ought to vote on the lesser one since
committing Harm is not allowed except by Darrah, and there is no Darrah
here to choose the severer or the harder.198
198

Al-Ats, Sharh Majalat Al-Ahkm, Vol.1, p.68. Moreover, in Al-Ashbh Wan-Nazir, by Ibn Nujaim, p.17.

| P a g e 118

Examples:
If Muslims are besieged by disbelievers who refuse to release them
except for money, then money should be used to release the believers.199
Splitting a dead mother's belly is lawful on the condition that the fetus is
expected to survive.

199

As-Seyt, Al-Ashbh Wan-Nazir, p.88.

| P a g e 119

Al-Qidah no. 5:


(Yutahammal ad-darar al-khss le daf ad-darar al-mm)
Facing private harm is tolerated than facing public harm
When a nation or a group of people experience two evils urging people to
commit Harm, they must avoid facing a general tragedy. Damages are going
to be endurable if a particular disaster only pertains to one or a few men. This
Qidah is inferred from texts of the Qurn and Sunnah, Ijm, Maqsid (
,
goals) of Sharah, Al-Maslih and Al-Mursalah.
To fulfill a collective duty is better than to perform an individual duty. In fact,
when one performs an individual good deed, he only liberates himself from
the burdens, however, when he performs a deed on behalf of a group, he
liberate the group from the burdens.200
Examples:
An impudent Muftiy ( , jurist) could be thwarted from giving Fatwa
lest people should be misled or they go behind their caprices.
An ignorant doctor must be dismissed from his career for fear that
people may be hurt because of him.
In case of monopoly or high prices of some commodities, government
officials can fix a price list for them.

200

Badr-ud-Dn Muhammad Ibn Bahdir Ibn Abdullh Az-Zarkkashiy, Al-Bahr Al-Moht f Usl Al-Fiqh, Vol.1,
p.201. Verified by Muhammad Muhammad Tmer. Beirut, Lebanon: Dr Al-Kutub Al-Ilmmiyyah Press, Volume
4, 1st. ,1421/2001.

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Al-Qidah no. 6:





(Dar al-mafsid awl men jalb al-maslih)
Avoiding detriment takes precedence over bringing about benefit
When Mafsadah () 201 and Maslahah () 202 are mixed together, people
are supposed to leave both of them so long as people cannot extract the
benefit solely. Sharah is very keen to encourage man to leave the forbidden
more than to do the commands. Detriment may increase if we do not frustrate
it immediately.

Evidence:
First, from the Qurn:
Allh Al-Hakm ( ,
the All-Wise) says:
...

And insult not those whom they (disbelievers) worship besides Allh, lest
they insult Allh wrongfully without knowledge

Second, from the Sunnah:

(Srah 6. Al-Anm, yah 108)


:



(



.)
201

Harm, detriment, evil, and so on.

202

Benefit, help, good, and so on.

| P a g e 121

Narrated Ismil that Mlik that Ab az-Zind that al-Araj that Ab Huraiyrah
:
Allh's Messenger said, Whatever I forbid, you must leave it
without delay, and whatever I command, do it as much as possible.203
Examples:
If there is no secure place for taking a necessary shower, a woman may
postpone performing Salh since exposing her body is a great Mafsadah.
A man is not allowed to open a window exposing his neighbor's privacy.
The number of those who perform Hajj (pilgrimage) or Umrah (lesser
Hajj) needs to be reduced lest they should perish; in particular those
who performed it before. Should they spend Hajj's or Umrah's charges
in Allh's cause i.e. for the poor, those in debt, seekers of knowledge of
Islm, and so on, that would be appropriate for them.204

203

Sahh Al-Bukhr, chapter: Taking shelter by the Holy Qurn and the Sunnah, 6858.
204 Dr. Ysuf Al-Qaradw, Fiqh Al-Awlawiyt p.94 in At-Tatbiqt Al-Musirah le sadduth-Thari, by, Dr.
Ysuf Abdur-Rahmn Al-Fart, p.18. Cairo, Egypt: Al-Bard Press, Printed no. 2002/18363.

| P a g e 122




The Fifth Qidah Kulliyyah Kubr

(Al-dah muhakkamah)
Custom is the basis of judgement
)influences numerous Ahkm, scholars have paid it great
Since Al-Urf (
attention. First, we need to know the meaning of Al-Urf. Any act that may be
good or bad according to one's mind or Sharah is the Urf.205 Al-Urf is what is
stabilized in the souls and instilled in people's minds and nature.206
) is a general name including worshipping Allh,
In addition, Al-Marf (
dealing with people in a reasonable manner, and commands and prohibitions
of Sharah. Besides, it is familiar to people, so they accept it and do not reject
it. Al-Munkar is its opposite.207
Having confidence in this Qidah, Al-Urf is considered one of the Adillah
Shariyyah, namely it has the ability to evaluate questions and cases, and it can
give decisions regarding them unless there is Nuss from the Qurn or Sunnah
contrary to it. If a situation contains Urf and Nuss, we can avoid Urf, and judge

205

Al-Hasan Ibn Muhammad Ar-Rghib Al-Asfahniy, Al-Mufradt f Gharb Al-Qurn, Vol. 1, p. 561.
Damascus: Dr Al-Qalam Press, 1st. ed. 1412/1982.
206

Aj-Jerjn, At-Tarift, p. 193.

207

Abul-Fadl Jaml-ud-Dn Muhammad Ibn Makram Ibn-Manzr (d.711/1311), Lisn Al-Arab, Vol.9, p.236.
Lebanon: Dr Sdir Press, Volume 15, 2ed.

| P a g e 123

by counting on Nuss. Imm Al-Isnwa (d.722/1322)208 said, When a question


or a case has no solution in Sharah or Arabic language, we have better resort
to Al-Urf.209
Urf has two forms:
I. Lawful Urf does not contradict Nuss, incurs more probable Mafsadah (a
source of harm or ruin, or a reason of corruption or evil) or ignores
permitted Maslahah. People, for example, are used to fixing prices,
dealing with different currencies, defining expressions and words
employed in contracts.
II.

Unlawful Urf, on the contrary, challenges the Nuss, invites to more


probable Mafsadah or closes the eyes to permitted Maslahah. Many
people, for example, are used to devouring Rib.210

Evidence:
First, from the Qurn:
Indicating the significance of Al-Urf concerning passing Ahkm, the words AlUrf and Al-Marf are repeated in the Noble Qurn about 37 times. The
following are some of these yt:
Allh Al-Alm ( , the All-Knowing about the state of the people) says:

Show forgiveness, enjoin what is good, and turn away from the foolish (i.e.

dont punish them).


(Srah 7. Al-Arf, yah 199)

Allh the One Who knows best the transgressors says:


208

Abdur-Rahm Ibn Al-Hasan Ibn Al Al-Isnw ash-Shfiiy Ab Muhammad Jamlud-Dn, see Al-Alm ed. by
Az-Zarkkal, Vol.3, p.344.
209

Jaml-ud-Dn Ab Muhammad Abdur-Rahm Ibn Al-Hasan Al-Isnw, At-Tamhd f Takhrj Al-Furu al


Al-Usl, in Al-Qawid Al-Fiqhiyyah ed. by Dr. An-Nadaw, p.296.
210

Abdullh Ibn Yusuf Al-Judiy, Taysr Ilm Usl Al-Fiqh, Vol.2, p.64. written in 1418/1997.

| P a g e 124

...

...

then the relatives (of the killed person) should demand blood-money in a

reasonable manner, and the killer must pay with handsome gratitude
(Srah 2. Al-Baqrah, yah 178)

, the King), Al-Mlik (


, the Owner of the dominion)
Allh Al-Malik (
says:

It is prescribed for you, when death approaches any of you, if he leaves

wealth, that he makes a bequest to parents and next of kin, according to


reasonable manners. (this is) a duty upon Al-Muttaqn ( , the pious).
(Srah 2. Al-Baqrah, yah 180)

Second, from the Sunnah:


Directly or indirectly, the word Al-Marf appears in the venerable Sunnah:







.)



( : .

Narrated Ab Nuiym that Sufyn that Hishm that Urwah that ishah,
Mother of the Believers, :
Ab Sufyn is greedy, so am I sinful if I secretly takes some of his money?
Hind, the wife of Ab Sufyn, asked. You can take from your husbands money
what is enough for you and your child in Marf (a reasonable manner),
Allh's Messenger answered.211
Moreover,




( :

211

Sahh Al-Bukhr, hiring and selling trust tradition and custom, 2097.

| P a g e 125








.)
Narrated Muhammad that Ab Muawiyah that Hishm ibn Urwah that his
father that ishah, Mother of the Believers :
Ftimah bint Hubaish told Allh's Messenger that she always
suffered from vaginal bleeding in between her ordinary periods, so she had
never been in a state of Tahrah. Shall I leave Salh? she asked. No, because
it is from a blood vessel and not the menses. So when your real menses begins,
give up your Salh and when it has finished wash off the blood (take a bath)
and offer your Salh, Allah's Messenger replied. Hishm (the sub
narrator) narrated that his father had also said, (the Prophet told
her): "Perform ablution for every Salh till the time of the next period
comes.212
This Hadth reveals that the decision or the Hukm of the Prophet of Allh
returns to Urf and to what continuously occurs.

Examples:
Inasmuch as educators of Sharah were deprived from donations, it is a
duty to hire them due to their revered missions.
Ijrah can be adjudicated lawfully even if there has not been contract
between parties but that belongs to works people used to fulfill and get
earnings for.213
The periods of menstruation are subjected to Al-dah.

212

Sahh Al-Bukhar, chapter: Wud (ablution), 226.

213

Muhammad ibn Ahmad ibn Arafah ad-Desqiy Al-Mlikiy, [(d.1230/1815) born and died in Egypt wrote
several books such as "Al-Hudd Al-Fiqhiyyah", Hshiyh on "Mughn al-Lbb", on "As-Sad at-Taftazn" and on
"As-Sens", etc.] Hshiyyat Ad-Desqiy Al Ash-Sharh Al-Kbr, Vol.4,P.3. verified by Muhammad Ilsh.
Beirut: Dr al-Fikr, Volume 4.

| P a g e 126

A jurist ought not to give a person from another country Fatwa before
being familiar with the current meaning of the questioner's words in
that country.214

Note
Suppose a single word were to bear a couple of indications or meanings, the
meaning of Sharah and the meaning of Urf, what would we do?
1- If the word is employed in Sharah, but it does not form
Hukm or Taklf ( ,obligation or legal capacity), we ought to
choose the meaning of Urf, particularly in Al-Aiymn (oaths) as
they are based on the Urf of the one who takes an oath.
2- If the word is exercised in Sharah and it makes Hukm or
Taklf, we should give precedence to Sharah over the Urf. When,
for instance, a man swears he does not offer Salh, his oath is not
broken unless he offers Salh including Sujd ( , prostration),
) ,215 and so on. Besides, when a person swears that he
Ruk (
does not observe Sawm, his oath is not violated unless he makes
Niyyah because avoiding food, drink or having intercourse with
his wife without Niyyah of Sawm is not considered Sawm.
3- If the word in Sharah refers to a general question or case,
yet in Urf it denotes a particular question or case, we select
the meaning of Sharah. This is the prevailing opinion in the
Hanafiy Madhhab and others. When a person, for instance, swears
he does not eat meat, his oath is not violated if he eats a dead
animal as Sharah does not consider dead animals meat. This

214

Al Hiydar, Durar Al-Hukkm, Vol. 1, p.45, passage 40.

215

The position in Salh in which the person prostrates himself in a standing position with his body bent forward at
the waist and his hands on his knees.

| P a g e 127

view is according to Hanafiyyah and Shfiiyyah, but Hanabelah


have two narrations in this matter.216

Al-Lafz between Linguistic Facts and Habitual Facts:


Al-Hanafiyyah:
Oaths rely on Al-Urf not on linguistic facts; there is no difference in this
point. So, if a person, for example, takes an oath that he will not consume
bread, his oath is broken when he eats what the people of his city used to eat.
However, if a man swears that he will not eat meat, his oath is violated when
he consumes pig; some Hanafiyyah trust generalization of the linguistic facts.

Ash-Shfiiyyah:
Since Imm ash-Shfi sometimes would depend on linguistic facts and on the
facts of Urf, some scholars of Shfiiyyah give precedence to linguistic facts
over the facts of Urf, while the other scholars of Shfiiyyah do the opposite.
Therefore, if, for example, a man swears that he will not dwell in a house, his
oath is broken when he resides in a tent whether he is a Bedouin or a villager;
this is the opinion of the first group. However, if he is a Bedouin, his oath is
violated when he settles in a house whatever its kind is.

Hanbelah:
When the usage of the general noun prevails in some of its individuals till it grows
a linguistic fact i.e. they use Urf:
So, if a person swears that he will not devour Shew ( ,
a roast), his oath is
not broken when he consumes any other food can customarily be roasted.
When the private usage prevails, and that has two shapes:
a) A noun that cannot be called a general noun except when it is
added by another noun; it cannot come alone or enter in
generalization; there is agreement on this point. So, if, for
instance, a man takes an oath that he will not eat/drink tamr
hindiy ( , tamarind), his oath is not broken when he eats
tamr ( , dates) since tamr hindiy cannot include all tamr.
216

Dr. Al-Born, Al-Wajz, pp.286-288.

| P a g e 128

b) A noun that is called a general noun but it mostly needs


another noun; it cannot be understood alone; there is no
agreement on this point. Therefore, if, for example, a man
swears that he will not eat heads, his oath is broken (according to
some of Hanafiyyah) when he eats head/s of fish or birds. His
oath, however, is not violated unless he eats a head that people
used to eat customarily, according to other Hanafiyyah.

Mlikiyyah:
First, oaths rely on Niyyah then on incentive then on Urf then on
linguistic facts.217

217

Dr. Al-Born, Al-Wajz, pp. 288-291.

| P a g e 129

INDEX
Alphabetical List of Al-Qawid Al-Fiqhiyyah (Legal Maxims) in
Islamic Jurisprudence
P. no.
Legal Maxims of Islamic
Transliteration
Jurisprudence
1.
A conditional matter
Al-mualaq be ash-shart
cannot be confirmed unless yajeb thubtuh inda thubt
296
the condition is confirmed
ash-shartt
2.
3.
4.
5.

6.

7.

8.
9.

A follower has no priority At-Tbi l yataqadam al


over its origin
al-matb
A follower is not supposed
At-tbi l yanfarid be
to be judged alone
hukm
A follower shadows its
At-Tbi tbi
origin
A general discourse is not Al-mutlaq yajr al itlqih
restrained except by text or m lam yaqm dall at-taqyd
a connotation
nussa aw dallah
A part of the indivisible
Dhikr badd m l yutajazz
discourse symbolizes the
kadhikr kullih
entire discourse
No argument with
L Hujjah maa al-ihtiml
possibility arising from the
an-nshie ann dall
evidence
A short response includes As-sul mudu f al-jawb
features of the question
aw kal-mud
Accidental tradition is not L ibrah be al-urf at-tr
considered; accepted
or al-urf allath tuhmal
tradition, which discourse
alaih al-alfz innam

223
217
214

212

203

129
206

179
| P a g e 131

is understood by, is the


concomitant and earlier
tradition not the subsequent
and later tradition
10. Acts are judged by the
intention behind them
11. Addition is better than
assertion
12. If the origin is null and
void, the follower is too
13. The origin may be eroded;
yet its follower may not
14.
An unfeasible matter
cannot entirely overwhelm
a feasible one
15. An unfeasible widespread
matter resembles a
subjectively impossible
matter
16. Antecedent judgment is
supposed to stay as it was
17. Do oaths lean on discourses
or purposes?
18. Authorization precludes
liability
19. Avoiding detriment takes
precedence over bringing
about benefit

huwa al-muqrin as-sbeq


dna al-mutakher al-lhuq

Al-umur be maqsidih
81

At-tss awl men at-tkd


208

At-tbi yasqut be suqt al219


matb
Qadd yathbut al-far maa
221
suqt al-asl
Al-miysr l yasqut be almasr
269

Al-mumtani dah kalmumtani hqqah

127

Al-asl baq m knal m


kn
Hall al-aiymn mabniyyah
al al-Alfz aw al alaghrd
Al-jawz ash-shariy yunf
ad-damn
Dar al-mafsid awl men
jalb al-maslih

286
94

243

166

| P a g e 131

20.

Avowal is finite proof

21. Avowal is not demurred by


the admittee
22. Avower cannot deny his
avowal

23. Certainty is not overruled


by doubt
24.
The committer is
answerable for his deed
except under duress
25.

Al-iqrr hujjah qsirah


Al-iqrr l yartad be arradd

237
239

Mann sa f naqd m
tamm men jihatih fa saih
mardd alaih
Al-yaqn l yazl be ashshakk

241

101

Yudf al-fel il al-fil l


255
al-amir m lam yakun
mujbar
Innam tutabr al-dah
idh id-dtaradat aw ghalabt

Common attitude and


prevailing habit is Hujjah;
infrequent and exceptional
acts are not considered
26. Custom is the Basis of
Al-dah muhakkamah
Judgment
27. Description of an absent
AL-Wasf f al-hdir laghw
object not the present onewa f al-ghib mutabr
Is required
28. Does intention particularize Hall an-niyyah tukhasses
a general discourse or
al-lafz al-amm aw
generalize a particular
tuammem al-Lafz al-khss
discourse?
29. Donation is not fulfilled
L yatemm at-tabarru ill
except after receiving
be al-qabd
30. Facing private harm is
Yutahammal ad-darar al-

178

268

205

92

250

| P a g e 132

tolerated than facing public khss le daf ad-darar alharm


mm
31. General text remains till
Al-mm yabqq al
evidence particularizes it umumih il ann yarid dall
youkhasesuh
32. General/Particular need can Al-Hjah tanzil manzil addevelop into necessity
drurah mmah aw
khssah
33.
In principle, any new
Al-asl idfit al-hadath ill
events shall be regarded as
aqrab awqtih
happening at the nearest
time to the present
34.
Hardship begets ease
Al-mashaqqah tajleb attiysr
35. Harm should be avoided as Ad-darar yudfa be qadr almuch as possible
imkn
36. Harm should be eliminated
Ad-darar yuzal
37.
Harm should not be
Ad-darar l yuzl be adoverruled by another harm darar or d-darar l yuzl be
or by the same harm
mithlih
38. Ijtihd Is Not Abrogated by
Al-ijtihd l yunqad be
Its Like
mithlih
39. Ijtihd is not permissible
L masgh le al-ijtihd f
mawred an-nuss
when there is text
40. If a person has no intention Hall al-aiymn mabniyyh
or aim to take an oath, are
al al-urf ?
the words employed in
oaths built on tradition?
41. Does an oath rely on the
Hall al-aymnal niyyat

165

279
145

114

130

159
161

162
262

258

95

| P a g e 133

intention of the one who


al-half aw al niyat alswears or on the intention
mustahlif?
of the one who adjures
another person to swear?
42. It is undeniable that rules of L yunkar taghair al-ahkm
law vary with change of
be taghair al-azmn
time
43. In principle, legal sexual
Al-asl f al-abd at-tahrm
intercourse is absolutely
forbidden except legal ones
44. Non-Liability or man Is
Al-asl bartudh-dhemmah
absolved from guilt, blame
or responsibility for any
wrong deed in principle
45. Man is responsible for his
Al-mar muakhadh be
avowal
iqrrih
46. Necessities have limits that
should not be exceeded

47.

48.

Necessity renders
prohibited matters
permissible
No gain without pain

49. Do not Harm, and Do not


Reciprocate Harm
50. Harm should be eliminated

Ad-drurah tuqadar be
qadariha or m ubh le addrurah yuqadar be
qadarih
Ad-darurt tubh almahzurt
Al-kharj be ad-damn
L darar wa l dirr

96

190
122

180

235

143

139
245

154

Ad-darar yuzl

161

| P a g e 134

51. No one person is allowed


to dominate others
property
52. No one person is allowed
to dominate others
property except by their
permission
53. Occasional descriptions or
matters are not reliable in
principle
54. Once a cause of ownership
changes the owned object
changes
55. Outcomes are eyed by
Sharah
56. People's rights are not
devoured owing to
necessity
57. Provisos are adhered as
much as possible
58. Provisos of a follower are
more allowable than the
origin's
59. Rare and far imagination
has no value in Sharah
60. Rulers decisions must be
in favor of the people
61. Severe harm is removed by

Al-amr be at-tasarrof f
melk al-ghair btil

257

L yajz le ahad ann


yatasarraf f melk al-ghair
aw f haqqih ill be idhnnih
Al-asl al-adam aw al-asl f
as-sift aw al-umr alredh al-adam
Tabadul sabab al-melk
qim maqm tabadul adhdht
An-nazar f malt Alafl mutabr maqsud shra
Al-idtirr l yubtil haqq alghair
Yalzam murat ash-shart
be qadr al-imkn
Yughtafar f at-tawbi m
l yughtafr f ghairiha

267

111

228
291

148
274

224

L ibrah be at-tawahum
123

At-tasarruf al arraiyyah mant be almaslahah


Ad-darar al-ashadd yuzl

230
163

| P a g e 135

lesser harm
be ad-darar al-akhaff
62. When detriment be mixed
Idha tarad al-mani wa
with benefit, benefit is
al-muqtad yuqadam aldeserted, except the benefit
mani ill idh kn alis considerable
muqtad azam
63.
Should a duty not be
M lam yatemm al-wjib
fulfilled except by a matter,
ill beh fa huwa wjib
the matter becomes a duty
64. Should something become
M jz le udhr batal be
legal by a valid excuse, it
zawlih
becomes illegal when the
excuse ends
65. Should things, in principal,
Hal-asl f al-ashiy albe permissible or
ibahah aw al-hurmah
forbidden?
66.
The crucial point in
Al-ibrah f al-uqd be alcontracts is their goals and maqasid wa al-man l be
meanings not their words
al-alfz wa al-mabn
or forms
67. The literal meaning takes
Al-asl f al-kalm alpriority over the figurative
haqqah
one
68. The literal or metaphorical
Iml al-kalm awl men
meaning is considered,
ihmlih
rather than disregarded
69. To relate words to one who
L yunsab le skit qawl
lkin as-sukt f maared
does not speak is not
al-hjah illa bayn bayn
allowable but
speechlessness in an urgent

293

298

144

116

91

196

193

210

| P a g e 136

situation is considered
declaration
70. Tradition and habit are
Istiml an-ns hujjah yajib
al-amal beh
hujjah (reliable proof or an
authoritative source)
71.
Traditional or usual
Al-haqiqah tutrak be
dallat al-dah
meaning overrules literal
meaning in case of dispute
72. When literal meaning is
Idh taradat al-haqqah
implicit and vague, we
yusr il al-majz
resort to the figurative one
73. Usual signals given by a
Al-ishrah al-mahdah le
mute man symbolize
al-akhrass kal-bayn be alspeaking
lisn
74. Embezzlement cannot give
Laysa leirqq zlim haqq
a right
75.
Assured mistaken
L ibrah be az-zunn alconjecture has no value
baiyen khatauh
76. What becomes a fact by
M thabat be ash-Shar
Shar takes precedence over muqadam al m thabat
what becomes a fact by a
be ash-shartt
proviso
77. Nothing can be judged by
M thabt al khilf alwhat becomes real but
qiys fa ghairuh l yuqs
against analogy
alaiyh
78. What falls does not return
As-sqit l yad
79. What is acknowledged by Al-marf urfa kal-mashrt
tradition or habit resembles shartta or at-tayn be alwhat is recognized by
urf kat-tayn be an-nuss

176

181

197
184

250
125

271

281

247

188

| P a g e 137

provisos
80. What is authenticated by
evidence like what is
proved true by seeing
81. What is unlawfully taken,
must be rendered back
82.

Ath-thbit be al-burhn
kathbit be al-aiyn
Ala al-yad m akhadhat
hatt tuaddiyah
Al-amr be ash-Shai
yaqtad an-nahy ann
diddih

223

249

When a matter is
commanded to be done, its
opposite is forbidden to be
done
83. When a matter tightens, it
Idh dq al-amr itasa wa
will widen and vice versa
idh itasa dq
84. When Al-Asl (that must be Idha taadhar al-asl yusr
il al-badal
first) is not available, we
proceed to Al-Badal
(alternative)
85.
If no meaning can be
Idh taathar iml alattached to a word,
kalm yuhmal
altogether to be disregarded
86.
When something is
Idh batal ash-shai batal
nullified, its contents are
m f dimnih
also nullified
87. Whatever is proved to be
M thabat be yaqn l
true with certainty, Can
yartaf ill be yaqn
only be cancelled by proof
88. Whatever is forbidden to
M hurrim akhdhuh aw
feluh aw istimluh hurrim
be taken, done or
ituh aw talabuh aw
employed; is forbidden to
itikhdhuh
be given, requested or

284

136

150

202

226
110

246

| P a g e 138

possessed
89. When someone rushes into
something before its due
time, he is punished by
depriving
90. Whoever possesses a thing
possesses its accessories
91. Writing is like speaking

Mann Istajal ash-shaia


qabl awnih uqeb be
hermnih
Mann malak shaia malk
m huwa men darrtih
Al-kitbah kal-khitb

100

218
183

| P a g e 139

APPENDIX I. GLOSSARY
dah
Adella-tu-Juziyyah
or Tafsiliyyah

Habit, routine, practice, and so on.

Asr
Awrah

Afternoon, Asr prayer time.


The part of the body which it is illegal to keep
naked before others. Awrh of man is between the
navel and the knee, but Awrh for woman is the
whole body except face and hands. Also, Awrh
means private parts, loins, genital organs, pudenda.
View(ing), seeing, witnessing, and so on.
A duty imposed by Allh.
Worship.
Acts to worship Allh.
A period is prescribed by Allh for divorce and
marriage; a period of probation after the death of a
womans husband or after her divorce.
Inevitable knowledge needs no great deep
examination or complicated study like Al-Ilm AlMutawtir (consecutive knowledge) or the
knowledge which comes to be known through the
five senses (ears, eyes, tongue, nose and skin).
Acquired knowledge depends on limitless scrutiny
to approve (evidence supporting) theories or
notions that need to be conceivable, and so on.
Seclusion in Masjid (a mosque) for worshipping
Allh.
Tradition, custom, institution, and so on.
Ushr (a 10% levy)

Ayn
zimah
bdah
Ibadt
Iddah

Ilm Darry

Ilmu Muktasab

Itikf
Urf
Ushr

Special texts (from the Qurn and Sunnah), analogy and


consensus indicate Hukm of a particular action (of a man). For
example, Allh says, ) ( (Allh allows trading
and forbids usury); this Ayah is a detailing/partial proof a jurist
has extracted a practical Hukm thereby i.e. permitting of trading
and forbidding of usury.

| P a g e 141

Adhkar or Idhkir

A kind of grass well-known for its good smell and


is found in Hijz, Saudi Arabia.
Adillah Shariyyah
Shriah's sources, namely the Qurn, the Sunnah
and Ijmthere are other sources but there is no
consensus on them.
Ahkm
Judgments of legal decision (especially of Allh)
Ahkm Juziyyah
Minor issues or judgments.
Ahkm Kulliyyah
Major issues or judgments.
Al-Asl
Sometimes, means Ad-Dall (evidence) that people
must resort to when Al-Ahkm (judgments of legal
decision (especially of Allh)) contradict each
other. Or origin, basis, principles, fundamental
concepts, and so on.
Amn
Protection given by a Muslim conqueror to those
who pay Jizyah.
Amr
Ordainment.
Ashbh
The plural of "shebh" or "shabah" which literally
means similitude and resemblance. However,
practically it is a true collective description which
if it is shared by Al-Asl (origin, basis, principles,
fundamental concepts, and so on) and Al-far'-AlFiqhiy (a branch of Fiqh), both of them must be
subjected to one rule only.
Awsaq
Plural of Wasq, which is a measure equal to 60
Sas. 1 Sa= 3,25 kilograms (approx) and
603.25=195 kgms., according to Hanafiyyah.
However, Sa= 2.04 kgms. And 602.04=122.4
kgms., according to the majority of scholars.
Badal
An alternative.
Bai-Al-madm
A contract for non-existent things.
Bayn
Disclosure or revelation.
Bayyinah, Burhn or Proof, evidence, demonstration, testimony,
Dall
witness, and so on.
Bidah
Heresy (or any innovated practice in religion).
| P a g e 141

Dallah
Dbit

Darrah
Dhu-Mahram

Diyyah
Faqh
Faqr
Fardah
Fiqh
Fur-Al-Fiqh
Furq
Ghalabat-uz-Zunn
Ghusl

Hadiyyah
Hebah
Haddul-Qadhf
Hadth Sahh
[Authentic]

Hadth Hasan
[Good]

Connotation, meaning, sense, signification, and so


on.
Literally means a block which prevents different
questions from coming through or a controller
preserves something strictly. It, however,
practically means a total Fiqhiy rule which
controls and includes more Fr Fiqhiyyah
(varied branches of Fiqh) of one chapter of Fiqh.
Necessity.
A male, whom a woman can never marry because
of close relationship (e.g. a brother, a father, an
uncle and so on); or her own husband.
Blood money
A learned man who can give religious verdicts.
The poor person who does not beg.
(Plural: Farid) an enjoined duty.
Jurisprudence.
Varied Fiqhiy questions or branches of Law
(Plural of Farq) means a reparative matter.
A strong probability.
(To take menses bath) or taking a bath in a
ceremonial way. This is necessary for one who is
Junub.
A gift or a present.
A deed of gift or to give someone gift, present, and
so on, immediately and without exchange.
Punishment of eighty lashes for slander.
A Hadth whose chain of narrators has been
transmitted by truly pious persons who are known
for their uprightness and exactitude, and the hadth
is free from eccentricity and blemish.
A Hadth whose chain of transmission is linked to
the narration of an authority with weak exactitude,
and the Hadth has no eccentricity or blemish.
| P a g e 142

Hadth Daf [Weak] A Hadth that has no the criterion of the authentic
Hadth nor the criterion of the good Hadth.
Hjah
Need.
Hajj-at-Tamattu
Hajj performed with Umrah preceding it.
and Al-Qirn
Hajr
Placing someone under guardianship after
declaring him legally incompetent because of
immaturity, insanity or servitude.
Haram
Sanctuaries of Makkah and Al-Madinah.
Harm
Unlawful, forbidden and punishable matter from
the viewpoint of religion.
Hazr
Prohibition, forbiddance, and so on.
Hiwlah
The transference of a debt from one person to
another. It is an agreement whereby a debtor is
released from a debt by another becoming
responsible for it.
Hudd
Fixed punishments by Sharah; or Allhs
boundary limits for Hall (lawful) and Haram
(unlawful).
Hudd and Tazr
Fixed and discretionary punishments.
Hujjah
Reliable proof or an authoritative source.
Irah
Loan.
Itiqd
Belief.
Ihrm
State of ritual consecration (of a Makkah pilgrim).
A state in which one is prohibited to practice
certain deeds that are lawful at other times. The
ceremonies of Umrah and Hajj are performed
during such a case.
Ijrah
The use and enjoyment of property for a time,
includes hire, rental, and lease.
Ijm
Is the third foundation of Islamic legislation. Ijm
is the consent of all Muslim Mujtahidn on a legal
question. Mujtahid is a Muslim divine of the
highest degree of learning, a title usually conferred
| P a g e 143

Ijtihd
Immah
Imn
Iqrr
Arsh
Istidll

Istihsn

Istis-hb
Istis-hab- Al-Hl
Istis-hb-Al-Umm

Istis-hb-an-Nuss:

Istisn

by Muslim rulers. Ijm has two kinds: (A) Ijm


Qawliy in which every Mujtahid should declare
the legal question. (B) Ijm Suktiy, when the
majority of the Mujtahiudn signify their tacit
assent to the opinions or the minority by silence,
without objection.
An independent judgment in legal question.
The Imamate, function or office of the Salh
leader; leading position.
Faith, and trust in Allh.
Confession, acknowledgment, avowal, owning,
admission, and so on.
Estimated compensation to be given to injured
person by another person.
Literally means asking for evidence or proof;
however, it practically (in this field) means giving
evidence or proof which does not depend on a text
(from the Qurn or Sunnah)
To give a verdict with proof from ones heart
(only) with satisfaction, and one cannot express it
(only Ab Hnifah and his pupils say so but the
rest of the Muslim religious scholars of the Sunnah
(and they are the majority) do not agree to it.
The first state of a specific case or matter.
That we believe that something exists continuously
inasmuch as it surely existed before.
An authenticated matter (in the past) because of a
general proof must stay as it was until specific
evidence comes to individualize it.
An authenticated matter (in the past) because of
Nuss (a text from the Qurn or the Sunnah) must
stay as it was until abrogating Nuss comes to
abrogate it.
Sale in the form of a contract for manufacture.
| P a g e 144

Jilah
Jihd

A reward given to a person for doing something.


Fighting in the Cause of Allh or any other kind of
effort to make Allhs Word superior.
Jimr
The three pillars at Mina, at which the Makkan
pilgrims throw seven pebbles.
Jiziyah
Head tax levied from the non-Muslims people
(Jews and Christians, and so on) who are under the
protection of a Muslim government.
Kaflatun- ben-Nafs Bail (especially for due appearance of a person in
court).
Kaffrah
Religious expiation for killing, oaths or having
intercourse during the day in Ramadn.
Kaffrat-ul-Yamn
Expiation of an unfulfilled oath.
Kaffrat-dh-Dhunb Expiation of sins.
Kalm
Discourse, words, speech, and so on.
Kalm Mutlaq
Unrestrained discourse.
Kamliyt
Luxuries, articles of luxury; nonessentials, and so
on.
Khayart
(Options) such as Khiyr Al-Aib (the option of
dissolving the contract on discovery of defect), or
Khiyr Al-Ghabn (the option of deception).
Khilf-Al-Awl
To do something that is good but is not the
optimum.
Khul
(A kind of divorce) the parting of a wife from her
husband by giving him a certain compensation, or
to return back the Mahr (dowry) which he gave
her.
Lafz
Word/s.
Lin
An oath that is taken by both the wife and the
husband when he accuses his wife of committing
illegal sexual intercourse. Lin is a form of
divorce which takes place under the following
circumstances: If a man accuses his wife of
adultery and does not prove it by four witnesses,
| P a g e 145

Luqatah
Maruf
Mafsadah
Mahr
Makrh
Maqsid (the plural
of Maqsid)
Mashah
Maslih Mursalah
Maslahah
Matb
Mathl
Mawl

Miskn
Mubh
Mudd
Mudrabah

he must swear before Allh that he is the teller of


truth four times, and then add: "If I am a liar, may
Allh curse me". The wife then says four times, "I
swear before Allh that my husband lies, and then
adds: "May Allh's anger be upon me if this man
be a teller of truth". After this, a divorce takes
place.
Lost property.
Islamic Monotheism and all that Islm has
ordained.
A source of harm or ruin, or a reason of corruption
or evil, harm, detriment, evil, and so on.
Bridal-money given by the husband to the wife at
the time of marriage.
Not approved of, undesirable from the point of
view of religion, although not punishable.
Intent(ion), purpose, design, aim, end, goal,
object(ive).
(in sha Allh' (God willing))
Unspecified public interests.
Benefit, help, good, and so on.
Origin, principal, leader, independent, superior,
senior, and so on.
Match.
A person of slave origin who does not have tribal
protection. It is a word with dual meaning. It can
mean either master or servant.
The poor person who begs.
Permissible, permitted, allowable, allowed,
admissible, lawful, legal, and so on.
A measure of two thirds of a kilogram (approx.) It
may less or more.
A contract of copartnership, of which the one party
(namely the proprietor) is entitled to a profit on
| P a g e 146

Muftiy
Muhalil

Muhrim
Mujtahid
Mukalafn
Mumthalah
Munzarah

Munkar
Mushbahah
Mustahdah
Mutakalimn
Mutlaq
Nfilah

account of the stock, he being denominated Rabbul-ml, or proprietor of the stock, and the other
party is entitled to a profit on account of his labor,
and this last is denominated the mudarib (or
manager). A contract of mudrabah cannot be
established without participation in the profit.
Legist, jurisprudent ,jurist ,scholar, expert, and so
on.
The man who marries an irrevocable divorcee in
order to make her lawful for her former husband if
he wishes to marry her. Moreover, this marriage,
with no condition in the contract, is correct
according to Hanafiyyah but correct and disliked
according to Shfiiyyah . It, however, is Harm,
even there is no condition on the contract,
according to Mlikiyyah and Hanabelah
One who assumes the state of Ihrm for the
purpose of performing the Hajj or Umrah.
An independent scholar.
Those who have reached majority and have full
use of intellect.
Exact equivalence.
not exact equivalence which necessitates sharing
even in one aspect of a specific matter.
Polytheism, disbelief and all that Islm has
forbidden.
Likeness.
A woman who has bleeding from the womb in
between her ordinary periods.
Scholars trusted views.
Absolute; unlimited, unrestricted matter, and so
on.
Supererogatory Salh.
| P a g e 147

Nafl
Nahyu
Nuss
Nawzel
Nazariyyah

Nazr
Nikh

Niyyah
Qidah

Qadhf
Qad

Qasr-us-Salh

Al-Qawid
Kulliyyah Kubr
Al-Qawid
Kulliyyah Ghair
Kubr
Qiblah

Supererogatory performance or optional worship.


Prohibition, interdiction, forbiddance, forbidding,
and so on.
Text whether from the Qurn or the Sunnah.
New questions related to recent events.
Literally means theory or notion and practically
refers to a group of imaginations or conceptions
which are logically stuck together displaying the
relations between results and premises.
An equal or a counterpart.
Literally means sexual intercourse; whereas,
metaphorically it means marriage, according to
Hanafiyyah.
Intent(ion), purpose, design or secret.
A total rule or case which includes all the Fur
(varied branches of Fiqh) come beneath it or a
major rule or case including the most Fur which
flow beneath it.
Accusing a virtuous man or woman of adultery.
A matter which is fulfilled later, and it is the
opposite of Ad meaning a matter which is
fulfilled immediately.
Shortening of prayer, to shorten the obligatory
Salh of four Rakah to two each, but the Ish
(Evening) and the Fajr (Early Morning) Salh
remains unchanged.
Normative legal maxims.
Non-Normative Legal Maxims.

The direction in which all Muslims turn their faces


in prayers and that direction is towards Kabah in
| P a g e 148

Qiss

Qiys

Qurubt
Rajah
Rakah

Rib (usury)

Riwyah
Rukhsah
Ruk

Makkah (Saudi Arabia).


(retaliation), is that punishment which, although
fixed by the law, can be remitted by the person
offended against, or, in the case of murdered
person, by his heirs.
Verdicts and judgments given by the Islamic
religious scholars. These are given on the
following proofs respectively:- (A) From the
Qurn; (B) From the Prophets Sunnah. (C)
From the unanimously accepted verdict of the
Mujtahidn; (D) Qiys: i.e. the verdict given by a
Mujtahid who considered the case similar in
comparison with a case judged by the Prophet
. Qiys is not to be practiced except if the
judgment of the case is not found in the first three
above mentioned proofs A,B, C.
Pious works or good acts which bring man nearer
to Allh.
Receiving back a wife who has been divorced,
before the period of Iddah has fully elapsed.
The prayer of Muslims consists of Rakt
(singular-Rakah), which consists of one standing,
one bowing and two prostrations.
Usury, which is of two major kinds: (a) Rib anNasah, i.e. interest on lent money; (b) Rib AlFadl, i.e. taking a superior thing of the same kind
of goods by giving more of the same kind of goods
of inferior quality, e.g., dates of superior quality of
dates of inferior quality in greater amount. Islam
strictly forbids all kinds of usury.
Narration of the Messengers Hadth .
License, permit, authorization, warrant concession,
franchise; permission, leave of Sharah.
The position in Salh in which the person
| P a g e 149

Sadd-uz-Zari
Sahw

Salam
Science of Furq
Shabh
Shahdah
Shakk
Shar or Sharah
Shubhah
Shufah

Sujd
S
Sadaqah
Sawm

Tabarru
Tabarruk
Tbi
Tahrm
Takhss

prostrates himself in a standing position with his


body bent forward at the waist and his hands on
his knees.
Prohibition of evasive legal devices.
Forgetting (here it means forgetting how many
Rakt a person has prayed, in which case he
should perform two prostration of Sahw).
The Synonym of salaf means a sale in which the
price is paid at once for goods to be delivered late.
Practically, it means realizing the separative
matters between two similar questions.
A similar one.
Testimony.
Doubt, connotes two unequal matters that strike
man.
Revelation or the canonical law of Islam.
Something is not known exactly Hall or Harm
or when one depends on an inappropriate proof.
Adjunction. The right of pre-emption is the
power of possessing property that is for sale. It
does not apply to movable property but to
immovable property.
Prostration.
A measure that equals four Mudds (3 kg. approx).
Charity, alms, and so on, or anything given in
charity.
Fasting, to abstain from food, drink and sexual
intercourse before the break of the dawn till
sunset.
Donation, subsidy, monetary aid, and so on.
Seeking Allh's blessing.
A follower, adherent, dependent, etc and so on
Prohibition.
Specialization, specification, and so on.
| P a g e 151

Taklf
Taqld
Taqyd
Tarjh
Taslm

Tawhd

Obligation or Legal capacity.


Imitation in the Fiqh.
Confinement, limitation, restriction, and so on.
Favouring means.
On finishing the prayer, one turns ones face to the
right and then to the left saying, As-Salam
Alaikum wa Rahmtullh (Peace and Mercy of
Allh be on you).
Confirming the oneness of Allh, the Most-High.
It has three aspects; A, B and C:
Oneness of the Lordship of Allh; Tawhd-arRububiyyah: To believe that there is only one Lord
for the entire universe, its Creator, Organizer,
Planner, Sustainer, and the Giver of security, and
so on, and that is Allh.
(B) Oneness of the worship of Allh; Tawhd-AlUluhiyyah: To believe that none has the right to be
worshipped [e.g. praying, involving, asking for
help (from the unseen), swearing, slaughtering
sacrifices, giving charity, fasting, pilgrimage, and
so on], but Allh.
(C) Oneness of the Names and the Qualities of
Allh; Tawhd-Al-Asm was-Sift: To believe that
: (i) we must not name or qualify Allh except
with what He has or His Messenger has
named or qualified him, (ii) none can be named or
qualified with the Names or Qualifications of
Allh; e.g. Al-Karm; (iii) we must confirm all
Allhs qualifications which Allh has stated in
His Book (the Qurn) or mentioned through His
Messenger (Muhammad ) without
changing them or ignoring them completely or
twisting the meanings or giving resemblance to
any of the created things; e.g. Allh is present over
| P a g e 151

Tayammum

His Throne as mentioned in the Qurn. (V.20:5):


The Most Beneficent (Allh) Istaw (rose over)
the (Mighty) Throne over the seventh heaven;
and He only comes down over the first (nearest)
heaven (to us) during the day of Araft (Hajj, i.e.
9th Dhul-Hijjah) and also during the last third part
of the night, as mentioned by the Prophet
, but He is with us by His Knowledge only, not
by His Personal Self (Be-Dhtih), There is
nothing like unto Him, and He is the All-Hear, the
All-Seer. (The Qurn, V.42:11).
This noble yah confirms the quality of hearing
and the quality of sight for Allh without
resemblance to others; and likewise He also says:
To one whom I have created with Both My
Hands, (V.38:75); and He also says:
The Hand of Allh is over their hands. : (V.
48:10,The Qurn). This confirms two Hands for
Allh, but there is no similarity for them.
This is the Faith of all true believers, and was the
Faith of all the Prophets of Allh from Noah,
Abraham, Moses and Christ till the last of the
Prophets, Muhammad
It is also essential to follow Allhs Messenger
Muhammad : Wajib Al-Ittb and it is a
part of Tawhd-Al-Ulihyah. This is included in the
meanings: I testify that Muhammad is
the Messenger of Allh and this means, None
has the right to be followed after Allhs Book (the
Qurn), but Allhs Messenger . [see
the Qurn (V.59:7) and (V.3:31)].
Sand ablution, to put or strike lightly the hands
over clean earth and then pass the palm of each on
the back of the other, blow off the dust and then
| P a g e 152

pass them over the face. This is performed instead


of ablution (Wud) and Ghusl (in case of Janabah
and so on).
Thir or one is in a A Muslim who cleans and purifies himself from
state of Tahrah, Al-Hadath Al-Akbar (sexual discharge) and Alin Fiqhiy meaning
Hadath Al-Asghar (passing urine, stool or wind).
Najis (or one is in the state of Najsah) bears the
opposite meaning.
Tawf
The circumambulation of the Kabah.
Tayibt
All kinds of Halal (lawful) things.
Usliyyn
Scholars trust texts.
Usl
Origin, basis, principles, fundamental concepts,
and so on.
Usl Al-Fiqh
Methodology in Islamic jurisprudence.
Wjib
Duty, obligation task, assignment, and so on.
Wjib Mutlaq
An absolute or an unlimited duty, obligation, task,
assignment, and so on.
Walad
In Arabic connotes male/s and female/s of ones
offspring.
Wal
Literally means proximity, kin, friendship. A
peculiar relationship voluntarily established, and
which confers a right of inheritance on one or both
parties connected.
Wal-ul-Itqah
Relationship between a master and a manumitted
slave, in which the former inherits any property
the latter may acquire after emancipation.
Wal-u al-Muwlh The connection arising out of mutual friendship,
especially between a Muslim and a convert.
Waliy-Al- Amr,
A ruler, a legal guardian or an appointee.
R or Imm
Waliy-ul- Waqf
A person responsible for endowments.
Wasiyah
Wills or testaments.
Wilyah
The act of taking as a friend or appointing as heir.
Wqaf
Religious endowment, something is donated for a
| P a g e 153

Zakh

Zakh-Al-Ml
Zin
Zhr
Zhir-ul-Lafz
Zihr
Zuhr
Zunn

charitable purpose.
A certain fixed proportion of the wealth (2 %)
of every Muslim to be paid yearly for the benefit
of the poor in the Muslim community. The
payment of Zakh is obligatory as it is one of the
five pillars of Islam. Zakh is the major economic
means for establishing social justice and leading
the Muslim society to prosperity and security.
A fixed amount of property upon which Zakh is
due.
Adultery or fornication.
Apparent meaning.
External meaning.
The likening of a woman to kinswomen within the
prohibition degrees.
Noon, mid-day prayer is called Zuhr prayer.
Conjecture, means that there are two equal matters
crossing someone's mind.

| P a g e 154

APPENDIX II.
SOURCES CONSULTED
The following entries, which have the transliterated titles as they appear in the entire thesis
(underlined books' titles), have been classified by:
Arabic Sources:
The Noble Qurn
The Prophetic Traditional Books
Scholars of the past (may Allah shower them all with His mercy and grace): according the
(A.H, Hijri) date of death of each scholar,
Contemporary scholars (may Allah protect them all)

The Exegesis of the Noble Qurn


| P a g e 155

Al-Qurtub Ab Abdullh Muhammad ibn Ahmad Al-Ansriy. AlJmile Ahkm Al-Qurn. Cairo: Dru Ash-Shab, Volume 8.

The Prophetic Traditional Books

Ab Dwd Suliymn Ibn Al-Ashas As-Sijisttniy Al-Azdiy. Sunan


Ab Dwd. Verified by Muhammad Mohy-ud-Dn Abdul-Hamd and
authenticated by Nsir-ud-Dn Al-Albniy. Dr Al-Fikr, Volume 4.

Abdur-Razzq Ab Bakr ibn Hammm as-Sanniy Musannaf


Abdur-Razzq, chapter: Sales 15113, verified by Habbur-Rahmn AlAzam. Beirut, Al-Maktab Al-Islmiy, 2nd. Ed. Vol. 11.

Ad-Draqotn Al Ibn Umar Abul-Hasan Al-Bagddiy. Sunan adDraqotn. Verified by As-Sayyid Abdullh Hshim Yamniy Al-Madaniy.
Beirut, Lebanon: Dr Al-Marifah. Press Volume 4, 1386/1967.

Ad-Drim Abdullh Ibn Abdur-Rahmm Ibn Muhammad. Sunan


ad-Drim. Verified by Fawz Ahmad Zamarla and Khlid As-SabAlalam and authenticated by Hussein Salm Asad. Beirut, Lebanon: Dr
Al-Kitb Al-Arabiy Press. Volume 2, 1st. ed.,1407/1987.

Al-Bukhr Muhammad Ibn Isml Ab Abdullh Al-Jaf. AlJmi As-Sahh Al-Mukhtasar (Sahh Al-Bukhariy). Verified by Dr.
Mustaf Db Al-Bagh. Beirut, Lebanon: Dr Ibn Kathr Press. Volume 6,
3rd. ed., 1407/1987.

Al-Hkim Muhammad Ibn Abdullh Ab Abdullh an-Niysaboury.


Al-Mustadrak al as-Sahhiyyn. Authenticated by Adh-Dhahab in "Talkhs
Mustadrak al as-Sahhiyyn." and verified by Mustaf Abdul-Qdir At.
Beirut, Lebanon: Dr Al-Kutub Al-Ilmmiyyah Press, Volume 4, 1st. ed.
1411/1990.
| P a g e 156

At-Trimidh Muhammad Ibn Is Ab Is As-Salamiy. Aj-JmiAsShh Sunan At-Tirmidh. Verified by Ahmad shker and others and
authenticated by Nsir-us-Dn Al-Albniy. Beirut, Lebanon: Dr Ihy AtTurth Al-Arabiy Press. Volume 5.

Ibn Mjah Muhammad Ibn Yazd Ibn Abdullh Al-Qazwniy. Sunan


Ibn Mjah. Verified by Muhammad Fud Abdul-Bq and authenticated by
Al-Albn. Beirut, Lebanon: Dr Al-Fikr Press. Volume 2.

Imm Ahmad Ibn Hanbal Ab Abdullh Ash-Shiybniy. Musnad


Al-Imm Ahmad Ibn Hanbal. Authenticated by Shuiyb Al-Arnat. Cairo,
Egypt: Qurtubah Foundation Press, Volume 6.

Imm Mlik Ibn Anas. Al-Muwatt. Verified by Muhammad Mustaf


Al-Azam: The Zayed Charitable Foundation Press. Volume 8, 1 st. ed.,
1425/2004.

Muslim Ibn Al-Hajjj Abl-Hussein Al-Qushairiy an-Niysabouriy.


Sahh Muslim. Verified by Muhammad Fud Abdul-Bq. Beirut,
Lebanon: Dr Ihy At-Turth Al-Arabiy Press. Volume 5.

SCOLARS OF THE PAST


(may Allah shower them all with His mercy and grace)
d. A.H

182

Ab Ysef Yaqb Ibn Ibrahm. Al-Kharj. Cairo, Egypt: As| P a g e 157

189
204
224
306

340

366

456

476

478

478

Salafiyyah Press.
Ash-Shiybn Muhammad Ibn Al-Hasan. Al-Asl. Verified by
Abl-Waf Al-Afghn. India, Hyderabad. Volume 4, 1st, ed.
Imm Ash-Shfi Muhammad Ibn Idrs. Al-Omm. Beirut,
Lebanon: Dr Al-Marifah Press. Volume 8, ed., 1393/1973.
Ibn Salm Al-Qsim. Kitb Al-Amwl. Verified by Khall
Harrs. Cairo, Egypt: Dr ash-Sharq Press, 1st. ed., 1388/1968.
Wak Ab Bakr Muhammad ibn Khalaf ibn Hiyn ibn Sadaqah
Ad-Dabbiy Al-Baghdd. Akhbr Al-Qudh. Verified and
authenticated by Abdul-Azz Al-Margh. Cairo, Egypt: AlMaktabah At-Tejariyyah Al-Kubr Press. Volume 3, 1st. ed.,
1366/1947.
Al-Kharkh Ab Al-Hasan Ubaydullah Ibn Al-Hussein. "Usl
Al-Kharkh" in Kanz Al-Wusl le-Maarifet Al-Usl by Ali Ibn
Muhammad AL-Bazdw Al-Hanafiy reviewed by Dr. Ismatullh
Inyahllh. Karachi: Jawd Press.
Al-Khushan Muhammad Ibn Hrth Ibn Asad. Usl Al-Futy f
Al-Fiqh al Madhhab Al-Imm Mlik. Verified by Muhammad
Al-Majdb and others. Ad-Dr Al-Arabbiyyah lel-Kitb Press,
1406/1985.
Ibn Hazm Al Ibn Ahmad Ibn Sad. Al-Ihkm f Usle AlAhkme. Cairo, Egypt: Dr-Al-Hadth Press. Volume 8,
1404/1984.
Ash-Shirz Ab Ishq Ibrhm Ibn Al. Tabaqt Al-Fuqah.
Verified by Ihsn Abbs. Beirut, Lebanon: Dr ar-Rid AlArabiy Press, 1st. ed., 1389/1970.
Imm Al-Haramain Al-Juwiyn. Abdul-Malik Ibn Abdullh
Ibn Yusuf ash-Shafiiy. Al-Warqt. Verified by Dr. Abdul-Ltf
Muhammad Al-Abd.
Imm Al-Haramain Al-Juwiyn. Abdul-Malik ibn Abdullh
ibn Yusuf ibn Muhammad. Al-Gheyth Gheyth Al-Omam f atTeyth az-Zulam. Verified by Abdul-Azm Ad-Db. Imm AlHaramin Press. 2ed. 1401/1981.
| P a g e 158

502

505

537

587
606

606

620

660

676

684

Ar-Rghib Al-Asfahniy Al-Hasan Ibn Muhammad. AlMufradt f Gharb Al-Qurn. Damascus: Dr Al-Qalam Press,
1st. ed. 1412/1982.
Ab Hmid Al-Ghazl Muhammad Ibn Muhammad Ibn
Muhammad. Al-Mankhl f Taliqt Al-Usl. Verified by Dr.
Muhammad Hasan Ht. Damascus: Dr Al-Fikr Press,
1400/1980.
An-Nasafiy Umar Ibn Muhammad Ibn Ahmad Ibn Isml.
Talabt at-Talabat f Istilht Al-Fuqah. Verified by Khlid
Abdur-Rahmn. Beirut, Lebanon: Dr an-Nafis Press, 1st. ed.
1416/1995.
Al-Kasniy Alud-Dn. Badi as-Sani f Tartb ashShari. Beirut: Dr al-Kitb Al-Arabiy, 1982, Volume 7.
Ibn Al-thr Ab As-Saadt Al-Mubrik Ibn Muhammad AlJazar. An-Nihyah f Gharb Al-Hadth wal-Athar. Verified by
Thir Ahmad Az-Zw and Mahmud Muhammad at-Tanh.
Beirut, Lebanon: Al-Maktabah Al-Ilmiyyah Press, 5st. ed.,
1399/1979.
Ar-Rz Muhammad ibn Umar ibn al-Hussein. Al-Mahsl f
Ilm al-sl. Verified by Th Jbir Fiyd al-Ilwniy. Saudi
Arabia, Riyadh: Islamic University of Imm Muhammad Press,
Volume 6, 1400.
Ibn Qodmah Al-Maqdesiy Abdullh Ibn Ahmad
(d.620/1223) Rawdat an-Nzir wa Jannat Al-Manzir.
Commented by Abdul-Qdir Ibn Ahmad Ibn Badrn Ad-Dm.
Riyadh, Saudi Arabia: 2nd. ed., 1404/1984.
Al-Izzu Ibn Abdus-Salm Izz-ud-Dn As-Salamiy. Qawid
Al-Ahkm f Maslih Al-Anm. Beirut, Lebanon: Dr Al-Kutub
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