Qawaid Al Fiqhiyyah – Legal Maxims i.e.

General Legal Principles of Fiqh

 Al Fiqh – Islamic Jurisprudence

 Usul Fiqh – Methodology the the jurist employs to derive Islamic legal rulings, legal reasonings and rules for interpretation, meaning and implications.

Legal Maxims are based on the Fiqh itself

1. Create understanding of Fiqh

2. Open the conception and legal mind
3. Identify new issue and how to apply the rulings
4. Assist making the right decision
5. Understand the wisdom of existing teachings

Legal Maxims = Precise in wordings but general in meaning

Categories:

1. Normative, or leading maxims – Encompassing; All schools agree over them; covers all aspects of Islamic law
2. Subsidiary maxims

Usul Fiqh - Methodology of Legal Maxim - Statement of Development of Law

Primary Sources Istihsan - Expansion of Fiqh Other sources
Deriving Law Principles by leading jurists (Ijtihad) - Shariah Law
•Quran •Ijma •Musalah Mursalih / •Traditions of the Rightly •Matter Determined by •Muamalah
•Sunnah •Qiyas Maslahah Guided Caliphs Intention •Jinayah
•Urf •Legal Opinion of •Hardship begets Facility •Faraid
•Sadd Ad Darai Companions •Certainty not dispelled by •Munakahat
•Revealed Law •Practices of the People of doubt •Daulah
Medinah •Injury must be Removed
•Presumption of Continuity •Custom is Authoritative

History :

1. Hanafi jurist started it. Collated the first 17 Maxims

2. Followed by a) Shafie, b) Hanbali, c) Maliki
3. Notables:
a. Shafie Scholar : Izz alDin Abd Salam = Qawaid alAhkam
b. Hanbali Scholar : Abd Rahman ibn Rajab = Al Qawaid
c. Turkish Scholars : The Mejelle (Majallah al Ahkam Adliyya)
Maxim Definition Quranic Proof Hadith Conditions Applicability Related Maxims
Matters are Any act of human  Al Baqarah : And  Deeds are judged  The deed will be  Finding a lost  In contracts,
determined by being must come whoever desires, by by intentions and decided in property: to return effect is given
Intentions from his will and his deeds, the rewards every person is accordance with or to keep to meanings
intention of this world, we will judged according to intention, and  Providing a gift: To and intention,
(Inama A’mal Bin give it to him what has his intentions judged as so. please by gifting not words and
Niyah) been allotted to him  Intentions are or to offer bribe forms
but he shall have no  Verily all deeds are judged in 5
Innam A’Mal = All share in the Hereafter, based on intention categories:
Actions / Deeds and whoever desires a) Intention of the
the rewards of the  A resolve to do well heart
Niyah = Intention Hereafter, we will give is registered as a b) Intention that
him of it of his rewards good deed, while permeates/ grows
and We will requite resolve to commit in the heart
the thankful. evil is not c) Intention that
registered as an grows in thoughts
 Al Maidah 3 : Anyone evil. but refrains from
who is obliged to do it
so while starving, yet d) Intention to
without deliberately commit
sinning, Allah is overshadows the
forgiving and merciful though of
refraining from it
 Al Baqarah 275: But e) Intention is
Allah has permitted solidified and
trade and forbidden determined to act
Riba’ on it
 Al Baqarah 282: Oh  Intentions of the
You who believe, matters to cause
when you deal with Harm must be
each other, in decided by
transactions involving determining the
future obligations, in a context i.e.:
fixed period, reduce a) Intentional Harm
them to writing, let a b) Unintentional
scribe write down as Harm
between the parties. c) Accidental Harm
d) Incidental Harm
Maxim Definition Quranic Proof Hadith Conditions Applicability Related Maxims
Hardship begets Necessity to lighten  Al Baqarah 187: Allah  The delay to pay  Any ruling which  Does not apply to  Mejelle :
facility the burden and to intends for you ease, debt by a rich causes hardship or implementation of Latitude
disregard rules in and He does not want person is unjust is unable to be obligatory duties should be
(Mashaqqah exceptional to make things difficult performed based on such as ibadah, afforded in
Tajlibu Al Taysir) circumstances if it for you  Whenever the acceptable reason, fasting, haj, jihad the case of
will cause hardship Messenger of Allah an alternative can or religious difficulty;
Mashaqqah =  Al Baqarah 220: Allah was given choice be found to obligations upon
Hardship where distinguishes the between 2 things, overcome the  Categories for appearance
legal obligation will plunder from the he chose the easier hardship consideration of of hardship in
be lifted improver one unless it was a  Example: A person Rukshah any particular
sin in a rental contract a) Obligatory matter,
Taysir = Facility i.e.  Al Baqarah 286: Allah can exit the contract b) Recommended, latitude and
legal mitigation for burdens not a person if he is travelling c) Permitted, indulgence
an exception to the beyond his scope.  Facility (Rukshah) d) Frowned, must be
rule (Rukshah) can be given for: e) Prohibited shown
where performing  Al Maidah 3: But if any a) Omission  Preferred to  When the
the rule results in is forced by hunger, (Exceptions) refrain from rule of difficulty has
hardship. with no inclination to b) Reduction unlawfulness, been
transgress, Allah is (Qasar) although allowed. removed, the
indeed oft-forgiving, c) Combining But not allowed to rule should
Most Merciful (Jama’) do great sins, revert to the
d) Delay (Ta’khir) which do not original (for
 Al Maidah 6: Allah e) Advance (Ta’dim) relieve the acts example,
does not wish to place f) Lawful the  Rukshah more time to
you in difficulty unlawful Restrictions: settle debt
(Dispensation) a) Necessity are during stress,
 Reasons for determined but revert to
Rukshah: based on original once
a) Travel quantity stress is
b) Sickness b) An excuse removed)
c) Compulsion become  Necessity
(permitted under unlawful once renders all
duress) excuse ceases prohibited
d) Forgetfulness c) Prohibition things
e) Ignorance (with faded away, permissible
commitment to forbidden  Necessity
learning) returns does not
f) Difficulty invalidate the
g) Incapacity right of
(Children/ another
Women / Insane
persons)
Maxim Definition Quranic Proof Hadith Conditions Applicability Related Maxims
Certainty is not Something that has  Al Baqarah 29: God  The security is not  Certainty, and its  Example, if a  It is a
dispelled by been certain, Most High has created forfeited ruling based on person is certain fundamental
doubt cannot be replaced all in the earth for your certainty, cannot be he has taken principle that
by mere doubt, but benefit  If someone feels set aside by doubt wudhu, but now a thing shall
(Al Yaqin La will be replaced by something in his  Takes into great doubts over its remain as it
Yuzalu bi al Shak) same certainty  Al Yunus 36: But most stomach, and he consideration of the state, he is was originally
of them follow nothing doubts whether original “known” considered still in  Originally, a
Al Yaqin = but fancy, truly fancy something has condition before the wudhu or taharah man has no
Certainty can be no avail came out, he doubt. – purification) liability
against truth. Verily should not go out  Example: Innocent  All things are  The norm in
Al Shak = Doubt God is well aware of from the mosque until proven guilty considered regard to
all they do and stop praying permissible unless things is that
until he listens or they are prohibited of
smells something (permissibility is permissibility
the natural state)
 If someone has
doubt while praying
whether he has
performed three or
four rakaah, set
aside the doubt and
continue on the
number of rakaah
he is certain

 Whatever Allah has

made halal is halal
and whatever
rendered haram is
haram and
whatever
concerning he has
remained silent is
forgiven.
Maxim Definition Quranic Proof Hadith Conditions Applicability Related Maxims
Injury Must be Darar means  Al Baqarah 188: Do  Harm should not be  A person should not  Develop law  Harm is to be
Removed inflicting harm to not eat up property inflicted nor cause harm to based on the prevented
other absolutely among yourself in reciprocated. another person in following views on from
(Al Darar Yuzal) and dirar means vanities Anyone who order to reciprocate Harm: appearing as
inflicting harm to causes harm, Allah the harm he has a) Remove Harm much as
Al Darar = Injury others not due to  Al Baqarah 229: A will do harm to him caused. before it occurs possible
Yuzal = Removed legally prescribe divorce is only and anyone who  Choosing between b) Minimise Harm  Harm must be
punishment. permissible twice, cause hardship to various action to once it occurs removed
La Dirar = No after that the parties people, Allah will remove Harm must c) Prevent Further  Harm cannot
retaliation of harm should either hold do the same to him be applied according Harm after it be removed
with harm together on equitable to the scale of occurs with similar
terms, or separate  There is no priorities under the  Khiyar = Options harm
with kindness compensation for Maqasid Shariyah to continue or  A greater
one killed or a) Religion reject a contract harm can be
 Al Baqarah 233: No wounded by an b) Life when Harm occurs removed by a
mother shall be animal c) Mind during: lesser harm
treated unfairly (with d) Lineage a) Session (Al  A specific
harm) on account of e) Property Majlis) harm is
her child, nor father on b) Stipulation (Al accepted
account of his child Shart) towards a
c) Defect (Al Ayb) general harm
 An Nisa 29: Oh You d) Description (Al  Repelling an
who believe, eat not Wasif) evil is
up your property e) Sight (Al preferred over
except trade amongst Rukyah) benefits
you by mutual consent f) Designation  If there is
g) Fraud (Al conflict
Tadlis) between
h) Mistake permitting to
i) Blindman reduce harm
vs prohibition
to reduce
harm, the
prohibition
takes
precedence
 Harm cannot
exist from
time
immemorial
Maxim Definition Quranic Proof Hadith Conditions Applicability Related Maxims
Custom is Urf : Something  Al A’raf 199: Hold to  What the Muslims  Requirements:  Six Categories of  Public usage
Authoritative widely known by forgiveness, command see/think right, it is 1. Must not against Urf: is conclusive
individuals or what is right (Urf) but also right in the text 1. General and action
(Al Adah society either by: turn away from sight of Allah 2. Has been Custom must be taken
Muhakammah) a) Word ignorant practiced by 2. Specific in accordance
b) Action society Custom herewith
Al Adah = Adat/ c) Abstinence  Al Baqarah 241: For 3. Has been 3. Custom in  A matter
Custom In the absence of divorced women, practiced before Words recognised by
text. maintenance should an event 4. Custom in customer is
be provided on a 4. No contradiction Action regarded as if
Practices which are reasonable scale. This in practice 5. Good Custom stipulated by
acceptable by is a duty of the 6. Bad Custom agreement
people of sound righteous.  Urf can change  A matter
nature, with with the change of recognised as
general or time customary
universal amongst
acceptance by a merchants is
country or regarded as if
particular agreed upon
generation. among them
 A matter
established
by customer
is like a
matter
established
by a legal text
 The two
contracting
parties have
the right to
option to
remove harm
so long as
they are not
separated
(khiyar al
majlis)