Legal Maxims in Islamic Law

Brill’s Arab and Islamic

Laws Series

volume 15
Legal Maxims in Islamic Law
Concept, History and Application of
Axioms of Juristic Accumulation

By

Necmettin Kızılkaya

LEIDEN | BOSTON
Library of Congress Cataloging-in-Publication Data

Names: Kızılkaya, Necmettin, 1978- author.

Title: Legal maxims in Islamic law : concept, history and application of
axioms of juristic accumulation / by Necmettin Kızılkaya, Istanbul University.
Description: Leiden, Boston : Brill, [2021] | Series: Brill’s Arab and Islamic laws
series, 1871-2894 ; volume 15 | Includes bibliographical references and index.
Identifiers: LCCN 2020056589 (print) | LCCN 2020056590 (ebook) |
ISBN 9789004444669 (hardback) | ISBN 9789004444676 (ebook)
Subjects: LCSH: Legal maxims (Islamic law)
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Dedicated to my father and mother …

∵
Contents

Acknowledgements xi
Introduction 1

part 1
Legal Maxim as a Concept and Its Sources

1 The Conceptual Analysis of the Legal Maxim and Its Process of

Becoming a Technical Term 13
1 The Conceptual Analysis of the Legal Maxim 14
1.1 The Lexical Meaning of Qāˁida 14
1.2 Qāˁida as a Legal Term 15
1.3 Evaluation of Definitions of Qāˁida 22
1.4 Qāˁida as a Concept Belonging to the Literature of Substantive
Law and Legal Maxims 25
2 The Process of al-Qāˁida Becoming a Technical Term 28
2.1 The Concept of al-Aṣl 28
2.2 The Transition from al-Aṣl to al-Qāˁida 30

2 The Relationship of the Legal Maxim to Similar Concepts 32

1 Ḍābiṭ 33
2 Jurisprudential (Uṣūl al-fiqh) Maxim 36
3 Universals 43
4 Qānūn 46

3 Sources of the Legal Maxims 49

1 The Scriptures 49
2 The Legal Heritage 51
3 Cultural Elements 59

part 2
The Development of Maxim Literature

4 Genres in Islamic Law 65

1 Factors That Have Led to the Emergence of Different Genres in
Islamic Law 65
2 The Literature of Takhrīj al-Furūˁ ˁalā l-Uṣūl 70
3 Literature of Furūq 77
viii Contents

5 The 4/10th–7/13th Centuries

The Formative Period of the Literature of Legal Maxims 82
1 Independent Writing and the Role of the Iraqi Ḥanafī Jurists 86
1.1 Abū Ṭāhir al-Dabbās and the Identification of Maxims on
which the Ḥanafī Legal Understanding is Based 86
1.2 The Analysis of Islamic Law Based on Postulates: Karkhī (d.
340/952) and His Work Risāla fī l-uṣūl 88
1.2.1 The Content Analysis of Karkhī’s Risāla fī l-uṣūl 92
1.3 Two Important Names in the Shāfiˁī and Mālikī Tradition
of Maxims: Ibn al-Qāṣṣ (d. 335/947) and Khushanī (d. 361/
972) 94
1.4 The Transfer of the Tradition of Writing on Maxims from Iraq to
Transoxiana: The Work at the Intersection of Comparative Law
and Legal Maxims, Taˀsīs al-naẓar 96
1.4.1 The Content Analysis of Taˀsīs al-naẓar 99
1.5 Studies in the Field of Maxims in the 6/12th Century 102
2 The Transfer of Legal Thought on Maxims from Baghdad to
Cairo: The Central Role of ˁIzz b. ˁAbd al-Salām (d. 660/1262) and
Qarāfī (d. 684/1285) 103
2.1 The Cairo-Based Maxim Writing Tradition and ˁIzz b. ˁAbd
al-Salām 104
2.2 Maxim Thought Based on Furūq: Qarāfī and Anwār al-burūq fī
anwāˀ al-furūq 105

6 The 8/14th–9/14th Centuries and the Rise of the Shāfiˁī Legal Maxims
Tradition 108
1 From Comparative Law and Postulates to al-Ashbāh wa
l-naẓāˀir 108
2 The First Examples of al-Ashbāh wa l-naẓāˀir and the Systemization
of the Literature 110
2.1 Titling Works of Maxims al-Ashbāh wa l-naẓāˀir and the Role of
Ibn al-Wakīl (d. 716/1317) 110
2.2 The Mālikī Author of Maxims Maqqarī (d. 758/1357) and His
Work al-Qawāˁid 112
2.3 The Systemization of the Literature of Maxims: ˁAlāˀī (d. 761/
1359) and His Work al-Majmūˁ al-mudhhab 114
2.4 Transcending the Borders of the Shāfiˁī School: Tāj al-Dīn Ibn
al-Subkī’s (d. 771/1371) al-Ashbāh wa l-naẓāˀir 118
2.5 The Alphabetical Method in Maxim Literature: Zarkashī’s al-
Manthūr fi l-qawāˁid 126
Contents ix

2.6 An Important Work of Ḥanbalī Maxim Literature: Ibn Rajab’s

(d. 795/1395) Taqrīr al-qawāˁid wa taḥrīr al-fawāˀid 129
2.7 Other Maxim Works Written in the 8/14th Century 130
2.8 9/15th Century Maxim Literature 131

7 10/16th Century
The Systemization of Maxim Literature in Terms of Language and
Style 136
1 Shāfiˁī and Mālikī Maxim Works 137
1.1 Suyūṭī (d. 911/1505) and His Work al-Ashbāh wa l-naẓāˀir fī
qawāˁid wa furūˁ fīqh al-Shāfiˁīyya 137
1.2 The Poetizing of Maxims for Educational Purposes: Zaqqāq (d.
912/1506) and His Work al-Manhaj al-muntakhab 143
1.3 North African Mālikī Maxim Thought: Wansharīsī (d. 914/1508)
and His Work Īḍāḥ al-masālik ilā qawāˁid al-Imām Mālik 145
2 Ḥanbalī Maxim Literature in the 10/16th Century 146
3 The Rebuilding of the Ḥanafī Thought on Maxims: Ibn Nujaym (d.
970/1563) and His al-Ashbāh wa l-naẓāˀir 147
3.1 The Content of Ibn Nujaym’s al-Ashbāh wa l-naẓāˀir and the
Purpose of Its Composition 152
3.2 Ibn Nujaym’s Method in al-Ashbāh and Content Analysis 156

8 The Period between the 11/17th Century and the Majalla

Commentaries and Glosses 164
1 Mālikī, Shāfiˁī and Ḥanbalī Maxim Works 164
2 Ḥanafī Maxim Works: The Alphabetic Ordering of Maxims 165
2.1 Nāzirzāde (d.c. 1061/1651) and His Tartīb al-laˀālī fī silk
al-amālī 165
2.2 Combining Jurisprudence and Maxims: Khādimī’s (d. 1176/
1762) Majāmiˁ al-ḥaqāˀiq 170

9 From Legal Maxims to Codification

Mecelle-i Ahkāmı Adliye 175
1 A Book Whose Text is Strong: Mecelle-i Ahkāmı Adliye 176
1.1 The Significance of the Majalla as Regards Maxim
Literature 178
1.2 Studies on the Majalla 181
2 The Content Analysis of Mecelle-i Ahkāmı Adliye 183
2.1 Esbāb-ı Mūcibe Mazbatası and the First Article 184
2.2 The Second Article: The Legal Maxims 186
3 Maxim Literature after the Majalla 187
x Contents

part 3
The Legal Nature and Function of Maxim

10 The Legal Nature of the Maxim 191

1 The Fundamental Features of the Legal Maxim 193
1.1 The Concise Form of Expression of the Maxim 194
1.2 The Comprehensiveness of the Maxim and Its
Abstractness 195
1.3 Obtaining the Maxim through Induction 198
1.4 The Legal Maxim Articulated in the Form of a
Proposition 201
1.5 Universality of the Maxim 202
2 The Mode of Expression of the Legal Maxim 204
2.1 The Expression of Legal Maxims Using the Word al-Aṣl
(Axiom) 205
2.2 The Expression of Legal Maxims Using the Term Analogy
(Qiyās) 208
3.3 The Expression of Legal Maxims Using the Expression Wajh
(Aspect) 217
3 Areas in Which Maxims are Used in Legal Works 219
3.1 Takhrīj (Derivation) 220
3.2 Tarjīḥ (Determining Preponderance) 224
3.3 Taˁlīl (Legal Ratiocination) 225

11 The Function of the Maxim

Legal Maxims in The Literature of Compendia, Commentary and
Glosses Genres 229
1 The Literature of Compendia 233
2 The Literature of Commentaries and Glosses 241

12 Legal Maxims in the Literature of Fatwā, Nawāzil and Uṣūl

al-Fiqh 266
1 The Fatwā Literature 266
2 The Literature of Nawāzil 274
3 The Literature of Uṣūl al-fiqh 277

Conclusion 280
Bibliography 285
Index 306
Acknowledgements

This book started as a doctoral dissertation at Selçuk University and evolved to

take its current shape during the years that I have spent in many countries and
at various institutions. Like many other books, this one took shape as a long
adventure for its author. It emerged as a result of ideas that were continuously
on my mind in my journey across different countries and cultures. Throughout
the process, I have been very fortunate to receive the generous support of
many mentors, colleagues, friends and institutions, without whom this pro-
ject could not have been completed. My family comes first; to them I am very
grateful. I am also indebted to my teachers and mentors who introduced me
to the scholarly depth of Islamic studies. I owe much of what I know about
sincere and responsible scholarship to Saffet Köse’s incredibly supportive and
yet uncompromising mentorship. He advised me on my doctoral dissertation,
which formed the basis of this book, read the manuscripts I sent to him, shared
his criticisms with me, and helped me to close the weaknesses and gaps of the
book with his guidance. İbrahim Kafi Dönmez made me love the legal maxims,
mentored my master thesis and made help me acquire the vision I sought in
the early stages of my academic life.
I must mention the Center for Islamic Studies (İSAM), which provided
the primary sources of my book and hosted me during the first steps of my
academic career. I spent a year as a visiting scholar at Columbia University;
a role which provided an important breakthrough in the maturation of my
ideas and their presentation, by considering different disciplines and cultures.
I am grateful to Brinkley Messick for his support. I obtained some of the man-
uscripts I used in the book from the Suleymaniye Library, where I worked for
a long time. In addition, I had the opportunity to access many manuscripts
and printed works during my time as a visiting fellow at Princeton University.
I thank Şükrü Hanioğlu and Michael Cook for their support and contribution.
I am grateful to the Istanbul Foundation for Research and Education (İSAR),
from which I have benefited, both in terms of the peaceful and calm working
environment I enjoyed there and the precious library that immediately pro-
vided me with the works printed in recent years. I had the opportunity to work
on the last stages of this book at the University of Cambridge, where I was
visiting fellow. I am grateful to Timothy John Winter who invited me there as
a visiting fellow. Finally, I would like to express my gratitude to the Turkish
Entrepreneurship and Business Ethics Association (İGİAD) and its chairman,
Ayhan Karahan, for their support for the publication of this book.
xii Acknowledgements

My discussions with Murteza Bedir, Bilal Aybakan, Recep Şentürk, Lütfi

Sunar, and Tahsin Görgün were especially useful in illuminating various aspects
of the subject. I am particularly grateful to Şükrü Özen, Mariam Sheibani, and
Ali Albayrak, whose thorough reading of and thoughtful commentary on the
manuscript were of immense help in giving the book its final shape. Murat
Şimşek and Rahile Yılmaz meticulously read versions of some chapters; their
remarks contributed much and prevented me from making numerous errors.
Muhammed Volkan Yildiran Stodolsky made important contributions to the
emergence of the English version of this book; I am grateful to him. Some errors
and points of confusion were amended by Ahmad Ayaz Ur-Rahman Irfani,
Sameh Shanna, Mohamed Bushry Basheer, Ebad Ur Rahman, Ummu Eymen
Balbaba, and Kayhan Özaykal. They meticulously edited the text and managed
to make this book readable. The anonymous reviewer’s remarks were of great
help in rethinking the content of this book and restructuring its chapters in a,
hopefully, more meaningful way. Finally, I would like to thank Khaled Abou El
Fadl, who read this work and gave me feedback many times and contributed to
the publication of this book in Brill as a series editor.
Introduction

The knowledge produced by Islamic schools of law (madhhab, pl. madhāhib)

in a manner consistent with their methodological frameworks has played a
crucial role in the development of Islamic law as a discipline. The production
of legal knowledge within a school of law occurred through legal reasoning
(ijtihād). The fact that the immediate companions of the founders of the
schools who attended their teaching circles transmitted their juristic efforts to
the following generations, providing the basis for the accumulation of knowl-
edge, is an important stage in terms of the activity of ijtihād. Historically, how-
ever, the 4/10th century is a vital point in this development. The jurists of this
century scrutinized the legal knowledge they inherited and compiled works
that enabled the doctrinal development of the schools of law. In these works
the discussion of the arguments on which the legal controversies are based,
the conceptualization and synthesis of the views, and the determination of
the principles on which the juristic opinions were based were juristic activi-
ties that facilitated the institutionalization of the schools of law. In fact, the
frequent references to the jurists who lived in this century such as Ibn Surayj
(d. 306/918),1 al-Khiraqī (d. 334/946),2 al-Karkhī (d. 340/952)3 and Ibn al-Jallāb
(d. 378/988)4 in the legal manuals of four Sunni schools of law demonstrate the
importance of this century in terms of the systematization of the legal schools.
Therefore, the 4/10th century is the period in which jurists intensively engaged
in legal reasoning within a certain structure.
However, the question of what ijtihād was and how it took place in Islamic
law has led to quite different approaches in the contemporary studies on
the history of Islamic law. In particular the distinctions made between the

1 Al-Juwaynī, al-Burhān, 1: 183, 185, 2: 62, 140, 218; al-Rāzī, al-Maḥṣūl, 2: 136, 3: 21–23, 96, 229,
5: 339, 6: 84; al-Nawawī, al-Majmūˁ, 1: 103, 2: 298, 390, 395, 408, 410, 5: 301, 6: 254, 279, 7: 74,
9: 162, 10: 10, 15, 441–446, 452–453.
2 Abū Yaˁlā, al-ˁUddah fī uṣūl al-fiqh, 2: 661, 4: 1387; Ibn Qudāmah al-Maqdisī, Rawḍat al-nāẓir,
2: 370, 386; Ibn Qudāmah al-Maqdisī, al-Kāfī fī fiqh al-Imām Aḥmad, 1: 238, 544, 2: 37, 323,
3: 13, 38, 150, 163, 4: 136; Ibn Qudāmah al-Maqdisī, al-Mughnī, 1: 42, 213, 272, 336, 2: 19, 39, 144,
3: 36, 75–76, 200–207, 4: 11–14, 23–26, 120–123, 142, 5: 11, 369–373, 8: 478–483, 9: 290–293, 384,
592–593, 606–607.
3 Sarakhsī, al-Uṣūl, 1: 26, 144–147, 2: 86–89, 105–106; Samarqandī, Tuḥfat al-fuqahāˀ, 1: 249–251,
3: 126; Kāsānī, Badāˀiˁ al-ṣanāˀiˁ, 1: 17–19, 65, 129, 213–215, 272–276, 2: 11–12, 54–57, 215–216,
3: 153–155, 4: 20–24, 5: 254–255, 6: 137, 257, 7: 72, 76–79, 355.
4 Ibn Rushd, al-Bayān wa al-taḥṣīl, 1: 416, 5: 410, 472, 6: 409, 7: 110, 12: 341, al-Qarāfī, al-Furūq,
3:163, 198; al-Qarāfī, al-Dhakhīra, 1: 211, 216, 277–278, 343–344, 4: 58–59, 8: 90, 10: 98; al-
Ṭarāblusī, Mawāhib al-jalīl, 2: 64, 121, 3: 97, 150, 4: 348, 5: 279.
2 Introduction

performance of ijtihad by the founders of the schools and the activity of pro-
ducing legal knowledge carried out by later jurists constitute the basis of these
discussions. The contemporary ijtihād debate can be categorized into two
approaches: the argument that ijtihad was cut off in Sunni schools of law in
the course of time and was replaced with the duty of imitation (taqlīd) and
the approach that ijtihād continued all the time and its gate was never closed.
The argument that ijtihād was eliminated and replaced with imitation in the
course of time and that this situation caused the decline and stagnation5 in
the production of legal knowledge has been upheld since the beginning of the
19th century,6 receiving wide acceptance from many scholars. The main argu-
ment for this view is that the history of Islamic law consists of the imitation
and repetition of the knowledge produced by the founding authorities of the
schools.7 The counter-view that argues for the continuation of ijtihād criticizes
this stand with strong arguments, suggesting different explanations.8
This study approaches the question of ijtihād from a different perspective
by asserting that the activity of ijtihād continued in different forms. When
ijtihād is considered as the production of scholarly knowledge in the field of
law, there was no cut off after the 4/10th century. The theoretical articulation
of the knowledge of the legal schools and the emergence of sub-genres in
the history of Islamic law demonstrate that the activity of ijtihād continued
in different forms according to changing times and conditions. The opinions
of the founding jurists of the schools of law have been subjected to multidi-
mensional interpretations, and new theories have been produced using their
views. These theories have led to the emergence of many sub-genres such as
al-qawāˁid al-fiqhiyya (legal maxims), furūq (legal distinctions) and khilāf (the

5 For a good sense of recent scholarship on the critique of intellectual stagnation or decline
discourse after formative period on dialectic, on the proper manner of reading, on rational
theology, and on mystical metaphysics see El-Rouayheb, Islamic Intellectual History in the
Seventeenth Century: Scholarly Currents in the Ottoman Empire and the Maghreb.
6 For example, see Shawkānī, al-Qawl al-mufīd, 62–70, Rashīd Riḍā, “al-Suˀāl wa al-fatwā”,
Majallat al-Manār, 7: 361.
7 See Schacht, An Introduction to Islamic Law, 70–71; Coulson, A History of Islamic Law, 81;
Fazlur Rahman, Islamic Methodology in History, 149–150.
8 For example, Wael B. Hallaq asserted that ijtihād was not cut off and continued through fatwā
and through different means. See Hallaq, “Was the Gate of Ijtihad Closed?”, International
Journal of Middle East Studies, 3–41; Hallaq, “On the Origins of the Controversy about the
Existence of Mujtahids and the Gate of Ijtihad”, Studia Islamica, 129–141. For different
approaches see Weiss, “Interpretation in Islamic Law: The Theory of Ijtihad”, The American
Journal of Comparative Law, 208–209; W. Montgomery, Watt, “The Closing of the Door of
Iğtihād” in Orientalia Hispanica, sive studia F M Pareja octogenario dictata, ed. J. M. Barral
(Leiden: Brill, 1974), 1:675–678.
Introduction 3

juristic differences). Qawāˁid works as one of these genres are books of schol-
arship in which the opinions of the early generations were analysed within
the framework of the principles and the maxims on which the legal opinions
are based. Legal maxim works, which are the product of detailed interpreta-
tions of the legal accumulation of each school of law, provide rich material to
re-question the view that the activity of ijtihād, which was carried out in the
formation period of Islamic law, began to stagnate and decline in the course of
time. Hence they can be utilized to respond to the problems raised by reading
the history of Islamic law through the ijtihād-taqlīd dichotomy. Part 2 studies
how these books constituted a distinct genre in Islamic law. The identification
of these principles provided jurists with two interdependent benefits: to solve
the new legal problems they encountered and to maintain methodological
consistency in doing so.
Resolving newly encountered legal issues shows that the activity of ijtihād
has continued. The fact that Islamic law has guided many areas of individual
and social life in some of the largest empires such as The Umayyad and The
Abbasid Caliphates, The Ayyubid Dynasty, The Mamluk Sultanate and The
Ottoman Empire, and no stagnation or legal failure was mentioned until the
19th century indicates the persistence of ijtihād. In particular, the fact that
there was no discussion in the sources that Islamic law was not able to address
problems in individual and community life, or that Islamic law was overtaken
by life and its exigencies, connotes that legal reasoning continued in accord-
ance with the changing circumstances of the period. Of course, the extension
of ijtihād and the production of legal knowledge on new issues were made pos-
sible by efforts of derivation (takhrīj) and determining preponderance (tarjīḥ).
In addition, a broad interpretation of the accumulated legal knowledge and
justification of the legal opinions of both intra-madhhab and inter-madhhab
debates necessitated the activity of legal ratiocination (taˁlīl). Exercising der-
ivation, determining preponderance and ratiocination required the unveiling
of the principles on which legal knowledge is based. Part 3 deals with this
through legal rulings selected from different legal genres.
The methodological consistency of the production of knowledge is the con-
sequence of the legal reasoning of the companions who attended the teaching
circles of the founders of the schools of law, and leading authorities of the
schools in later generations based on the principles of the founders. This indi-
cates that a jurist who lived in the 19th century followed the same methodo-
logical framework of the jurists of the 2nd-4th/8-10th centuries. As a result of
this methodological consistency, solutions produced for the new issues that
emerged due to the changing conditions of the time followed the framework
of the school of law. For instance, Ibn ˁĀbidīn, who died in 1252/1836, referring
4 Introduction

to legal maxims while analysing a legal issue he faced,9 shows that he tried to
base his opinion on the principles laid down by the founding authorities of the
Ḥanafī school.
These principles also show that methodological consistency and continuity
are not done only through uṣūl al-fiqh. Although the modern commonly held
opinion is that legal knowledge was based on the uṣūl al-fiqh, I am of the opin-
ion that it was mainly based on legal principles and through the law itself. That
is to say, the law comprises genres such as substantive law (furūˁ al-fiqh), legal
responsa (fatwā), unprecedented cases (nawāzil) and qawāˁid. These genres
are the sources in which legal knowledge was produced, justified, tested and
discussed on the basis of the legal principles. The jurists, therefore, have used
different types of genres instead of uṣūl al-fiqh both in forming legal education
and in exhibiting the knowledge they achieved in a scientific way.10 As shown
in Part 3, sub-genres of law such as compendia (mukhtaṣar), commentaries
(sharḥ), glosses (ḥāshiya), fatwā and nawāzil are the sources in which jurists
exercised their legal reasoning and substantiated their positions with legal
maxims. Both in the continuity of intra-madhhab knowledge and in conduct-
ing the activity of ijtihād consistently these genres and the legal maxims played
a vital role. Of course, the common point of these genres is that their subject
matters were substantive law issues.
Substantive law had a momentous role in the formation and evaluation of
Islamic law as a distinct discipline.11 It represents the primary site for theo-
rizing the relationship of the Muslim community to revelation and its past,
while the extensive literature of Islamic law seeks to establish the parameters
for ensuring the Islamic identity of individual and communal life. Therefore,
legal manuals that contain numerous rulings about cases related to the acts of
humankind deal with several subjects from marriage to international law, from
obligation to penal law. Since the legal corpora that are products of systematic
legal reasoning were not written in a one-dimensional scheme, they have a
wide field of influence in terms of their characteristics. These works, in which
legal issues have been studied within a certain system, are not only impor-
tant sources for legal history but also for the study of Islamic culture and other
fields of knowledge produced in the Muslim societies in the past. It is evident

9 See Ibn ˁĀbidīn, al-Ḥāshiya, 1: 189–190.

10 For the impoartance of the substantive law and especially fatwā literature in forming legal
education and in producing legal knowledge see Bedir, Buhara Hukuk Okulu.
11 For the transformation of the Islamic normative discourse in the formative age of
Islamic law and the consequent birth of the discipline of Islamic law see El Shamsy, The
Canonization of Islamic Law: A Social and Intellectual History.
Introduction 5

that these books, in which legal thought is gradually constructed in the course
of time, constitute a source for many sub-disciplines in the history of Islamic
law. Within these disciplines legal maxims genre has particular importance. It
carries important elements that enable historians of Islamic legal studies to
revisit the common understanding of the history of Islamic law.
The legal maxims derive their sources from the sophisticated legal reason-
ing and principles-based approach put forward in the works of substantive law.
These principles, which are obtained as a result of the retrospective perusing
of the legal accumulation of the school, reflect the general character of each
school. Therefore, although the legal maxim works of the schools of law are sim-
ilar in terms of the method, they reflect the general characteristics of the legal
doctrine to which they belong. Therefore, they represent the theoretical and
foundational aspects of Islamic law. The legal maxims, which were compiled in
independent books in the 4/10th century onwards, show that the knowledge of
early generations was subject to specific studies after the formative period of
Islamic law. The legal schools obtained their doctrinal forms in that period and
their accumulation was examined by the authors of legal maxim works. This
period witnessed the burgeoning of a vast and detailed literature in Islamic
law. Similar to the legal maxims literature, other genres, which constitute the
sub-branches of Islamic law, were based on the same legal heritage and were
reading it from different perspectives. Therefore, in addition to al-qawāˁid al-
fiqhiyya, the sub-genres such as furūq and takhrīj al-furūˁ ˁalā l-uṣūl (deriva-
tion of rulings from the sources of law) constitute a response within Islamic
law to the argument that legal thought became stagnant after a certain period.
They also reveal that the production of legal knowledge in the later stages of
the development presents a dynamic structure around certain systems of legal
thought.
This study, which examines the development of maxim genre in Islamic law,
is restricted in terms of the legal school, time and sources. The details of the
subjects discussed in Part 3 are mostly examined with reference to the works
of the Ḥanafī school of law. There are several reasons why the subject is exam-
ined through the Ḥanafī school of law: the fact that reports about the attempts
to bring legal maxims together point separately to the Ḥanafī jurists of the 4/
10th century of Baghdad confirms that their effort on this issue goes back to
the early periods of Islamic law. The pioneering role of the Ḥanafī jurists in
bringing together the legal maxims shows that the work of these jurists played
an important role in the development of the legal maxims genre as well as
in the axiomatization of legal opinions. In this period, the fact that Ḥanafī
jurists engaged in formulating the principles of law, as well as interpreting the
legal accumulation of their school within the framework of principles while
6 Introduction

applying legal derivation, sheds light on the relationship between the princi-
ples of law and the activity of takhrīj. This also illustrates that Ḥanafī jurists
have striven to obtain legal principles from the accumulation of their own
school since the very early period of the history of Islamic law.
The book focuses on the period of the 4/10th to 13/19th centuries. Since
the study examines the evolution of a genre in the Ḥanafite law, it studies the
works written on the tradition of the first generation of the madhhab to per-
ceive the development of juristic thought. The main reason for taking the 4/
10th century as a starting point is that legal maxims are the product of the
analyses of the juristic accumulation of the madhhab from the viewpoint of
the principles. Although the legal maxims are included in the works of the
eponymous founder of the school and his immediate study circle, since the
maxims are obtained as a result of the intellectual efforts put forward on the
existing accumulation of the school, I took the studies on the works of the
first and second generations as the basis for the starting point. This period
coincides with the time when al-Karkhī and his students carried out the legal
activity of examining the juristic heritage of the Ḥanafī school of law. The end
of the period which the book covers is the 19th century, which is the period
when the Majalla entered into force. There are two reasons why I concluded
the period with the Majalla: first, the Majalla shapes almost all legal maxim
works written after this period, as they followed its system; second, as a result
of the evolution of Islamic law in the 19th century, the legal maxim literature
in the post-Majalla period developed mainly into anthologies of maxims col-
lected from the books of various legal schools, rather than being legal maxim
works based on the tradition of a particular school of law. Due to this drastic
change in the composition of legal maxim books, the post-Majalla period has
not been examined.
There is a restriction in terms of the sources of the study. In Part 2, which
examines the historical development of the legal maxim literature, Ḥanafī,
Mālikī, Shāfiˁī and Ḥanbalī maxim books are analysed in chronological order
to get a good understanding of the maxim thought and literature and to see the
interaction between schools of law. In addition, since modern investigations of
the historical development of legal maxim literature have a more descriptive
character without considering factors such as the role of madhhabs, regions
and periods, I examine the maxim literature of four schools of law in a com-
parative way to show the impact of these factors. In Part 3, which focuses on
the implementation and function of the legal maxims in the Ḥanafī sources,
there is no reference to other schools unless it is necessary in some exceptional
cases. Therefore, references were made to the other three Sunni schools of law
in some cases and the Shīˁa was excluded from the study.
Introduction 7

Each part of the study examines a different dimension of legal maxims

based on the primary sources. Part 1 studies the conceptual analysis of the
qāˁida, the concepts related to the legal maxim and the sources of legal max-
ims. The notion and concept of qāˁida in most modern maxim scholarship is
significantly different from the understanding of the classical works written in
the legal maxim literature. Since in the maxim encyclopedias which have been
composed in recent years nominal sentences (al-jumlah al-ismiyyah) which
consist of the ‘subject’ (mubtadaˀ) and the ‘predicate’ (khabar) or sentences
that start with the word kull (all) are considered legal maxims, it is necessary
to crystalize the concept of the qāˁida. Chapter 1 analyses the use of qāˁida
as a concept in Islamic law manuals and offers its technical definition, then
explains the components of this definition. After that, it studies the process by
which qāˁida became a technical term. Here, I focus on the concept of “al-aṣl,”
which is the initial term that was used to refer to qāˁida, and the process of
transition from this concept to qāˁida in the course of time.
Since the concept of qāˁida is widely used and has a meaning similar to
some other concepts both in law and other fields, these concepts are inter-
woven with qāˁida and the difference between them is not perceived in many
contemporary qawāˁid studies. Also, this study refers to many concepts and
genres. To shed light on the understanding of the issues discussed in the differ-
ent chapters of the study, these had to be clarified. For this reason, in chapter 2
I examine the relationship between qāˁida and the concepts of ḍābiṭ, qawāˁid
of uṣūl al-fiqh, kulliyyāt and qānūn and scrutinize the similarities and differ-
ences between them.
While dealing with the sources of the legal maxims, contemporary schol-
arship puts emphasis on the resources of maxims from the Qurˀān and the
Sunnah and ignore its other sources. In chapter 3, therefore, I elaborate on the
sources of legal maxims under three headings: the Qurˀān and the Sunnah, the
legal heritage, and the cultural elements. Unlike contemporary qawāˁid stud-
ies, I argue that the sources of legal maxims are not directly the Qurˀān and the
Sunnah. I discuss that the development of Islamic legal studies has revealed
that the main sources of individual qawāˁid and qawāˁid literature as a distinct
genre are the legal manuals of the previous periods. As a result of the historical
examination of the classical works of the legal maxims genre, I criticize the
contemporary misinterpretation of the development of Islamic legal history
and thought. In addition, I argue that Arab proverbs, logical principles of dif-
ferent cultures and civilizations are also among the sources of qawāˁid.
In Part 2, where I examine the historical development of the maxim liter-
ature, I address the works and figures in a thematic way. In doing so, I try to
present the relation between maxim works and jurists by taking into account
8 Introduction

the influence of madhhabs, jurists, regions and periods. In particular, I empha-

size the instrumental role played in the compilation of legal maxim works
by regional cultures and the teacher-student relationship that held between
maxim authors. I am of the opinion that this type of examination will cast light
on the concentration and proliferation of legal maxim works in certain regions
and periods.
Since the legal genres have an instrumental role in Islamic law, in chapter 4
I focus on the reasons for the rise of genres such as mukhtaṣar, sharḥ and
ḥāshiya in Islamic law. In this context, I deal with the functions of different
genres and their contribution to the development of legal thought. Afterwards,
I focus on two genres that are closely related to the legal maxim literature,
takhrīj al-furūˁ ˁalā l-uṣūl and furūq.
Studying the emergence of the legal maxims genre which coincides with the
4/10th century is important. Chapter 5 considers the question of how legal max-
ims came to be compiled separately and formed an independent discipline. In
particular, I dwell on the role of the Iraqī Ḥanafī scholars in the emergence of
the legal maxim as an independent genre and I deal with the work of Abū Ṭāhir
al-Dabbās and al- Karkhī. Of course, the formative period of legal maxims as
a distinct genre continued until the 7/13th century. Therefore, in this chapter
I examine the role of jurists such as Ibn al-Qāṣṣ and Khushanī from the Shāfiˁī
and Mālikī schools of law in the development of qawāˁid literature. Afterwards
I study the transition of juristic efforts from Iraq to Transoxiana, focusing on
the khilāf literature and Taˀsīs al-naẓar. Finally, I explore the transmission of
legal thought on qawāˁid from Baghdad to Cairo and Damascus and the central
role of ˁIzz b. ˁAbd al-Salām and al-Qarāfī.
Although Ḥanafī jurists played a pivotal role in the emergence and forma-
tion of legal maxims as an independent genre, the new approach that was
developed in Cairo in the 7/13th century and pioneered by Shāfiˁī jurists has
become dominant since then. The legal maxim literature which developed
within the framework of khilāf in the previous centuries began to be examined
in a different phase in works entitled al-Ashbāh wa l-naẓāˀir in this century.
Qawāˁid works were systematized in terms of composition and reached the
style that would be followed after that for centuries. In chapter 6, where I focus
on the causes and effects of this change, I examine the interactions among
many jurists, such as Ibn al-Wakīl, Maqqarī, ˁAlāˀī, Ibn al-Subkī, Zarkashī and
Ibn Rajab and their works.
Qawāˁid works written under the title of Al-Ashbāh wa l-naẓāˀir reached
complete systematization in terms of language and style in the 10/16th cen-
tury. Jurists such as Suyūṭī and Ibn Nujaym have important works that played
a dominant role in this phase. There are also several qawāˁid works written in
Introduction 9

poetic form in this century. In chapter 7, I study how the works that constitute
the peak point of qawāˁid literature based on previous legal accumulation have
affected the qawāˁid books written after them and the factors that make this
effect possible. I discuss how qawāˁid literature deals with furūq, alghāz (legal
puzzles), ḥiyal (legal devices) and anecdotes which are related to the found-
ers of each legal school in the framework of principles and how this affects
the development of legal thinking. Following this, in chapter 8 I examine legal
maxim commentaries and glosses of the 11/17th century, most of which were
written on qawāˁid works of the 10/16th century. I examine the originality of
these commentaries and glosses written in the genre of qawāˁid and their con-
tribution to Islamic legal thought. In addition, I point out why legal maxims
were brought together alphabetically in many works and why the efforts of
the Ottoman jurists became visible in this period. Afterwards, I focus on how
the qawāˁid books written in this century have adapted the legal rulings to the
changing conditions of life.
Chapter 9, which examines the Majalla written under the transition pains
and promises of modernization and debates on codification, discusses the
major break in the legal maxim literature. While the qawāˁid works written
until this century contributed to the development of legal thought, qawāˁid
together with the Majalla started to be addressed in a way that would answer
the demands of the codification process of the state. In this chapter, where
I examine this process of major refraction in Islamic law and qawāˁid literature
and the role and effects of the Majalla in this period, I argue that the legal
maxim literature in its classical sense ends with the Majalla.
In Part 3, I study the legal nature and function of maxims in mukhtaṣar,
sharḥ, ḥāshiya, fatwā, uṣūl and nawāzil works. Although legal maxims were
separately studied in the qawāˁid books, they were effectively used in these
genres, which provided material for qawāˁid literature. Therefore, I focus on
the nature of the substantive law in which the rules are applied. Taking into
account the contemporary proposals to use legal maxims for areas ranging
from law to economics, from political sciences to bioethics,12 I try to compre-
hend how maxims are used in the legal works in the centuries leading up to
the Majalla. In this framework, in chapter 10 I first elaborate the fundamental
features of legal maxims such as their concise form of expression, their com-
prehensiveness and abstractness, how they are obtained through induction,
their articulation in the form of propositions, and their universality. After that,

12 See Shettima, Muhammad and others, “The Relevance of Islamic Legal Maxims in
Determining Contemporary Legal Issues”, IIUM Law Journal, 2016, pp. 415–451.
10 Introduction

I study the mode of transmission of legal maxims with the expressions of al-
aṣl, al-qiyās and al-wajh. I point out the differences and similarities of these
concepts that are used when qawāˁid are quoted. I finally deal with the areas
in which qawāˁid are employed in legal works and determine that legal max-
ims are used for takhrīj, tarjīḥ and taˁlīl. Based on these usages, I explain, with
several examples from substantive law, how the use of qawāˁid contributes to
the development of legal thinking and how a school of law applies these legal
maxims to demonstrate the consistency of its juristic method.
In chapter 11, I examine the use of the legal maxims in the mukhtaṣar, sharḥ
and ḥāshiya literature of the Ḥanafī school of law. I have focused on the Ḥanafī
school because the madhhabs, which are schools that deal with legal issues
consistently in a certain system, have different methods. One of the most
essential methodological faults in contemporary Islamic legal scholarship is
the sequencing of examples from inter-madhhabs without considering the
different methods used by each school of law. To avoid this methodological
fallacy, I chose one legal school to show how legal thinking has developed in
a systematic and consistent manner. Therefore, I substantiate my argument
about the effects of qawāˁid on the formation of concise expressive structures
in mukhtaṣar works. In addition, the main subjects this chapter focuses on are
how legal thinking has changed with the evolving conditions of life and how
legal maxims were used in sharḥ and ḥāshiyas are. In this chapter, I chose dif-
ferent legal manuals, ranging from the earliest works of the Ḥanafī school of
law to those authored in the time of Ibn ‘Ābidīn, to show the original contents
of these works through the application of the legal maxims.
In chapter 12 I try to determine how and for what purposes legal maxims
were used in the Ḥanafī fatwā, nawāzil and uṣūl al-fiqh books. In particular,
I focus on the usage areas of legal maxims in fatwā and nawāzil books which
are related to the current problems of each period. I also discuss how issues
that had not been included in previous substantive law books and fatwā liter-
ature were solved, how the method of a particular school of law is used, and
how these issues were resolved through legal maxims in nawāzil books. This
shows the role of the qawāˁid in ensuring the continuity of legal thought and
juristic reasoning. Considering that today’s researchers propose legal max-
ims as an alternative methodology of Islamic law and economics, in the last
chapter, which examines the use of the legal maxims in the uṣūl al-fiqh books,
I determine that legal maxims are not considered as an alternative method in
classical Islamic law.
 pa rt 1
Legal Maxim as a Concept and Its Sources

∵
 chapter 1

The Conceptual Analysis of the Legal Maxim and

Its Process of Becoming a Technical Term

In every system of law there are legal maxims that reflect dominant ideas and
are obtained through induction. While some of these echo the general charac-
ter of positive law and vary according to different systems of law, others have
structures that display aims of law and its basic orientation, such as order and
justice. Even though the two categories are similar in that they are maxims,
they are different in terms of being readily accepted. However, both maxims
are shaped for the most part by religious and ethical teachings; those which
are inspired by sources other than these share common features as they result
from the human being’s pursuit of certain aims.1
Islamic legal maxims, the foundations of which are found in authoritative/
scriptural texts (naṣṣ, pl. nuṣūṣ), the Qur’ān and the Prophetic Sunna and echo
the parameters of the efforts of Muslim scholars to deal with the issues they
faced, generally have features that are specific to the Islamic tradition of legal
learning. Nevertheless, these legal principles also have common features with
other legal systems. This part of the study will conduct a conceptual analysis
of legal maxims, which are the product of legal-theoretical thought, focusing
on their relationships with similar concepts, and will investigate their sources.
In this section I focus on two main topics: first, a conceptual analysis of the
legal maxim and, secondly, the definition of qāˁida as a legal concept and the
redefinition of it. As for the conceptual analysis, it is followed by an investiga-
tion of the process through which the legal maxim became a technical term.
In this regard, I focus first on the concept of al-aṣl, and then the process of
transition from this concept to that of the qāˁida. I examine the term qāˁida
in relation to its lexical meaning, which is commonly used by different disci-
plines, and also examine the relationship between this meaning and its tech-
nical meaning. Subsequently, I investigate the definitions of qāˁida as a legal
concept and redefine it.

1 Dönmez, “Hz. Peygamber’in Tebliğine Hakim Olan Başlıca Hukuk Prensipleri,” Ebedī Risalet I,
163–164.
14 Chapter 1

1 The Conceptual Analysis of the Legal Maxim

The maxims of every branch of learning are its laws. In fact, Muslim philoso-
phers of the early period, in a manner that encompasses disciplines other than
philosophy and logic, have stated that every discipline has its own maxims and
rules and that these constitute the laws of that discipline. For example, Fārābī
(d. 339/950) used the concept of law in a way that is reminiscent of the mean-
ing of maxim. According to him, the laws of a discipline are universal, that
is to say general expressions that cover many things within that discipline to
the extent of encompassing all or a part of the issues that constitute the sub-
ject matter of that discipline.2 However, the concept of maxim is mostly used
in compounds such as legal maxim, jurisprudential maxim, logical maxim or
grammatical maxim. Although there is a general connotation in harmony with
the general structure of the word in these compounds, different meanings
emerge based upon the relevant discipline. As a result, maxims of different
disciplines that resemble each other in form differ from each other in content.

1.1 The Lexical Meaning of Qāˁida

Qāˁida (pl. qawāˁid), the word for principle and maxim in Arabic, is derived
from the verb q-ˁa-d which means to sit. In all the lexical meanings of qāˁida
there are the meanings of foundation and base.3 The foundations or base of
something brings stability to it. This can be observed in the usage of the word
in the Qurˀān. For example, in the verses that express that Ibrāhīm (Abraham)
and Ismāˁīl (Ishmael) raised the foundations (qawāˁid) of the Kaˁba (Q. 2/
127) and that the Prophet Muhammad made an effort to place the believers in
battle positions (maqāˁid) at Uhud (Q. 3/121), the verb qaˁada and its deriva-
tives are used. The relationship between the usage in the verses and the lexical
meanings of being a foundation, a base and being stable in a position is clear.
Also, the wooden material that is placed on the back of the animal to support
the saddle is called qawāˁid al-hawdaj,4 where the word qawāˁid has the mean-
ing of the base that allows the saddle to be stable on the animal and allows the
rider or the load to be steady. Besides these, the word has been used to express

2 Fārābī, Iḥsāˀ al-ˁulūm, 17. Jurjānī also (d. 816/1413) defined law in a way similar to Fārābī, giv-
ing examples of grammatical rules such as: “The subject is in the nominative case (al-fāˁil
marfūˁ),” “the direct object is in the accusative case (al-mafˁūl manṣūb)”, and “the second
term of the genitive construct is in the genitive case (al-muḍāf ilayhi majrūr).” Jurjānī, al-
Taˁrīfāt, s.v. “qānūn.” Cf. Tahānawī, Kashshāf iṣṭilāḥāt al-funūn, s.v. “al-qāˁida” and “qānūn.”
3 Khalīl b. Aḥmad, Kitāb al-ˁayn, s.v. “q-ˁa-d.”
4 Azharī, Tahdhīb al-lugha, s.v. “q-ˁa-d;” Jawharī, al-Ṣiḥāḥ, s.v. “q-ˁa-d.”
The Conceptual Analysis of the Legal Maxim and Its Process 15

stability and constancy. In fact, in the Qurˀān the expression al-qawāˁid min
al-nisāˀ is used for old women who no longer menstruate and are in a state in
which they usually do not get married (Q. 24/60).

1.2 Qāˁida as a Legal Term

Analysing the word qāˁida as a technical term means studying the meaning
and function of a concept, which is shared by several disciplines, within each
particular discipline. Qawāˁid, which have different functions according to the
discipline in which they are used, ranging from jurisprudence to logic, rhetoric
to the Arabic language, have been defined according to their respective role in
the particular discipline. For this reason, al-qāˁida al-fiqhiyya (legal maxim),
which in the beginning was defined in a manner that was similar to definitions
of maxims in other disciplines, has gradually come to be defined in the litera-
ture on legal maxims in accordance with the essence of Islamic law. Emphasis
was given to elements which distinguish it from maxims in other fields in its
definition in the literature on legal maxims. For example, Fayyūmī (d. 770/
1369), who stated that qāˁida and ḍābiṭ5 have the same meaning, defined the
maxim as “a universal matter that encompasses all of its particulars ( juzˀiyyāt)”,6
while Jurjānī (d. 816/1413) wrote that a maxim is “a universal proposition that
encompasses all of its particulars ( juzˀiyyāt).”7 Expressions in these definitions
such as “encompassing all,” “applicable to all (munṭabiq ˁalā jamīˁ)”, have been
revised in the definition of legal maxim in later periods in accordance with
the structure of the legal maxim, so that qualifications have been added such
as the ruling in most (aktharī) or the majority (aghlabī) of cases. Jurists who
have set these qualifications have taken into consideration the fact that legal
maxims in comparison with other maxims have more exceptions. Since in
both of the definitions above, as well as the definitions that will come up, the
word “particular (juzˀī)” plays a key role for the understanding of the concept
of maxim, I will briefly focus on it.
Although the particular (juzˀī) has many definitions and different types, two
of these are closely related to the meaning in the definition of qaˁida. The first
of these is called the real particular (al-juzˀī al-ḥaqīqī) and is conceived as that
understanding which prevents the status of being shared in itself. In this case,
the particular denotes individuals within one species and does not encompass
anything other than itself, like X person or Y book. The second is the relative

5 A universal proposition that is specific to one area of Islamic law. For a detailed discussion on
this see chapter 2.
6 Fayyūmī, al-Miṣbāḥ al-munīr, “q-ˁa-d.”
7 Jurjānī, al-Taˁrīfāt, s.v. “qā-ˁi-da.”
16 Chapter 1

particular (al-juzˀī al-iḍāfī) which means that a term can be understood in rela-
tion to a universal (kullī). This type of particular, as when, for example, men
and women as kinds are considered as particulars in relation to the genus of
the human being, is a universal in one respect.8
Below there will be some classical and modern definitions of the term
qāˁida, followed by a general evaluation. Afterwards, I define qaˁida as a legal
term. Although maxims have been used in legal corpora from the earliest peri-
ods, based on extant literature, the definition of maxim as a legal term coin-
cides with the beginning of the 8/14th century.9 From this century onwards,
scholars defined qāˁida according to their academic field. The basic reason for
various definitions is that the function of qawāˁid in each discipline is differ-
ent. But scholars usually define qāˁida as a proposition, universal, universal
proposition, universal matter, universal ruling, preponderant ruling or a pre-
dominant ruling. Taftāzānī (d. 792/1390), Sayyid Sharīf al-Jurjānī (d. 816/1413),
Ibn Khaṭīb al-Dahsha (d. 834/1431), Ibn al-Najjār (d. 972/1564), Abū al-Baqā
al-Kafawī (d.1094/1683), Tahānawī (d. 1158/1745), Güzelhisārī (d. 1215/1800), Ali
Haydar Efendi (d. 1936) and İzmirli İsmail Hakkı (d. 1946) are among the schol-
ars who defined qāˁida in their works.10
Najm al-Dīn al-Ṭūfī (d. 716/1316), while explaining the expression qawāˁid
in the definition of uṣūl al-fiqh (Islamic jurisprudence),11 defined qaˁida and
explained it using examples. According to him, qawāˁid are “universal prop-
ositions through the consideration (naẓār) of which particular propositions
are known.”12 Based on the usage in legal works, the expression consideration
means pure thought or analogy. In both cases, there is adducing evidence based
on thought. Ṭūfī transmitted two legal maxims which are basically ḍābiṭs, fol-
lowed by the maxims of uṣūl al-fiqh, trying to show that these encompass the
legal issues that fall within their subjects.13 Even though in the examples a

8 Tahānawī, Kashshāf iṣṭilāḥāt al-funūn, s.v. “al-juzˁiyya.” Cf. Aḥmad, al-İstiqrāˀ, 61–62.
9 To say that “maxim” was defined towards the end of the third quarter of the 8/14th century
corresponds to historical evidence. For such an approach see al-Amiri, Legal Maxims, 8.
10 For definitions of the classical period see Kızılkaya, Kāsānī’nin Bedāyi‘ İsimli Eserinde
Kavāid’in Yeri, 16–21.
11 Islamic jurisprudence is generally defined as the knowledge of the rules through which
substantive rules of Sharīˁa are derived from detailed sources of evidence. For example,
see Ibn al-Ḥājib, Mukhtaṣar muntahāˀ al-sūl wa l-amal, 1: 201.
12 Ṭūfī, Sharḥ mukhtaṣar al-rawḍa, 2: 95–96.
13 The ḍābiṭs he mentioned are “the obligations of the contract concern not the proxy but the
principal” and “tricks in Sharīˁa are null and void.” The principles of jurisprudence are “the
imperative indicates obligation and immediacy,” “a contrario (dalīl al-khiṭāb) is binding evi-
dence,” “analogy by simple similarity (qiyās al-shabah) is sound evidence,” and “a mursal
ḥadīth is used as legal evidence.” Ṭūfī, op. cit., 2: 95–96.
The Conceptual Analysis of the Legal Maxim and Its Process 17

distinction is made between maxims of substantive law (furūˁ al-fiqh) and uṣūl
al-fiqh, the definition given here is more suitable for maxims of uṣūl al-fiqh,
since within the maxims of substantive law there are universal statements as
well as legal rulings. In fact, when legal issues that fall under universal max-
ims are analysed, legal rulings on different subjects as well as ḍābiṭs, which are
maxims in the narrow sense, fall directly under them. If this is the case, defin-
ing qawāˁid as universal principles which have particular statements under
them does not fully correspond to their structures.
The Mālikī jurist al-Maqqarī (d. 758/1357), who is one of the first authors to
compose a work in the field of legal maxims in the 8/14th century, emphasized
with his definition the general and encompassing aspect of the qāˁida, stating
that in this respect it is different from principles (uṣūl) and rulings (aḥkām),
which have a narrower scope. According to him, the qāˁida is “every univer-
sal which is more specific than uṣūl al-fiqh and other general rational meanings
(al-maˁānī) and more general than contracts and all specific legal ḍābiṭs.”14
Although al-Maqqarī in his work categorized maxims from the most general
to the more specific as in the legal maxims genre written in later periods, from
this definition it is apparent that he perceives that qawāˁid have a more gen-
eral structure than ḍābiṭs. In fact, Aḥmad b. ˁAlī al-Manjūr (d. 995/1587) in his
commentary on Zaqqāq’s (d. 912/1506) poetic work al-Manhaj al-muntakhab,
indicates this feature while analysing Maqqarī’s definition. According to this,
the word jurisprudence (uṣūl) in the definition denotes general maxims of
jurisprudence such as “the Qurˀān is binding evidence,” “a khabar al-wāḥid
(transmission of single individuals) is binding evidence,” or “the imperative indi-
cates obligation” while specific legal ḍābiṭs cconnote specific legal rules such as
“all water is pure so long as no one of its three qualities—colour, taste, smell—
have changed” and “every act of worship requires an intention.” Accordingly, al-
Maqqarī means by qāˁida the rules that are between these two and form the
foundation for issues of legal variance.15 Muḥammad al-Shaykh Muḥammad
al-Amīn, the editor of al-Manhaj al-muntakhab, states that “the rules that form
the foundation for issues of legal variance” are from the genus of the maxims
that constitute the third section of Suyūṭī’s (d. 911/1505) al-Ashbāh.16 These are
ḍābiṭs that are transmitted in works of legal maxims in the form of questions,
indicating issues in which jurists make different choices by reason of variance
within a particular legal school. The expression “other general rational mean-
ings (al-maˁānī)” in al-Maqqarī’s definition indicates the foundational maxims

14 Maqqarī, al-Qawāˁid, 1: 212.

15 Manjūr, Sharḥ al-manhaj al-muntakhab, 1: 109.
16 Ibid, 1: 108 n.7.
18 Chapter 1

of thought that constitute the primary postulates of each discipline. Since pos-
tulates which are general in this form cannot be limited to the legal discipline,
al-Maqqarī stated that qāˁida possesses a more specific meaning.
Some authors of legal maxims, instead of defining legal principles, emphasize
the features they take into consideration in the composition of their works, thus
providing clues only as to the general essence of al-qāˁida al-fiqhiyya. For example
ˁAlāˀī (d. 761/1359), instead of directly defining qāˁida, separated legal and juris-
prudential maxims, and categorized legal maxims according to the issues they
encompass.17 Tāj al-Dīn al-Subkī (d. 771/1369) emphasized in his definition of
qāˁida the applicability of the legal maxim to the majority of the particular rulings
it encompasses, defining maxim as “the universal matter with which many particu-
lars are in accordance and from which the rulings of particulars are understood.”
Ibn al-Subkī emphasized the generality of the qāˁida, separated it from the ḍābiṭ
which has a narrower scope, and tried to explain that particular rulings which are
transmitted in some substantive law manuals in the form of maxims do not cor-
respond to qāˁida in the technical sense but are expressed in this fashion because
they connote an established postulate. This is significant in showing that in this
period the technical meaning of maxim had been established.18 It is an important
contribution to the legal maxim genre that he defined qāˁida by taking into con-
sideration its essence and purpose. The first part of the definition emphasizes that
a qāˁida encompasses many particulars, while the second part emphasizes that
the rulings for many particular issues are understood through the qāˁida.
The emphasis on the fact that al-qāˁida al-fiqhiyya is not universal, but
preponderant, (aktharī) is more prominent in the work of al-Ḥamawī (d.
1098/1687), the commentator of Ibn Nujaym’s (d. 970/1562) al-Ashbāh, than
that of Ibn al-Subkī. Ḥamawī first states that legal maxims (al-qawāˁid al-
fiqhiyya) have a different structure from maxims of jurisprudence (al-qawāˁid
al-uṣūliyya) and syntax (al-qawāˁid al-naḥwiyya), and then defines the legal
maxim in accordance with this distinction as “the preponderant, not universal,
proposition that encompasses the majority of the particulars so that by it the rul-
ings for the particulars are known.” However, Ḥamawī interpreted universality
in a different way, stating that the universal maxim (al-qāˁida al-kulliyya), even
though it may have some exceptions, is one that does not fall under another
maxim.19 If what Ḥamawī intends in his interpretation of universality in the

17 ˁAlāˁī, al-Majmūˁ al-mudhhab, 1: 207–209.

18 Ibn al-Subkī, al-Ashbāh wa l-naẓāˀir, 1: 11.
19 Ḥamawī, Ghamz ˁuyūn al-baṣāˀir, 1: 51. Ḥamawī explained elsewhere that what is meant
by universality is not encompassing all issues one by one. Ḥamawī, op. cit., 1: 198. Tahānawī
(d. 1158/1745) and Omer Nasuhi Bilmen (d. 1391/1971) also had interpretations similar to
The Conceptual Analysis of the Legal Maxim and Its Process 19

expression one that does not fall under another maxim is absolute independ-
ence, then this necessitates that many of the maxims mentioned in the legal
maxim genre are not to be accepted as maxims. If what he intends by this is
that maxims should be broad enough to include other maxims under it, then
one of the important aspects of maxim, which distinguishes it from the ḍābiṭ
and legal rulings (aḥkām), is displayed.20
In contrast with the definitions above, and mostly based on the terminol-
ogy of logic, a qāˁida is defined in some works of uṣūl al-fiqh with regard to its
aim rather than its subject (considering not jihat al-waḥda al-dhātiyya but jihat
al-waḥdah al-ˁaraḍiyya) as “the universal statement in which the major premise
is easily obtained from the minor premise.”21 According to this, jurisprudential
maxims such as “every imperative indicates obligation” and “every forbiddance
indicates prohibition” are used as follows:

‘Perform the ritual prayer’ is an imperative order

Every imperative order indicates an obligation
‘Perform the ritual prayer’ indicates an obligation

The principle “every forbiddance indicates prohibition” is also used in a

similar way:

‘Do not come close to fornication’ is forbiddance

Every forbiddance indicates a prohibition
‘Do not come close to fornication’ indicates a prohibition

The application of maxims on issues that fall under them in the form of prem-
ises has been used in examples not only of jurisprudence but also of substan-
tive law. For instance,

his approach. See Tahānawī, Kashshāf iṣṭilāḥāt al-funūn, s.v. “al-qāˁida;” Bilmen, Hukukı
İslāmiyye Kamusu, 1: 254. Bilmen defined maxim as “a certain and universal ruling to which
many particulars conform,” emphasizing its feature of universality, but he hinted at the
fact that universality encompasses not all but most of the particulars. Bilmen, op. cit., 1: 15.
20 This approach has been expressed by other authors as the inclusivity of the maxim. For
example, Guzelhisarī and Muhammed Enīs Ubāde had this aspect in mind in their defini-
tions of maxim. After defining maxim, Ubāde stated that there are two kinds of maxims,
universal and inclusive. The universal has other principles under it, while the inclusive
has one principle under it. See Ubāde, Qawāˁid al-fiqh al-kulliyya, 1.
21 Ibn Amīr al-Ḥājj, al-Taqrīr wa l-taḥbīr, 1: 25.
20 Chapter 1

The sale of the bequest is an act that necessitates the removal of

ownership of the bequest
Every act that necessitates the removal of ownership of the bequest
revokes the bequest
The sale of the bequest revokes the bequest.

In these statements, the first propositions, “perform the ritual prayer is an imper-
ative order,” “do not come close to fornication is forbiddance” and “the sale of the
bequest is an act that necessitates the removal of ownership of the bequest,” con-
stitute the minor premises. The second propositions, “every imperative order
indicates an obligation,” “every forbiddance indicates a prohibition” and “every
act that necessitates the removal of ownership of the bequest revokes the bequest,”
constitute the major premises. The result of these propositions, “performing
the ritual prayer indicates an obligation,” “do not come close to fornication indi-
cates a prohibition” and “the sale of the bequest revokes the bequest,” constitutes
the conclusions. Hence, the potential (bi al-quwwa) ruling becomes actual (bi
al-fi‘l).22
Although emphasis has been mostly placed on the legal foundation and
legal principle aspect of the maxim in the contemporary studies of legal max-
ims, the qāˁida has been defined as a universal source, a universal legal source,
a ruling of the Sharīˁa, a universal maxim, a universal Sharīˁa conduct prop-
osition, a universal Sharīˁa proposition based on conduct, a universal legal
proposition, a predominant ruling, a universal ruling and a similar group of
rulings. The masters’ theses and doctoral dissertations on the subject gener-
ally follow the framework of the definitions of Muṣṭafā Aḥmad al-Zarqā, ˁAlī
Aḥmad al-Nadwī and Yaˁqūb b. ˁAbd al-Wahhāb al-Bāḥusayn. Therefore, focus-
ing on the definitions of these three authors will suffice for modern definitions
of a qāˁida. Zarqā defines a qāˁida as “universal legal principles that contain
Sharīˁa rulings for issues related to their subjects, consisting of general and con-
cise expressions.”23 Since the word principles in the definition defines maxim
with a synonym, it does not add to one’s understanding of principle as a tech-
nical term. Even though legal maxims are formed from terse expressions, it is
conspicuous that this is not indispensable for the maxim and, therefore to add
this feature in the definition is redundant.
ˁAlī Aḥmad al-Nadwī is one of the foremost authorities among contem-
porary scholars who extensively study legal maxims and treat the theoretical

22 Ibn Amīr al-Ḥājj, al-Taqrīr wa l-takhbīr, 1: 29.

23 Zarqā, al-Madkhal al-fiqhī al-ˁāmm, 2: 947.
The Conceptual Analysis of the Legal Maxim and Its Process 21

dimension of maxims. In his work in which he developed his master’s thesis

written at Umm al-Qurā University entitled al-Qawāˁid al-fıqhiyya wa athar-
uhā fī l-fıqh al-Islāmī, he transmits some definitions of qāˁida, evaluates them,
and then presents two definitions. According to his first definition, qāˁida is “a
Sharīˁa ruling expressed as a preponderant proposition with which the rulings for
the issues that come under it are known.” Concerning the qualification of pre-
ponderant in the definition, the author states that this characteristic is not lim-
ited to the legal maxim, that other disciplines also have similar features, and
that this does not affect the comprehensiveness of the legal maxim. According
to him, the qualification of preponderance is not necessary in definitions of
qāˁida. He indicates that because of exceptions in certain subjects covered,
the universality of legal maxims is relative, not comprehensive. For this reason,
a maxim has a more general meaning than being universal or preponderant.
After these observations, Nadwī presents a second definition. According to
this, maxim is “a legal principle that contains Sharīˁa rulings concerning differ-
ent areas of law for propositions that are within its subject.”24
The expression ruling (ḥukm) that is in the first definition Nadwī presents is
one of the main factors that leads to legal maxims being confused with particu-
lar issues. As I will explain in more detail below, maxims have certain funda-
mental elements that distinguish them from rulings. If these are not taken into
consideration, every substantive sentence in legal corpora can be construed
as a maxim. Rather than being rulings that directly concern legal persons and
institutions, legal maxims are assumptions that gather under them different
rulings, so that they cannot be directly applied to substantive issues that con-
cern legal persons and institutions. In contrast, it is obvious that every legal
expression that is itself a ruling has a bearing on the legal person and institu-
tion. Because of this nuance concerning a maxim and a ruling, the Committee
of the Majalla, in the introductory chapter entitled “Esbāb-ı Mūcibe Mazbatası,”
states that a judge cannot rule based on legal maxims without any other evi-
dence from Sharīˁa.25
Yaˁqūb b. ˁAbd al-Wahhāb al-Bāḥusayn defines qāˁida as follows: “universal
proposition that its particulars are practical, Sharīˁa orthopraxy and universal
propositions or universal legal proposition whose particulars are universal legal
propositions.”26 Bāḥusayn, who is prominent among contemporary scholars for
the many studies he has penned in the area of Islamic law in general and legal
maxims in particular, in this definition makes clear the difference between a

24 Nadwī, al-Qawāˁid al-fiqhiyya, 43–45.

25 Majalla, 12.
26 Bāḥusayn, al-Qawāˁid al-fiqhiyya, 54.
22 Chapter 1

qāˁida and a particular ruling. However, since the particular of a legal propo-
sition has necessarily to be a legal proposition or a proposition of Sharīˁa, one
can say that the qualifications “its particulars are practical, Sharīˁa orthopraxy
and universal propositions” or “its particulars are universal legal propositions”
are redundant.
In Western academia and English studies in the field of Islamic law legal
maxims are directly or indirectly treated. In these works, qāˁida is generally
translated as legal maxims,27 kawāˁid,28 qawāˁid, legal principles,29 legal pre-
cepts, legal propositions,30 general principles, respective bases,31 maxims,32 law
maxims33 or universal rules of Islamic law, universal rule, fundamental rules of
the law and universal legal rules.34 Although Joseph Schacht, who dealt with
this subject in his works, did not define maxim as a concept, in the glossary
of his An Introduction to Islamic Law he stated that maxims mean “rules” and
“technical principles of positive law.”35 Even though the expression “technical
principles” is acceptable, when one considers the axiomatic structure of max-
ims that are above rules and positive law36 one can see that the definition
Schacht presents is not in accordance with the nature of legal maxims.

1.3 Evaluation of Definitions of Qāˁida

Looking at the definitions of a maxim that have been dealt with so far, they are
analytical and synthetic or descriptive definitions. The definitions of the mod-
ern era in particular are to a large extent tautological (idem per idem) defini-
tions. That is to say, definitions which have as their subject qāˁida and as their
predicate assumption or principle are in the form “A is A” not providing any
information other than identicalness, stating that something is itself (qāˁida
is qāˁida). To define legal maxim by taking into consideration attributes like

27 Schacht, The Origins of Muhammadan Jurisprudence, 180–189; Rabb, Doubt’s Benefit, 13,
15 and passim; al-Amiri, Legal Maxims, 8 and passim; Zakariyah, Legal Maxims in Islamic
Criminal Law, 24 and passim.
28 Schacht, Introduction, 114.
29 Heinrichs, “Qawāˁid as a Genre of Legal Literature,” 365–384.
30 Jackson, Islamic Law and the State, 3, 18, 79, 91–95, 107, 168–169.
31 Brunschvig, “Logic and Law in Classical Islam,” 12.
32 Vesey-Fitzgerald, “Nature and Sources of the Sharīˁa”, 103.
33 Mohammed, “The Islamic Law Maxims”, Islamic Studies, xliv, 191 and passim.
34 Arabi, Studies in Modern Islamic Law and Jurisprudence, 36, 76, 90, 134. Although Arabi
distinguishes fundamental universal maxims from those at a lower level, sometimes he
uses these concepts interchangeably.
35 Schacht, Introduction, 300.
36 Axioms are “self-evident propositions that are impossible to prove and can be applied to
every form of quantity.” See Topçu, Mantık, 30.
The Conceptual Analysis of the Legal Maxim and Its Process 23

being clear and definite, not being too long or too short, being inclusive of its
elements and exclusive of its non-elements (jāmi‘un li afrādih wa māni‘un li
aghyārih),37 it is necessary to throw its chief characteristics that define it and
its extent into sharp relief.38
Some scholars aimed to distinguish legal maxims from maxims of other
sciences by highlighting that they cover not all but most of the rulings within
their subject or that maxims are preponderant, not universal.39 This feature,
however does not constitute a fundamental attribute of the legal maxim. This
is because it is obvious that maxims and rules of other sciences also have
exceptions. For example, it is mentioned in the sources that maxims of uṣūl
al-fiqh such as “that thing without which something obligatory cannot be com-
pleted is also obligatory” and “whenever intention is not considered, the means
are also not considered” are preponderant.40 This is not a situation limited to
maxims of Islamic law and jurisprudence; rather the maxims of language and
logic are also preponderant and, therefore, may have exceptions. Take the rule
in Arabic syntax “al-fāˁil marfūˁ (the subject of the verb is in the nominative
case).” When there is a zāˀid (extra) particle, as in the example “mā jāˀā min
aḥadin (no one came),” the subject of the verb can be majrūr (in the geni-
tive case). The principle “al-mafˁūl manṣūb (the direct object is in the accu-
sative case)” is similar. As in the example of “mā raˀaytu min aḥadin (I did not
see anyone),” the direct object can be majrūr if there is a ḥarf al-jarr (geni-
tive particle). Even though grammarians say that here the grammatical case is
assumed, it is clear that these are exceptions to the general rule of grammatical
cases.41 Moreover, in every discipline of learning exceptional situations that
are contrary to a general maxim or principle do not invalidate that maxim or
principle, since the principle and the rule remain valid together with the exist-
ence of the exceptions. For example, Shāṭibī (d. 790/1388), who was among the
pupils of al-Maqqarī, explained that particular exceptional situations do not
eliminate universality by giving examples of maṣlaḥa (benefit) from ḍarūriyyāt
(necessities), ḥājiyyāt (needs) and taḥsīniyyāt (refinements). Shāṭibī states:

37 Topçu, Mantık, 10. Cf. Copi and Cohen, Introduction to Logic, 192–196.
38 For definitions of maxim in the classical and modern period and their general evaluation
see Kızılkaya, Kāsānī’nin Bedāyi‘ İsimli Eserinde Kavāid’in Yeri, 16–27.
39 Pīrīzāda, Sharh al-Ashbāh, fl. 6b.
40 Makkī, Tahdhīb al-furūq, 2: 44.
41 For exceptions to maxims of Arabic language and grammar see Ibn al-Jinnī, al-Khaṣāˀis,
1: 96–100.
24 Chapter 1

When a universal matter is established, the fact that some particular

issues do not fall under it does not exclude it from being universal. In the
same way, a preponderant general situation is seen in Sharīˁa as some-
thing certain. This is because one cannot obtain a universal that can
oppose an established universal from particulars that do not fall under
the general rule. This situation is a feature of universals that are obtained
through induction.42

Hence, just as being preponderant and prevalent are not features of the
legal maxim alone, likewise exceptions to the universal do not remove its
encompassing aspect. In this regard, the interpretations of universality in the
Majalla and Ali Haydar Efendi’s opinion within this framework are signifi-
cant. According to the Majalla, although legal maxims “taken individually have
exceptions, because they specify and restrict one another, this does not harm their
universality and generality as a totality.”43 Legal maxims, like maxims of other
disciplines, inescapably have exceptions when these are individually consid-
ered. However, when maxims and their exceptions are considered as a whole,
the exceptions to the maxims specify and restrict the universality of those
maxims. But since this specification and restriction are due to another maxim
or other maxims, the universality of the totality of the maxims continues. Ali
Haydar Efendi, providing a few examples of this, stated that since an excep-
tional ruling to a maxim falls under another maxim, the existence of excep-
tions does not constitute a contradiction.44
The specification mentioned in the definition of the maxim that it is a
universal proposition is not sufficient to express its meaning, since the rul-
ings are generally expressed as propositions in the legal corpora. For exam-
ple, statements such as “whoever begins a supererogatory act of worship and
then invalidates it has to redo it,”45 “whoever misses a ritual prayer performs it
when he remembers it,”46 “the living expenses of minors are paid by the father”47
are propositions. Therefore, even though propositions encompass the men-
tioned individuals, it is not possible to accept every proposition as a maxim.

42 Shāṭibī, al-Muwāfaqāt, 2: 83–84.

43 Majalla, 6.
44 Ali Haydar Efendi, Durar al-ḥukkām, i:26. Ömer Nasuhi Bilmen also adopted this approach
by saying that maxims complement each other by specifying and restricting one another.
Bilmen, Hukukı İslāmiyye Kamusu, 1: 254.
45 Marghīnānī, al-Hidāyah, 1: 175.
46 Ibid, 1: 185.
47 Ibid, 2: 653.
The Conceptual Analysis of the Legal Maxim and Its Process 25

Since legal propositions are naturally related to substantive law (furūˁ) and
particulars, specifications in the definitions of the maxim—such as furūˁ and
particulars—also do not suffice to elucidate the difference between substan-
tive legal rules and maxims. For this reason, Bāḥusayn’s definition of maxim as
“or universal legal proposition whose particulars are universal legal propositions”
is different from other definitions by emphasizing this aspect of the maxim.
His definition sets an important criterion for distinguishing maxims from legal
propositions: whereas the particulars of a maxim are universal propositions,
the particulars of legal propositions are legal persons who are addressed by
that ruling.48 However, this definition of Bāḥusayn does not have the quality of
completely revealing the essence of the maxim.

1.4 Qāˁida as a Concept Belonging to the Literature of Substantive Law

and Legal Maxims
Definitions of qāˁida in the classical and modern periods which have different
characteristics, rather than reflecting the essence and function of the maxim,
highlight certain features of it. Moreover, defining qāˁida based on its usage in
the literature of legal maxims and not considering its functions in substantive
law manuals are important failings in the modern study of legal maxim. The
fact that the works in which maxims are processed and used are substantive
law books makes it is necessary to take into consideration the usage of maxims
in these works. Therefore, in an encompassing definition of the legal maxim
and to completely articulate its essence, it is necessary to consider its function
in sources of substantive law, otherwise the definition will be deficient. Based
on these observations al-qāˁida al-fiqhiyya can be defined as follows: Qāˁida is
a universal proposition that encompasses issues from different areas of law. I will
explain the components of my definition below.
While the subject of the legal maxim consists of legal issues, the expression
that encompasses issues from different areas of law echoes the most fundamen-
tal feature of the qāˁida. This expression distinguishes the legal maxim from
the maxims of other disciplines such as logic, syntax and uṣūl al-fiqh. As has
been mentioned, every discipline has maxims upon which it is based, and the
fundamental feature that distinguishes them from others consists of the issues
they consider, that is to say their subjects. The fact that every discipline has
maxims upon which it is built has resulted in definitions of maxim by scholars
of different fields. This leads to a situation in which some specific definitions
of maxim are such that they go beyond the borders of the legal maxim. The fact

48 Bāḥusayn, al-Maˁāyīr al-jaliyya, 40.

26 Chapter 1

that a maxim encompasses issues from different areas of law separates it from
the ḍābiṭ and ḥukm (ruling). A ḍābiṭ governs a single chapter of law, whereas a
maxim has a structure that can be applied to all or a few areas of law. For exam-
ple, whereas the maxim “matters shall be judged by their objectives” concerns all
areas of law from worship to transactions, the ḍābiṭ “oaths are founded not on
intentions but on utterances” encompasses the sections on oaths. Since a ḥukm
is more specific than a ḍābiṭ and encompasses individuals of the subject with
which it is concerned, then, a fortiori, it should not be accepted as a maxim.
To give an example of a ruling, if one takes an oath that he will not buy any-
thing worth a penny for someone with whom he/she is angry and then buys
something for 100 dirhams, he/she will not be considered to have violated the
oath.49
Some scholars, while defining qāˁida, have tried to explain what they have
meant by ‘universality’ in trying to distinguish it from maxims of other disci-
plines. Some have stated that what is meant by universality is that its ruling is
applicable to all individuals,50 while others have stated that it does not mean
encompassing all the issues one by one, but rather connotes a generality such
that it is not the subject of another maxim.51 What is intended by universality
in my definition is both that its subject is universal and that it is applicable
to all its elements. Both are necessary for a legal proposition to be a maxim.
What is intended by stating that its subject is universal is that the maxim has
under it other general propositions that are, or can be, maxims. If a propo-
sition does not have universal propositions under it, even if it has a concise
structure, it is a sentence that expresses a legal ruling, not a maxim. This uni-
versality can sometimes be very extensive, as in the five fundamental maxims,
and sometimes have a narrower structure under which a few maxims are gath-
ered. For example, under the maxim “harm is removed,” there are maxims such
as “necessities are limited to their scope,” “the greater harm is removed with the
lesser harm,” “necessities make what is necessary permissible,” “when two forms of
harm are in conflict, the lesser is done to deal with the greater.” All of these max-
ims under the main maxim have other maxims under them. In this way, the
encompassing feature of these maxims is that they go from the general to the
specific, and at the end reach the ḍābiṭs which concern individual legal issues.
Since the subject of the ḍābiṭ is particular rather than universal, it is naturally
distinct from the maxim. Just as applicability to each case that falls under it is
a fundamental feature of a maxim, as has been mentioned, the existence of

49 Ibn Nujaym, al-Ashbāh wa l-naẓāˁir, 57.

50 e.g. ˁAttār, Ḥāshiyat al-ˁAttār, 1: 32.
51 Ḥamawī, Ghamz ˁuyūn al-baṣāˀir, 1: 51, 198.
The Conceptual Analysis of the Legal Maxim and Its Process 27

exceptions is also an inescapable condition. Since exceptions would also have

fallen under the government of the maxim without a preclusive factor, issues
that are considered exceptions are also situated under a maxim. Hence the
expression universal, as will be treated in more detail, denotes that the maxim,
regardless of exceptions, can be applied to different areas of law and contains
under it other propositions which are also universal in form. Authors defining
maxim have striven to distinguish this feature with qualifications such as pre-
ponderant and predominant.52
The opinion of some scholars that, since maxims are by their very nature
universal, there is no need for the qualification universal53 does not appear
to be very accurate as regards the legal maxim. This is because, although legal
rulings are in the form of propositions, they are not all universal and the inclu-
siveness of the universal ones varies. As a result, since universality is one of the
differentia of the maxim, it has to be mentioned in its definition.
I mentioned in my definition that a maxim is a proposition. A proposition is
a statement about which one can say to the speaker that he/she is truthful or
incorrect. Propositions as regards their parts are either predicative (ḥamliyya)
or conditional (sharṭiyya). The predicative proposition is one in which both of
its parts (the subject and the predicate) are simple, whereas the conditional is
a proposition in which both of its parts are not simple. Propositions that are
of two kinds as regards quality are called affirmative (mūjaba) if they are pos-
itive and negative (sāliba) if they are negative. Propositions that are of three
types in terms of quantity are called singular (makhsūsa) if the subject is a
specific individual, quantified (maḥsūra) if it is formed with the quantifiers ‘all’
(kull) or ‘some’ (ba‘ḍ), and indefinite (muhmala) if it neither singular or quan-
tified.54 Although the fact that legal maxims are propositions does not distin-
guish them from maxims of other disciplines, it shows that they have a declar-
ative (ikhbārī) rather than performative (inshāˀī) function, and that they are
not universal concepts (al-mafhūm al-kullī) such as ‘living’ and ‘human being.’
The reason that maxims that are predicative, conditional, affirmative, quanti-
fied and indefinite in form are propositions is that, since they are affirmative
or negative, they can be called true and false. Therefore, performative speech
acts such as prayer (duˁā), command (amr) and prohibition (nahy) cannot be

52 For example, Ḥamawī, op. cit., i,51; Makkī, Tadhhīb al-furūq, 1,36; Güzelhisārī, Manāfiˁu
al-daqāˁiq, 305; İzmirli, İlm-i Hilāf, 186.
53 See Ibn al-Najjār, Sharḥ al-Kavkab al-munīr, 1: 45.
54 For more information and examples see Jurjānī, al-Taˁrīfāt, 176; Gelenbevī, Gelenbevī ˁalā
Īsāghūjī, 30–36; Şevkī Efendi, Shawkī ˁalā al-Fanārī, 93–102.
28 Chapter 1

maxims. For this reason, sentences that are expressed as questions in some
works of maxims55 are not maxims according to this definition.

2 The Process of al-Qāˁida Becoming a Technical Term

2.1 The Concept of al-Aṣl

The usage of the term qāˁida in its technical meaning took place at a late
period in both works of substantive legal rules and the literature of maxims.
Qawāˁid have been expressed in different terms in the sources predating this
period. Foremost among these expressions is the concept of al-aṣl (pl. uṣūl).56
The term al-aṣl has broader meanings than qāˁida in legal corpora. Although
al-aṣl, which, according to its lexical definition, means that on which some-
thing rests, has sometimes been used as a synonym for qāˁida,57 in most cases
it encompasses meanings such as al-qāˁida al-kulliyya (universal maxim), dalīl
(evidence), rājiḥ (the dominant), ghālib (predominant), ẓāhir (apparent),
ḥukm (ruling) which is considered to continue, and maqīs ˁalayh (that upon
which analogy is made).58 The meaning of the al-aṣl is either physical (ḥissī),
such as the roof resting upon the wall and the wall resting upon the founda-
tion, or intellectual (‘aqlī), such as the figurative meaning resting upon the lit-
eral and particular rulings resting upon universal maxims.59 Ibn Ḥazm (d. 456/
1064) defines aṣl in a way that refers to both meanings as that which the intel-
lect grasps in the first step and is understood through the senses.60
The concept of aṣl, in time, was replaced by qāˁida which more specifi-
cally expresses the principle.61 The term al-aṣl is not always used in isolation
in substantive law works, but sometimes appears in compounds such al-aṣl
al-maˁhūd (the familiar aṣl) and al-aṣl al-maḥfūz (the preserved aṣl).62 As

55 In the works of Ibn Rajab (d. 795/1393) and Wansharīsī (d. 914/1508) there are frequent
examples of this. See Ibn Rajab, Taqrīr al-qawāˁid; Wansharīsī, Īḍāḥ al-masālik.
56 Karkhī, Risāla, 110 and passim; Dabūsī, Taˀsīs al-naẓar, 9 and passim; Sarakhsī, al-Mabsūṭ,
1: 121.
57 Ījī, Sharḥ al-ˁAḍud, 9.
58 Ījī, op cit., 9; Isnawī, Nihāyat al-sūl, 1: 7; Shawkānī, Irshād al-fuḥūl, 3; Nadwī, al-Qawāˁid wa
l-dawābiṭ al-mustakhlaṣa min al-taḥrīr, 109–110.
59 Taftāzānī, al-Talwīḥ ˁalā al-tawḍīḥ, 1: 17. See also, Sarakhsī, op cit., 1: 212, 218, 2: 37.
60 Ibn Ḥazm, al-Iḥkām fī uṣūl al-aḥkām, 56.
61 For example, the maxim “certainty is not overruled by doubt” has been transmitted in al-
Mabsūṭ as al-aṣl, while in Fatāwā al-hindiyya it is transmitted as al-qāˁida. Sarakhsī, op.
cit., 1: 121; Shaykh Niẓām, al-Fatāwā al-Hindiyya, 1: 47.
62 e.g. Kāsānī, Badāˀiˁ al-ṣanāˁi, 1: 392, 414; 2:573; 3: 14, 121; 4: 226; 5: 23; 261, 6: 217, 571, 577, 600;
7: 26; 8: 51, 313, 359, 501; 9: 296, 517, 519; 10: 465, 571; Ibn Nujaym, al-Baḥr al-rāˀiq, 9: 201.
The Conceptual Analysis of the Legal Maxim and Its Process 29

I examine in detail in Part 3, while the opinions of the founders of the legal
schools concerning different issues are discussed, the usages referring mostly
to ḍābiṭs such as ‘the aṣl of Abū Ḥanīfa’,63 ‘the aṣl of Abū Ḥanīfa and Abū
Yūsuf’,64 ‘the aṣl of Abū Ḥanīfa and Muḥammad’,65 the ‘aṣl of the two’,66 and’
the aṣl of the two shaykhs’ are used.67
There is a parallel between the usage of al-aṣl for legal maxims in the sources
and the lexical meaning of the word. The fact that legal maxims are obtained
through the analysis of the manuals of the law schools and that the results thus
obtained are stated as al-aṣl shows that the outcome is the source of different
issues. This meaning, which is predicated for the word aṣl in the discipline of
law, and the lexical meaning, which expresses the source of something and the
fact that it has taken root, are parallel.68 Therefore, there is a semantic rela-
tionship between the maxims upon which many farˁī issues (branches of sub-
stantive law) are based in different legal areas—such as worship, transactions,
punishments and marriage—and the roots of a tree coming together and
forming a new structure in the trunk. Thus, for a tree that has spread its roots
in the earth, Arabs say “istaˀṣalat hādhihī al-shajara” (this tree has rooted in the
earth).69 One can find this meaning of aṣl in works that treat the relationship
of uṣūl (legal methodology) to law. Since aṣl is that on which something else
rests and is built, the uṣūl of law, which has the meaning of the knowledge of
the rulings of Sharīˁa, comprise that upon which these rulings are based.70
One of the areas in which the word al-aṣl is used for the legal maxims is the
ikhtilāf al-fuqahā’ (disagreement of jurists) genre, which is the field in which
maxims are frequently cited. Especially in inter-madhhab legal controver-
sies where jurists try to silence their opponents by using the principles their
adversaries accept, this stems from the motivation of showing the soundness
of the legal school of the scholar who uses the concept of al-aṣl and that the
principle should be granted by the other side. There is also a parallel meaning
between the facts that legal maxims are solid and unshakable principles that
govern legal issues and that the expression “rajulun aṣīl al-raˀy”71 is used for a
dignified person who has solid views. The method of induction that is used to

63 e.g. Sarakhsī, al-Mabsūṭ, 2: 96; 6: 222; 12: 106; 14: 62; Ibn Nujaym, al-Baḥr al-rāˀiq, 1: 141; 3: 69.
64 Sarakhsī, op. cit., 30: 239.
65 Marghīnānī, al-Hidāya, 4: 1675.
66 Ibn Nujaym, op. cit., 3: 340.
67 Baghdādī, Majmaˁ al-ḍamānāt, 1: 287.
68 See Ibn Fāris, al-Muˁjam, s.v. “a-ṣ-l;” Ibn Manzūr, Lisān al-ˁArab, s.v. “a-ṣ-l.”
69 Ibn Manzūr, op cit., s.v. “a-ṣ-l.”
70 See Ibn ˁAqīl, al-Wādiḥ fī uṣūl al-fıqh, 1: 47.
71 Jawharī, al-Ṣiḥāḥ, s.v. “a-ṣ-l.”
30 Chapter 1

obtain maxims makes the information expressed by them solid, like informa-
tion obtained through long research and experience. As such, it is not a coinci-
dence that in the substantive law manuals legal maxims are expressed as al-aṣl
and the heading for some maxim works of the early period is al-aṣl or al-uṣūl.
In fact, Karkhī’s treatise that is considered one of the first independent works
written in the field of legal maxims carries the title Risāla fī l-uṣūl and has the
term al-aṣl for each maxim.

2.2 The Transition from al-Aṣl to al-Qāˁida

The concept of al-aṣl, which jurists of later generations have adopted as an
umbrella concept to examine the juristic accumulation of the legal schools
and articulate them in a comprehensive manner, has been used both in juris-
prudence (uṣūl) and substantive law (furūˁ) to express narrow as well as broad
legal principles. This usage was not limited to legal maxims, encompassing
different sciences including principles of jurisprudence, language and logic.72
Although in substantive law works the term al-qāˁida is seen less than al-aṣl,
the term al-qāˁida was used in sources of substantive law at an earlier period
than in the literature of legal maxims.73 This situation, which I will deal with
extensively in Part 3, is significant in showing the relationship between works
pertaining to the literature of maxims and legal sources of substantive law.
Besides al-aṣl, “maxims” have been expressed in legal works by terms such as
al-ẓāhir, al-madhhab74 and al-jāmiˁ.75 It is possible to find the term qāˁida in
uṣūl literature of the early period in a way that includes the meanings of al-
aṣl and principle. For example, Juwaynī (d. 478/1085) in many places uses the
word qāˁida to refer to general principles.76
The question that needs to be answered here is when the transition from al-
aṣl to al-qāˁida took place in the literature of legal maxims. Although authors
such as ˁIzz b. ˁAbd al-Salām (d. 660/1262) have used the term qāˁida as a title
in their works, this transition coincides with the 8/14th century. The transi-
tion from al-aṣl to al-qāˁida begins in the 8/14th century in which works in
the literature of maxims exhibited a sophisticated form in terms of their style

72 The concept of al-aṣl was used not only for legal principles, but also for principles of
jurisprudence. See Jaṣṣāṣ, al-Fuṣūl fi l-uṣūl, 1: 168.
73 E.g. Sarakhsī, al-Mabsūṭ, 7: 8–9; Kāsānī, Badāˀiˁ al-sānāˀi, 3: 356–357.
74 E.g. Marghīnānī, al-Hidāya, 3: 981–982.
75 See Kāsānī, Badāˀiˁ al-sānāˀi, 1: 449; 2: 418, 3: 146, 206, 373; 4: 76, 102, 142; 5: 6, 606; 6: 170, 489;
7: 232, 317; 8: 353, 502; 9: 516. For an evaluation concerning this see Kızılkaya, Kāsānī’nin
Bedāyi‘ İsimli Eserinde Kavāid’in Yeri, 88–89.
76 E.g. Juwaynī, al-Burhān, 2: 80, 93.
The Conceptual Analysis of the Legal Maxim and Its Process 31

and structure. It begins with the process led by Shāfiˁī jurists in which law is
divided into five fundamental principles, followed by a listing of principles
which have a more limited scope, which are then followed by ḍābiṭs, which are
narrower principles. Even though in both works of furūˁ and the literature of
maxims the word qāˁida is sometimes used to express legal maxims, it is used
in its technical meaning for the first time in al-Majmūˁ al-mudhhab fī qawāˁid
al-madhhab of the Shāfiˁī ḥadīth scholar and jurist al-ˁAlāˀī (d. 761/1359). In
al-Ashbāh wa l-naẓāˀir of Ibn al-Wakīl, which is considered to be the first work
with this title, different subjects of law are treated under the heading qāˁida
without the articulation of a principle in most cases.77 Therefore, although Ibn
al-Wakīl lived before ˁAlāˁī, he did not analyze the legal aṣl directly with the
term qāˁida. In fact, something that sheds light on the transition from al-aṣl
to al-qāˁida is presented in ˁAlāˀī’s al-Majmūˁ al-mudhhab. While explaining
the maxims “certainty is not removed by doubt” and “the aṣl is that the status
quo is upheld,” ˁAlāˁī states that the word aṣl in the expression ˁalā khilāf al-aṣl
(what is against the general rule) has various meanings, which he lists as the
following: a) the literal meaning to which a word refers, b) what is necessitated
by evidence, c) a generally accepted maxim, d) the preponderant situation, e)
istiṣhāb (presumption of continuity).78
77 See Ibn al-Wakīl, al-Ashbāh wa l-naẓāˀir, the introduction of the editor, 1: 57.
78 ˁAlāˁī, al-Majmūˁ al-mudhhab, 1: 305.
 chapter 2

The Relationship of the Legal Maxim to Similar

Concepts

The legal maxim has been used, especially by some contemporary authors,
sometimes with the same meaning as other legal concepts and sometimes in
closely related meanings. At the top of the concepts are naẓariyya (legal theory)
and the ghāˀī principle. Naẓariyya, which denotes a theory that is formed by
arriving at possibly valid conclusions through an investigation of a legal matter
based on its basic conditions, elements and rulings, has entered legal literature
as a result of the comparison of Islamic legal issues with modern laws.1 The
categorization of Islamic legal subjects based on the system of modern laws
and their investigation as theories have led to the claim that maxims are the
general legal theories of Islamic law.2 Although there are different approaches
on this issue, there are important differences between qāˁida and naẓariyya.
The striking difference between qāˁida and naẓariyya is that, whereas a qāˁida
is directly related to rulings, a naẓariyya, instead of expressing legal rulings, is
an investigation of a legal matter based on its basic conditions, elements and
rulings and reaching possibly valid conclusions based on this investigation.
Moreover, maxims can be applied to all or several fields of Islamic law, while
theories concern a single field of law such as contracts, ownership, legal com-
petence and invalidity (buṭlān).3 From this perspective, naẓariyya resembles a
ḍābiṭ more than a maxim. In the same way, the legal maxim has been linked
with the ghāˀī principle in maqāsid al-sharīˁa. But these are distinct from
each other in features such as essence, constituting evidence, importance and
agreement and disagreement based upon them.4
As noted earlier, a maxim is a concept used by many disciplines. For this rea-
son, some authors who touched upon the general meaning of a maxim, such

1 Zarqā, al-Madkhal al-fiqhī al-ˁāmm, 1: 235.

2 Foremost among those who say that maxims are theories is Muḥammad Abū Zahra (d. 1974).
See Abū Zahra, Uṣūl al-fiqh, 8. Aḥmad Bū Ṭāhir al-Khaṭṭābī says that legal maxims of a gen-
eral quality that are not specific like ḍābiṭs can be considered legal theories. See Wansharīsī,
Īḍāh al-masālik, the introduction of the editor, 111.
3 For extensive information see Kızılkaya, Kāsānī’nin Bedāyi‘ İsimli Eserinde Kavāid’in
Yeri, 37–38.
4 For a study that compares the two concepts see Zeyd el-Kaylānī, “Qawāˁid al-maqāsid,
haqīqatuhā wa makānatuhā fī l-tashrīˁ,” Islāmiyyat al-maˁrifa, 18: 28–34.
The Relationship of the Legal Maxim to Similar Concepts 33

as Ḥamawī and Güzelhisārī, have treated its legal definition separately.5 Since
the concept of maxim has a meaning similar to some concepts both in law and
other fields, it is important to analyse these related concepts. However, since
some of these are not related to law and concern other disciplines, here I will
place emphasis on those related to law and those which modern researchers
have compared to the legal maxim. Additionally, in some studies, a maxim has
been analysed in relation to concepts such as al-ashbāh wa l-naẓāˀir and furūq.
But since after a certain period al-ashbāh wa l-naẓāˀir has become a title for
works of maxims, and furūq constitutes a literature in law that is distinct from
maxims, I will not treat these two under the current heading.

1 Ḍābiṭ

Ḍābiṭ, which has the lexical meaning of power, strength, greatness, the pro-
tection of something, its control and its determined protection,6 is foremost
among the concepts closely related to a qāˁida. In comparison with a qāˁida, it
is a principle governing a more specific field of law and the difference between
the two is in terms of comprehensiveness. Ḍābiṭ, which is a maxim from one
perspective, is similar to the legal maxim in some points and differs from it in
others.
While some scholars of the classical period have distinguished maxim and
ḍābiṭ, others have not advocated such a separation. In addition, most of the
legal scholars who have written on maxims instead of defining ḍābiṭ inde-
pendently have found it sufficient to point out the aspects in which it dif-
fers from the maxim. This is significant in showing that ḍābiṭ in terms of its
structure is a special maxim. After the perusal of the extant literature, the first
author who explicitly separated the two concepts was Maqqarī. As can be seen
in the definition of maxim above, although Maqqarī did not directly define
ḍābiṭ, he implied that ḍābiṭ is a special maxim by saying that maxim is broader
than ḍābiṭ.7
Ibn al-Subkī after defining maxim, in his explanation defined the limits of
maxim and ḍābiṭ. According to this, while a maxim, such as “certainty is not
removed by doubt,” encompasses many areas of law, a ḍābiṭ, such as “every expi-
ation occasioned by an act of disobedience has to be carried out immediately,” is
a maxim that surrounds only one area of law and aims to categorize forms that

5 Ḥamawī, Ghamz ˁuyūn al-baṣāˀir, 1: 51; Güzelhisārī, Manāfiˁ al-daqāˀiq, 305.

6 Khalīl b. Aḥmad, Kitāb al-ˁAyn, s.v. “ḍ-b-ṭ;” Ibn Manẓūr, Lisān al-ˁArab, s.v. “ḍ-b-ṭ.”
7 Makkarī, al-Qawāˁid, 1: 212.
34 Chapter 2

are similar to it. By elaborating further, Ibn al-Subkī said that if what is meant
is the common denominator that shares a common form in a ruling, this is
called al-madrak; if similar forms are brought together without considering
their bases, these are called ḍābiṭs.8 With this approach, although Ibn al-Subkī
classified ḍābiṭ as a maxim, he tried to show that in comparison with maxim
ḍābiṭ has a narrower scope and that there is a difference between the two as
regards scope. He began with the five fundamental maxims, and then pre-
sented maxims of narrower scope under the title general maxims (al-qawāˁid
al-ˁāmma), and finally analysed ḍābiṭs for different areas of law under the title
specific maxims (al-qawāˁid al-khāṣṣa).9
Ibn Nujaym in al-Ashbāh has distinguished ḍābiṭ from maxim, calling ḍābiṭs
al-fawāˀid. In the composition of his work, first he presented maxims of a uni-
versal nature, and then analysed ḍābiṭs related to different areas of law from
purification to inheritance following the arrangement of al-Hidāya and Kanz
al-daqāˀiq under the title “The Second Art: al-Fawāˀid.” In the introduction to
this section, instead of defining ḍābiṭ, he found it sufficient to point out the
difference between ḍābiṭ and maxim by saying “the difference between ḍābiṭ
and maxim is that whereas maxim brings together issues from many areas
of law, ḍābiṭ brings together issues from a single area.”10 Ibn Nujaym treated
ḍābiṭs which Ibn al-Subkī analysed under the title specific maxims under the
heading al-Fawāˀid. Nevertheless, both authors, by expressing the difference
between the two concepts in a similar manner, presented the general character
of the classical approach on this issue. The approach of Ibn al-Subkī and Ibn
Nujaym can be seen in many of the authors of the classical period. For exam-
ple, Ḥamawī defined ḍābiṭ as a maxim that encompasses furūˁ issues from a
single area,11 while Tahānawī defined it as “the universal proposition that can

8 Ibn al-Subkī, al-Ashbāh wa l-naẓāˀir, 1: 11. Ibn al-Najjār and Suyūṭī shared Ibn al-Subkī’s
opinion that ḍābiṭ differs from maxim in terms of its structure. Ibn al-Najjār, Sharḥ al-
kawkab al-munīr, 1: 30; Suyūṭī, al-Ashbāh wa l-naẓāˀir fi al-naḥw, 1: 10–11.
9 Ibn al-Subkī, op. cit., 1: 12, 94, 200.
10 Ibn Nujaym, al-Ashbāh wa l-nazāˀir, 192. The fact that the independent work Ibn Nujaym
wrote on ḍābiṭs is entitled al-Fawāˀid substantiates the fact that he uses the concept of
ḍābiṭ and fāˀida with the same meaning. See Ibn Nujaym, al-Fawāˀid al-zayniyya. Although
Nawawī has a work called al-Uṣūl wa al-ḍawābiṭ, this book comprises nine issues on dif-
ferent subjects ranging from creed to law to jurisprudence. But the vast majority of the
subjects concern the opinions of the Shāfiˁī school on different legal issues. As the author
states in the introduction to the book, the work has got this title because it brings together
issues which a student will need to know and can depend on. See Nawawī, al-Uṣūl wa
l-ḍawābiṭ, 21.
11 Ḥamawī, Ghamz ˁuyūn al-baṣāˀir, 1: 31.
The Relationship of the Legal Maxim to Similar Concepts 35

be applied to particulars.”12 Bannānī (d. 1198/1784) also wrote concerning the

difference between maxim and ḍābiṭ, “maxim, as opposed to ḍābiṭ, is not limited
to a single area.”13
Besides authors who state that maxim and ḍābiṭ are different from each
other, there are also those who state that they have the same meaning. For
example, while defining maxim Fayyūmī stated that as a technical term it
means a ḍābiṭ.14 However almost all of the scholars who do not differentiate
between the two concepts have not authored works in the area of legal max-
ims, but rather have carried out studies in fields other than Islamic law. This
shows that although the two concepts have very similar meanings, legal schol-
ars perceive a subtle difference between them.
Some authors do not define maxim and ḍābiṭ. At the same time, the classi-
fication system they follow in their works shows that they do not differentiate
between the two concepts. Ibn al-Wakīl’s al-Ashbāh, Ibn Rajab’s (d. 795/1393)
al-Qawāˁid and Wahsharīsī’s (d. 914/1508) Īḍāḥ al-masālik are examples of such
works. All three authors not only did not define maxim and ḍābiṭ but, con-
trary to the method of classical literature concerning maxims, did not make
any distinction between maxims of law, jurisprudence and ḍābiṭs, analysing
all three types together. Ibn al-Wakīl began his al-Ashbāh with the jurispruden-
tial maxim “if an action of the Prophet (pbuh) is possibly either natural ( fiṭrī) or
sharˁī, should it be interpreted as natural since the maxim (al-aṣl) is that it is not
tashrīˁ [legislation], or should it be interpreted as sharˁī since the Prophet (pbuh)
was sent to explain sharˁī things?” Ibn Rajab began his al-Qawāˁid with the
ḍābiṭ “is running water like still water or is every drop of it considered separate
water?” Wansharīsī began his work with the maxim “is what is preponderant
certain, or is it not?”15
Based on these observations, it is possible to define ḍābiṭ as “a universal
proposition that is specific to one area of fiqh.” As the classical period approaches

12 Tahānawī, Kashshāf iṣṭilāhāt al-funūn, s.v. “al-ḍābiṭa” and “al-qāˁida.”

13 Bannānī, Hāshiyat al-ˁAllāma al-Bannānī, 2: 356.
14 Fayyūmī, al-Miṣbāḥ al-munīr, s.v. “q-‘a-d.” Although ˁAbd al-Ghanī al-Nāblusī (d. 1143/1731)
in his commentary on the Ashbāh directly followed Fayyūmī, he defined ḍābiṭ as “uni-
versal expressions that have particular meanings under them.” Nāblusī, Kashf al-khaṭāˀir
ˁan ashbāh wa l-nazāˁir, fol. 10b, 11a. The fact that Nāblusī took the definition of maxim
from Fayyūmī has led Nadwī and some other scholars who have followed him, such as
Bāḥusayn and Rūgī, to the misunderstanding that Nāblusī considers maxim and ḍābiṭ to
have the same meaning. See Nadwī, al-Qawāˁid al-fiqhiyya, 47; Bāḥusayn, al-Qawāˁid al-
fıqhiyya, 59, Rūgī, Nazariyyat al-taqˁīd al-fıqhī, 52.
15 Ibn al-Wakīl, al-Ashbāh wa l-naẓāˀir, 1: 87–88; Ibn Rajab, Taqrīr al-qawaˁid, 1: 5; Wansharīsī,
Īḍāḥ al-masālik, 136.
36 Chapter 2

indicate, although ḍābiṭ is a maxim as regards its essence, whereas qāˁida

encompasses more than one area of law ḍābiṭ is limited to a single subject.16
Hence, the basic difference between them is related to scope. However, this
difference between them makes ḍābiṭ’s indication of the particular ruling that
falls under it more direct and stronger than the maxim. This situation is sim-
ilar to the position of the genus (jins) in relation to the species (nawˁ), or the
relation of the near species to the genus above it in comparison to the more
distant species. In other words, as scope increases, so does the abstraction, as
in the maxim. As the extension decreases, concreteness increases as in the
ḍābiṭ, so that at the end one reaches the ruling that is related to a single par-
ticular. Based on this, although a maxim may have many exceptions, since the
ḍābiṭ directly connotes the ruling it has no exceptions, or fewer exception in
comparison to the maxim. For this reason, the five fundamental principles, the
more specific principles and the ḍābiṭs denote the change according to their
level of abstraction. For example, the indication of the maxim certainty is not
overruled by doubt and and that of the more specific maxim the aṣl is that a new
matter is ascribed to its closest time of a particular ruling are not of the same
strength. Likewise, if one assumes that someone performing ritual prayer finds
an impurity on his clothes and does not know for certain when the impurity
appeared on his clothes, the maxim certainty is not overruled by doubt is not
sufficient by itself to resolve the situation, whereas the maxim the assumption
is that a new matter is ascribed to its closest time leads to a satisfactory explana-
tion, which is that the last time this person ended his state of purity is taken
into consideration, so that it is assumed that this has been the situation since
that time.17

2 Jurisprudential (Uṣūl al-fiqh) Maxim

Legal and jurisprudential maxims have to be evaluated while considering the

relationship between furūˁ and uṣūl. The link that is established in some sources
between legal maxims and jurisprudence, the fact that maxims are mentioned
among the sources of Sharīˁa, and the fact that jurisprudential and legal max-
ims are mentioned in the same sources under the rubric of maxim make it nec-
essary to focus on jurisprudential and legal maxims. Before comparing such
maxims, it is appropriate to focus on the meaning of the jurisprudential maxim.

16 In other systems of law the difference between general and specific principles also exists.
See Smith, “The Use of Maxims in Jurisprudence”, HLR, 9: 17–18.
17 For extensive examples regarding maxim see Ibn Nujaym, al-Ashbāh wa l-naẓāˀir, 71–73.
The Relationship of the Legal Maxim to Similar Concepts 37

The fact that classical sources do not independently define the jurisprudential
maxim but rather indicate in some definitions of maxim that it is different
from the uṣūl shows that no separation was made between them or that no
need was felt additionally to define the jurisprudential maxim. However, some
contemporary scholars have chosen to define it. For example, Uthman Shubayr
defines it based on the definition of jurisprudence as follows: “It is the univer-
sal proposition by which Sharīˁa rulings are derived from detailed sources.”18 The
author in this definition has taken the word al-qawāˁid out of the definition of
jurisprudence, trying to make a new definition by replacing it with the com-
pound universal proposition (qaḍiyya kulliyya). But this is more a definition
of jurisprudence rather than of a jurisprudential maxim. Marīnī, who studies
the jurisprudential maxims in al-Mughnī of Ibn Qudāma (d. 620/1223), defines
jurisprudential maxim as follows: “It is a universal ruling (ḥukm) which has a
general, abstract, and strong expression, upon which the cases of law are built.”19
Although the expression universal ruling aims to distinguish the jurispruden-
tial maxim from one that is particular, it is difficult to say that the jurispru-
dential maxim brings universals together under it like the legal maxim. This is
because, as can be seen in the examples “a command indicates an obligation”
and “a general utterance remains general as long as there is no evidence that
makes it specific,” jurisprudential maxims are related to particular subjects and,
like legal ḍābiṭs, are valid for issues that come under them in one specific sub-
ject. Therefore, jurisprudential maxims do not encompass different subjects
like legal maxims. In a study which treats jurisprudential maxims from a theo-
retical perspective, the jurisprudential maxim has been defined as “a universal
ruling (ḥukm) with firm wording that is an instrument for the derivation of legal
rulings from the sources, for adducing evidence from the sources, and for the state
of what is being adduced.” According to the author, the qualification in the defi-
nition of being an instrument is significant for differentiating jurisprudential
and furūˁ maxims. This is because the jurisprudential maxim has an intermedi-
ate position, needing an instrument to be applied to the issues under it, which
is one of the sources of either Sharīˁa or a mujtahid.20
While defining the jurisprudential maxim one has to consider the defini-
tion of jurisprudence in the sources. In the definition of it as “the knowledge of
the maxims through which substantive rules of Sharīˁa are derived from detailed
sources of evidence,” the word maxim is explicated as the universals (kulliyyāt),

18 Shubayr, al-Qawāˁid al-kulliyya wa l-dawābiṭ al-fiqhiyya, 27. For a similar definition see
Aḥmad, al-İstiqrāˀ’, 420.
19 Marīnī, al-Qawāˁid al-uṣūliyya wa taṭbīqātuhā al-fiqhiyya, 1: 35.
20 See Bidārayn, Naẓariyyat al-taqˁīdī al-uṣūlī, 62–63.
38 Chapter 2

knowable entities (maˁlumāt) and universal meanings (al-mafāhim al-kulliyya)

that are applied to the particulars of the evidence provided by the detailed
sources. These are illustrated by jurisprudential maxims such as “a command
expresses an obligation, a prohibition expresses a forbiddance, a khabar al-wāḥid
expresses preponderance, and the specification of the general is permissible.”21
Therefore, it is possible to define the jurisprudential maxim, considering the
subjects that are dealt with in jurisprudence, as follows: “The universal proposi-
tion which encompasses issues of jurisprudence.” As such, jurisprudential max-
ims can be related to one of the four fundamental subjects of Islamic jurispru-
dence, consisting of the sources of evidence of the Sharīˁa such as the Qurˀān,
the Sunna, consensus, analogy, istiḥsān and al-maṣāliḥ al-mursala, or to the
rulings of Sharīˁa such as taklīfī (the obligation-creating rule) and waḍˁī (the
declaratory rule), or issues regarding the indication of meaning such as the
general (ˁāmm), the particular (khāṣṣ), the command (amr), the prohibition
(nahy), the precise (mufassar) and the apparent (ẓāhir), or issues of legal rea-
soning such as juristic reasoning (ijtihad), imitation (taqlīd) and determining
preponderance (tarjīḥ). Since, as opposed to legal maxims, it is not necessary
for jurisprudential maxims to encompass different subjects, there is no ḍābiṭ
specific to jurisprudence. However, some authors, with an approach that is not
correct, take the jurisprudential maxims related to the fundamental subjects
of jurisprudence as their basis, calling specificities of their details ḍābiṭs. For
example, under the general maxim that consensus is a legal source, they state
that there are ḍābiṭs such as that consensus has to be about issues of Sharīˁa
and that the mujtahids who will form the consensus have to be Muslim and
jurists.22 The question that needs to be answered is whether maxims relating
to subjects, such as consensus, solitary ḥadīth (khabar al-wāḥid), analogy, etc.
encompass issues that fall under these maxims or are applied in the same way
in issues that come under legal sources, such as consensus, khabar al-wāḥid
and analogy. For example, does the fact that the maxim “consensus is author-
itative (ḥujja)” is a jurisprudential maxim mean that it encompasses subjects
such as “consensus is authoritative for issues of Sharīˁa,” “it is necessary for par-
ticipants of consensus to be mujtahids,” “those participating in consensus have to
be from the religious community (umma) of the Prophet Muhammad,” which in
a way comprise its prerequisites, pillars, and attributes? Or does it mean that
each of the issues upon which there is consensus in the sources are authorita-
tive according to Sharīˁa? It is conspicuous that the first possibility cannot be

21 Ibn Amīr al-Ḥājj, al-Taqrīr wa l-taḥbīr, 1: 28–29.

22 e.g. Bidārayn, op. cit., 167–171.
The Relationship of the Legal Maxim to Similar Concepts 39

considered within the scope of the maxim and the ḍābiṭ, since in this case it
would be necessary for all of the related pillars, prerequisites and attributes to
be ḍābiṭs. Hence, only the second option remains, which is more suitable for
the essence of the jurisprudential maxim.
Among authors who have dealt with the relationship between legal max-
ims and uṣūl al-fiqh is the Mālikī jurist al-Qarāfī (d. 684/1285). According to
him, Islamic law is divided into two parts, uṣūl (lit. the roots) and furūˁ (lit. the
branches). Uṣūl also has two parts: uṣūl al-fiqh (jurisprudence) and al-qawāˁid
al-kulliya al-fiqhiyya (universal legal maxims). While giving examples of juris-
prudence, Qarāfī mentioned maxims such “a command expresses an obliga-
tion” and “a prohibition expresses a forbiddance,” indicating that maxims of
jurisprudence are generally derived from the Arabic language. Subsequently,
he deals with the importance of legal maxims in Islamic law and states that
these differ from jurisprudence.23 This distinction, which Qarāfī mentioned,
is one of the main differences between the two types of maxim. As opposed
to legal maxims, the fact that jurisprudential maxims, which are instruments
used to interpret authoritative statements, deal mostly with sources and words
forms the basis of the opinion that they emanate from the Arabic language.24
For example, one cannot conclude from the maxim “a command expresses
an obligation” that alms-giving (zakāt) is obligatory; the obligation of zakāt is
known only from the Qurˀānic verse “give zakāt (Q. 2/43, 110).” To derive the
ruling from this verse the maxim “a command expresses an obligation” is used
to interpret the verse, which leads to the conclusion that this is an obligation
for legal persons. Hence, the opinion of some scholars that one cannot directly
act upon maxims of jurisprudence is significant in indicating their function in
the interpretation of authoritative statements.25
Even though Najm al-Dīn al-Tūfī did not differentiate between maxims of
jurisprudence (uṣūl) and substantive law (furūˁ) at the level of definition, hav-
ing a common definition for both, he did distinguish the two from the exam-
ples he gave. While the examples he chose to explain his definition, such as
“the responsibilities of the contract are binding both for the person and the proxy”

23 Qarāfī, al-Furūq, 1: 5–7. While discussing the attributes of the mufti, Qarāfī discussed the
importance of the knowledge of maxims to the giving of accurate fatwās. He relates that
within this framework the maxims that need to be considered are not confined to juris-
prudence, as there are more maxims in Sharīˁa than the maxims of jurisprudence. See
Qarāfī, op. cit., 2: 199–200.
24 For extensive information and examples see Makkī, Tahdhīb al-furūq, 1: 4.
25 Bujnūrdī, al-Qawāˁid al-fıqhiyya, 1: 107; Makkarī, al- Qawāˁid, the introduction of the edi-
tor, 1: 107–108.
40 Chapter 2

and “(legal) tricks are invalid in Sharīˁa,” are related to law, the examples he
provided later on, such as “a command expresses an obligation and immediate-
ness,” “dalīl al-khiṭāb is authoritative,” “a contrario (qiyās al-shabah) is sound evi-
dence,” “mursal ḥadīth is legally authoritative,” are related to jurisprudence.26
The fact that after setting out the maxims in the second part he indicated that
these are issues of jurisprudence also shows that he distinguished between the
two. Ibn Taymiyya (d. 728/1328), who is a follower of the same legal tradition
as Tūfī, in a discussion relating to contracts stated that whereas the discipline
of jurisprudence consists of general sources of evidence, legal maxims express
general rulings.27 This is important as a presentation of a general framework.
Works composed in the genre of Takhrīj al-furūˁ ˁalā l-uṣūl provide rich exam-
ples of how jurisprudential maxims are applied to law and how the differences
in jurisprudential maxims play a major role in the diversity of the rulings of the
legal schools. Since in the second part of my study I treat the genre of Takhrīj
al-furūˁ ˁalā al-uṣūl in detail, here it will be beneficial to touch briefly upon the
relationship between works of maxims and jurisprudential maxims. Although
authors on maxims analyse maxims of jurisprudence and law together in their
works, they differentiate between these two types. For example ˁAlāˀī, while
stating the reasons for composing his work, indicated the difference between
the maxims of the two disciplines by relating issues that have been derived
from maxims of jurisprudence and law.28 In the same way, after analysing the
five main maxims, he stated, “we will commence transmitting particular maxims
beginning with jurisprudential maxims,” and analysed certain issues of the legal
sources of Sharīˁa, more concretely expressing this difference.29 In a different
section, he wrote, “an established maxim of the Sunnis and the majority of the
jurists which is well-known as a jurisprudential maxim is that rulings are derived
from Sharīˁa; the intellect does not regard something as good or bad concerning
the taking of rulings from Sharīˁa.”30 This statement illustrates that the author
differentiates between maxims of jurisprudence and those of law. These and
similar statements of ˁAlāˀī are significant in showing that there was a distinc-
tion between the two kinds of maxims early on.
Although maxims of jurisprudence and law have been differentiated, it
is noteworthy that some scholars consider maxims to be part of uṣūl al-fiqh.
Zarkashī is the foremost of those authors. He stated that in reality legal maxims

26 Tūfī, Sharḥ mukhtaṣar al-rawḍa, 2: 95–96.

27 Ibn Taymiyya, Majmūˁ al-fatāwā, 29: 167.
28 ˁAlāˀī, al-Majmūˁ al-mudhhab, 1: 207.
29 ˁAlāˀī, op. cit., 2: 435.
30 ˁAlāˀī, op. cit., 2: 517–518.
The Relationship of the Legal Maxim to Similar Concepts 41

are uṣūl al-fiqh.31 His approach is also adopted by Ibn Nujaym. While explain-
ing the method he followed in writing al-Ashbāh, Ibn Nujaym stated that the
universal maxims that comprise the first part of the work are in reality uṣūl
al-fiqh.32 Although some commentators on the Ashbāh, in trying to explain
this statement, said that these maxims are not uṣūl al-fiqh but are like uṣūl
al-fiqh, for Ibn Nujaym universal maxims are in reality uṣūl al-fiqh.33 Here, the
term uṣūl as used by both authors should not be construed as jurisprudence
(ˁilm al-uṣūl), which is a sub-discipline of law, but—taking into consideration
that legal maxims and ḍābiṭs are transmitted in both works of substantive law
and legal maxims as al-aṣl—as the assumptions (uṣūl) on which issues of law
(furūˁ) depend. In fact, the fact that both jurists stated that “these are in reality
uṣūl al-fiqh,” instead of saying that they are uṣūl al-fiqh, illustrates this.
The difference between legal and jurisprudential maxims, as has been men-
tioned before, is closely related to the relationship between the disciplines of
law and jurisprudence, so that the two types of maxim are distinct from each
other as regards their subjects. Whereas jurisprudential maxims, which are
used to derive rulings, generally deal with sources of evidence, utterances and
derivation, legal maxims deal with the actions of legal persons and the Sharīˁa
rulings for these actions, in other words issues relating to furūˁ. This shows that
the most fundamental difference between the two types of maxim is the differ-
ence in their subjects. Muḥammad Abū Zahra, while considering Ibn Subkī’s
opinion that in the Mālikī school there are more than 500 uṣūl, underlines this
difference between uṣūl and legal maxims. According to him, while jurispru-
dence mostly deals with methods of derivation and sources of evidence, legal
maxims explain the methods that result in the juristic opinions of the legal
school, having a structure that links the common points of many particular
issues. Hence, legal maxims in terms of their mental (wujūd al-dhihnī) and fac-
tual existence (wujūd al-wāqiˁī) are subsequent to the furūˁ. On the other hand,
jurisprudence, as the set of maxims that limits how the jurist derives rulings,
is prior to furūˁ.34 This difference between the subjects of jurisprudential and
legal maxims can be explained in the form of propositions as follows: while
the subject (mawḍūˁ) of jurisprudential maxims, as in the example of “khabar
al-wāḥid indicates probability,” concerns legal evidence and related issues, its
attribute (maḥmūl) is related to proving the evidence (dalīl). In the example
above the subject is khabar al-wāḥid, while the attribute is that it is probable

31 Zarkashī, al-Manṣūr fī l-qawāˁid, 1: 71.

32 Ibn Nujaym, al-Ashbāh wa l-naẓāˀir, 10.
33 See Ebū al-Suˁūd, ˁUmdat al-nāẓir, fol. 9b; Ḥamawī, Ghamz ˁuyūn al-baṣāˀir, 1: 34.
34 Abū Zahra, Mālik: Ḥayātuh wa ˁaṣruh, ārāˀuh wa fıqhuh, 232.
42 Chapter 2

(ẓannī). In contrast, the subject of a legal maxim consists of the actions of the
legal person and its predicate is the ruling of the Sharīˁa.35 This distinction
between the two types of maxim does not contradict the fact that the mujta-
hid, while conducting juristic reasoning on a particular issue, takes the maxim
as his basis and that the maxim directs his ijtihād. This happens to such an
extent that in some cases—as in abandoning the khabar al-wāḥid because it
is in conflict with a maxim—jurisprudential principles have been abandoned
because of loyalty to maxims.
The approach of most authors on maxims in the modern period who deal
with the relationship between jurisprudential and legal maxims is that while
jurisprudential maxims encompass all of their particulars, legal maxims
encompass most of their particulars since they are preponderant.”36 Although
this is true with some exceptions, this does not completely illustrate the fun-
damental difference between the two types of maxim. As has been mentioned,
the existence of exceptions is not a characteristic solely of the legal maxim,
but rather is a feature that is evident for maxims of every discipline including
jurisprudence.
Despite this clear difference between jurisprudential and legal maxims, it
is factual that some maxims have been considered both jurisprudential and
legal. It is natural that maxims which are in one aspect related to jurisprudence
and from another angle related to law should be considered as belonging to
both disciplines. Establishing whether maxims of this type are related to juris-
prudence or law depends on their subjects. Maxims relating to custom can be
mentioned as instances of this. ˁAlī Aḥmad al-Nadwī sets out an important
criterion concerning this difference from Aḥmad Fahmī Abū Sunna: “If the cus-
tom is interpreted as a consensus in action (ijmāˁ al-āˁmalī) or al-maṣlaḥa al-
mursala, it becomes a jurisprudential maxim; if it is interpreted as a widespread
utterance or a general action, it becomes a legal maxim.”37 Based on this, one
can say that one can determine whether maxims are related to jurisprudence
or law by looking at their subjects.
Although authors on maxims generally take legal maxims as their topic
of analysis in composing their works, they also discuss jurisprudential ones.
Nevertheless, although very few, there are also independent works analysing
jurisprudential maxims. Foremost among these is Ibn al-Laḥḥām’s (d. 803/
1401) al-Qawāˁid wa l-fawāˀid al-uṣūliyya wa mā yataˁallaqu bihā min al-aḥkām
al-farˁiyya. Ibn al-Laḥḥām, who was the pupil of Ibn Rajab, analyses 66 maxims

35 See Burhānī, Sadd al-dharāˀī, 160–162.

36 Nadwī, al-Qawāˁid al-fıqhiyya, 68.
37 Nadwī, al-Qawāˁid al-fıqhiyya, 71.
The Relationship of the Legal Maxim to Similar Concepts 43

in his work. Although not all of these are maxims in the technical sense, Ibn al-
Laḥḥām discusses every maxim, ḍābiṭ and jurisprudential issue by providing
legal issues that fall under them and the opinions of different schools regard-
ing them.38

3 Universals

Kull (all), kullī (universal) and kulliyyāt (universals) are concepts used in dif-
ferent disciplines: philosophy, grammar and tasawwuf are foremost among
them.39 Because of the extensive field of usage of the word kull, works have
been written that bring together universal propositions or particulars contain-
ing modifiers that express universality in different disciplines. In Islamic law
independent works were written that brought together universals, as well as
the frequent usage of the concept in jurisprudence and law.
The particular rulings in Islamic law corpora can be deemed universal since
they present a ruling for all related individuals. For example, the ruling that
“leasing is a binding contract; it cannot be annulled without a (legally valid)
excuse”40 is particular in terms of its structure but universal as it encompasses
all related individuals, since it is valid for anyone who enters a leasing contract.
However, what is meant by universals and the universality in maxims is not
comprehensiveness of this kind.
Legal maxims, because they are universal propositions, have the attribute
of encompassing the particular issues that come under them. Therefore, there
is no need for a modifier or a prefix to make them comprehensive. However,
since not all legal propositions possess such generality, sometimes modifiers
such as kullun/kullu (all/each) and man (whoever) are added to their begin-
nings. These modifiers add to the sentence the meaning that every person or
situation that has these attributes will be subject to the same ruling.
Scholars of Islamic law have attributed different meanings to universals.
For instance, Shāṭibī, while explaining that uṣūl al-fiqh are not probable but
certain, stated that these are based upon the universals of Sharīˁa and that
what he means by universals are ḍarūriyyāt (necessities), ḥājiyyat (needs) and

38 Ibn al-Laḥḥām, al-Qawāˁid.

39 For example, in Sufism al-kull stands for Allah who is one in terms of His self, universal in
terms of His names. See Tahānawī, Kashshāf iṣṭilāḥāt al-funūn, s.v., “al-kull.” For its defini-
tion in philosophy and logic see Maydānī, Ḍawābiṭ al-maˁrifa, 34–38; Alper, “Küllī”, DİA,
26: 539–540.
40 Ibn Nujaym, al-Ashbāh wa l-nazāˀir, 321.
44 Chapter 2

taḥsīniyyāt (refinements). These are obtained through universal induction (al-

istiqrāˀ al-kullī) from the sources of the Sharīˁa.41 Some jurisprudents, in trying
to elucidate the term al-qawāˁid in the definition of jurisprudence, state that
this expression shows that jurisprudence is founded on maxims rather than
particulars or universals, differentiating between universals and maxims.42
It is important to mention here the opinions of jurisprudents regarding
the word kull (all), which is a word that denotes generality. According to legal
scholars the word kull encompasses the relevant persons one by one. For exam-
ple, if one says to two people, “I owe you ten gold coins,” this indicates the total
amount he will pay to the two of them. But if he says, “I owe each one of you ten
gold coins,” this connotes that he has to pay each one of them this amount.43
One of the fundamental features of the substantive sentence is that the word
kull, which comes only before nouns, is used in genitive constructs. When it
needs to be used before a verb, it is followed by the particle mā, and becomes
kullamā. In this case, it denotes the generality of the verb that follows it. When
the word kull comes before a definite noun, it indicates all parts of the noun’s
referent. When it comes before an indefinite noun, it encompasses all of its
instances. For example, the expression “kullu al-tuffāḥ ḥāmiḍ” denotes that all
of the apple is sour, so that in this case no part of the apple can be sweet. On
the other hand, “kullu tuffāḥin ḥāmiḍ” indicates that all apples are sour.44
Although there are similarities between the rulings that have the modi-
fier “kull” in substantive law and the framework that has been drawn by uṣūl
scholars, there are differences between the two types. The universality in the
definition of legal maxim is its potential (bi al-quwwa) comprehensiveness of
rules, not a literal generality as in the general expression in kulliyyāt. In this
respect, although kulliyyāt is a universal proposition, it is particular in terms
of its subject. The reason it is expressed as kullī, although it is particular, is
related to prepositions such as kull, man and mā. Therefore, the main differ-
ence between kulliyyāt and the universality of maxims is not a modifier added
to the beginning of a legal proposition, but rather the potential (bi al-quwwa)
comprehensiveness of the maxim. In other words, since the expression of kulli-
yyāt is not comprehensive, it is essential to add modifiers such as kull, man and
mā to the beginning of each kulliyyāt, in order to make the comprehensiveness

41 Shāṭibī, al-Muwāfaqāt, 1:17–20.

42 Ibn Amīr al-Ḥājj, al-Taqrīr wa l-takhbīr, 1: 26.
43 The Arabic of the first expression is “lakumā ˁalayya alf dirham”, while the second is “li
kulli wāḥidin minkumā ˁalayya alf dirham.”
44 For extensive information and examples see Bukhārī, Khashf al-asrār, 2: 16–18; Ibn
Nujaym, Fatḥ al-ghaffār, 1: 97–99.
The Relationship of the Legal Maxim to Similar Concepts 45

possible. However, this is not the case in a maxim and the comprehensiveness
of a maxim does not require such a prefix. On the other hand, modifiers such
as kull, man and mā are added to the beginnings of the particular rules to make
them encompassing. Consequently, the prepositions that express universality
are added to the beginnings of particular rulings and ḍābiṭs to generalize them,
whilst they are not added to the beginning of a maxim.
The term kull, which is used frequently in many works of Islamic law, is seen
more frequently in the works of some authors who lived in the 4/10th and 5/11th
centuries. Foremost among these is Ibn al-Qāṣṣ (d. 335/946) who, in his work
called al-Talkhīṣ, set down many rulings with the expression kull. Examples such
as “every traveler who performs the ritual prayer behind a resident has to perform
four rakˁahs,” “everyone for whom taking zakāt is permissible if in need has to give
zakāt if his wealth reaches the quantity of niṣāb,” “anyone who digs a well in his own
property, into which a person subsequently falls, is not liable,” and “every bequest of
anyone who bequeaths a third of his wealth to someone for whom a bequest is pos-
sible is permissible”45 are just some of the instances in which Ibn al-Qāṣṣ reports
rulings that include the word kull. Uṣūl al-futyā of Hushanī (d. 361/972), who lived
in the same period, is also rich with such examples. Rulings such as “everything
that is obligatory upon the imām due to inattentiveness (in the ritual prayer) is oblig-
atory upon those who follow him,” “every marriage concerning the validity of which
the scholars are at variance, is considered a valid marriage due to doubt,” and “in
every case in which there can be a ruling based on one witness and an oath, the testi-
mony of women is valid” are among these.46 The fact that the period in which Ibn
al-Qāṣṣ and Hushanī composed their works coincides with the century in which
attempts were being made to collect maxims together is significant in showing
that the thought of expressing particular rulings in a universal way was present in
the minds of the legal scholars of this era.
Ibn ˁAbd al-Barr (d. 463/1071) also articulated many rulings of this type.
He listed many examples such as “all dead land animals are forbidden to eat,”

45 “Kullu musāfirin aḥrama khalfa muqīmin kāna ˁalayhi an yuṣalliya arbaˁan”, “Kullu man
jāza lahu akhdhu al-zakāt idhā kāna muḥtājan wajabat ˁalayhi al-zakāt idhā balagha
māluhu niṣāban”, “Kullu man ḥafara fī milkihi bˀiran fa saqaṭa fīhā sāqiṭun falā ḍamāna
ˁalayhi”, “Kullu man awṣā bi thuluthi mālih li man tajūzu lahū al-waṣiyyatu fa waṣiyyatuh
jāˀizatun”. Ibn al-Qāṣṣ, al-Talkhīṣ, 173, 201, 396, 447.
46 “Kullu mā wajaba ˁala al-imām min sahwin wajaba mithluh ˁala al-mˀamūm”, “Kullu
nikāḥin fāsidin ikhtalafa an-nāsu fī fasādih fa ḥukmuh ḥukmu al-ṣahīh li mā fīh min al-
shubhah”, “Kullu mawḍiˁin yajūzu fīhi al-qaḍāˀu bi al-yamīni maˁa al-shāhidi fa shahādatu
al-nisāˀi fīhi jāˀizatun” Hushanī, Uṣūl al-futyā, 63, 167, 319.
46 Chapter 2

and “it is permissible to rent everything that is permissible to sell.”47 However,

although these legal rulings that are stated with the addition of the word “kull”
at their beginnings resemble maxims in certain aspects such as their brevity,
one cannot consider them to be maxims since they lack the aspect of being
encompassing, a fundamental characteristic of the maxim.
In the extant literature, the most seminal work that first brought together
the universals according to chapters of law is Maqqarī’s al-Kulliyyāt. In an inde-
pendent section in his work entitled ˁAmal man ṭabba li-man ḥabba, Maqqarī
gathered 524 universals according to chapters of law. After him, al-Kulliyāt
al-fiqhiyya of Ibn Ghāzī (d. 919/1513), who, like Maqqarī, was a Mālikī jurist,
is another important work in this field.48 The facts that such independent
works, written especially by Mālikī jurists, did not become popular in other
legal schools, and that works that collect legal universals did not develop into
a genre, can be explained as the influence of the sources of maxim literature
in which rulings of this structure are studied as ḍābiṭs. This can be clearly seen
through the comparison of such rulings in Maqqarī’s al-Kulliyyāt with his al-
Qawāˁid and the ḍābiṭs in Wansharīsī’s (d. 914/1508) Īḍāḥ al-masālik.

4 Qānūn

Another concept related to maxims is qānūn. The word qānūn, especially in the
definition of uṣūl al-fiqh in jurisprudence works of the period of the mutaˀakh-
khirūn (later scholars), is used as a synonym for maxim.49 In the definition of
uṣūl al-fiqh as maxims through which the derivation of farˁī sharˁī rulings are
reached, the word maxim is sometimes replaced by qānūn, which shows that
these two concepts were used interchangeably. The fact that in some sources
jurisprudential maxims are expressed as al-qānūn al-uṣūlī also indicates this
link.50
Although qānūn is also used to mean a legal maxim, jurisprudential maxim
and the fundamental principles of the legal school, it is mentioned more often
in the discussion of principles concerning language. One can find examples
of the usage of qānūn to refer to a maxim in the early period in the writings
of Imām al-Ḥaramayn al-Juwaynī (d. 478/1085). Juwaynī sometimes uses the

47 “Kullu maytatin min ḥayawān al-barri ḥarāmun”, “Kullu mā jāza bayˁuh jāza fīhi al-kirāˀu”
Ibn ˁAbd al-Barr, Kitāb al-Kāfī, 1: 378, 2: 89.
48 Maqqarī, al-Qulliyyāt al-fiqhiyyah, editor’s introduction, 46–47.
49 e.g. Ibn Amīr al-Ḥājj, al-Taqrīr wa l-taḥbīr, 1: 29.
50 e.g. Shawkānī, Nayl al-awṭār, 9: 87.
The Relationship of the Legal Maxim to Similar Concepts 47

word al-qānūn to refer to legal and jurisprudential maxims in some of the

issues he discusses, and at other times uses the word while touching upon
principles of language. For example, while explaining reciprocity in transac-
tions, he states that purchasing a property and making a payment for its value
is a qānūn. If one party suspends his/her obligation, then this is an exception
to that qānūn.51
Ghazālī (d. 505/1111) states that the issues he discusses in the introduction to
al-Mustaṣfā are not related only to the discipline of jurisprudence, but rather to
all branches of knowledge and that the knowledge of one who does not com-
prehend these issues cannot be trusted. Later he points out that the subjects
he discusses in his work are limited to definitions and proofs, which are the
sources of theoretical knowledge. While discussing the subject of definitions,
he investigates the six principles that govern definitions and issues related to
definitions, expressing these principles as qānūn.52 The meaning he attrib-
utes to qānūn seems to be parallel to the maxims and principles of a science.
Likewise, Ibn Rushd (d. 595/1198) used the word qānūn to refer to maxims.53
Zarkashī, in the introduction to his work al-Manthūr concerning legal max-
ims, said that to preserve numerous issues that are scattered in legal works
in the form of united qānūns makes these issues easier to memorize and
categorize, using the term qānūn as a synonym for maxim.54 But in another
work Zarkashī used qānūn to mean al-adilla al-sharˁiyya (legal sources of the
Sharīˁa), which shows that qānūn as a concept has uses other than expressing
the meaning of a principle and maxim.55 In al-Taˁrīfāt, Sayyid Sharīf al-Jurjānī
defined maxim as the universal proposition that applies to all of its particulars.
He described qānūn as the universal by which the ruling for all applicable par-
ticulars are known. He provides syntactical maxims as examples, such as “the
fāˁil is marfūˁ (the subject of the verb is in the nominative case),” “the mafˁūl
is manṣūb (the direct object is in the accusative case),” and “muḍāf ilayh is
majrūr (the second term of the genitive construct is in the genitive case).”56
Abū l-Baqāˀ al-Kafawī (d. 1094/1683) wrote that the concepts of aṣl, qāˁida
and qānūn have the same meaning,57 relating that the word qānūn—which

51 Juwaynī, al-Burhān, 2: 83. For extensive information and examples see al-Burhān, 1: 206,
209, 239; 2: 110.
52 Ghazālī, al-Mustaṣfā, 1: 35–63.
53 Ibn Rushd, Bidāyat al-mujtahid, 2: 34.
54 Zarkashī, al-Manthūr fī l-qawāˁid, 1: 65.
55 Zarkashī, al-Baḥr al-muḥīṭ, 1: 26.
56 Jurjānī, al-Taˁrīfāt, s.v. “qāˁida” and “qānūn.”
57 Abū l-Baqāˀ, al-Kulliyyāt, s.v. “aṣl.” Aḥmād al-Zarqā (d. 1938) also adopts his approach.
Zarqā, Sharḥ al-qawāˁid al-fiqhiyya, 87.
48 Chapter 2

means a written document in Aramaic—later acquired the meaning of the

universal proposition from which the ruling of particulars is extracted, which
is also called aṣl and qāˁida.58 Similarly, Tahānawī uses qāˁida and qānūn as
synonyms. Whilst stating that qāˁida is synonymous with aṣl, qānūn, masˀala,
ḍābiṭa and maqṣad, he defined qānūn as “has been mentioned previously
qānūn is qāˁida.”59 As can be seen from these definitions, although qāˁida and
qānūn are used interchangeably, in law the concept of qāˁida has been widely
accepted as expressing the general principles governing the substantive legal
rules, so that works in this field have been generally called qawāˁid.
58 Abū l-Baqāˀ, op. cit., s.v. “qānūn.”
59 al-Tahānawī, Kashshāf iṣṭilāḥāt al-funūn, s.v. “al-qāˁida.”
 chapter 3

Sources of the Legal Maxims

Every discipline differs from others in features such as sources, goals and
methods. Discussing the sources of legal maxims means in the most general
sense discussing the sources of Islamic law. All the methods and sources jurists
employ in producing legal knowledge are also used in the process of deriving
legal maxims. The areas in which maxims are used in works of furūˁ and meth-
ods of establishing them make this abundantly clear. Therefore, it is impossi-
ble to think of the sources of maxims independently of the sources of Islamic
law. However, in addition to the sources of Islamic law, the legal heritage from
the past also constitutes a source for legal maxims, since legal maxims are built
upon the acquisition of legal knowledge. In fact, considering that the knowl-
edge produced by predecessors establishes the foundation for posterity, the
significance of the gradual acquisition of legal knowledge is also clear for the
discipline of law as a whole. Therefore, the sources of legal maxims can be cat-
egorized under the two headings of nuṣūṣ (the scriptural texts i.e. the Qurˀān
and the Prophetic Sunna) and sources other than nuṣūṣ. Maxims that are
derived from the Qurˀān and the Sunna form the first category. Maxims that
are derived from the juristic reasoning of legal scholars and from the values
dominant in society form the second group.

1 The Scriptures

The Qurˀān and the Sunna are the founts of all knowledge in Islamic doctrine
and are the foundational sources that determine the thinking and behaviour
codes of the Islamic civilization. It is a fact that in the foundation of all kinds of
knowledge presented by Muslim societies the intellectual infrastructure these
two sources constitute has had a determining influence. Hence, the relation-
ship between Muslims and the Qurˀān and the Sunna is profound, and these
two sacred texts constitute the sources not only of Islamic law but of all Islamic
sciences. However, the view, prevalent especially in the modern period, that
certain expressions of the Qurˀān and the Sunna constitute the only material
source for maxims has certain defects.
If every maxim is literally based on the raw material of the sacred texts,
the following question concerning maxims that are used to form foundations
for legal arguments and secondary evidence against opposing views in legal
50 Chapter 3

debates comes to mind: If the maxim relies directly upon a verse of the Qurˀān
or a ḥadīth, why have legal scholars not used the verse or the ḥadīth rather than
the maxim? Using a lower level of evidence while there is stronger evidence
concerning an issue is both incorrect methodologically and cannot be used as
sound evidence to convince the opponent in a legal debate. Therefore, legal
maxims are inspired by Qurˀānic verses and ḥadīth, without the necessity of
each maxim being based on evidence from the authoritative texts.
Keeping in mind the qualifications mentioned above, there are many state-
ments in the Qurˀān and the Sunna that are concise, and there are parallels
between these and the legal doctrine that maxims are based on. Some verses
of the Qurˀān in particular have the attribute of providing a foundation for the
conceptualization of the legal maxims. One can provide as examples the verse
“Allah does not burden anyone except with that which he is capable of,” which
directly establishes a fact, or the verse “Allah wants ease for you, and does not
want to cause hardship for you” (Q. 2/286) right after the verses which make fast-
ing obligatory and make an exception for the sick and the traveller (Q. 2/185).
Likewise, some verses as regards both their subject and their style provide the
jurist with an intellectual infrastructure that provides solutions to many issues
concerning hardship and difficulty. An example of these is verses that express
the importance of alleviating difficulty and creating ease, as in the example of
“Allah does not want to create hardship for you” (Q. 5/6), which pertains to the
licensing of tayammum (dry ablution) where there is no water at the end of the
verse that commands ablution. The fact that in works of Islamic law licences
and exceptions are explained in works of Islamic law by the desire to alleviate
hardship shows the important role of authoritative texts of this type in under-
standing legal issues. Among examples of this in the sources are statements
that to mitigate the difficulties of travelling it is permissible to wear leather
socks and simply wipe them for ablution rather than wash one’s feet, and that
imāms should not perform lengthy recitations during a journey.1 Likewise, Ibn
Nujaym stated that the roots of the maxim “hardship begets facility” are the
Qurˀānic verses “Allah wants ease for you, and does not want to cause hardship
for you” and “Allah has not put in the religion a ruling that will be burdensome
for you,” as well as the ḥadīth “the most beloved religion according to Allah is the
ḥanīfiyya (monotheism) that has been made easy.”2
Certain statements of the Prophet Muhammad uttered on different occa-
sions that are jawāmiˁ al-kalim (forceful and meaningful concise utterances)

1 Sarakhsī, al-Mabsūṭ, 1: 98. Kāsānī, Badāˀiˁ, 1: 206.

2 Ibn Nujaym, al-Ashbāh, 84.
Sources of the Legal Maxims 51

have become the sources of numerous maxims, either directly or through their
meanings. Among these, ḥadīths which express encompassing rulings in par-
ticular have laid the groundwork for maxims and have provided precedents
for legal scholars in making concise and abstract statements. For example,
“everything that intoxicates is forbidden,”3 “there must be no harm and no recip-
rocation with harm,”4 and “everything that is not found in the Book of Allah is
false”5 are ḥadīths of this kind. Suyūṭī stated that the basis of the maxim “the
ruling of an action is according to its intention” is the ḥadīth “actions are accord-
ing to their intentions.”6
From the earliest periods, inductive analysis of the Qurˀān and the Sunna has
paved the way for Muslim jurists to articulate legal maxims. As in the examples
of licences concerning fasting, ritual prayer and travelling, the efforts of jurists
to establish common features of authoritative texts (nuṣūṣ) concerning differ-
ent subjects, and based upon this to find solutions to legal issues and articu-
late concise statements, constitute an important phase of the development of
legal maxims. Obtaining maxims from the authoritative texts through istinbāṭ
(juridical extraction of rules from the scriptures) was not limited to the forma-
tive periods of Islamic law, but remained a method that was frequently used in
later centuries. In fact, the division of maxims in some sources between those
based on authoritative texts and those based on istinbāṭ is a classification that
takes the sources of maxims into consideration.7

2 The Legal Heritage

With few exceptions, legal maxims in the early sources are not expressed in
forms that are typical of the period in which the literature of the legal max-
ims was fully ledged. These principles were present in the minds of the early
jurists who applied them to legal issues they analysed. Just as in the discipline
of Islamic jurisprudence, the fact that uṣūl al-fiqh were compiled after the sub-
stantive law does not indicate that the legal scholars did not know or apply
methodology. Hence, a close examination of the works authored by the found-
ers of the legal schools and their students shows that the rulings they dealt
with are based upon legal maxims. However, while rulings are interwoven

3 Muslim, “Ashriba,” 70.

4 Muwaṭṭaˀ, “ˁAqdiya,” 31.
5 Bukhārī, “Buyūˁ,” 73.
6 Bukhārī, “Badˀ al-wahy,” 1, “Īmān,” 41, “Nikāḥ,” 5; Muslim, “Imāra,” 155. Suyūṭī, al-Ashbāh, 8.
7 Kızılkaya, Kāsānī’nin Bedāyi‘ İsimli Eserinde Kavāid’in Yeri, 65–66.
52 Chapter 3

within the framework of these principles, rather than directly stating the max-
ims, early jurists espouse a writing style that focuses on the rulings. As a result,
legal maxims are either not mentioned or mentioned in a form different from
that of their later concise expressions.
A principle which Ḥanafī jurists frequently used and upon which they built
many legal issues is to give a ruling according to the majority. Ḥanafī jurists
perceive the majority as the whole in various legal issues and articulate many
maxims related to this principle. According to the sources, one of these is
directly attributed to the eponymous founder of the Ḥanafī school, Abū Ḥanīfa
and his pupil Ḥasan b. Ziyād. This is the maxim “the majority takes the place of
the whole.” In two places Zaylaˁī and Ibn Nujaym attributed this to Abū Ḥanīfa.
In one of these it is stated that Ḥasan b. Ziyād narrated this maxim as coming
from Abū Ḥanīfa, while in the other it is related in the form “Abū Ḥanīfa says
the majority takes the place of the whole.”8 But in other sources the maxim is
attributed to Ḥasan b. Ziyād. For instance, Sarakhsī attributed this to Ḥasan
b. Ziyād’s own expression.9 Sarakhsī, Zaylaˁī and Ibn Nujaym mentioned this
maxim while discussing other examples. However, the fact that in some issues
they directly attributed the maxim to Abū Ḥanīfa and Ḥasan b. Ziyād shows
that it was not obtained through takhrīj, but was literally used by the founders
of the Ḥanafī school of law.
The intellectual foundations of certain maxims are mentioned in the early
works of Islamic law. Statements including the premises of the opinions of the
legal scholars in their discussion of different issues provide hints concerning
the sources of various maxims. The meaning contained in such statements and
the legal doctrine based on which these are articulated have paved the way for
the formulation of legal maxims by later jurists. For instance, al-Shaybānī crit-
icized some rulings of the Medinians that were based on sad al-dharāˀiˁ (clos-
ing off the means that can lead to evil) and mentions the practice of qasāma
as an example.10 Using the word al-tuham for doubt, Shaybānī stated that
one should not act upon doubt when faced with a certain situation with the
expression, “How is it that a situation that is certain can be removed by doubt?”11
In this example, although Shaybānī does not state the maxim in its well-known
formulation, the method that he followed and his way of treating the issue

8 Zaylaˁī, Tabyīn al-haqāˁiq, 1: 38; 5: 211; Ibn Nujaym, al-Baḥr al-rāˀiq, 1: 252; 8: 310.
9 Sarakhsī, al-Mabsūṭ, 1: 63.
10 Qasāma: Procedure based on the swearing of 50 oaths aimed at establishing liability for a
homicide with an unknown perpetrator.
11 Shaybānī, al-Ḥujja, 2: 585. Cf. Boynukalın, İmam Muhammed b. Hasan eş-Şeybānī’nin
Kitabü’l-Asl Adlı Eserinin Tanıtımı, 157.
Sources of the Legal Maxims 53

make the main idea of his approach very clear for jurists of later periods. One
can easily understand that his opinion and expression denote the maxim “cer-
tainty is not overruled by doubt” or, at the very least, that his criticism of the
Medinians is based upon this maxim.
The maxims which the founders of Islamic legal schools took as their bases
in various legal issues have been attributed by later jurists to the eponymous
founders themselves. The later jurists have striven to show that, on legal issues,
differences of opinion are due to the use of different maxims. Particularly in
the Ḥanafī sources, in the discussion of differences of opinion both among the
leading authorities of the school and between them and other schools, this
reasoning has frequently been used. Taˀsīs al-naẓar consists almost entirely of
such examples. This reasoning can also be seen in sources of furūˁ. For example,
a Ḥanafī scholar of the 7/13th century, al-Malik al-Muˁaẓẓam (d. 643/1245),12
while discussing the debate between founders of the Ḥanafī school concern-
ing when the takbīrs of tashrīq13 should end, used the maxim “certainty is not
removed by doubt” to explain Abū Ḥanīfa’s reasoning based on certainty. As is
known, Abū Ḥanīfa is of the opinion that the takbīrs of tashrīq start after the
morning ritual prayer of the day of ˁArafāt (9th of the lunar month of Dhū l-
Ḥijja) and end after the afternoon ritual prayer of the first day of Eid (10th of
Dhū l-Ḥijja). The author discussed the issue as follows:

The aṣl [principle] concerning this issue is this: takbīrs of tashrīq con-
stitute a Sunna that is performed at a specific time and has no like in
that which is obligatory [farḍ]. For this reason, Abū Ḥanīfa has said that
takbīrs of tashrīq cannot be performed except in the specific time, like
sacrificial slaughter during Eid. Another pertinent principle is the follow-
ing: the rule concerning something that has no analogous ruling in what is
obligatory is that it is an innovation [bidˁa]. For this reason, it is necessary
among what is transmitted from the Prophet (pbuh) to act on those upon
which there is consensus of the Companions. Those things on which they
disagree are treated according to the rule. The Companions have con-
sensus on that the takbīrs of tashrīq start on the day of ˁArafāt after the
morning ritual prayer. They have disagreed upon when they end. Some
of them have ended takbīrs of tashrīq after the afternoon ritual prayer of
the first day of Eid. This is the time upon which there is consensus. The

12 Sharaf al-Dīn Abū Mūsā ˁĪsā b. Abī Bakr (d. 624/1227), who was the Ayyūbī ruler of
Damascus known as al-Malik al-Muˁaẓẓam. See. Humphreys, R.S., “al-Muʿaẓẓam”, EI2.
13 The recitation of “Allāhu Akbar, Allāhu Akbar, Lā Ilāha Ilallāhu Wallāhu Akbar, Allāhu
Akbar, Wa Lillāhil Ḥamd” during the Eid of al-Aḍḥā.
54 Chapter 3

remaining time is disagreed upon. According to Abū Ḥanīfa the rule is

this: he takes what is certain and rejects what is doubtful in all opinions.14

Next, the author tries to show, using examples from various subjects, that
Abū Ḥanīfa based his practice upon certainty and left what is doubtful alone.
As can be seen here, rather than directly transmitting the maxim, al-Malik
al-Muˁaẓẓam clearly stated that this is the principle that is the basis of Abū
Ḥanīfa’s opinion. As can be seen in sources of furūˁ, while in some cases max-
ims with their concise and enduring expressions are directly attributed to the
founders of the legal schools, in other cases, although not expressed in the
same formulation, a concept that clearly expresses the meaning of the maxim
is attributed to the founders. The presentation of maxims, as in the case above,
with their relationship with many concrete examples, has been an important
source for authors composing works on legal maxims. In addition, the demon-
stration, from different angles and with the support of various examples, that
many legal issues rest on giving preference to certainty has led to the general
evaluation that this principle governs many legal issues. As a result, this maxim
has been considered one of the five or six principal maxims on which Islamic
law is founded.
Another noteworthy aspect of al-Malik al-Muˁaẓẓam’s presentation is the
statement that Abū Ḥanīfa always takes certainty as his basis and abandons
practices that are subject to doubt. Although, based upon extant sources, it
is not possible to say that the maxim “certainty is removed with doubt” in the
concise form it takes in the literature of legal maxims was formulated by Abū
Ḥanīfa, one can say that this maxim played a dominant role in his legal doctrine.
The facts that al-Malik al-Muˁaẓẓam stated that Abū Ḥanīfa based his legal
doctrine on this principle, and that he supported this with many examples,
indicates that founding jurists of the early period of Islamic law based their
opinions on such maxims even though they did not explicitly mention them.
Works of the formative period espouse a writing style that revolves mainly
around the axis of legal issues. Ḥanafī jurists, in particular, took into considera-
tion all the possibilities of a legal issue, analysing them one by one and finding
their common points with similar issues through a process of abstraction. This
has paved the way for the formation of principles that have the quality of hav-
ing ḍābiṭs on which specific issues rest. In this way, not only is the ˁilla (ratio
legis) on which similar issues rest identified, but an effort is also made to show

14 al-Malik al-Muˁaẓẓam, Uṣūl al-jāmiˁi al-kabīr, 28. The last part is as follows: al-aṣl ˁinda
Abī Ḥanīfa annahū yaˀkhudhu bi-l-yaqīn wa yarfuḍ al-shakk fī jamīˁ madhhāhib.
Sources of the Legal Maxims 55

the distinctions between issues that are ostensibly similar. Sometimes the
description of legal issues whose actual occurrence is unlikely or impossible
also serves the same purpose of establishing principles through abstraction.
This method, which Shaybānī particularly espouses in treating legal issues, has
been described in a study on his al-Aṣl as follows: “In this way, the road was
paved for the formation of disciplines that appeared as a result of the theoretical
development of law such as al-qawāˁīd al-fiqhiyya, al-furūq, and al-ashbāh wa
l-naẓāˀir.”15 As can be seen here, the common points of the issues which the
founders of the schools theoretically studied were brought together so that
legal maxims were formulated as independent principles. For this reason,
when works of the literature of legal maxims are investigated, their most fun-
damental sources are books of furūˁ al-fiqh i.e. substantive law.
In the works of Shaybānī, in the discussions concerning legal analogy one
can see the roots of the maxim that is expressed in the Majalla as “there is no
permission for ijtihād ( juristic reasoning) where there is a naṣṣ.”16 This maxim
connotes for the most part that where a naṣṣ explicitly indicates a ruling, one
cannot express an opinion that is contrary to it. Shaybānī touched upon this
subject while treating the issue of laughing in ritual prayer. According to this,
Abū Ḥanīfa and his disciples are of the opinion that a person who laughs dur-
ing ritual prayer will continue to perform his ritual prayer, but one who laughs
out loud in ritual prayer has to repeat both the ritual prayer and the ablution.
Ḥanafī jurists based upon extant transmissions consider laughing out loud
during ritual prayer to be a form of impurity and state that it will invalidate the
ritual prayer. On the other hand, the people of Medina, although they believe
that laughing out loud in ritual prayer invalidates it, state that laughing out
loud is like talking in ritual prayer which invalidates the ritual prayer but not
the ablution. On this issue, Shaybānī stated, “If there were no transmission on
this subject, legal analogy would be according to what the people of Medina say,
but where there is a transmission there can be no analogy and the transmissions
have to be followed.”17 His expression “where there is a transmission there can be
no analogy” denotes the same meaning as the maxim “there is no permission for
ijtihād where there is a naṣṣ.” Later jurists have formulated legal maxims based
on this and similar expressions of the early legal scholars.
Scholars of the legal schools, while utilizing their legal heritage, analysed
the evidence adduced in legal debates and strove to construct the principles

15 Boynukalın, İmam Muhammed b. Hasan eş-Şeybānī’nin Kitabü’l-Asl Adlı Eserinin

Tanıtımı, 119.
16 Majalla, article 14.
17 Shaybānī, al-Ḥujja, 1: 204.
56 Chapter 3

upon which they rest. While doing this, they derived general principles from
many examples related to a subject. An example of this is the maxim “that
which is contrary to legal analogy cannot be the basis of legal analogy.”18 There
are many examples that provide the intellectual foundation for this maxim in
furūˁ sources.19 An example of this is diversity of thought concerning the ratio
legis of the prohibition of interest (ribā) and its scope within each legal school
and among different legal schools. A debate concerning this was reported in
detail in Kāsānī’s (d. 587/1191) Badāˀiˁ al-ṣanāˀiˁ. Legal scholars have made vari-
ous observations concerning the method of the sale of commodities which are
subject to ribā according to ḥadīths. The fundamental question here is the fol-
lowing: is it permissible to sell wet wheat in exchange for wet wheat, dry wheat
for dry wheat, fresh dates for fresh dates, dry dates for dry dates, fresh grapes
for fresh grapes, raisins for raisins as long as they measure the same at the time
of the contract? On such issues Ḥanafī jurist have disagreed with each other,
as well as with Shāfiˁī. Abū Ḥanīfa took into consideration the fact that the
measure was the same at the time of the contract and did not take into con-
sideration any reduction that might occur later on, so that he considered all of
these sales to be permissible. Abū Yūsuf, like Abū Ḥanīfa, took into consider-
ation the equality of measure at the time of the contract. However, based on
an authoritative/scriptural text (naṣṣ), he differentiated between the exchange
of fresh and dry dates, considering their sale invalid, and considering the rest
permissible. In contrast, Shaybānī considered the equality of measure at the
time of the contract and any reduction that might occur later on, so that he
considered the sale of dry dates in exchange for dry dates and fresh grapes in
exchange for fresh grapes permissible, and considered the rest impermissible.
Shāfiˁī considered all of the transactions impermissible. After reporting the
jurists’ opinions, Kāsānī strove to explain their reasoning. He explained that
Shāfiˁī’s principle is that foodstuffs cannot be sold in kind. Although Shāfiˁī
finds it permissible to sell foodstuffs in kind as long as they have the same
quantity and the exchange is immediate, he also takes into consideration their
dry state according to the principle of same quantity. Kāsānī then explained
the evidence of the Ḥanafī jurists. While evaluating Abū Yūsuf’s approach,
he established its relation to the principle of same quantity. Abū Yūsuf and
Shaybānī based their opinions on a narration from the Prophet Muhammad.
According to this narration, the Prophet Muhammad prohibited the sale of
fresh dates for dry dates because of the reduction in the volume of the fresh

18 Majalla, article 15.

19 Marghīnānī, al-Hidāya, 1: 361; 3: 1093, 1167; Zaylaˁī, Tabyīn al-haqāˀiq, 1: 52, 219. Ali Haydar
Efendi, Durar al-hukkām, 1: 67–68.
Sources of the Legal Maxims 57

dates as they dry. But whilst Shaybānī applied this to other cases in which there
is the same ratio legis, Abū Yūsuf limited its application to the foodstuff men-
tioned in the naṣṣ. Abū Yūsuf’s reasoning is that this ruling is contrary to legal
analogy (ḥukm thabata ˁalā khilāf al-qiyās).20
As can be seen in Kāsānī’s elucidation of juristic reasoning, each approach
has a different rationale. Kāsānī considered the difference of opinion between
Abū Yūsuf and Shaybānī, who based their views on the same piece of evidence,
in the framework of the principle that would later be formulated as “that which
is contrary to legal analogy cannot be the basis of legal analogy.” In this way,
Kāsānī tried to explain a principle upon which the legal heritage is based.
The jurist to whom the greatest number of legal maxims is attributed is
Shāfiˁī. Shāfiˁī sources, in particular, either state that Shāfiˁī formulated many
maxims, or without stating this, indicate that certain maxims are among
his principles. For instance, Suyūṭī attributed the wording of the maxim “a
statement is not attributed to one who remains silent” to Shāfiˁī.21 Likewise,
the maxim “if the matter becomes narrow, it is widened,” which will be treated
in detail below, is attributed to Shāfiˁī.22 The claim that this is a maxim that
Shāfiˁī adopted and applied was made not only by Shāfiˁī scholars, but also
by jurists of other schools. For example, Ibn ˁĀbidīn (d. 1252/1836), in his dis-
cussion about the impossibility of avoiding the tainting of water by manure
in Syria, supported the Ḥanafī jurists’ view by use of the principle “hardship
begets facility” and the opinion of the Shāfiˁī jurists by use of the maxim “when
a matter becomes difficult, its rule becomes expanded,” concerning which he
stated that, based on Shāfiˁī sources, it is a saying of Shāfiˁī.23
Ibn al-Subkī, while discussing the maxim “hardship begets facility,” stated
that this maxim was attributed to Shāfiˁī by al-Khaṭṭābī and that, while dis-
cussing a fly which falls into a small quantity of water, Shāfiˁī said “necessi-
ties render prohibited things permissible.”24 Shāfiˁī jurists have disagreed on
the issue of appointing a judge, or someone else, as the guardian of a female
who has no guardian or whose guardian is absent. They have offered different
opinions and various transmissions from Shāfiˁī concerning this. Evaluating
these opinions, Ibn Ḥajar al-Haythamī stated that “necessities render prohibited
things permissible” is among Shāfiˁī’s principles and questioned the soundness
of the opinions attributed to Shāfiˁī.25 Shirāzī (d. 476/1083) also indicated that

20 Kāsānī, Badāˀiˁ, 5: 188.

21 Suyūṭī, al-Ashbāh, 142.
22 Zarkashī, al-Manṣūr, 1: 120; Suyūṭī, al-Ashbāh, 83.
23 Ibn ˁĀbidīn, al-Ḥāshiya, 1: 189.
24 Ibn al-Subkī, al-Ashbāh, 1: 49.
25 Ibn Ḥajar al-Haythamī, al-Fatāwā, 4: 90.
58 Chapter 3

it is not permissible for Shāfiˁī jurists to attribute something they inferred from
his opinions to Shāfiˁī, justifying this by stating that Shāfiˁī said “a statement
is not attributed to one who remains silent.”26 ˁIzz b. ˁAbd al-Salām, like these
jurists, attributed some maxims to Shāfiˁī. For instance, although it is necessary
to slaughter animals by the neck to be able to eat their meat, wounding wild
animals and birds which one cannot come near takes the place of slaughtering
due to necessity. Likewise, if one is not able to take out and slaughter an animal
which falls into a well, wounding takes the place of slaughtering just as in wild
animals and birds. After giving these examples ˁIzz b. ˁAbd al-Salām stated:

These and similar examples fall under Shāfiˁī saying “the uṣūl is that when
the matter becomes narrow, its rule becomes expanded.” By uṣūl Shāfiˁī
means maxims of Sharīˁa. By expanded he means a license which is out-
side of legal analogy and crosses the boundaries of maxims. By narrow he
means difficulty.27

There may be differences in the structure of expression between the maxims

appearing in the legal maxims literature and those used in the earlier sources,
since in every branch of learning the words and concepts used gradually
become subtler. The first forms of the maxims are not concise and enduring,
having longer structures of expression. Maxims have become more refined
and more concise as the language of law has become more constructed. An
instance of this is the maxim in Karkhī’s al-Risāla, “that which is established
with certainty is not overruled by doubt,” and the later concise expression of
the same maxim in the legal maxims literature.28 This maxim, after passing
through certain phases in sources of substantive law and the legal maxims lit-
erature, came to be expressed as “certainty is not overruled by doubt.” Hence, as
in every discipline, in the field of maxims concepts and expressions have taken
their final form gradually, passing through many stages. For this reason, rather
than the phraseology of the first usages, what is more significant is their mean-
ing and the intellectual infrastructure they form. The works of authors on max-
ims, who studied the knowledge of the school and strove to find the maxims
on each area of law, are based on this framework. The way they treated maxims
and their occasional statements that directly express this both show this juris-
tic effort. For example, ˁAlāˀī said the following concerning this: “Qaffāl has

26 Shirāzī, Sharḥ al-Lumaˁ, 2: 1084.

27 ˁIzz b. ˁAbd al-Salām, al-Qawāˁid al-kubrā, 2: 325–326. After transmitting an opinion from
al-Muzanī, ˁIzz b. ˁAbd al-Salām also attributed a maxim to him. Ibid, 2: 10.
28 Al-aṣlu anna mā thabata bi al-yaqīn lā yazūlu bi al-shakk. Karkhī, al-Risāla, 110.
Sources of the Legal Maxims 59

said that he heard from Sheikh Abū Zayd al-Marwazī that he said “I do not know
upon what Shāfiˁī built the issues concerning oaths.””29 This statement is signif-
icant in that it indicates that both ˁAlāˀī and leading scholars of the school
predating him tried to see the principles upon which different issues are built
in their examination of the legal heritage.

3 Cultural Elements

In the understanding of religious texts and their interpretation, cultural ele-

ments play an instrumental role. Beginning with the early period, scholars
of different disciplines have meticulously examined and critiqued the mate-
rial relevant to their fields. Especially in establishing the meaning of certain
concepts they have used different instruments such as proverbs and linguis-
tic possibilities without diverging from the meaning expressed by the texts.
For example, the expression in the Qurˀānic verse “guard your oaths (Q. 5/89)”
and the legal ruling based upon it have been analysed by making use of the
Arabic proverb “iḥfaẓ lisānaka lā taqul fa tubtalā inna al-balāˀa muwakkalun
bi al-manṭiq (Guard your tongue. Do not speak so that you face tribulations.
Indeed, tribulations are caused by the tongue).” Ṭabarī (d. 247/861) interpreted
guarding in the verse as being cautious based on this proverb.30
Arabic proverbs also constitute an important source for maxims. Jurists have
in their works used many proverbs that are applicable to legal issues. Foremost
among these is “idhā ḍāqa al-amru ittasaˁa (when a matter becomes difficult,
its rule becomes expanded).” Although early phraseology such as “al-amru idhā
ḍāqa ittasaˁa” and “fa al-shayˀu idhā ḍāqa ittasaˁa” shows some variation in
the structure of expression, the meaning is the same. There is great similarity
between the usage of this expression as a proverb and the range of its use as a
legal maxim. Used as a proverb, it denotes giving a licence for something when
faced with difficulty and hardship. In the sources this proverb is found in a
line of poetry in which Abū al-Qāsim Manṣūr al-Numayrī (d. 190/805) praises
the Caliph Hārūn al-Rashīd (d. 193/809).31 The poet, who praises the caliph
at the beginning of the line, at the end used the expression “aw ḍāqa amrun
dhakarnāhu fa yattasiˁu.”32 As in this poem, in law this maxim is most often

29 ˁAlāˀī, al-Majmūˁ al-mudhhab, 2: 476.

30 Rosenthal, “The History of an Arabic Proverb”, JAOS, 109: 349–350. For the discussion of
the jurists concerning this subject see ibid, 351.
31 In some sources al-Namirī is used. See Ṣadr al-Dīn al-Baṣrī, al-Ḥamāsa al-baṣriyya, 1: 148.
32 Khalīfatullāhi inna al-jūda awdiyatun,
Aḥallaka Allāhu minhā ḥaythu tajtamiˁu
60 Chapter 3

mentioned in rulings granting permission to the legal person due to hardship

that will result from obeying a command or avoiding something forbidden.
The fact that this Arabic proverb which was used in the later periods as a legal
maxim was stated in some works of law as “it has been said that when a matter
becomes difficult, its rule becomes expanded” indicates that legal scholars knew
the proverbial origin of the saying.33
In some sources, this maxim has been wrongly attributed to Abū Zayd al-
Marwazī (d. 371/981). The reason for this attribution, even though the prov-
erb was used earlier, is that when Qaffāl saw his teacher Marwazī performing
ritual prayer with a leather sock sewn with pig’s bristles, he asked him about
this, to which Marwazī replied with the proverb. Hence, thereafter it was said
that Marwazī formulated the maxim.34 However, long before Marwazī, the say-
ing was applied on different occasions both as a proverb and legal maxim. In
fact, in the sources it is mentioned that on some occasions Shāfiˁī arrived at
a ruling using this maxim. For instance, Zarkashī said, “this maxim is one of
the brilliant sayings of Shāfiˁī and he responded with this maxim on three occa-
sions.”35 On one of these occasions, having been asked whether a travelling
female who does not have a guardian can appoint someone as her guardian,
Shāfiˁī responds “al-amru idhā ḍāqa ittasaˁa.”36 In comparison with its use as
a proverb, the phrasing here has a more established structure. Having taken a
form that can be applied to many different areas of law, it came to function as
a maxim in legal corpora. The second usage attributed to Shāfiˁī takes place
in Baghāwī’s (d. 516/1122) Sharḥ al-Sunna. Shāfiˁī was asked about the possi-
bility of a fly which has previously landed on something impure landing on
a person. He responded by stating that the stuff on the fly’s feet might have
dried in the air, and that even if this is not the case, when a matter becomes
difficult, its rule becomes expanded (fa al-shayˀu idhā ḍāqa ittasaˁa).37 The fact
that Shāfiˁī directly responded in this way without mentioning a scriptural text

Man lam yakun bi banī al-ˁAbbās muˁtaṣiman

Fa laysa bi al-ṣalawāt al-khamsi yantafiˁu
In akhlafa al-ghayth lam takhluf makhāyiluh
Aw ḍāqa amrun dhakarnāhu fa yattasiˁu
ˁAbdarī, Timthāl al-amthāl, 1: 155–156; ˁAbbāsī, Maˁāhid al-tanṣīṣ, 1: 215. Although the
lines of poetry show some variation in some sources, the ending is the same in all. For the
variation see Ṣadr al-Dīn al-Baṣrī, al-Ḥamāsa al-baṣriyya, 1: 148.
33 Sughdī, al-Nutaf, 1: 11.
34 ˁAbdarī, Timthāl al-amthāl, 1: 155.
35 Zarkashī, al-Manṣūr, 1: 120.
36 ibid, 1: 121; ˁAbdarī, Timthāl al-amthāl, 1: 155.
37 Baghāwī, Sharḥ al-sunna, 2: 72. Cf. Zarkashī, op. cit., 1: 121.
Sources of the Legal Maxims 61

(naṣṣ) demonstrates that this was a well-known proverb and that he used it as
such. There are many examples in which Shāfiˁī issued rulings based on this
maxim in cases where things happen to people by accident or there are situa-
tions that cause great hardship. In one of these, concerning a brick, the mate-
rial of which gets mixed with impurity, Muzanī (d. 264/878) stated that it was
impure. However, when Shāfiˁī was asked, he responded, “idhā ḍāqa al-amru
ittasaˁa,” indicating that flexible rulings can be applied on issues that people
have difficulty in overcoming.38
Another maxim that has a root in proverbs is the principle related to neces-
sity. The fact that necessities makes impermissible things permissible is also
mentioned in proverbs. Although these do not seem to have been mentioned
in early sources, they are widely used by the general public. It is also possi-
ble that these proverbs, which are so widely used as to have spread to local
dialects, became popular after Islamic culture became dominant among the
populace. For instance, it is possible that the proverb in Syrian dialect “iḍ-
ḍurūra bitḥill min in-nāmūs (necessity makes permissible what is forbidden by
law)”39 is the expression in ordinary language of the maxim “necessities render
prohibited things permissible.” A similar use is seen concerning the balance of
payment and responsibility: “illī bi-yaˀkhud il-ijra bi- yaṭṭalib fī l-ˁamal (work is
demanded from whomever takes the payment).”40
In conclusion, legal maxims in their current state are the result of the efforts
of Muslim jurists and have taken their present form after passing through var-
ious stages. Besides the sources mentioned above, principles of jurisprudence,
language and logic have played instrumental roles in the formulation of some
maxims. For instance, the maxim “the original condition of speech is that of
being the literal meaning”41 is based mainly on rules obtained from language
usage. Likewise, the maxim “at-tābiˁ tābiˁ (the accessory shares the same rule of
the root)”42 is inspired by a principle derived from logical necessity.43
38 Jamal, Ḥāshiya al-Jamal, 1: 190. In Zarkashī’s al-Mansūr, Shāfiˁī responded with this maxim
when asked whether one can perform ablution with a container made from manure.
Zarkashī, op. cit., 1: 121.
39 Jewett, “Arabic Proverbs and Proverbial Phrases”, JAOS, 15: 47.
40 Ibid, JAOS, 15: 71.
41 Majalla, article 12.
42 Ibn Nujaym, al-Ashbāh, 133.
43 Cf. Ṣābūnī, al-Madkhal, 257–258; Zuḥaylī, al-Qawāˁid al-fıqhiyya, 27–30.
 pa rt 2
The Development of Maxim Literature

∵
 chapter 4

Genres in Islamic Law

In discussions of Islamic law, the separation of uṣūl (jurisprudence) from furūˁ

(substantive law) is common. However, there are other types of writing in
Islamic law such as al-aḥkām al-sulṭāniyya (state law), adab al-qāḍī (legal pro-
cedure for judges), furūq (legal distinctions), fatāwā (legal responsa), nawāzil
(unprecedented cases), takhrīj al-furūˁ ‘alā l-uṣūl (derivation of rulings from
the sources of law), ḥiyal (legal devices), shurūṭ (legal records), qawāˁid (legal
maxims), farāˀiḍ (inheritance), kharāj (land tax) and amwāl (fiscal law). While
works in some of these fields are numerous, others have been dealt with in
only a limited number of works. There are different factors that have led to
the development of each of these genres in legal literature. In Part 2, I will
study the development of the literature of legal maxims, which constitutes an
important genre in Islamic law, within the framework of the four Sunni legal
schools. As an introduction to the subject I will discuss factors that have led to
the development of different genres in the study of law. Thereafter, I will focus
on two genres that are closely related to legal maxims, takhrīj al-furūˁ ‘alā l-uṣūl
and furūq.

1 Factors That Have Led to the Emergence of Different Genres in

Islamic Law

The different genres that have developed in the history of Islamic law, which
have some differences due to the different eras of their emergence and their
methodologies, are rich in content as sub-disciplines of law. These different
genres prove both the richness of Islamic law and the fact that each genera-
tion developed the legal heritage it inherited from the previous generation.
The fact that jurists of different eras have extracted different genres from the
legal material that was available to them is important in showing the contribu-
tions of those jurists to the development of Islamic legal thought. For instance,
legal texts that were penned in the formative period of Islamic law have led
to the creation of genres such as mukhtaṣar (compendia), sharḥ (commentar-
ies), ḥāshiya (glosses) and taˁliq (notes)1 that develop the legal doctrine in the

1 For some of these genres see Fadel, “The Social Logic of Taqlīd,” ILS, 197; El Shamsy, “The
Ḥāshiya in Islamic Law,” Oriens, 289–315; Makdisi, The Rise of Colleges, 116–128.
66 Chapter 4

texts, playing a pivotal role in the handing down of knowledge to later periods.
Hence, Islamic law has a structure that is comprehensive enough to encom-
pass all these sub-fields from substantive law to jurisprudence and from max-
ims to fatāwā.
Kātip Çelebi/ Ḥājī Khalīfa (d. 1067/1657), in the introduction to his work
Kashf al-ẓunūn, mentioned seven kinds of writing. According to him, if the
genre is unprecedented the author invents it; if there is something lacking he
completes it; if it is difficult he explains it; if it is a long work he abridges it
without disrupting the meaning; if it is scattered he brings it together; if it is
disorganized he organizes it; if the author makes a mistake he corrects it.2 Of
these, only the first constitutes a type of writing that is not based on another
type of writing before it, whereas the others rely on existing works. All of these
reflect the legal legacy and thinking style bequeathed to them by the tradition
of knowledge in which they are imbued, based on mechanisms that produce
knowledge within the tradition. Kātip Çelebi lists five reasons for composing
a work in a genre in which other books were written: to solve something that
is problematic, to bring together things that are scattered, to explain some-
thing difficult, to write something in a well-organized manner, and to get rid of
excess.3 Since what is at issue is a composition within a sub-field of a discipline,
in contrast to compositions of the first kind, this will call for discussion of the
different genres of the same discipline or the minor parts of the same genre.
For a discipline to become independent the subjects and problems dis-
cussed by that discipline have to be different from those of other disciplines.
In other words, the specific qualities that distinguish that discipline from oth-
ers have to be clear. This is the case in a general sense not only for each field
of knowledge but also for the different genres that constitute the sub-fields
of a particular discipline. For this reason, classical sources state that each dis-
cipline has ten elements (al-mabādī al-ˁashara) consisting of the discipline’s
definition, its subject matter, its use, its virtue, its relationship to other disci-
plines, its founder, its name, its sources (istimdād), the ruling of the Revealer
regarding its study, and its issues, discussing each of these in detail.4 These
elements are taken as the criteria for investigating how one discipline, or its
sub-disciplines, differs from others. This is also true for Islamic law and the
sub-disciplines that have gradually formed under it.
Different genres gradually began to emerge within Islamic law. Workswhose
fundamental issues consisted of legal rulings and subjects related to them,

2 Kātip Çelebi, Kashf al-ẓunūn, 1: 35.

3 Ibid, 1: 35.
4 Fādānī, al-Fawāˀid al-janiyya, 1: 69–70.
Genres in Islamic Law 67

especially in the period that followed the formation of the legal schools, paved
the way for many types of writing such as compendia and commentaries. The
methodological approaches within these works, in turn, resulted in the birth
of sub-genres. This gradually developing legal literature was related to a great
extent to the legal doctrine of the schools. The works composed sometimes
discussed the disagreements and debates between different legal schools,
while at other times they investigated differences of opinion between the
founding jurists of the same school. In addition, efforts to encompass the legal
heritage of the schools and to transmit it to later generations played the role
of a catalyst for writing legal subjects in different ways. Hence, Islamic law as
a discipline continued its growth through the construct of the legal schools,
generating links in the form of compositions and genres that were connected
to, and nurtured, one another.
The opinions put forward by jurists who investigated the legal knowledge
accumulated by their schools in time gave birth to sub-genres. The extensive
commentaries of later jurists on the issues in the legal texts of the jurists of
the early period led to the emergence of sharḥ (commentary) literature.
Commentaries are, for the most part, studies that explain the recondite expres-
sions in the foundational texts and compendia, discuss issues that were not
mentioned, and provide examples for the issues under discussion. Although
some authors wrote commentaries on their own works, commentaries were
in most cases written by other scholars. Sometimes commentaries became the
subject of other commentaries. However, generally works that explained the
commentaries, made additions and criticisms, and elucidated their abstruse
parts were called ḥāshiya, and the notes on the ḥāshiya were called taˁlīq.5
Although the aim of the commentaries was to facilitate education by clarifying
concepts in the texts, for the most part they mentioned the disagreements on
the issues inter-madhhab and intra-madhhab and presented and evaluated the
evidence for each side.
The dates of the commentaries in Islamic law go back to the end of the 3/
9th century and the beginning of the 4/10th century. Considering the com-
mentaries as a separate genre, which began to be penned in this period, was
closely related to their function within Islamic law and showed a development
that was directly proportional to the development of Islamic legal-theoretical
thought. The functions of the genre of commentaries, such as providing evi-
dence for the rulings in the texts, evaluating the legal heritage based on other
works in the field, restating the texts using the gradually developing language

5 Şensoy, “Şerh,” DİA, 38: 555.

68 Chapter 4

and concepts, criticizing the texts, and explaining the terms and expressions
within them shows that commentaries as a genre developed in a manner that
is similar to the development of Islamic legal thought in terms of quality and
quantity.6 One can say, considering these functions of the commentaries,
that their authors influenced the course of legal doctrine by contributing to
the texts they studied from different angles, through their criticisms and by
restating certain aspects according to the legal thought of the period in which
they lived. Aspects that can be seen in many commentaries, such as discussing
different legal schools and their evidence, comparing them and providing a
basis for the schools to which they belong, indicate an important phase in legal
thought. These functions of the commentaries were not limited to substantive
law but also included other sub-fields such as jurisprudence. While these are
not as prevalent as commentaries on substantive legal rules, there are a large
number of them.
Another major genre in which works were composed in the same period as
commentaries was that of the legal compendium/abridgement (mukhtaṣar).7
It is important to say that every commentary is not necessarily written on a
compendium, while every compendium is not necessarily based on a com-
mentary. Hence, although commentaries and compendia can be based on each
other, they can also be related to different legal texts or different kinds of legal
thought. For instance, Mukhtaṣar al-Muzanī, which was written in the 3/9th
century, and Mukhtaṣar al-Khiraqī, which was written in 4/10th century, are
not so much abridgements of another work as the summation of a certain kind
of legal doctrine. Therefore, compendia were written due to factors such as the
need to state concisely the legal doctrine of the school, to be used as teaching
manuals, or to sum up a larger work. The function of recording the legal knowl-
edge produced by the founding jurist or the teaching circles of his immediate
companions, which can be observed in the compendia of the early period, is
a fundamental factor in the composition of compendia. Due to the important
role that compendia played in the legal tradition, they constitute an important
type of writing that constructed the legal doctrine of the schools. The aim of
education became most obvious in the compilation of compendia in the stages
that came after the formation and systemization of Islamic law.8 Since the aim,
especially in the works written after the end of the 6/12th century, was to teach
the legal doctrine of the school in a systematic way in educational institutions,

6 Kaya, “Şerh,” DİA, 38: 560–561.

7 For a detailed discussion of compendium see Brockopp, Early Mālikī Law: Ibn ˁAbd al-Ḥakam
and His Major Compendium of Jurisprudence; Fadel, “The Social Logic of Taqlīd,” ILS.
8 Wheeler, “Identity in the Margins,” ILS, 185.
Genres in Islamic Law 69

compendia were written as short texts. Such compendia generally rely on a

commentary or a text that was authoritative within the school. Accordingly,
compendia not only have the function of explaining the knowledge of the
school in a concise and terse manner but also enable the development of legal
thought based on certain widely accepted works. Presenting a lengthy work
briefly for the purpose of education and thus broadly outlining the opinions
of the school can be considered the last of the fundamental functions of the
compendia. Members of the schools have complemented and compiled many
commentaries on compendia written with this aim in mind, such as Minhāj
al-ṭālibīn, Kanz al-daqāˀiq, and Jāmiˁ al-ummahāt. Although the compendium,
like the commentary, served different functions in various periods, it is a sub-
literature of Islamic law that was written mainly to present longer texts and the
legal heritage of the school in a succinct manner.
Islamic legal thought developed through differences of opinion among
jurists and schools. As a consequence, differences of opinion in law have formed
the main subject of books beginning with the founding period. Comparative
works such as Abū Yūsuf’s Ikhtilāf Abī Ḥanīfa wa Ibn Abī Laylā, which do not so
much aim to defend a particular school as to identify the best opinion based
on evidence, are as an example of this. In time, such works, known as ikhtilāf
al-fuqahāˀ or ˁilm al-ikhtilāf, gave way to ˁilm al-khilāf (Islamic comparative
law), which not only dealt with law and jurisprudence but was also connected
to disciplines such as jadal (disputation) and munāẓara (dialectics). The lit-
erature of khilāf (the juristic differences) came into being after the discipli-
nary formation of the schools was complete at a period when activities such
as takhrīj (derivation) and tarjīḥ (determining preponderance) had begun.
The curiosity of rulers in commissioning works in order to investigate differ-
ences of opinion and determine which legal school was superior, especially as
regards the Ḥanafī and Shāfiˁī schools, was also a factor in the development of
this literature. Likewise, the literature of khilāfiyyāt, which is distinct from ˁilm
al-khilāf in both aims and content, is a sub-genre which had the practical goal
of understanding the differences of opinion among legal scholars of different
generations beginning with that of the Successors, so that these could be con-
sidered in the process of issuing fatāwā.9
As in the examples given above, writings in the sub-genres of Islamic law
have proliferated over time, attaining maturity after passing through different
stages, a process one can observe in other disciplines as well. Thus, Islamic
legal thought and its sub-genres have developed through different phases by

9 Özen, “Hilāf,” DİA, 17: 530–533.

70 Chapter 4

gradually processing the material presented within the framework of the legal
doctrine of the schools and membership of them. After the doctrinal develop-
ment of the discipline of Islamic law reached a degree of maturity, the differ-
ent issues that were discussed in works of substantive law and the manner in
which they were treated paved the way for sub-genres such as qawāˁid, furūq
and takhrīj al-furūˁ ˁalā l-uṣūl. As a consequence, disciplines such as furūq and
takhrīj al-furūˁ ˁalā l-uṣūl, which will be briefly discussed below, and works of
qawāˁid, which will be analysed in greater detail, are similar in the subjects they
treat and in their methodologies. Although both the intellectual foundations
of the materials used in these disciplines and their examples were included in
substantive law works, the gradual discussion of these in independent sources
took place in the period after the compilation of Islamic law. The literature of
furūq and takhrīj al-furūˁ ˁalā l-uṣūl will be treated below in greater detail due
to their relationship with legal maxims literature.

2 The Literature of Takhrīj al-Furūˁ ˁalā l-Uṣūl

The literature of takhrīj al-furūˁ ˁalā l-uṣūl, which for the most part treats juris-
prudential maxims, discusses the relationship between the sources of the
method of takhrīj, which was used to produce legal knowledge in works of sub-
stantive law and the information obtained through the process of takhrīj. In
other words, in works of this genre the focus is on studying the jurisprudential
sources of the differences of opinion in substantive law. The methodological
principles on which every difference of opinion is based are stated, along with
the differences they generate. Although takhrīj al-furūˁ books resemble works
of maxims in that they explain differences in several areas of law through
abstract and theoretical legal principles,10 they differ from works of maxims
in that they mostly treat jurisprudential maxims. Six works written in this field
have become prominent and have been the subject of independent studies;11
however, works on takhrīj al-furūˁ are not limited to these.12
Although works of takhrīj al-furūˁ are united in focusing on principles of
jurisprudence as the source of differences of opinion in law, it is difficult to
say that they have an agreed-upon writing style. For instance, whereas Zanjānī
(d. 656/1258) investigates the issues on which there are differences of opinion
between the Shāfiˁī and Ḥanafī schools based on the chapter order of works

10 Ahmad, Structural Interrelations of Theory and Practice in Islamic Law, 49.

11 Ibid, 49–72.
12 For other works see Shūshān, Takhrīj al-furūˁ ˁalā l-uṣūl, 1: 264–266.
Genres in Islamic Law 71

of substantive law, Tilimsānī (d. 771/1369) follows the system of works on juris-
prudence. In contrast, Isnawī (d. 772/1370), perhaps as a result of the spread of
works on maxims and the acceptance of works in this field by legal scholars
of different schools, follows the pattern of maxim works by first mentioning
a maxim or sub-maxim and then the differences of opinion based on it. This
method was also espoused by Ibn al-Laḥḥām (d. 803/1401) and Timurtāshī (d.
1007/1599) who lived nearly two centuries later.13
Even though Taˀsīs al-naẓar is considered the first study in the literature
of takhrīj al-furūˁ, Zanjānī’s study entitled Takhrīj al-furūˁ ˁalā l-uṣūl repre-
sents a significant stage of development as regards the subjects it treats and
its methodology.14 In addition, since a large number of the rules that are
treated in Taˀsīs al-naẓar are related to substantive law rather than maxims
of jurisprudence, considering this work within the literature of takhrīj al-furūˁ
is not accurate. For example, the second rule in the book is as follows: “The
rule according to Abū Ḥanīfa is that the person who enters the state of iḥrām15
in case he postpones one of the rituals of hajj or performs it before its time will
need to perform a sacrificial offering.”16 Taˀsīs al-naẓar is different from works
of Takhrīj al-furūˁ, which focus on maxims of jurisprudence and legal differ-
ences of opinion regarding them, in concentrating upon comparative law and
devoting attention for the most part to maxims of substantive law. In fact, at
the beginning of Taˀsīs al-naẓar the emphasis is on comparative law where it
is stated that the work aims to present the extent of the differences of opinion
and their sources, and to explain them.17 This emphasis in Taˀsīs al-naẓar on
differences of opinion and their causes is replaced in Zanjānī’s Takhrīj al-furūˁ
ˁalā l-uṣūl by an emphasis on the relationship between jurisprudence and sub-
stantive law, and on the fact that differences of opinion in substantive law are
due to principles of jurisprudence. As such, the purpose of writing these two
works is different in this respect.
Zanjānī’s Takhrīj al-furūˁ ˁalā l-uṣūl, in its system and method, is one of
the first examples that treat the subjects that are generally treated in works
of takhrīj al-furūˁ. Unlike other studies on takhrīj al-furūˁ, it follows the sys-
tem of substantive law and investigates the relationship between principles of
jurisprudence and substantive legal rules by taking the differences of opinion

13 Ahmad, Structural Interrelations of Theory and Practice in Islamic Law, 65, 70–71.
14 Ahmad, Structural Interrelations of Theory and Practice in Islamic Law, 59.
15 As a technical term iḥrām means the state of temporary consecration of someone who is
performing the pilgrimage.
16 Dabūsī, Taˀsīs al-naẓar, 6.
17 Ibid, 5.
72 Chapter 4

between the schools as its axis. It is similar to Taˀsīs al-naẓar in focusing on

difference of opinion, and similar to other works of takhrīj al-furūˁ in being
based on the relationship between jurisprudence and substantive law. Zanjānī,
who approached the legal differences of opinion between Ḥanafīs and Shāfiˁīs
in Baghdad in the 7/13th century from a different perspective, stated in the
introduction to his work that Islamic law deals with rulings that are pertinent
to this world and the hereafter, and that these rulings are derived through juris-
prudence. Later, he emphasized that substantive law is based on jurisprudence
and that it is necessary to know the strong connection between substantive
legal rules and the evidence on which they are based. Then he observed that
no one before him had touched upon this relationship between jurisprudence
and substantive law, that scholars of jurisprudence treated abstract rules of
jurisprudence while scholars of substantive law reported substantive legal
rules without establishing their relationship with the principles on which they
are based, and that he had written his work to fill this gap. Zanjānī stated that,
in the context of every maxim, he had studied an issue of jurisprudence and
devoted attention to issues of substantive law that come under it, and that
despite the shortness of his work it was full of principles of jurisprudence and
the substantive legal rules based on them, and that it contained issues that are
subject to differences of opinion.18
Zanjānī’s Takhrīj al-furūˁ ˁalā l-uṣūl begins, like works of substantive law,
with sections such as purification, ritual prayer, alms-giving, and ends with
international law (siyar), but also after international law treats subjects such as
oaths, judicial decisions (aqḍiya), testimony, emancipation and emancipation
contracts (kitāba). The author, who treated legal differences of opinion within
each main section under the title masˀala (issue), for the most part explained
differences in jurisprudence and the legal differences of opinion based on these
with the use of examples. For example, in the first issue under the section on
purification, Zanjānī said the following concerning whether rulings are based
on pure obedience to Allah (taˁabbud) or can be explained by reason (taˁlīl):

Shāfiˁī’s (may Allah have mercy on him) premise is that rulings are based
on pure obedience to Allah. Shafiˁī considers the probability of pure
obedience to be dominant and builds issues of substantive law on this
basis. Abū Ḥanīfa’s (may Allah forgive him) premise is that rulings can be
explained by reason and builds issues of substantive law based on this.
Various issues are based on these mentioned premises.

18 Zanjānī, Takhrīj al-furūˁ ˁalā l-uṣūl, 33–35.

Genres in Islamic Law 73

Zanjānī then said “these are the issues,” and treated eleven different issues relat-
ing to these different premises of the Shāfiˁīs and Ḥanafīs concerning purifi-
cation, ritual prayer, alms-giving and expiations. Likewise, in the section on
international law, after stating that “khabar al-wāḥid according to Shāfiˁī has
precedence over analogy on the sources of law,” he said, “for Ḥanafīs analogy
has precedence over khabar al-wāḥid.” Zanjānī then indicated the differences of
opinion based on this.19 As these examples indicate, the author studied prin-
ciples of jurisprudence and the differences of opinion relating to the relation-
ship between the jurisprudential principles and substantive legal rules under
the headings of substantive law subjects.
The Mālikī jurist Tilimsānī, who is the master of prominent disciples such as
Lisān al-Dīn Ibn al-Khaṭīb (d. 776/1374), Shāṭibī and Ibn Khaldūn (d. 808/1406),
in his work Miftāḥ al-wuṣūl studied the same principles in sections based on
substantive law under the headings used in works of jurisprudence. Tilimsānī,
who at times hinted at debates among Mālikī jurists, also mentioned the opin-
ions of the Shāfiˁīs, Ḥanafīs and Ḥanbalīs. For example, he first stated, “they
have differed on whether the unqualified imperative indicates obligation, com-
mendableness, or something other than these. There are differences of opinion on
various legal issues due to this.” Then, he looked at these differences between
several schools, as well as among the Mālikī jurists themselves.20 Although he
generally mentioned the names of the schools while pointing out the differ-
ences of opinion, at times he explained opposing views using expressions such
as “the opponent says the following,” “some say the following” and “some of our
companions say the following.”
Although Tilimsānī’s work studies the differences of opinion with other
legal schools by focusing for the most part on the opinions of the Mālikī jurists,
it resembles Taˀsīs al-naẓar in focusing on comparative law and it differs from
it in devoting much attention to discussions of jurisprudence related to lan-
guage. In addition, instead of explaining jurisprudential differences based on
maxims, Tilimsānī focuses on the differences in substantive law based on dif-
ferent approaches to jurisprudence and studies these between legal schools in
a comparative way. The work in this respect is also different from the classical
way of writing on uṣūl al-fiqh.
Isnawī, who was among the exalted Shāfiˁī jurists in the Mamlūk era,
was a disciple of Taqī al-Dīn al-Subkī (d. 756/1355), and became the teacher
of Zarkashī, who was an important contributor to the literature on maxims.

19 Zanjānī, op. cit., 363. For evidence that some opinions Zanjānī attributes to Shāfiˁī and
other legal schools are incorrect see Köse, Çağdaş İhtiyaçlar ve İslam Hukuku, 337.
20 Tilimsānī, Miftāḥ al-wuṣūl, 375–379.
74 Chapter 4

Realigning the writing method of Zanjānī’s Takhrīj al-furūˁ ˁalā l-uṣūl to juris-
prudence, Isnawī composed the work entitled al-Tamhīd fī takhrīj al-furūˁ ˁalā
l-uṣūl. Isnawī treats the maxims of jurisprudence and differences of opinion
relating to these, which Zanjānī treated under the title of “issue (masˀala)”
under the subjects of substantive law, under the main subjects of uṣūl al-fiqh.
But there are various differences between the two works in how they treat
jurisprudential maxims.21
Isnawī, who mostly studied the relationship between jurisprudence and
language in his works, focused in al-Tamhīd on principles of jurisprudence.
He mainly examined the relationship between law and language or, in other
words, jurisprudence and grammar within the framework of the legal mean-
ing of words. Isnawī, who in his work entitled al-Kawkab al-durrī also studied
the relationship between grammatical rules and Islamic law using a similar
method,22 stated that he wrote al-Tamhīd to fill the gap in his previous works of
jurisprudence. He mentioned that this gap concerned how substantive law is
derived from principles of jurisprudence.23 Based on this, Isnawī first set down
an issue or principle of jurisprudence and indicated the differences of opinion
among different schools or Shāfiˁī jurists on the subject, and then mentioned
the variations in substantive law caused by the differences on this issue or prin-
ciple. For instance, as regards the issue of which meaning of a word that has
different revealed, customary and lexical meanings should be the main one,
he set down the principle “When a word that the Revealer issues has different
meanings, it is first interpreted according to its meaning in the Sharīˁa.” He then
mentioned the opinions of Shāfiˁī jurists on the revealed and lexical mean-
ings of words, saying “there are various examples of substantive law based on
this.” He then focused on different examples in the laws of marriage, divorce,
oaths and bequests relating to the relationship between these examples and
the mentioned principle.24
The work which Isnawī wrote to show the relationship between principles
of jurisprudence and substantive legal rules also has a practical purpose. In
the introduction he stated that he wanted to compose a work that would be a
reference for both muftīs and professors of Islamic law in understanding the
relationship between jurisprudence and substantive law. This suggests that
this work has features that can set an example for other scholars.25 Thus, the

21 Osman Güman also mentions other differences. See Güman, Nahiv-Fıkıh Usūlü İlişkisi, 18.
22 Isnawī, al-Kawkab al-durrī. For a study that treats the relationship between syntax and
jurisprudence based on this work of Isnawī see Güman, Nahiv-Fıkıh Usūlü İlişkisi.
23 Isnawī, al-Tamhīd, 46.
24 Isnawī, al-Tamhīd, 228–236.
25 Isnawī, al-Tamhīd, 47.
Genres in Islamic Law 75

author strove to demonstrate the relationship between jurisprudence and

substantive legal rules based on the Shāfiˁī school. While doing this, he tried
to show to those involved in the study of Islamic law the strong relationship
between these two areas of law, which he thought had been neglected.
Ibn al-Laḥḥām, who was the pupil of Ibn Rajab al-Ḥanbalī, like the authors
before him stated in his work al-Qawāˁid that he would study the relationship
between jurisprudential principles and substantive legal rules.26 In contrast to
other works of takhrīj al-furūˁ, he placed each subject under the title “qāˁida,”
considering an issue of jurisprudence under that title. For instance, under the
second title he stated that sanity and the ability to understand the discourse of
revelation are the prerequisites for legal obligation. He then treated the differ-
ences on this subject among jurisprudents and related examples from various
issues of substantive law.27 Ibn al-Laḥḥām, who did not write his work in the
style which mentioned the main subject and “issue (masˀala)” related to it that
became common in works of takhrīj al-furūˁ beginning with Zanjānī, discussed
the impact of the differences in principles of jurisprudence on legal issues not
only among Ḥanbalī jurists, but also other schools. On whether an unrestricted
command connotes repetition, he said, “If we say that the unrestricted com-
mand necessitates repetition, by agreement it also necessitates immediate action.
If we say that the unrestricted command does not necessitate repetition, does it
necessitate immediate action? There are different opinions on this issue.” Ibn al-
Laḥḥām then related the discussions of Ḥanbalī, Mālikī, Shāfiˁī and Ḥanafī
jurisprudents on the subject, and explained with examples the effect this dif-
ference of opinion had on substantive law.28
Timurtāshī, who was the author of Tanwīr al-abṣār, an important text in
the Ḥanafī school, and the pupil of Ibn al-Nujaym who is one of the important
names in the literature of legal maxims, in addition to his works in jurispru-
dence and substantive law composed a work entitled al-Wuṣūl ilā qawāˁid al-
uṣūl fī takhrīj al-furūˁ ˁalā l-uṣūl, in which he tried to present the relationship
between jurisprudential principles and substantive legal rules like other works
of the genre of takhrīj al-furūˁ. Timurtāshī, who benefited from previous works
of takhrīj al-furūˁ, openly stated that he had been influenced by Isnawī’s al-
Tamhīd, which he said had nothing to compare it with in the Ḥanafī school.29
Timurtāshī, who often referred to Isnawī, mentioned jurisprudential principles

26 Ibn al-Laḥḥām, al-Qawāˁid, 33.

27 Ibn al-Laḥḥām, al-Qawāˁid, 47–62.
28 Ibn al-Laḥḥām, al-Qawāˁid, 238–243.
29 Timurtāshī, al-Wuṣūl, 3–4. For other influences of Isnawī see Ahmad, Structural
Interrelations of Theory and Practice in Islamic Law, 70.
76 Chapter 4

under the titles of “issue (masˀala)” or “benefit (fāˀida)” within subjects men-
tioned in jurisprudential works and discussed how these are linked with sub-
stantive law.30 By devoting space in al-Wuṣūl to the effect of linguistic prin-
ciples on legal rulings, Timurtāshī combined in one work what Isnawī tried
to accomplish separately in al-Kawkab al-durrī and al-Tamhīd. In addition, in
contrast to other works of takhrīj al-furūˁ, Timurtāshī often referred to legal
maxims in his book.
As noted earlier, Timurtāshī, under the title “issue” within the main subjects,
devoted space to different jurisprudential maxims and then analysed the issues
of substantive law derived from these, relying mainly on Ḥanafī jurists. For
instance, in the section on utterances he mentioned the principle “as much as
possible, a word should be construed as having some meaning, rather than disre-
garded. Therefore, there is a consensus of our scholars that when the literal mean-
ing is impossible, the metaphorical meaning shall be sought.” He then discussed
various related legal issues in the laws of oaths, marriage, bequests, divorce,
endowment and emancipation. While doing this, he referred to the sources
of the Ḥanafī school such as al-Fatāwā al-Khāniyya, al-Manār, al-Taḥrīr, and
to leading jurists including Abū Yūsuf, Abū Ḥanīfa and Ibn Nujaym, whom he
called “our Shaikh.”31
The section on utterances in Islamic jurisprudence is the subject on which
authors of takhrīj al-furūˁ, most of whom lived in the 8/14th century, focused.
Therefore, in terms of its technique, it is difficult to acknowledge Taˀsīs al-
naẓar which, considering its content and writing method, echoes the main
features of the literature of comparative law in focusing on the differences of
jurists from intra-madhhab and inter-madhhab as belonging to the genre of
takhrīj al-furūˁ. The fact that Taˀsīs al-naẓar rather than trying to link jurispru-
dential maxims and substantive legal rules, analyses the differences of opinion
of the founding Ḥanafī jurists with each other and with other scholars, and
the fact that, in this process, the author devotes space mostly to legal max-
ims and sub-maxims, whilst rarely mentioning jurisprudential principles, are
the most striking characteristics that distinguish it from other works of takhrīj
al-furūˁ. Despite this, that Taˀsīs al-naẓar is considered among works of com-
parative law, maxims and takhrīj al-furūˁ is because it treats the intersection
of the three literatures and has a structure that can be a source for each one
of them. Zanjānī’s method of analysing the relationship between jurispruden-
tial principles and substantive law within the framework of the differences of

30 E.g. Timurtāshī, al-Wuṣūl, 82–83, 180, 269–270, 336.

31 Timurtāshī, al-Wuṣūl, 77–81.
Genres in Islamic Law 77

opinion among the schools and the system of substantive law was not com-
pletely followed by authors who came after him. Especially with Isnawī, the
stress on divergent opinion lessened and the pattern of following the structure
of substantive law gave way to a writing method based either on the system
of jurisprudence or on bringing together various jurisprudential principles. In
addition, beginning with Tilimsānī and Isnawī, authors of the 8/14th century,
priority was given to the relationship between subjects of jurisprudence and
linguistic rules and maxims, while the relationship between jurisprudential
maxims and substantive legal rules became secondary. The fact that Isnawī
began to compose al-Kawkab al-durrī, which investigates the relationship
between linguistic principles and law while writing Takhrīj al-furūˁ, and that
Timurtāshī brought these together in a single work shows this.32 However,
Ibn al-Laḥḥām adopts a writing style different from that of all these authors.
Because works of takhrīj al-furūˁ, which are the products of jurists of different
schools, did not constitute a common tradition of writing, according to extant
sources similar studies were not conducted later, and because of this this liter-
ature was limited to a few works.

3 Literature of Furūq

The fact that authors of Takhrīj al-furūˁ state in their works that they focus on
the relationship between jurisprudential maxims and substantive law is sig-
nificant in showing the difference between legal maxims and jurisprudential
principles. Although some jurisprudential principles are analysed in works on
legal maxims, the focus is on principles of substantive law, which indicates a
conscious differentiation between principles of jurisprudence and substantive
legal rules. Therefore, just as works of al-ashbāh wa l-naẓāˀir investigate legal
maxims, works of takhrīj al-furūˁ investigate jurisprudential principles. The
discipline of furūq (legal distinctions), which Zarkashī mentions in his classifi-
cation of legal disciplines, like takhrīj al-furūˁ is a legal genre closely related to
the literature on legal maxims.33 As will be seen below, although legal maxims
do not constitute the main topic of all furūq works, some of them deal directly
with legal maxims or explain the differences between issues based on maxims.
Moreover, beginning with those composed in the 10/16th century, there is a
section on furūq in works of al-Ashbāh wa l-naẓāˀir. These facts evince that

32 Isnawī, al-Tamhīd, 47.

33 Zarkashī, al-Manthūr, 1: 69.
78 Chapter 4

there is an important relationship between works of furūq and works of legal

maxims.34
The fact that authors who compose works on furūq rather than defining the
concept of furūq explain the essential features of the subjects they treat gives
us a hint about the meaning of furūq. For instance, while explaining his pur-
pose in writing al-Jamˁ wa l-farq, Juwaynī states that while issues of the Sharīˁa
may resemble one another, because their legal causes are different their rulings
may be different, and that in his study he will focus on these.35 Likewise, the
Ḥanbalī jurist Sāmarrī (d. 616/1219) demonstrates the type of subjects the disci-
pline of furūq deals with by stating that his work on furūq encompasses “issues
which resemble each other in form but have different legal rulings.”36 Similarly,
Suyūṭī describes furūq as the discipline that deals with issues that are uniform
in meaning and form but are different in terms of legal cause and ruling.37
Considering the historical development of works on furūq, these expressions,
which include the definition of the discipline of furūq, do not entirely echo its
meaning. This is because furūq works not only deal with issues that are similar
in form but different in ruling, but also examine legal maxims. Taking this fea-
ture into consideration, furūq can be defined as “the discipline that deals with
legal issues and concepts that resemble each other in form, but are different in
terms of rulings.”38
Differences between various issues and concepts are treated in works of
substantive law. Jurists who critique an opinion of a school in the course of
legal debates between schools, in particular, may state that the scholars they
critique reached a different conclusion because they did not perceive the sub-
tle distinctions between concepts. After the doctrinal forms of the schools
reached a certain degree of maturity, beginning with the 4/10th century, the
differences between various issues and concepts began to be investigated in
independent works in line with these kinds of legal debates and the intellec-
tual foundations on which these debates relied. As a result, independent works
of furūq were composed that were distinct from writings on substantive law.
Although some of these kinds of works, which were composed concurrently
as the development of the literature of legal maxims, carried the title of furūq,
in earlier periods there were works of substantive law that also had this word

34 For an extensive survey of the literature of furūq see Kızılkaya, İslam Hukukunda Farklar;
Saba, Harmonizing Similarities: A History of Distinctions Literature in Islamic Law.
35 Juwaynī, al-Jamˁ wa l-farq, 1: 37.
36 Sāmarrī, Kitāb al-furūq, 1: 115.
37 Suyūṭī, al-Ashbāh, 7.
38 Kızılkaya, İslam Hukukunda Farklar, 27.
Genres in Islamic Law 79

in their titles.39 Although there may be various reasons why works of this kind
are mentioned among works of furūq, the fact that they bring together vari-
ous issues of substantive law, and bring together the material in longer works
and in the compendia may be among the reasons for this title. In addition, the
fact that many issues that are different from each other are discussed in these
works may also have led to the use of this title.40
The literature of furūq is not limited to the discipline of law; its scope
extends to various other branches of learning such as the Arabic language,
theology, philosophy, logic, medicine, sufism and jurisprudence. Compared to
law, furūq works in other disciplines were written in earlier periods. However,
while legal furūq works deal with propositions or groups of propositions,
works in other fields mostly aim to set out the difference between two con-
cepts or words based on a semantic analysis.41 For instance, Abū al-ˁAbbās
Aḥmad b. Muḥammad al-Sarakhsī (d. 286/899) in his work entitled al-Farq
bayn al-naḥw wa l-manṭiq discusses concepts of logic and syntax that have
very similar meanings. In theology, Bāqillānī (d. 403/1013) composed the two
works Taṣarruf al-ˁibād wa l-farq bayn al-khalq wa l-iktisāb, in which he dis-
cusses the difference between creation and acquisition, and al-Farq bayn al-
muˁjizāt al-anbiyāˀ wa karāmat al-awliyāˀ, in which he discusses the concepts
of saintly wonders and Prophetic miracles.42 Works of furūq were also written
on jurisprudence, of which Ibn Kamāl Pāshā’s (d. 940/1534) Furūq al-uṣūl is an
example. The author, who stated that he had written the work so that students
could easily learn and memorize subjects of jurisprudence, emphasized that
he had written the book for educational purposes.43 Then he treated the dif-
ferences between numerous subjects of jurisprudence such as occasion and
condition, occasion and cause, cause and evidence, clear analogy and hidden

39 Examples of these are al-Furūq fī furūˁ al-Shāfiˁiyya of Abū Muḥammad b. ˁAlī al-Ḥakīm
al-Tirmidhī (d. 320/932), al-Furūq of Ibn Surayj (d. 306/918), and Isnawī’s Kāfī al-muḥtāj
fī sharḥ al-minhāj. Of these books, Ibn Surayj’s al-Furūq contains answers to questions
concerning some legal issues in Muzanī’s al-Mukhtaṣar. Cf. Kātip Çelebi, Kashf al-ẓunūn,
2: 1257–1258; Juwaynī, al-Jamˁ wa l-farq, the introduction of the editor, 1: 20.
40 Isnawī, Maṭāliˁ al-daqaˀiq, the introduction by the editor, 1: 202.
41 Heinrichs, “Structuring the Law,” Studies in Honour of Clifford Edmund Bosworth, Volume i,
334–335.
42 These are also among non-legal works of furūq: Abū Hilāl al-ˁAskarī’s (d. 400/1009) book
on Arabic al-Furūq fī l-lugha, Abū Bakr al-Rāzī’s (d. 313/925) book on medicine al-Furūq
bayn al-amrāḍ, and Ibn al-Jazzār’s (d. 369/979) book Kitāb al-farq bayn al-ˁilal allatī tash-
tabihu asbābuhā wa takhtalifu aˁrāḍuhā. Wansharīsī, al-Miˁyār, 2: 443; Dimashqī, al-Furūq
al-fiqhiyya, the introduction by the editor, 28–29. For an extensive survey of the literature
see Kızılkaya, İslam Hukukunda Farklar, 32–76.
43 Ibn Kamāl Pāshā, Furūq al-uṣūl, 65.
80 Chapter 4

analogy. Another example of furūq works written for the sake of instruction is
Abū al-ˁAbbās al-Jurjānī’s (d. 482/1089) furūq. He stated in the introduction to
his work that he had written his book for educational purposes.44
The efforts of the jurists of legal schools to defend the opinions to which
they were loyal and to fill the logical gaps in the legal opinions developed by the
schools on legal issues were especially effective in the composition of works in
the genre of furūq. One can add to this the effort to show through subtle anal-
ysis that aspects of legal rulings which seem ostensibly contradictory are in
fact not so.45 In general, works on legal furūq treat the differences between two
issues of substantive law, two legal maxims, technical terms of jurisprudence
and substantive legal rules, or linguistic expressions.46 Especially in the treat-
ment of differences in issues of substantive law, the fundamental principles
and rules of Islamic law were drawn on. This effort led to the extraction of
rules and maxims on which issues that seem different are based. Although this
is one of the fundamental factors that paved the way for the development of
the literature of legal maxims, this was not the primary factor.47 This is because
both the fact that legal maxims and sub-maxims were used in works of sub-
stantive law of the early period and the fact that the period in which inde-
pendent works on legal maxims were composed coincided with the literature
of furūq make it difficult for a such a relationship to be conceived between the
literatures of furūq and legal maxims.
Although there were different writing methods in the composition of works
in the furūq literature, they can be gathered into three general groups: Those
that centre on the distinctions between maxims, those that centre on the dis-
tinctions between issues of substantive law, and the mixed method which
combines the two. The works of the first group are epitomized by Qarāfī’s
al-Furūq as works of legal maxims, since this writing style analyses the dif-
ferences between maxims and sub-maxims that encompass different sub-
jects. This pattern, which was not followed after Qarāfī and did not have an
independent development, was incorporated into the study of legal maxims
especially with the literature of al-Ashbāh wa l-naẓāˀir. The second kind that
treats differences in legal issues and rulings is the writing method in which
the greatest number of furūq works were composed. Authors who followed
this method either investigated the differences between issues of substantive
law according to the system of substantive law or focussed on the differences

44 Jurjānī, al-Muˁāyāt, 22.

45 Özen, “Furūk,” DİA, 13: 225.
46 Makkī, Tahdhīb al-furūq, 1: 3; Dimashqī, al-Furūq al-fiqhiyya, editor’s introduction, 31.
47 Özen, “Furūk,” DİA, 13: 224–225.
Genres in Islamic Law 81

between various concepts of substantive legal rules. One of the best examples
of this is Juwaynī’s al-Jamˁ wa l-farq. The third kind is the method of Badr al-
Dīn Muḥammad al-Bakrī, in which he treats legal maxims according to the
structure of substantive law. Here, al-Bakrī indicates the differences between
issues that look similar in each chapter.48 Since this writing pattern includes
legal maxims, it has a close relationship with the literature of maxims.
Although the subject of the genres of legal furūq and legal maxims consist of
issues of substantive law, authors of works on legal furūq treat the differences
between these issues, whereas authors of legal maxims treat the aspects in
which they are united. However, the difference between two seemingly similar
issues is due to the different maxims on which they are based.49 Because of
this, some authors such as Qarāfī, rather than treating the differences between
issues, have analysed the differences between maxims, investigating one by
one the principles on which cases are based. Because of this feature, Qarāfī’s
al-Furūq can be included in both genres as a work that brings together legal
maxims and distinctions.
Ḥanafī jurists played a leading role in composing works of legal distinctions.
As a matter of fact, al-Furūq of the Ḥanafī jurist al-Karābīsī (d. 322/934) is con-
sidered to be among the premier works of this genre.50 The composition of
independent furūq works began in the 4/10th century and continued until the
10/16th century; with some exceptions after this period, subjects of furūq were
discussed as a section in works of legal maxims. Thus, the genre of furūq was
incorporated into works of al-ashbāh wa l-naẓāˀir under the title jamˁ wa l-farq.
48 Kızılkaya, İslam Hukukunda Farklar, 111–120; Juwaynī, al-Jamˁ wa l-farq, introduction by
the editor, 1: 22–23.
49 Afghānī, al-Furūq al-fiqhiyya, 1: 187–188.
50 Karābīsī, al-Furūq, editor’s introduction, 1: 8.
 chapter 5

The 4/10th–7/13th Centuries

The Formative Period of the Literature of Legal Maxims

Among the factors that led to the composition of legal maxim works, which
emerged as an independent discipline after legal doctrine and writing reached
a significant stage of development, are the legal understanding in the minds
of jurists which, since the formative period of Islamic law, was based on prin-
ciples and the rich material that was produced within the framework of such
legal-theoretical thought.1 However, despite the fact that legal maxims were
used in legal corpora from the earliest times and that the concept of legal max-
ims played a striking role in the systems jurists developed, the study of maxims
in independent works coincides with the 4/10th century. This proves that legal
maxims were obtained as a result of induction from substantive legal rules
after the latter reached a degree of development. Hence, it is not accurate to
say that the study of legal maxims was a late development within the history
of Islamic law, and that this is due to the relationship between law and taqlīd
(imitation),2 since it is natural for legal maxims, which governed legal thought
and were referred to in the sources, to be independently collected after a pro-
cess of development.
Like uṣūl al-fiqh, the literature of legal maxims came into being as a conse-
quence of the effort to bring to light the foundations of substantive law. Just
as the discipline of uṣūl al-fiqh tries to show after contemplating legal rulings
that they have a consistent foundation,3 the discipline of legal maxims came
into being as a result of efforts to determine the principles on which substan-
tive legal rules are based. The effort, especially in works of legal maxims, to
articulate as principles the common points of rulings in different fields of law
required the legal heritage of substantive law to be reviewed to concentrate
on its theoretical foundations. This is very similar to the composition of uṣūl
al-fiqh.
With the exception of Shāfiˁī’s al-Risāla, systematic and comprehensive
fully-fledged works of uṣūl al-fiqh began to be written in the 4/10th century,

1 Baktır, “Kaide,” DİA, 24: 206. For the development of the legal maxim genre see Musa, “Legal
Maxims as a Genre of Islamic Law”, ILS, 2014, pp. 343–358.
2 See Kamali, “Legal Maxims,” Arab Law and Quarterly, 77.
3 See Bedir, Fıkıh, Mezhep ve Sünnet, 117.
The 4/10th–7/13th Centuries 83

which coincides with the period in which independent works on maxims began
to be written. This indicates that in this period certain jurists were focusing on
determining the foundations and principles of the legal discipline.4 The fact
that legal compendia which aimed to bring together the opinions of the legal
schools in a systematic pattern also began to be written in this period5 substan-
tiates the fact that in the 4/10th century the legal heritage of the schools was
reconsidered as enabling the composition of these different types of genres.
In this context, the composition of works on maxims was closely related to
the concept of the madhhab, a communal legal discourse. The 4/10th century,
in which works of legal maxims were composed, was also the period in which
the concept of legal schools was taking root and the systematic production of
legal corpora, which took into consideration the development of legal doctrine
within the school as well as practical goals, was taking place. These considera-
tions and the concept of the madhhab led to the formation of different genres
such as mukhtaṣar and furūq, whose first examples came into being in this
period. In works of legal maxims the legal acquisition of the madhhab was ana-
lysed, the common aspects of rulings that were under different headings in the
sources were brought together, and these were placed under certain maxims.
In this process, efforts to show that the sources of the legal schools were based
on certain foundations and that rulings of substantive law that seemed incon-
sistent were part of systematic legal thought were in the forefront. Jurists who
were members of different schools in the same region shared the purpose of
defending their schools and writing works in the field of legal maxims, so that
there was a movement of writing in this field that had its centre in Baghdad in
the 4/10th century and in Egypt and Syria in the 7/13th century.
The bringing together of legal maxims in independent works also had a prac-
tical side. After the concept of the madhhab took root, Islamic law had a central
role in the curriculum of the madrasas that were opened in the various regions
of the Islamic world.6 The thought of systematically presenting the opinions
of a certain school together with the principles on which they are based made
works of legal maxims significant instruments of instruction in the madrasas.
Some authors of legal maxims in the introductions to their works indicated
this function. For instance, Suyūṭī stated in the introduction to al-Ashbāh that
he had written a work entitled Shawārid al-fawāˀid fī l-ḍawābiṭ wa l-qawāˁid in
the field of legal maxims, that students were interested in that work and that
the work was appreciated, and because of this interest he had decided to write

4 Bedir, Fıkıh, Mezhep ve Sünnet, 117.

5 See Fadel, “The Social Logic of Taqlīd,” ILS, 197.
6 Makdisi, The Rise of Colleges, 80–91.
84 Chapter 5

a work that treated legal maxims more extensively.7 Likewise, the Mālikī jurist
Wansharīsī, in the introduciton to his work of legal maxims, emphasized the
educational aspect of his work by stating that it was a summary that brought
together different fields and reliably presented the principles on which issues
were based.8
Legal differences of opinion constituted another factor that led to independ-
ent works on legal maxims. As stated briefly before, the literature of legal max-
ims developed with a focus on differences of opinion. Karkhī’s al-Risāla fī l-uṣūl,
which is considered the first independent work on legal maxims, and Taˀsīs
al-naẓar, which was written in the following century, provide rich examples
of legal differences of opinion. For instance, the differences of opinion among
the leading authorities of the school and their divergence from other jurists
constitute the basic framework of Taˀsīs al-naẓar. The author analysed legal
maxims in the context of these differences and tried to show that the differ-
ences are based on legal maxims. Likewise, legal differences of opinion played
a pivotal role in works of legal maxims that were written later. Especially in
the works of the 8/14th century, differences of opinion between the madhhabs
played a major role, while in the 10/16th century principles became prominent.
For instance, ˁAlāˀī, who had a leading role in the literature of legal maxims,
while explaining the main impetus for writing his work stated that he aimed to
bring together maxims of uṣūl al-fiqh and substantive law that constituted the
source of differences of opinion.9
Although there were independent works of legal maxims in the 4/10th cen-
tury, a considerable number were not written until the 7/13th century, accord-
ing to the extant information. Beginning with this century, Shāfiˁīs and Mālikīs
led the way in the composition of new works. Although Ḥanafī jurists had
a leading role in the field of legal maxims, between Taˀsīs al-naẓar and Ibn
Nujaym’s al-Ashbāh there is no other work in this field by Ḥanafī scholars. The
fact that we have no extant works by Ḥanafī jurists in the intervening period
does not mean that no works were composed. However, at the beginning of
al-Ashbāh, after indicating the leading role of Ḥanafī jurists in these kinds of
disciplines, Ibn Nujaym acknowledged that they had not written a work equiv-
alent to that of Tāj al-Dīn Ibn al-Subkī.10 This strengthens the possibility that
until his work there had not been another significant Ḥanafī work in the field
of legal maxims. Hence, in the intervening period, Ḥanafī jurists wrote works

7 Suyūṭī, al-Ashbāh, 5.
8 Wansharīsī, Iḍāḥ al-masālik, 133.
9 ‘Alāˀī, al-Majmūˁ al-mudhhab, 1: 207. For a similar expression see Maqqarī, al-Qawāˁid,
1: 212.
10 Ibn Nujaym, al-Ashbāh, 9–10.
The 4/10th–7/13th Centuries 85

in other fields, instead of participating in writing on legal maxims which they

had started.
Chief among the fields, other than legal maxims, which Ḥanafī jurists pur-
sued in the period after the 4/10th century are jurisprudential writings and
studies on the primary sources of the school. This was also the case for legal
scholars of other schools; in the 5/11th and 6/12th centuries important works of
jurisprudence were composed.11 In addition, the transfer of the centre of the
Ḥanafī school in the 4/10th century is an important feature in this context. The
moving of the centre of the school from Baghdad to Transoxiana had an impor-
tant effect on the tradition of writing.12 The dominance of Ḥanbalī thought in
Baghdad beginning with the 5/11th century played a substantial role in Ḥanafī
jurists in that region not continuing the tradition of writing on legal maxims
after Karkhī. While the Ḥanafīs did not play an instrumental role in this region
after this period, the most influential Ḥanbalīs in the 5/11th and 6/12th centu-
ries were linked to Baghdad.13 If we leave aside the impact of Karkhī’s disciple
Jaṣṣāṣ who, instead of writing an independent work, studied the legal maxims
and sub-maxims in the works of Shaybānī, the fact that Taˀsīs al-naẓar as a
Ḥanafī work on maxims was written in Transoxiana in the 5/11th century is a
consequence of the transfer of the centre of the Ḥanafī school.
The factors that were influential in there being no Ḥanafī works on maxims
for a considerable time are that Ḥanafī jurists were occupied with debates in
uṣūl al-fiqh, and that they concentrated on composing works of substantive
law in Transoxiana. In fact, the period in which the most comprehensive and
important works of uṣūl al-fiqh and substantive legal rules were written in the
Ḥanafī school coincides with the period in which no works on legal maxims
were written. For this reason, one can attribute the long interval in Ḥanafī
writing on legal maxims and its revival with Ibn Nujaym at a time that can be
considered late compared to other schools, to the focusing of Ḥanafī jurists on
other issues and genres in parallel with the removal of the centre of the school.

11 For example, important authors of jurisprudential works such as Dabūsī (d. 430/1038),
Abū l-ˁUsr Bazdawī (d. 482/1089), Sarakhsī (d. 483/1090), Samˁānī (d. 489/1096), Abū l-
Yusr Bazdawī (d. 493/1099), Lāmishī (d. 522/1128), ˁAlāˀ al-Dīn al-Samarqandī (d. 539/1145)
and Usmandī (d. 552/1157) lived in this period.
12 Bedir, Fıkıh, Mezhep ve Sünnet, 119–120.
13 Bedir, Fıkıh, Mezhep ve Sünnet, 120, 212.
86 Chapter 5

1 Independent Writing and the Role of the Iraqi Ḥanafī Jurists

The composition of the first work on legal maxims coincides with the 4/10th
century. This century is also significant as the period in which the accumula-
tion of legal knowledge of the previous period was systematically studied and
brought together, and as the period in which key jurists who were frequently
referred to in later centuries lived. If independent works on certain legal issues
from different areas of law are ignored,14 many of the first examples of the
sub-genres of Islamic law were written in this period.15 According to the extant
information, Ḥanafī jurists who wrote the first independent works on legal
maxims and who were members of the fifth generation of the school lived in
this century in Baghdad. The fact that Karkhī, who was the author of Risāla fī l-
uṣūl, considered to be the first work on legal maxims, and Abū Ṭāhir al-Dabbās,
from whom we get the first authentic information about the formation of the
literature of maxims, lived in this century demonstrates that the 4/10th cen-
tury gave birth to the literature of legal maxims.

1.1 Abū Ṭāhir al-Dabbās and the Identification of Maxims on which the
Ḥanafī Legal Understanding is Based
The earliest information concerning the first examples of the legal maxims
which jurists of the 4/10th century strove to bring together gives us Abū Ṭāhir
al-Dabbās who was considered in his lifetime as the leader of the Ḥanafī jurists
in Iraq. He was a pupil of Qāḍī Abū Ḥāzim (d. 292/905) and Abū Saˁīd al-Bardāˁī
(d. 317/929), and studied in the same circles as Ṭaḥāwī (d. 317/929), Karkhī and
Ṭabarī (d. 310/923). He served as a judge in Syria and died in Makkah.16
Abū Ṭāhir al-Dabbās played an instrumental role in the Ḥanafī school as
regards not only legal maxims, but also in other fields. The frequency of quo-
tations from him in legal sources and as well as his scholarly activities indicate

14 For example, Hilāl al-Raˀy’s (d. 245/860) Kitāb al-ḥudūd and Kitāb al-waṣāyā; al-Khaṣṣāf’s
(d. 261/875) Kitāb al-nafaqāt and Kitāb al-radāˁ are among independent works on differ-
ent legal issues. Cf. Kallek, “Hilāl b. Yahyā,” DİA, 18: 21; Öztürk, “Hassāf,” DİA, 16: 395.
15 The first examples of the literature on legal distinctions are also from this period, such
as the works of Abū ˁAbbās Aḥmad b. ˁUmar b. Surayj (d. 306/919) and Abū l-Faḍl
Muḥammad b. Ṣāliḥ al-Karābīsī (d. 322/934). For extensive information see Kızılkaya,
İslam Hukukunda Farklar, 121–145.
16 Ṣaymarī, Akhbār Abī Ḥanīfa, 168. Qurashī, al-Jawāhir al-muḍiyya, 3: 323–324; Laknawī, al-
Fawāˀid al-bahiyya, 308. Although the date of his death is not mentioned in the sources,
judging by his teachers and peers, we can say he lived during the end of the 3/9th and
first half of the 4/10th century. However, some contemporary scholars give the year of his
death as 340/952. See e.g. Shubayr, al-Qawāˁid al-kulliyya, 49.
The 4/10th–7/13th Centuries 87

that he studied and interpreted the juristic accumulation of the school. Dabbās
examined the theachings of Abū Ḥanīfa and his immediate companions and
set out the legal doctrine of the school for later generations. While passing on
their teachings, Dabbās converted them into the paradigm that came to form
the basis of legal maxims. Within this framework, his efforts to organize the
works of Shaybānī and to arrange them according to chapters are significant
in terms of both the Ḥanafī school and the general history of Islamic law. For
instance, it is said that Shaybānī did not separate the main sections of al-Jāmiˁ
al-ṣaghīr into chapters, and that this was done by Dabbās to facilitate the
memorizing and analysis of the work. Aḥmad b. ˁAbd Allāh b. Maḥmūd copied
and read this work to his teacher Dabbās in 322/934. Ibn Māza also followed
Dabbās’ arrangement in his study on al-Jāmiˁ al-ṣaghīr.17 Dabbās’ work on al-
Jāmiˁ al-ṣaghīr shows his effort to form a bridge between his predecessors and
the generations after him through re-examining the legal accumulation of the
school.
One early episode in Islamic legal history illustrates how legal maxims were
collected and studied independently. According to this information which was
first noted in Shāfiˁī sources, Dabbās would repeat the 17 maxims on which
Abū Ḥanīfa’s school is based every night. When the Shāfiˁīs of Harāt learned
that Dabbās, who was tight-lipped about sharing his legal knowledge with the
Shāfiˁīs, had summarized the tradition of the Ḥanafī school in maxims, they
strove to learn these from him surreptitiously, but were able to learn only seven
of them. Qāḍī Abū Ḥusayn al-Marwarrūzī (d. 462/1070) reduced these maxims,
which became widely known among the Shāfiˁīs in Harāt, to the four maxims
on which the Shafiˁī school is founded. These are “certainty is not overruled
by doubt,” “hardship begets facility,” “harm is removed” and “custom is made a
referee.”18
Although there are some debates concerning the details of and the individ-
uals involved in this incident in which Dabbās is the leading protagonist,19 it
is historically significant that it is mentioned in relation to how maxims came
to be independently collected in sources written since the 8/14th century. The
fact that Dabbās’s was a leading name among the Ḥanafīs of Iraq allows us to

17 Kātip Çelebi, Khashf al-ẓunūn, 1: 563; Laknawī, al-Nāfiˁ al-kabīr, 56. Cf. Sezgin, GAS, 1: 428.
18 ˁAlāˀī, al-Majmūˁ al-mudhhab, 1: 252–254; Suyūṭī, al-Ashbāh, 7–8; Ibn Nujaym,
al-Ashbāh, 10–11.
19 In some sources, although it is related that the person who came to Dabbās was Ebū Saˁd
(Saˁīd) al-Harawī (d. 488/1095), Harawī is the one who reports this incident. Cf. Ghamz
ˁuyūn al-baṣāˀir, 1: 36. For extensive information and criticism concerning this incident
see Kızılkaya, Kāsānī’nin Bedāyi‘ İsimli Eserinde Kavāid’in Yeri, 49.
88 Chapter 5

say that the idea of legal maxims developed there. Moreover, the fact that he
was a contemporary of Karkhī, who is considered the author of the earliest
extant work on legal maxims, and that they were present in the same circles
shows that the Ḥanafīs of Iraq in that period had a tendency to connect the
accumulated works of the legal school with maxims and to read the legal her-
itage in the framework of legal principles. Because the sources which men-
tion this incident relate only four of the maxims on which the Ḥanafī school
was founded and there is no information concerning what the other maxims
were, it is difficult to make predictions about them. Even though some mod-
ern scholars argue that these maxims were incorporated in Karkhī’s work on
maxims,20 the fact that only one of the four mentioned maxims is in Karkhī’s
work, and that that took in a different form, leaves unanswered the question of
which maxims Dabbās used to repeat.
Although there are no extant works of Dabbās, some sources state that some
maxims were coined by him. For instance, İzmirli İsmail Hakkı (d. 1946) said
that the maxims “matters shall be judged by their objectives,” “certainty is not
overruled by doubt,” “hardship begets facility,” “harm is removed” and “custom is
made a referee” were coined by him.21 It is difficult to argue that Dabbās first
contributed these maxims to Islamic law, since similar expressions are encoun-
tered in the works of early jurists such as Shaybānī and Shāfiˁī. Therefore, it
seems more accurate to say that Dabbās collected and formulated these max-
ims and presented examples of substantive law that fall under them.
Considering the facts that the maxims Dabbās collected were circulating
among the Shāfiˁīs of Harāt and that Marwarrūzī tried to collect the maxims
on which the Shāfiˁī school is based by using these, evinces that there were
efforts among Shāfiˁīs to gather and write legal maxims also in the 5/11th cen-
tury. However, the fact that the sources do not mention any Shāfiˁī work com-
posed in that period and that no works of that period are extant shows that
Marwarrūzī’s work was isolated and played no role in the formation of the lit-
erature of maxims in the Shāfiˁī school.

1.2 The Analysis of Islamic Law Based on Postulates: Karkhī (d. 340/952)
and His Work Risāla fī l-uṣūl
Abū l-Ḥasan ˁUbayd Allāh b. al-Ḥusayn b. Dallāl al-Karkhī, who was an emi-
nent scholar both in Ḥanafī jurisprudence and substantive law, was born in
Karkh in 260/873. He studied law with the leading authorities of his age, and

20 See e.g. Sḥalabī, al-Madkhal, 326.

21 İzmirli, İlm-i Hilāf, 189.
The 4/10th–7/13th Centuries 89

Abū Saˁīd al-Bardāˁī. Abū ˁAlī al-Shāshī (d. 344/955) and Jaṣṣāṣ in particular
are among his notable pupils. Karkhī’s commentaries on Shaybānī’s al-Jāmiˁ
al-kabīr and al-Jāmiˁ al-ṣaghīr and his al-Mukhtaṣar are seminal works that
record the Ḥanafī legal doctrine of the early period. Karkhī, who became the
leading Ḥanafī scholar after his teacher al-Bardāˁī, took lessons with Dabbās,
who has an important place in the literature of legal maxims.22
In the Ḥanafī school, the first commentaries and compendia based on the
foundational texts were compiled by legal scholars who are considered as the
fifth generation in the school.23 Karkhī, who is of that generation and is among
the jurists most often referred to after the founders of the school, is among the
earliest jurists to conduct a study on al-Jāmiˁ al-ṣaghīr of Shaybānī.24 Various
commentaries have been written on Karkhī’s compendium which he wrote to
summarize the legal knowledge of the school.25 In comparison with Ṭaḥāwī’s
compendium (d. 321/933), it drew a lot of attention, with many commentaries
and glosses written on it. His fame is due both to the fact that he was one of the
first scholars on whose compendium copious commentaries were written as
well as the fact that his pupils spread to the different regions of Iraq, Khorasan
and Transoxiana, broadcasting the legal doctrine of the school.26
Legal maxims are generally transmitted in the course of the discussion of
the legal reason for an issue in commentaries and glosses. However, towards
the end of the 4/10th century, some jurists, chiefly Karkhī and his disciples,
developed a writing style that can be called maslak al-taˀṣīl. According to this
style, relevant issues are treated after maxims and sub-maxims are mentioned
at the beginning of each chapter. As will be discussed in detail in Part 3, the
commentaries on Shaybānī’s al-Jāmiˁ al-kabīr in particular are examples of
this style. This writing style, which first began in commentaries, was gradually
used in independent works that covered all legal fields, thus giving birth to the
literature of legal maxims. This methodology, which in works such as Karkhī’s
al-Risāla and Taˀsīs al-naẓar was applied based on the differences of opinion of
the founders of the legal schools rather than on chapters of law, entered a new

22 For his life and works see Shīrāzī, Ṭabaqāt, 142; Samˁānī, al-Anṣāb, 5: 52; Dhahabī, Siyar
aˁlām al-nubalāˀ, 15: 426–427; Ibn Kathīr, al-Bidāya wa l-nihāya, 15: 209–210; Qurashī, al-
Jawāhir al-muḍiyya, 1: 164; 2: 367, 493–494; Ibn Quṭlūbughā, Tāj al-tarājim, 39; Kaḥḥāle,
Muˁjam, 2: 351.
23 Kaya, Fıkhī Teşekkül, 176.
24 Kātip Çelebi, Kashf al-ẓunūn, 1: 563–564. Cf. İsmail Paşa, Hadiyyat al-ˁārifīn, 1: 354.
25 Qurashī, al-Jawāhir al-muḍiyya, 1: 223. Ibn Kuṭlūbughā, Tāj al-tarājim, 6.
26 Melchert, The Formation, 125–128.
90 Chapter 5

stage with works of legal maxims, in which it was applied based on chapters
of law.
Karkhī and his pupil Jaṣṣāṣ reviewed the accumulated legal works of their
school up to their time and tried to derive fundamental principles from them.
Because of his activities in this field, Karkhī was frequently cited by jurists who
were providing legal reasons which resulted in him having a central position
in the school.27 Karkhī’s determination of the main principles on which issues
of substantive law converged during his work of extracting the foundations of
the school’s legal heritage paved the way for the construction of the material
for the literature of maxims. The activity of identifying basic legal postulates,
which is part of the process of obtaining new rulings, also required the pres-
ervation of the general axioms and fundamental characteristics of the school
by producing information in the school’s doctrinal system. Determining the
principles on which cases of substantive law relied, facilitated the consistency
of new rulings. It was significant in setting out legal reasoning and led Karkhī
and Jaṣṣāṣ to determine legal postulates during the giving of legal reasons so
that these assumptions gradually formed the fundamental maxims of the liter-
ature of maxims. Such efforts by Karkhī led some authors to think that maxims
such as “what is established by certainty is not overruled by doubt,” “ijtihād is not
canceled by another ijtihād,” “what is not allowed by itself, can be allowed in con-
nection with something else,” “proof is required to establish that which is contrary
to what is apparent” and “a subsequent permission is like prior authorization”
were collected for the first time by him.28 However, as will be seen in Part 3, a
large proportion of these maxims can be found in the works of jurists of the
early period, in both the Ḥanafī and other schools. Karkhī’s contribution to this
is using these maxims in the process of takhrīj to produce legal knowledge and
to concisely formulate legal postulates that were present in the sources of the
school as ideas or in longer phrases.
Karkhī’s Risāla fī l-uṣūl, which consists of 39 maxims, is the earliest extant
work on legal maxims. As will be seen in detail below, in this work Karkhī first
presents maxims and sub-maxims that are related to issues of substantive law,
and then treats maxims related to subjects of jurisprudence. That Karkhī did
not provide examples of the maxims and sub-maxims he dealt with and that
the examples were provided by Abū Ḥafṣ ˁUmar al-Nasafī (d. 537/1142) prove
that the focus in the 4/10th century was on extracting legal postulates from the
extensive literature of the school without going into detail.

27 Because of this, Karkhī is considered to have a very important role in the history of Ḥanafī
jurisprudence. Bedir, “Klasik Hanefī Fıkıh Teorisinin Hikayesi,” 87.
28 İzmirli, İlm-i Hilāf, 189–190.
The 4/10th–7/13th Centuries 91

Karkhī’s treatise consisting of maxims and sub-maxims is a work that

attempts to reveal the postulates on which substantive rulings are based in
Shaybānī’s ẓāhir al-riwāya books,29 especially al-Jāmiˁ al-ṣaghīr and al-Jāmiˁ al-
kabīr. Karkhī’s pupil Jaṣṣāṣ followed Karkhī’s method of abstraction of the legal
rules in his commentary on al-Jāmiˁ al-kabīr, which will be treated extensively
in Part 3. Jaṣṣāṣ in almost every section attempts to pursue Shaybānī’s legal
doctrine within the framework of postulates by connecting legal issues with
them. This was also the method followed by commentators of al-Jāmiˁ al-kabīr
after him. Karkhī’s impact on Jaṣṣāṣ and those who followed him was not lim-
ited to substantive law, but is also seen in the field of uṣūl al-fiqh. For instance,
in al-Fuṣūl Jaṣṣāṣ appears as the person who determines the jurisprudential
maxims of the Ḥanafī school by establishing the principles on which the legal
doctrine of the founders of the school is based, in addition to his takhrīj and
the expressions he uses in the rulings he obtains. In this respect, Karkhī’s effort
to determine legal postulates in his al-Risāla and the effort of Jaṣṣāṣ in al-Fuṣūl
to present jurisprudential maxims resemble each other.30
The fact that Nasafī, who was an eminent Ḥanafī jurists of Transoxiana, pro-
vided examples of the maxims in al-Risāla after two centuries is significant
in that it shows that the study quickly spread outside Iraq and was known in
different areas where there were Ḥanafī jurists.31 Nasafī’s spending part of his
education in Baghdad played a role in the transmission to Transoxiana of the
idea of legal maxims that appeared in the Ḥanafī legal circles of Iraq. The edu-
cation he received in Baghdad made him aware of the issues that occupied
legal scholars there and enabled him to peruse Karkhī’s work. Nasafī, who ver-
sified Shaybānī’s al-Jāmiˁ al-ṣaghīr, which is one of the most important sources
that fed the Ḥanafī legal maxims genre,32 was the student of leading scholars
of his time such as Abū l-Yusr al-Bazdawī, Abū Bakr al-Iskāf and Abū l-Qāsim
al-Ṣaffār, and was the teacher of jurists such as Marghīnānī (d. 593/1197) and
ˁUmar al-ˁUqaylī (d. 576/1180). Nasafī’s interest in legal maxims undoubt-
edly influenced Marghīnānī’s method in al-Hidāya of often drawing on legal

29 The ẓāhir al-riwāya is the term used for the six canonical Ḥanafī treatises compiled by
al-Shaybānī. These books are: Kitāb al-Aṣl, Jāmiˁ al-ṣaghīr, Jāmiˁ al-kabīr, Siyar al-ṣaghīr,
Siyar al-kabīr, and al-Ziyādāt. This classification was established by the Ḥanafī biogra-
phers, in the sense that the transmission of these books, from the origin, was supposed
to be faultless, uninterrupted and substantially attested. These books are at the top of the
hierarchy within the Ḥanafī school of law.
30 Kaya, Fıkhī Teşekkül, 218.
31 For Nasafī’s life see Qurashī, al-Jawāhir al-muḍiyya, 2: 657–660; Laknawī, al-Fawāˀid al-
bahiyya, 243–244.
32 Laknawī, al-Nāfiˁ al-kabīr, 58.
92 Chapter 5

maxims and sub-maxims. Nasafī elucidated with examples the 39 maxims

Karkhī handed down. The fact that this is the pattern authors of works of legal
maxims followed shows the leading role Nasafī played in this matter. In most
cases, authors of legal maxims state the maxims and then provide examples of
them from substantive legal rules. Although such a method of writing can be
seen in commentaries on the works of Shaybānī, one encounters it for the first
time in a work on legal maxims in Taˀsīs al-naẓar and Nasafī’s study on Karkhī’s
treatise.

1.2.1 The Content Analysis of Karkhī’s Risāla fī l-uṣūl

The reason Karkhī’s study is called Risāla fī l-uṣūl is that the author expresses
legal maxims in the work using the term al-aṣl (legal postulate pl. uṣūl). The
fact that these legal postulates are principles that generated the opinions of
the school’s jurists is clear from Karkhī’s expression “the legal postulates upon
which the works of our companions are based” which is found in the introduc-
tion to the work.33 The way Karkhī treats maxims is similar to the manner in
which Dabbās repeated them in the tale of how maxims were first collected.
The maxims are concisely set out and are in the form of clauses, covering var-
ious areas from jurisprudence to substantive legal rules. However, the pres-
ence in Karkhī’s treatise of only the principle that “certainty is not overruled
by doubt” from among the fundamental maxims mentioned in the incident
of Dabbās, indicates that the maxims the two jurists collected were different.
The first postulate Karkhī gives is the maxim that appears in later sources
as “certainty is not overruled by doubt.”34 This maxim is set out in other sources
in different forms such as “what is established by certainty is only removed
with what is likewise certain,”35 “doubt cannot oppose the certain”36 and “what
is established with certainty is only removed with certainty.”37 Although this
proposition, which from early on was used in legal texts, is expressed as an
undefined proposition (qaḍiyya muhmala), it is interpreted as a universal one

33 Karkhī, Risāla fī l-uṣūl, 110. The expression in the beginning of the treatise is “al-Uṣūl allatī
ˁalayhā madār kutub aṣḥābinā.”
34 Karkhī, Risāla fī l-uṣūl, 110. Karkhī states the postulate as: al-Aṣlu anna mā thabata bi-l-
yaqīni lā yazūlu bi-l-shakk.
35 “Mā thabata bi yaqīnin lā yazūlu illā bi yaqīnin mithlih”, “al-Thābitu bi yaqīnin lā yazūlu illā
bi yaqīnin mithlih” Kāsānī, Badāˀiˁ al-ṣanāˀiˁ, 2: 80; 3: 212.
36 Mawṣilī, al-Ikhtiyār, 3: 158; ˁAbd al-ˁAzīz al-Bukhārī, Kashf al-asrār, 1: 24.
37 “Mā thabata bi yaqīnin lā yartafiˁu illā bi yaqīnin” Ibn Nujaym, al-Ashbāh, 64. The maxim
is also expressed in different forms in non-Ḥanafī sources. For example, Ibn al-Najjār (d.
972/1564) mentions the maxim as “One of the evidences of fiqh is that something that is
certain is not removed with doubt.” Ibn al-Najjār, Sharḥ al-kawkab al-munīr, 4: 439.
The 4/10th–7/13th Centuries 93

(qaḍiyya kulliyya). This maxim, which is studied among fundamental maxims

in works on maxims, encompasses three quarters of Islamic law, since it cov-
ers many different legal subjects including worship, transactions, marriage and
penal law.38 Also, the fact that this maxim, beginning with sources of the early
period, is expressed in a standard manner may be explained by the fact that
different legal schools frequently referred to it to explain legal issues.39
Nasafī explains this maxim using the example of ablution in the law of wor-
ship. According to this, someone who knows for certain that he has performed
ablution is considered to be in a pure state even if he doubts whether he is in a
state of purity.40 When legal issues that are related to the maxim of “certainty is
not overruled by doubt” are analysed, one finds two common features in these rul-
ings: the existence of a certain situation or certainty that it has occurred and the
occurrence of doubt whether the same situation continues. In other words, the
maxim is related to situations in which there is doubt about whether something
certain ceases due to some causes. Consequently, the maxim is not limited to the
law of worship but applies also to other subjects of law.
Although Karkhī tried to pass on the legal doctrine of the school by for-
mulating maxims in a concise manner, considering the period in which he
lived it is difficult to say that the expressions of the maxims achieved stability.
Hence, some of the maxims he treats in comparison with maxims set out in
later works on legal maxims do not have the same level of conciseness. For
instance, Karkhī expresses the maxim that is presented in later works as “con-
sideration is for the dominant and the wide-spread, not the rare” in the form
“question and address is for the general and dominant, not for the exception and
rare.”41 Likewise, Karkhī’s maxim “a person is treated according to his confes-
sion about himself; a confession that voids the right of another or necessitates a
right for another is not considered” is expressed in later sources as “confession
is a restricted proof.”42 However, the maxims “a subsequent permission is like a

38 Suyūṭī, al-Ashbāh wa l-naẓāˀir, 51.

39 Compared with the four Sunnī schools, jurists of the Shīˁī and Ẓāhirī schools have used
this maxim more often. Bāḥusayn explains this by the negative attitude of both schools
towards legal analogy in legal justifications, so that they use the evidence of istiṣḥāb more,
and discuss the maxim under this type of evidence. Bāḥusayn, Qāˁidat al-yaqīn lā yazūlu
bi-l-shakk, 49 n. 1.
40 Karkhī, Risāla fī l-uṣūl, 110.
41 “Al-aṣlu anna al-suˀāla wa al-khitāba yamdī ˁalā mā ˁamma wa ghalaba lā ˁalā mā shadh-
dha wa nadara.” See Karkhī, Risāla, 112. Cf. Majalla, cl. 42.
42 Karkhī, Risāla, 112. Cf. Ibn Nujaym, al-Ashbāh, 302; Majalla, cl. 78.
94 Chapter 5

previous agency” and “proof is upon the one who claims what is contrary to the
apparent” are as they appear in later sources.43
Karkhī, in his treatise, first dealt with maxims concerning substantive legal
rules and then maxims concerning issues of uṣūl al-fiqh. In uṣūl al-fiqh, he first
set out the postulate “every verse of the Qurˀān that is contrary to the opinions
of our companions is interpreted through abrogation or preference; what is pref-
erable is to reconcile them through preference,” and then the postulate “every
report that is contrary to the opinions of our companions is interpreted though
abrogation or the existence of another report.”44 Sidelining the debates about
these expressions, the first of these is related to the Qurˀān while the second is
related to the Sunna.45 The postulates he set out afterwards deal with ḥadīths,
consensus, opinions of the companions, legal cause, legal analogy and utter-
ances. Although the boundaries are not very clearly defined, Karkhī devoted
27 postulates of his treatise to issues of substantive law and 12 to issues of uṣūl
al-fiqh, arranging the latter according to the hierarchy of sources.
Considered in conjunction with ˁUmar al-Nasafī’s commentary, one of the
original features of Karkhī’s treatise is the mention of an abstract rule and treat-
ment of related examples from substantive legal rules within this framework.
When books of substantive law are analysed, legal maxims are presented in
debates concerning myriad legal issues. These debates can be between differ-
ent legal schools as well as among jurists who are members of the same school.
In both cases, maxims are used within the framework of the legal example that
is being investigated to support the opinion being offered. However, beginning
with the first works in the literature on them, legal maxims have been treated
differently. In maxim works, beginning with Karkhī’s al-Risāla, the maxim is
mentioned first, with examples from substantive law being mentioned below
it. Thus, the structure of the texts has changed from maxims that support
issues of substantive law to examples of substantive law that are treated under
maxims.

1.3 Two Important Names in the Shāfiˁī and Mālikī Tradition of

Maxims: Ibn al-Qāṣṣ (d. 335/947) and Khushanī (d. 361/972)
Even though Ḥanafī jurists were pioneers in presenting legal issues in the
form of postulates, legal scholars of other schools also adopted this approach.
Based on the extant material it is difficult to say that there are independent
maxim works of jurists of other schools, but in sources of substantive law they

43 Karkhī, Risāla, 114, 110. Cf. Majalla, cl. 1453, 77.

44 Karkhī, Risāla, 116.
45 E.g. SḤalabī, Taˁlīl al-aḥkām, 340–341.
The 4/10th–7/13th Centuries 95

frequently devoted space to maxims and sub-maxims and used universal forms
that would pave the way for establishing maxims. Among these is al-Talkhīṣ of
Ibn al-Qāṣṣ, who was a leading name among the Shāfiˁīs of Baghdad, in which
he frequently criticized the opinions of the Ḥanafīs and of which ˁAlāˀī said
that it was chief among the works that led him to write a book on maxims.46
Ibn al-Qāṣṣ, who was in the same scholarly milieu as Karkhī and probably also
Dabbās, frequently in his work sets out legal propositions that begin with the
word “kull (all),” and attempts to state substantive legal rules using expressions
that are more abstract than previous works.47 Because of this approach which
is based on maxims, Ibn al-Qāṣṣ had a noticeable impact on Shāfiˁī authors
of maxims. In fact, Ibn al-Subkī directly attributes many maxims to him with
the words “Ibn al-Qāṣṣ said” and “the author of al-Talkhīṣ said.” For example,
Ibn al-Subkī got from him the sub-maxim “whoever destroys something that is
permissible to sell has to pay for it.”48 But this effort of Ibn al-Qāṣṣ did not lead
to the production of an independent work.
Uṣūl al-futyā fī l-fīqh ˁalā madhhab al-Imām Mālik of the Mālikī jurist
Khushanī (d. 361/972) is another example that paved the way for legal maxim
literature. Khushanī, who mentions the postulates on which the legal issues
of the sources of the legal school are based at the beginning of sections and as
needed, like Ibn al-Qāṣṣ sets out legal maxims and sub-maxims using words
such as “kull (all)” and “al-aṣl (postulate)”. Khushanī, who mainly considers the
differences of opinion among Mālikī jurists, explains these differences within
the framework of the postulates on which the legal school is based. The author,
who does for the Mālikī school what some Ḥanafīs such as Jaṣṣāṣ did with their
commentaries on Shaybānī’s al-Jāmiˁ al-kabīr, differs from Ḥanafī jurists in
that, after he sets out the preferred opinion in the school within the frame-
work of a postulate, he also transmits other opinions and tries to explain them.
In commentaries on al-Jāmiˁ al-kabīr, however, the principles upon which
Shaybānī’s opinions are based are directly explained. Although it is significant
that in Andalusia, where Khushanī lived, there was an effort to present the
legal accumulation of the school within the framework of postulates, the fact
that independent works in that region appear much later shows that Uṣūl al-
futyā did not have sufficient influence to inspire independent works.49

46 ˁAlāˀī, al-Majmūˁ al-mudhhab, 1: 208, 315. Ibn al-Subkī also frequently refers to Ibn al-
Qāṣṣ, e.g. Ibn al-Subkī, al-Ashbāh, 1: 305.
47 E.g. Ibn al-Qāṣṣ, al-Talkhīṣ, 78, 84, 93, 190, 272, 378, 595 and passim.
48 Ibn al-Subkī, al-Ashbāh, 1: 305. For other examples see Ibn al-Subkī, op. cit., 1: 15, 16, 29–30,
83, 202, 205, 306, 318–319, 330, 362.
49 For a study of the maxims in Uṣūl al-futyā see ˁAkkush, al-Qawāˁid wa l-ḍawābiṭ al-fiqhiyya
al-mustakhlaṣa min kitāb uṣūl al-futyā.
96 Chapter 5

1.4 The Transfer of the Tradition of Writing on Maxims from Iraq to

Transoxiana: The Work at the Intersection of Comparative Law and
Legal Maxims, Taˀsīs al-naẓar
Dabūsī (d. 430/1039), who was among the well-known figures of the Ḥanafī
school in Transoxiana in the 5/11th century and who died in Bukhara, in
addition to the works he wrote in Islamic jurisprudence and substantive law
is considered to be the founder of ˁilm al-khilāf (the science of comparative
law).50 His impact was not limited to Transoxiana and the Ḥanafī school but
also affected other regions and schools. Muḥammad Ḥamīdullāh says about
him: “The famous Andalusian Jurist Ibn al-ˁArabī came to Baghdad, copied the
works of Dabūsī and transmitted them to the western Islamic world. Hence, one
can say that the legal works of Ibn Rushd were influenced by Dabūsī.”51
If this information Ḥamīdullāh relates without identifying the source is true,
it demonstrates that Dabūsī’s influence spread very quickly from Transoxiana
to Iraq, and from there to Andalusia, and affected the comparative legal doc-
trine of Ibn Rushd. But it is difficult to argue for such an impact as regards
maxims, since Mālikī jurists started producing works of maxims much later.
Nevertheless, many authors admit that Dabūsī played a leading role in the
literature of maxims. The influence of Dabūsī’s work led to the claim that
some maxims were formulated by him. For instance, İzmirli İsmail Hakkı (d.
1946) stated that the maxims “certainty is not removed by doubt,” “consideration
is for the dominant and the wide-spread” and “the existence of something that is
indivisible is like the existence of its whole” were articulated by Dabūsī.52
Taˀsīs al-naẓar, which in printed versions is attributed to Dabūsī but whose
attribution and title are debated, is a seminal book on maxims.53 In addition,

50 Ibn Khallikān, Wafayāt, 3: 48; Qurashī, al-Jawāhir al-muḍiyya, 2: 499–500; Ibn al-ˁImād,
Shadharāt al-dhahab, 5: 151–152; Laknawī, al-Fawāˀid al-bahiyya, 184.
51 Ḥamīdullāh, İslām Hukuku Etüdleri, 65. For Ibn al-ˁArabī’s transmission of Taˀsīs al-naẓar
to Maghrib see Wansharīsī, Īḍāḥ al-mesālik, 119, n. 35. For Ghazālī’s criticism in al-Mankhūl
of certain opinions of Dabūsī in Taqwīm al-adilla see Ahmad, Structural Interrelations of
Theory and Practice in Islamic Law, 52.
52 İzmirli, İlm-i Hilāf, 189–190.
53 In Zakariyyā ˁAlī Yūsuf’s publications in Cairo and Muṣtafā Muḥammad al-Qabbānī’s in
Beirut the work is called Taˀsīs al-naẓar and the author is Dabūsī. There is debate concern-
ing the title of the work and whether it belongs to Dabūsī, Abū al-Layth al-Samarqandī
(d. 373/983) or Abū Jaˁfar al-Shirmārī. According to Şükrü Özen, the work’s title is Taˀsīs
al-naẓāˀir and the author is Abū Jaˁfar al-Shirmārī. Özen mentions that Shirmārī, about
whom there is not much information, may have lived in the 5/11th or 6/12th century. Özen,
“Te’sīsü’n-nezāir”, DİA, xl, 545–546. However, Ḥamawī, while mentioning a maxim, attrib-
utes the related example to Abū al-Layth, giving the title of the work as Taˀsīs al-naẓāˀir.
ḤḤamawī, Ghamz ˁuyūn al-baṣāˀir, 1: 437; 4: 232. On whether the work belongs to Dabūsī
see also Debūsī, Mukayeseli İslam Hukuk Düşüncesinin Temellendirilmesi, introduction by
The 4/10th–7/13th Centuries 97

all three possible authors whom the book is attributed were followers of the
Ḥanafī school in Transoxiana in the 4/10th-6/12th centuries. This shows that
the tradition of writing on maxims was inherited from Dabbās and Karkhī
and in parallel with the weakening of the Ḥanafī school in Baghdad vis-à-vis
Ḥanbalīsm, this tradition moved to Transoxiana. Hence, in lively centres of
Ḥanafī intellectual thought like Bukhara and Samarkand, studies on the works
of Shaybānī proliferated and the extensive legal accumulation of the school
was analysed from the perspective of principles. Taˀsīs al-naẓar, which is a sig-
nificant work in the literature of maxims, was generated in such a milieu.
Dabūsī tried to enliven the Baghdad-centred Ḥanafī tradition of jurispru-
dential writing in Transoxiana.54 Although Dabūsī did not take lessons from
Karkhī, through Usrūshanī,55 the disciple of Jaṣṣāṣ, he became familiar with
the tradition of Iraqī jurists and benefited from Karkhī’s treatise in Taˀsīs al-
naẓar. For instance, he attributes the first maxim at the beginning of his work
directly to Karkhī.56 Dabūsī, who follows Karkhī not only by passing on max-
ims from his work but also in terms of method, emphasizes some aspects while
explaining his main impetus for writing Taˀsīs al-naẓar. He states that students
of law have difficulty in memorizing issues of comparative law and do not
know how to extract legal causes from rulings on these issues. Dabūsī links
this difficulty with not knowing the substance of the sources of issues of com-
parative law.57 These expressions substantiate the difficulty in memorizing
these issues and identifying their legal causes is related to legal maxims which
facilitate knowledge of legal causes. This constitutes the main impetus for the
composition of the work. Thus, Taˀsīs al-naẓar treats the reasons for legal dif-
ferences of opinion in the framework of maxims concentrating on issues of
comparative law and does this with the purpose of teaching these to students
of Islamic law. This explains why Taˀsīs al-naẓar is considered the first work of
comparative law,58 given that its author explains the subjects he studied based
on legal differences of opinion.
Taˀsīs al-naẓar is also considered among the sources of the literature of
takhrīj al-furūˁ because of its multi-faceted features that were original in their

the translator, 60–63. For the current study, what is important is that in the 5/11th or 6/
12th century, a Ḥanafī jurist wrote a work on maxims. Although this study agrees with
Özen’s claims, the author and title of the published versions will be used.
54 Bedir, “Klasik Hanefī Fıkıh Teorisinin Hikayesi,” İslam ve Klasik, 87–88.
55 Qurashī, al-Jawāhir al-muḍiyya, 4:32; Kavakçı, Karahanlılar Devrinde İslām Hukukçuları,
33–34.
56 Dabūsī, Taˀsīs al-naẓar, 6.
57 Dabūsī, Taˀsīs al-naẓar, 5.
58 See Ibn Khallikān, Wafayāt, 3: 48; Taşköprüzāde, Miftāḥ, 1: 284.
98 Chapter 5

time alongside comparative law.59 That the book is considered a work of com-
parative law or takhrīj al-furūˁ does not prevent it from also being considered
a work of legal maxims. Since Dabūsī treated legal differences on the basis of
maxims, it is natural that his book is considered a work of maxims. As will be
seen in detail in this chapter, many maxims and sub-maxims contained in later
works on maxims are found in Taˀsīs al-naẓar. Because of this feature, it has
been said that the foundational maxims in the Majalla were taken from Ibn
Nujaym, and these were inspired by Taˀsīs al-naẓar.60
From certain of Dabūsī’s expressions, it is understood that he is trying to
maintain a tradition that predated him. This approach, which pervades the
foundational sources of the legal school on the basis of maxims, also consti-
tutes one of the important elements of takhrīj. Jurists who exercised takhrīj
studied legal issues within the framework of maxims on which the approach
of the mujtahids of the early generations was based and exercised takhrīj
departing from these maxims. There are several examples of such activities
of the jurists of the legal schools in Taˀsīs al-naẓar. For instance, Dabūsī, in
the first section in which he investigated the differences of opinion between
Abū Ḥanīfa and his two disciples, Abū Yūsuf and Muḥammad, on the basis of
the maxims which generate those differences, mentioned the postulate “some-
thing that changes an obligatory act in its beginning also changes it at its end,”
providing related examples from the law of purity and worship. At the end
of the examples he said, “It is said that Abū Saˁīd al-Bardāˁī derived (takhrīj)
these issues from another postulate. This postulate is the following: It is obligatory
for a person to come out of ritual prayer with his own action; for Abū Yūsuf and
Muḥammad this is not obligatory.” By means of this statement he revealed the
issue to which the accepted principle is related.61 The way Bardāˁī (d. 317/929),
who was the professor of maxim authors such as Karkhī and Dabbās, derives
postulates from the opinions of the founders of the school provides impor-
tant clues about how maxims are obtained from the legal accumulation. The
fact that Dabūsī mentions Bardāˁī’s opinions in the context of the maxims he
identifies is significant in that it shows the link between Dabūsī and previous
authors of maxims. In fact, Dabūsī, like those before him, sets out in Taˀsīs al-
naẓar the opinions of founding jurists on issues of substantive law, producing
maxims from these and deriving many new examples through the maxims.

59 Bāhusan, al-Takhrīj, 112; Shūshān, Takhrīj al-furūˁ ˁalā l-uṣūl, 1: 283; Ahmad, Structural
Interrelations of Theory and Practice in Islamic Law, 49.
60 Mardin, Medenī Hukuk Cephesinden Ahmet Cevdet Paşa, 7, n. 4.
61 Dabūsī, Taˀsīs al-naẓar, 6–8.
The 4/10th–7/13th Centuries 99

Undoubtedly, Taˀsīs al-naẓar is a seminal book as regards maxims. Focusing on

the causes of legal differences, the author shows that the divergence of opinion
among the jurists is due to the differences in the criteria of applying the state-
ments of the Sharīˁa or the principles. In other words, the different opinions are
due to different legal principles. In this respect, it is conspicuous that Taˀsīs al-
naẓar influenced other works written after it, especially in the literature of max-
ims. The method followed in legal maxim literature of first mentioning a maxim
or a sub-maxim and then analysing related legal issues closely resembles the
pattern of Taˀsīs al-naẓar. However, the method of analysing maxims by focusing
on comparative law which dominates in Taˀsīs al-naẓar is neither found in pre-
vious works nor common among later works. For instance, Karkhī considered it
sufficient to set out legal maxims and sub-maxims. Nasafī explained these using
various examples and in a few places indicated differences among the founding
Ḥanafī jurists and between them and Shāfiˁī.62 In contrast, in Taˀsīs al-naẓar legal
maxims and ḍawābiṭ are analysed within the framework of comparative law. This
style of writing about maxims based on comparative law did not establish a tradi-
tion. The method was employed only by Zanjānī and a few others.63

1.4.1 The Content Analysis of Taˀsīs al-naẓar

Dabūsī, who wrote Taˀsīs al-naẓar in order to explain the differences of mujta-
hids by way of maxims, organized the work using a system that was different
from those of previous works. Taˀsīs al-naẓar consists of nine chapters. In the
first eight he investigates the differences between mujtahids on various issues,
while in the ninth he analyses the maxims that were the basis of certain dis-
putes. Dabūsī mentions 86 maxims. The chapters are as follows:
1. Issues in which Abū Ḥanīfa differs from his two companions, Abū Yūsuf
and Shaybānī: 22 maxims are mentioned.
2. Issues in which Abū Ḥanīfa and Abū Yūsuf differ from Shaybānī: four
maxims are mentioned.
3. Issues in which Abū Ḥanīfa and Shaybānī differ from Abū Yūsuf: three
maxims are mentioned.
4. Disputes between Abū Yūsuf and Shaybānī: four maxims are mentioned.
5. Disputes between these three (Abū Ḥanīfa, Abū Yūsuf and Shaybānī) and
Zufar: eight maxims are mentioned.64

62 Karkhī, Risāla fī l-uṣūl, 111, 114, 116–117, 119.

63 Özen, “Hilāf,” DİA, 17: 533.
64 Some scholars interpret the expression the author uses here, which is “disputes between
the three Imams and Zufar,” as implying that Zufar is excluded from the Ḥanafī school.
Cf. Özen, “İlm-i Hilāfın Ortaya Çıkışı,” 46. However, it is hardly justified to come to such
100 Chapter 5

6. Disputes between the Ḥanafī jurists and Mālik: two maxims are
mentioned.
7. Disputes between three Ḥanafī jurists (Shaybānī, Ḥasan b. Ziyād and
Zufar) and Ibn Abī Laylā: five maxims are mentioned.
8. Disputes between the three Ḥanafī jurists (Abū Ḥanīfa, Abū Yūsuf and
Shaybānī) and Shāfiˁī: 26 maxims are mentioned.
9. Maxims that constitute the bases of issues in which there is divergence
of opinion: 12 maxims are mentioned.65
After Dabūsī explains the contents in the introduction in this manner, he
states that the first eight chapters consist of sections that contain various max-
ims and that each maxim is explained by many examples. Dabūsī states that
the differences he treats are examples and that he could have taken the differ-
ences of Ibrāhīm al-Nakhaˁī, Sufyan al-Thawrī, Awzāˁī and Shaˁbī, but that he
avoided this for the sake of brevity. Dabūsī also states that he does not go into
detail, considering the issues just to elucidate their relationship to the maxims
he sets out.66 Dabūsī first mentions the maxim that causes the differences with
the word al-aṣl, and then uses the expression “based upon this there are issues
(ˁalā hādhā masāˀil)” to discuss examples of differences related to this maxim.
At other times he gives examples using the phrase “among these (wa minhā),”
which is the style that is used in most maxim works.
As can be seen from the arrangement of the work, Dabūsī sets out the differ-
ences between the jurists concerning legal maxims and sub-maxims, studying
how these differences lead to differences in legal opinions through examples.
The pattern of presenting examples under maxims was adopted by nearly all
subsequent works of maxims and became the bedrock of maxim literature,
which shows the influence of Taˀsīs al-naẓar. The fact that Dabūsī mentions
a maxim or a sub-maxim and then gives examples without going into much
detail, and without even mentioning in many cases which legal scholars hold
the opinion set out in the example shows, as he states, that differences in
substantive legal rules are due to maxims. Because of this, unlike in works of
substantive law, he does not discuss differences of opinion together with their
justifications based on evidence.
Most of the maxims mentioned in Taˀsīs al-naẓar are not concisely stated.
Maxims that later became more concise are set out in a more general form.
However, from the expressions used in the maxims and the examples provided

a conclusion from Dabūsī’s expression, since similar expressions are used in the text for
other founding Ḥanafī jurists.
65 Dabūsī, Tasīs al-naẓar, 5–6.
66 Ibid, 6.
The 4/10th–7/13th Centuries 101

we can speculate which later maxims and sub-maxims are based on Dabūsī’s
maxims. For instance, the maxim that is presented in the literature as “cer-
tainty is not overruled by doubt” is mentioned in the following manner in Taˀsīs
al-naẓar:

The postulate (aṣl) according to Abū Ḥanīfa is that if something is estab-

lished in a complete and certain manner, regardless of how this certainty
is reached, that thing will be in that state unless one becomes certain of a
state that is contrary to it. For example, one who is certain of performing
ablution but has doubts concerning whether he needs to perform ablu-
tion again, is considered to be in a state of ablution; and the one who is
sure that he needs to perform ablution, but has doubts whether he per-
formed the ablution is considered as not having ablution. Abū ˁAbd Allāh
Muḥammad b. Idrīs al-Shafiˁī, the Imam from the Quraysh, is also of this
opinion. There are issues based on this postulate.67

The expression and examples Dabūsī used show that he used the well-known
maxim and treated it by attributing it to Abū Ḥanīfa. The fact that the ablution
example he examines is the one that is mentioned in virtually all maxim works
indicates that the example has become synonymous with this maxim.
Although Dabūsī states in the introduction that he will treat the divergence
of opinions and will organize the controversies based on jurists’ arguments, in
the general structure of the work maxims of jurisprudence and substantive law
are presented in an unorganized manner. However, in the first section in which
he deals with the differences between Abū Ḥanīfa and his two main disciples,
he follows the subject order of substantive law works. He first treats the sub-
jects of purity and worship, and then moves on to issues of transactions.68 He
does not follow such an order in other sections.
While treating the disputes among Ḥanafī jurists, Dabūsī extracts maxims
from examples of substantive law and analyses the differences within this
framework. However, in the section where he deals with the disputes between
the Ḥanafīs with Mālik and Shāfiˁī, among the maxims that constitute the bases
of these differences he mentions both examples of substantive legal rules as
well as subjects of jurisprudence.69 For instance, at the beginning of the section
that deals with legal differences with Mālik, he sets out the maxim, “According
to our three scholars [i.e. Abū Ḥanīfa, Abū Yūsuf, and Shaybānī], the report that is

67 Dabūsī, Taˀsīs al-naẓar, 10.

68 Dabūsī, Taˀsīs al-naẓar, 6–37.
69 Dabūsī, Taˀsīs al-naẓar, 65–68, 70–93.
102 Chapter 5

narrated from the Prophet (pbuh) through a single transmission has precedence
over sound legal analogy; according to Mālik, the sound analogy has precedence
over the single transmission.” He then presents examples and relates them to
those maxims.70 Likewise, in the section in which he deals with the differences
with Shāfiˁī, he presents jurisprudential differences, such as that concerning
the statements of the Companions of the Prophet. Dabūsī said, “According to
our companions [i.e. the Ḥanafīs] the postulate is the following: The statement of
a Companion, as long as another Companion does not oppose it, has precedence
over analogy. According to the Imam from Quraysh, Abū ˁAbd Allāh Muḥammad
b. Idrīs al-Shāfiˁī, analogy has precedence over the statement of a Companion.”71
Nevertheless, the vast majority of the rules treated in the work are maxims and
are elucidated with examples from substantive law.
The 13 maxims set out in the last chapter concern issues the author was not
able to treat earlier. Whilst Dabūsī espouses a method of mentioning maxims
in the framework of differences of opinion in the first eight chapters, in this
chapter he deals with maxims jurists use in various issues of substantive law
and gives examples of them. For this reason, in the last chapter the method of
dealing with maxims centred around differences of opinion changes to pre-
senting maxims and examples.72

1.5 Studies in the Field of Maxims in the 6/12th Century

Although some bibliographical encyclopedias mention several works in the 6/
12th century that have dealt with legal maxims, some of these have not sur-
vived. As a result, we have no exact information about their contents. For
example, Kātip Çelebi, in the section in which he treats Shāfiˁī maxim works,
mentions a compendium belonging to Ibn Dūst (d. 507/1114), but does not
discuss any of its features.73 Based on extant information, it is difficult to say
whether this is a work on maxims. A book known as al-Qawāˁid that is attrib-
uted to Qāḍī ˁIyāḍ (d. 544/1149), who lived in the same period, is entitled al-
Iˁlām bi-ḥudūd qawāˁid al-Islam.74 Taking as its basis the ḥadīth that states
that Islam is founded upon five pillars, the work was composed to explain the
foundations of Islam to beginners, explaining each pillar as a qāˁida. As such,
it is not a work on legal maxims.75 Lastly, a work entitled Īḍāḥ al-qawāˁid is

70 Dabūsī, Taˀsīs al-naẓar, 65.

71 Dabūsī, Taˀsīs al-naẓar, 75.
72 Dabūsī, Taˀsīs al-naẓar, 93–107.
73 Kātip Çelebi, Kashf al-ẓunūn, 2: 1359.
74 İsmail Paşa, Īḍāḥ al-maknūn, 2: 243–244.
75 See Qāḍī ˁIyāḍ, al-Iˁlām.
The 4/10th–7/13th Centuries 103

attributed to ˁAlāˀ al-Dīn al-Samarqandī (d. 540/1145) in Hadiyyat al-ˁārifīn.76

However, other sources do not corroborate the fact that this study deals with
maxims and maxim literature does not mention it, so it is possible that the
work may have dealt with substantive law or jurisprudence. Based on extant
sources and library records, we are not confident that any maxim works sur-
vive from this century other than Abū Ḥafṣ ˁUmar al-Nasafī’s commentary on
Karkhī’s al-Risāla.

2 The Transfer of Legal Thought on Maxims from Baghdad to

Cairo: The Central Role of ˁIzz b. ˁAbd al-Salām (d. 660/1262) and
Qarāfī (d. 684/1285)

Some scholars who attended Mālik b. Anas’s study circle settled in Egypt and
played an instrumental role in the spread of the Mālikī school there. Therefore,
Mālik’s legal opinion was the first one to reach the region and for a long time
the dominant one in the region. In fact, when Shāfiˁī came to Egypt he strug-
gled with the Mālikī presence and worked hard to establish his own opinions.77
Shāfiˁī’s Egyptian disciples Buwayṭī (d. 231/846), Muzanī (d. 264/878) and Rabīˁ
b. Sulaymān (d. 270/884) played a major role in the formation of the Shāfiˁī
school and its establishment in Egypt. The Mālikī school in Egypt, which gave
way to the Shāfiˁī school in the Fatimid period, continued to exist until the
end of the 6/12th century, and went through a revival in the Mamluk period by
proliferating its activity, especially in the judiciary.78 In parallel to this revival,
important works were composed in the field of maxims. In sum, the Mālikī
and the Shāfiˁī schools began their existence in Egypt at an early date and their
presence has continued until today. The Ḥanafī presence in Egypt, however, as
will be seen below, took a different course.
The intellectual vivacity of 7/13th century Cairo generated studies that con-
stitute a turning point in maxim literature. The concept of formulating max-
ims, which was pioneered by Ḥanafī scholars of Baghdad, gave way to the legal
understanding of two jurists who lived in Egypt in the 7/13th century which
was based on maqāṣid (the objectives of Sharia) and furūq (legal distinctions).
Certainly the fact that ˁIzz b. ˁAbd al-Salām and Qarāfī transcended the Shāfiˁī
and Mālikī schools to influence other legal schools through their leading roles

76 İsmail Paşa, Hadiyyat al-ˁārifīn, 2: 90.

77 Aybakan, İmam Şāfiī, 44–45.
78 Kaya, “Mālikī Mezhebi”, DİA, 27: 522.
104 Chapter 5

in the legal maxim literature has a lot to do with the central position of Cairo
in influencing the scholarship of the era.

2.1 The Cairo-Based Maxim Writing Tradition and ˁIzz b. ˁAbd al-Salām
The 7/13th century is a period in which important works of maxim literature were
composed. Although some sources mentioned the work al-Qawāˁid fī furūˁ al-
Shāfiˁīyya belonging to Abū Ḥāmid al-Jājarmī, who lived at the beginning of the
century,79 it is ˁIzz b. ˁAbd al-Salām and Qarāfī who became prominent by shaping
the course of the maxim literature after them through their studies on maxims.
ˁIzz b. ˁAbd al-Salām, who died a year after the Abbasid caliphate fell in Baghdad
and was transferred to Egypt in 659/1261, has two works on maxims, one of which
is an abridgment of the other. Some Shāfiˁī sources regard ˁIzz b. ˁAbd al-Salām’s
principal work Qawāˁid al-aḥkām fī maṣāliḥ al-anām,80 also known as al-Qawāˁid
al-kubrā, as the first work in the field of maxims and regard him as the first scholar
in this field.81 In this work, unlike in other works, ˁIzz b. ˁAbd al-Salām tries to
show that Islamic law is based on acquiring benefits and preventing evil (jalb al-
maṣāliḥ wa dafˁ al-mafāsid), and that this is the foundational maxim on which all
legal rulings are based.82 Although later maxim works did not adopt his approach
and methodology, nevertheless al-Qawāˁid al-kubrā played a leading role in legal
maxims being accepted by Shāfiˁī jurists and catalyzed the composition of other
maxim works. The fact that other authors of works of legal maxims such as Tāj
al-Dīn al-Subkī and Suyūṭī mentioned the works of ˁIzz b. ˁAbd al-Salām in their
introductions substantiates his pioneering role in the literature of legal maxims.83
Just as Qawāˁid al-aḥkām does not resemble standard maxim works, it also
differs from legal works in terms of its arrangement. The book focuses on a
maxim having the feature of bringing together legal maxims and maqāṣid.
Hence, Qawāˁid al-aḥkām is considered the forerunner of Qarāfī’s al-Furūq and
Shātibī’s Muwāfaqāt.84 In addition to influencing many scholars afterwards,
the fact that nearly all later maxim works refer to ˁIzz b. ˁAbd al-Salām shows

79 Ibn Khallikān (d. 681/1282), who lived in the same century, stated that people studied and
benefited from his maxim work. See Ibn Khallikān, Wafayāt, 4: 256. Unfortunately, we do
not have any evidence that the work has survived.
80 The name of the work in the publication of Nazīh Kamāl Ḥammād and ˁUthmān Jumˁa
Damīriyya is Qawāˁid al-aḥkām fī iṣlāḥ al-anām.
81 See Zarkashī, al-Baḥr al-muhīṭ, 1: 25.
82 ˁIzz b. Abd al-Salām, al-Qawāˁid al-kubrā. Ibn al-Subkī, who criticizes the approach of
reducing Islamic law to five maxims, stated that ˁIzz b. Abd al-Salām bases all of Islamic
law on a single maxim. See Ibn al-Subkī, al-Ashbāh, 1: 12.
83 Ibn al-Subkī, al-Ashbāh, 1: 12; Suyūṭī, al-Ashbāh, 8.
84 Apaydın, “İbn Abdüsselām,” DİA, 19: 286.
The 4/10th–7/13th Centuries 105

his pioneering role in the legal maxim literature. Although Qawāˁid al-aḥkām,
which Kātip Çelebi describes as having no equal in its field, influenced for the
most part Shāfiˁī and Mālikī authors of maxims, Ḥanafī jurists such as Ibn
Nujaym also benefited from it.85
ˁIzz b. ˁAbd al-Salām’s disciple Qarāfī played a major role in both the circu-
lation of his work among Mālikī jurists and influencing the Mālikī literature
on maxims. In fact there are many examples in Qarāfī’s al-Furūq that illus-
trates that his professor’s opinions influenced him86 as well as other Mālikī
maxim authors such as Maqqarī and Wansharīsī.87 The first study on Qawāˁid
al-aḥkām, which had an undeniable impact on Shāfiˁī jurists, was that of ˁIzz
b. ˁAbd al-Salām himself, who wrote an abridgement of the work entitled al-
Fawāˀid fī ikhtiṣār al-maqāṣid. Although he does not explain why he felt the
need for such an abridgment, based on the title, he thought of presenting the
objective of the rulings of the Sharīˁa. In fact, he wrote in the introduction to
al-Fawāˀid that Allah sent the messengers and holy books to guide people to
what is beneficial and to remove what is harmful and evil in this world and
the hereafter.88 Hence, both of his maxim works are not maxim works in the
standard sense, but are rather sources that try to explain the objectives of the
Sharīˁa within the framework of maxims. Besides ˁIzz b. ˁAbd al-Salām’s own
abridgment, there are other studies on Qawāˁid al-aḥkām by authors of the
9/15th century. For instance, Sirāj al-Dīn ˁUmar b. Raslan al-Bulkīnī’s (d. 805/
1403) al-Fawāˀid al-husām ˁalā qawāˁid Ibn ˁAbd al-Salām and Ibn Jamāˁa al-
Kinānī’s (d. 819/1417) commentary are both on ˁIzz b. ˁAbd al-Salām’s works.89

2.2 Maxim Thought Based on Furūq: Qarāfī and Anwār al-burūq fī

anwāˀ al-furūq
Qarāfī, who studied in Egypt and was nurtured by its reservoir of knowledge,
was a disciple of ˁIzz b. ˁAbd al-Salām even though he himself was a Mālikī.
Like his master’s methodology, his approach in Anwār al-burūq fī anwāˀ al-
furūq, also known as al-Furūq, was not adopted by later authors of maxims.
Therefore, his contribution was more in the field of furūq than legal max-
ims. Because his work of furūq was centred not on substantive law but on

85 Kātip Çelebi, Khashf al-ẓunūn, 2: 1359. Ibn Nujaym, al-Ashbāh, 132. For the impact of ˁIzz
b. Abd al-Salām on those after him see ˁIzz b. Abd al-Salām, al-Qawāˁid al-kubrā, editor’s
introduction, 1: 50–52.
86 Qarāfī, al-Furūq 1: 129, 135, 156, 161, 174, 228; 2: 77, 269; 3: 296; 4: 428, passim.
87 e.g. Wansharīsī, Īḍāḥ al-masālik, 155.
88 ˁIzz b. ˁAbd al-Salām, al-Fawāˀid, 32.
89 İsmail Paşa, Īḍāḥ al-maknūn, 2: 205, 243. Kātip Çelebi, Kashf al-ẓunūn, 2: 1359–1360.
106 Chapter 5

maxims, it contributed to the development of legal-theoretical thought on

maxims. Qarāfī, who in his introduction to his al-Dhakhīra, which is one of the
important Mālikī works of substantive law, indicated the necessity of treating
legal rulings within the framework of principles and maxims,90 followed this
method in the entirety of the work, referring frequently to legal maxims and
sub-maxims.91 The author composed al-Furūq because he believed there was a
need to discuss the maxims that were mentioned among different legal issues
in al-Dhakhīra with additions in an independent work. His goal was to explain
the maxims extensively, to reveal their wisdom and secrets, and thus to show
their legal characteristics.92 His work encompasses both legal and jurispruden-
tial maxims and also contains issues of creed and ethics.
Because Qarāfī’s al-Furūq tries to explain legal issues based on maxims, it
is different from other works of furūq literature which treat rulings and issues
of substantive law. Although Qarāfī stated that he wrote the work to analyse
maxims and to discuss the distinctions between two or more maxims, at times
he also treated distinctions between issues of substantive law. Because Qarāfī
held the view that maxims cause the distinctions between issues of substan-
tive law, he studied the latter with the maxims on which they are based, stat-
ing that his real aim in discussing these distinctions was to explain maxims.93
This is why scholars who conducted studies on Qarāfī and al-Furūq empha-
sized that this work aims to explain maxims by utilizing legal distinctions. In
fact, Qarāfī himself stated that al-Furūq is a work that studies the distinctions
between maxims and that he did not analyse the differences between substan-
tive legal rules.94 Based on this approach of Qarāfī, Makkī (d. 1948) stated, “he
established a work that treats the differences not between issues of substantive
law, but between maxims.”95
One of the main reasons al-Furūq did not get the attention it deserved
was the fact that Qarāfī, like his master ˁIzz b. ˁAbd al-Salām, highlighted the
importance of maxims rather than being devoted to a mujtahid. As a result, he
came to conclusions that contradicted some of the opinions of Mālik and other
Mālikī jurists. Authors who have conducted studies on al-Furūq, his own stu-
dent Abū ˁAbd Allāh Muḥammad b. Ibrāhīm al-Bakkūrī (d. 707/1307) foremost
among them, criticized his opinions that were not in harmony with the Mālikī

90 Qarāfī, al-Dhakhīra, 1: 36.

91 Ibid, 1: 155, 198; 2: 122; 3: 53, 270; 4: 64; 6: 336, passim.
92 Ibid, 1: 8–9.
93 Ibid, 1: 9.
94 Ibid, 1: 11.
95 Makkī, Tadhhīb al-furūq, 1: 2.
The 4/10th–7/13th Centuries 107

school.96 However, the one who criticized Qarāfī the most in this matter was
Ibn Shāt (d. 723/1323). As a result, some Mālikī jurists who conducted studies
on al-Furūq stated that one needs to be cautious about accepting those opin-
ions of Qarāfī that have not been sifted by Ibn Shāt’s criticism.97 Wansharīsī is
also among the Mālikī authors of maxims who are cautious regarding Qarāfī’s
opinions.98
Even though it is difficult to consider the works of ˁIzz b. ˁAbd al-Salām and
his pupil Qarāfī as part of the standard literature of maxims, the fact that they
deeply influenced legal thought on maxims proves that in this period the liter-
ature of maxims shifted from the formative stage to the stage of development.
Hence, these two studies should be regarded as works of maxims in a period
in which the literature had not yet attained its final stable form. This is indi-
cated by the fact that although Qarāfī’s work is a study on legal distinctions, its
method is different from those of previous works of legal distinctions and was
not adopted by subsequent works of the same genre.
96 Apaydın, “Karāfī,” DİA, 24: 396–397.
97 Makkī uses the following expression: “Be careful about Qarāfī’s Furūq. Do not accept from
it those things which Ibn Shāt did not accept.” Cf. Makkī, Tadhhīb al-furūq, 1: 3.
98 Wansharīsī, Īḍāḥ al-masālik, 292.
 chapter 6

The 8/14th–9/14th Centuries and the Rise of the

Shāfiˁī Legal Maxims Tradition

Legal maxims were not composed and organized using a common method in
the early period of maxim genre. Although Karkhī’s al-Risāla does not separate
them clearly, it mentions jurisprudential maxims after maxims of substantive
law. Taˀsīs al-naẓar, however, discusses legal maxims and sub-maxims while
focusing on differences of opinion among the founding jurists. Whereas ˁIzz
b. ˁAbd al-Salām discusses subjects of other disciplines in addition to legal
issues while focusing on a single maxim, Qarāfī made a different contribution
to the legal thought on maxims by focusing on the distinctions between max-
ims on which issues of substantive law are based. Because these authors ana-
lysed maxims using different methods and did not develop a common writing
style, for a long time studies of legal maxims were written in different ways,
a situation that continued until the 8/14th century. After this period, works
of maxims acquired a common arrangement in which maxims were ordered
from the most comprehensive to the least.
The 8/14th century was a turning point for the literature of maxims. The
three most prominent features of the literature in this century were the facts
that the greatest number of works was composed in this period, Shāfiˁī jurists
led the way by writing more works than other schools, and the name al-
Ashbāh wa l-naẓāˀir began to be used as a title for maxim works. The tradition
of writing on maxims, which began to accelerate especially with ˁIzz b. ˁAbd
al-Salām and Qarāfī, became enriched with various studies written in this cen-
tury. Beginning with this period, as opposed to earlier, various disciplines were
brought together under the title al-Ashbāh wa l-naẓāˀir such that subjects of
different fields of study, such as comparative law, legal distinctions and legal
puzzles came to be discussed in a single work. This was a significant develop-
ment for the literature of maxims.

1 From Comparative Law and Postulates to al-Ashbāh wa l-naẓāˀir

The title al-ashbāh wa l-naẓāˀir was first used in fields other than Islamic law.
Muqātil b. Sulaymān’s (d. 150/767) al-Wujūh wa l-naẓāˀir, in which he discusses
185 words from the Qurˀān that have more than one meaning, is considered
The 8/14th–9/14th Centuries and the Rise 109

the first work to have such a title and al-Ashbāh wa l-naẓāˀir min ashˁār al-
mutaqaddimīn wa l-jāhiliyya wa l-mukhaḍramīn of the brothers Abū Bakr al-
Khālidī (d. 380/990) and Abū ˁUthmān al-Khālidī (d. 390/1000) who lived in
the 4/10th century, in which they discuss similarities between the poets of the
time of ignorance and Mukhaḍram poets on the one hand and later poets on
the other, is another book that has the same title.1 As this usage was common
in Arabic literature, Suyūṭī called his work on Arabic syntax al-Ashbāh wa l-
naẓāˀir fī al-naḥw.2
What lies at the foundation of entitling works of maxims al-ashbāh wa l-
naẓāˀir in the 8/14th century is the aim of bringing together sub-disciplines of
Islamic law under the umbrella of legal thought on maxims. In fact, the con-
cept of ashbāh refers to issues that are similar in form and ruling, while naẓāˀir
refers to those which are similar in form but different in terms of ruling.3 Since
in works entitled al-ashbāh wa l-naẓāˀir legal maxims are discussed together
with different sub-disciplines such as legal distinctions, al-ashbāh wa l-naẓāˀir
is an umbrella concept that brings together the literatures of maxims and legal
distinctions.4 However, since the major objective of these works is to discuss
maxims and sub-maxims, the maxim aspect became dominant in them so that
they were mentioned within the literature of legal maxims. In addition, from
this century on, authors who conducted studies on maxims discussed many
similar issues and exceptions under the maxims they considered and strove
to show their relationship with the maxims. The fact that there were for each
maxim many issues that are similar in form and ruling (ashbāh) and different
in terms of ruling (naẓāˀir) also explains why this title was used.
Works of al-ashbāh wa l-naẓāˀir bring together various genres such as legal
maxims, legal distinctions, legal devices, legal riddles and legal stories. However,
despite bringing these various fields together, works of al-ashbāh wa l-naẓāˀir
were still considered to belong to the literature of maxims and authors of al-
ashbāh wa l-naẓāˀir used the word maxim in their titles. Therefore, al-ashbāh
wa l-naẓāˀir was not a separate genre of Islamic law, but rather a title given
to certain works of maxims. Although, until this period, many works on legal
distinctions were written, issues of legal distinctions with few exceptions came

1 Cf. Khālidiyān, Kitāb al-Ashbāh wa l-naẓāˀir; Baktır, “Eşbāh ve Nezāir,” DİA, 11: 456; Sancak,
“Eski Arap Şiirinde Benzerlikler,” EKEV Akademi Dergisi, 225. Mukhaḍram refers to those who
experienced both the time of ignorance before the Prophet and the lifetime of the Prophet
without meeting him.
2 Suyūṭī, al-Ashbāh wa l-naẓāˀir fī l-naḥw.
3 Ibn al-Wakīl, al-Ashbāh, introduction by the editor, 1: 15–16.
4 Cf. Heinrichs, s.v. “al-Qawāˁid al-Fiqhiyya,” EI2, 12: 517.
110 Chapter 6

to occupy a dominant place within the literature of maxims after the 8/14th
century.5 As Ibn Nujaym states, although al-ashbāh wa l-naẓāˀir was a section
within works of maxims, it came to be the name for this genre of legal writing,
through the usage of the figure of speech in which a part is mentioned and the
whole is intended (dhikr al-juzˀ maˁa irādat al-kull).6
As noted earlier, although the words ashbāh and naẓāˀir have very similar
meanings, as a compound they refer to issues which ostensibly resemble each
other but have different rulings for subtle reasons. Only those who have devel-
oped a legal faculty can discern the difference between such issues after pre-
cise investigations.7 This meaning of al-ashbāh wa l-naẓāˀir is similar to the
legal distinctions the study of which was the aim of Qarāfī’s al-Furūq. Qarāfī
stated that the reason for differences between legal rulings on issues of sub-
stantive law may be maxims and that because of this he was not focussing on
differences between issues but rather differences between maxims.8 Similarly,
in al-ashbāh wa l-naẓāˀir issues that ostensibly resemble each other are per-
ceived to be different through deep investigation and analysis, due to the fact
that the maxims and sub-maxims on which the issues are based are different.
Hence, although works which have the title al-ashbāh wa l-naẓāˀir may con-
tain approximately seven different subjects, those subjects consist of either
maxims and sub-maxims or issues that resemble or are different from each
other. Because maxims are at the foundation of those issues that resemble or
are different from each other, they are treated in works of maxims.

2 The First Examples of al-Ashbāh wa l-naẓāˀir and the Systemization

of the Literature

2.1 Titling Works of Maxims al-Ashbāh wa l-naẓāˀir and the Role of Ibn
al-Wakīl (d. 716/1317)
It was Ibn al-Wakīl, who following the lead of Shāfiˁī jurists, who wrote
works of maxims under the rubric al-Ashbāh wa l-naẓāˀir. Ibn al-Wakīl stud-
ied in Damascus and Egypt and engaged in debates with Ḥanbalīs who were

5 In the field of legal distinctions, scholars such as Abū ˁAbd Allāh al-Mawwāk (d. 897/1492),
Wansharīsī (d. 914/1508), Abū Muḥammad al-Zurayrānī and ˁAbd al-Raḥmān al-Saˁdī (d.
1376/1956) wrote works after this century. For a survey of the literature on legal distinctions
see Özen, “Furūk,” DİA, 13: 225–227.
6 Ibn Nujaym, al-Ashbāh, 12. Cf. Ḥamawī, Ghamz ˁuyūn al-baṣāˀir, 1: 44.
7 Ḥamawī, Ghamz ˁuyūn al-baṣāˀir, 1: 38.
8 Qarāfī, al-Furūq, 1: 9.
The 8/14th–9/14th Centuries and the Rise 111

prominent in the politics and the scholarship of the era.9 He was educated
by two disciples of ˁIzz b. ˁAbd al-Salām, his own father and Ibn al-Firkāḥ
(d. 690/1291).10 Due to both the influence of his masters and the impact of
the maxim-centred legal thought in Egypt, as represented by ˁIzz b. ˁAbd al-
Salām and Qarāfī, Ibn al-Wakīl wrote his work entitled al-Ashbāh wa l-naẓāˀir.
Some sources state that al-Ashbāh, which Ibn al-Wakīl wrote towards the end
of his life during a sea voyage, is an important work, but because the author
died before reviewing the work, it has certain problems.11 That Ibn al-Wakīl’s
nephew Zayn al-Dīn b. al-Wakīl (d. 737/1337) published the work after his
uncle’s death and that ˁAlāˀī in al-Majmūˁ al-mudhhab mentions the work by
saying, “it is a work of taˁlīq (notes) in this field” indicate that the work consists
of notes that have not been given their final form.12
Because al-Ashbāh wa l-naẓāˀir, which is a work to which Shāfiˁī authors
of maxim works often refer, is the first work on maxims carrying this name, it
does not have the arrangement of similar later studies.13 In comparison to pre-
vious maxim works, al-Ashbāh follows a different method.14 Besides discussing
various legal issues through the lens of maxims, after reviewing the knowledge
of his school, Ibn al-Wakīl, unlike authors of earlier works, focuses for the most
part on the legal opinions of the Shāfiˁī school. For this reason, his al-Ashbāh
wa l-naẓāˀir can be considered an important step away from maxim literature
that is centred on comparative law or inter-madhhab to that which is based on
a single school or intra-madhhab.
In the published version, probably because Ibn al-Wakīl died before review-
ing his study, there is no introduction from the author. As such, there is no
information about why the book was written and the pattern that was followed
in arranging the subjects. However, the work deals with many legal subjects
ranging from jurisprudence to substantive law. For instance, while the first

9 His debates especially with Ibn Taymiyya are well known. Ibn Ḥajar al-Asqalānī, al-Durar
al-kāmina, 4: 116.
10 Ibn al-Subkī, Ṭabaqāt, 8: 163, 343.
11 Dārānī, Fawāt al-Wafayāt, 4: 15; Ibn al-Subkī, Ṭabaqāt, 9: 255; Ibn Ḥajar al-Asqalānī, al-
Durar al-kāmina, 4: 119.
12 ˁAlāˀī, al-Majmūˁ al-mudhhab, 1: 208; Ibn al-Subkī, al-Ashbāh, 1: 293; Ibn Qāḍī Shuhba,
Ṭabaqāt, 2: 376.
13 See Tāj al-Dīn Ibn al-Subkī who, in his al-Ashbāh, indicates the leading role of Ibn al-Wakīl
in the field of maxims, mentioning his opinions as need be. Ibn al-Subkī, al-Ashbāh, 1: 6,
131, 162, 290, 292. Cf. ˁAlāˀī, al-Majmūˁ ‘al-mudhhab, 1: 208; Zarkashī, al-Manthūr, 1: 72;
2: 166; Suyūṭī, al-Ashbāh, 77, 169, 215, 269, 534, 535, 536.
14 Ibn Taghrībardī (d. 874/1469) stated that al-Ashbāh was written in an unprecedented
manner. Ibn Taghrībardī, al-Nujūm al-ẓāhira, 9: 166.
112 Chapter 6

maxim deals with how one should understand an action of the Prophet that
may be due to his own nature or due to revelation, the second maxim con-
cerns the legal cause.15 However, many subjects that are treated in works of
al-Ashbāh wa l-naẓāˀir are analysed in this book. For instance, while discussing
whether the sequence of actions in ablution is obligatory, the author, after stat-
ing that the correct opinion was that it is obligatory, provided many examples
to explain the difference between the two positions.16
Although Ibn al-Wakīl, who lived in Damascus, Aleppo and Egypt and who
reflected the tradition of his school and the accumulated knowledge of max-
ims in his al-Ashbāh wa l-naẓāˀir, tried to arrange his work under headings such
as qāˁida, fāˀida and faṣl, the work is not properly organized. Although Ibn al-
Wakīl influenced the jurists that came after him in many ways, his inability to
revise his work before his death meant that the maxims in the book remained
disordered. As a result, a well-organized work on maxims was not produced
until the arrival of the later Shāfiˁī authors.

2.2 The Mālikī Author of Maxims Maqqarī (d. 758/1357) and His Work
al-Qawāˁid
After Qarāfī, who played a leading role in Mālikī literature of maxims,
Maqqarī, who was a follower of the same legal school and who was born in
Tilimsān, became a reputed scholar of maxims with the work he composed
in this field. His al-Qawāˁid, which consists of 1.200 maxims and sub-maxims
and is arranged according to substantive law chapters, was more influential
within his school than Qarāfī’s al-Furūq and became an important reference
work for later authors of maxim literature.17 The fact that he also mentions
opinions of schools other than the Mālikī school is one of the distinctive fea-
tures of the work, as this is an uncommon approach for North African Mālikī
scholars.18 Maqqarī’s discussion of other schools, despite the approach of the
scholars in his region to the contrary, is due to the fact that he became aware
of the scholarly debates in the different areas he visited during his voyages.
Maqqarī attended the classes of and exchanged ideas with scholars from
Morocco, Tunisia, Egypt, the Ḥijāz, Syria, Jerusalem and other regions, such as
Ibn Qayyim al-Jawziyya, Abū Ḥayyān al-Andalusī and Shams al-Dīn Maḥmūd

15 Ibn al-Wakīl, al-Ashbāh, 1: 87, 94.

16 Ibn al-Wakīl, al-Ashbāh, 1: 145–146.
17 Wansharīsī, Īḍāḥ al-masālik, 291–292, 331. Cf. Maqqarī, al-Qawāˁid, introduction by the
editor, 1: 169–170.
18 Nadwī, al-Qawāˁid, 198.
The 8/14th–9/14th Centuries and the Rise 113

b. ˁAbd al-Raḥmān al-Iṣfahānī.19 Maqqarī, who had among his disciples lumi-
naries such as Lisān al-Dīn Ibn al-Khaṭīb (d. 776/1374), Shāṭibī (d. 790/1388)
and Ibn Khaldūn (d. 808/1406), also wrote ˁĀmal man ṭabba li-man ḥabba and
al-Kullīyāt which, like al-Qawāˁid, are studies that include many maxims.20
The last two works, which are the product of the author’s effort to express legal
opinions in an abstract manner, in particular, show that he analysed the lore of
his school from the standpoint of maxims.
Although Maqqarī’s al-Qawāˁid, which was significantly influenced by
Qarāfī’s al-Furūq,21 played a leading role in his legal school, Maqqarī did not
follow the method of explaining the maxims in detail. In fact, foremost among
the criticisms of the work is that, although it is full of valuable information and
is very beneficial, because the maxims are not explained in a satisfactory man-
ner some points require elucidation.22 As a result of the pattern the author
follows, which is to set out the maxims and concisely indicate the related dif-
ferences of opinion, references to substantive law are few. Because of this, the
work is composed in a style that is rare in the tradition of writing on legal
maxims.
Just as Maqqarī uses general maxims in al-Qawāˁid, he also discusses
maxims that are debated within his school and between different schools.23
However, the work focuses more on maxims derived from issues of substantive
law in Mālikī works, while indicating differences of opinion with the Ḥanafī,
Shāfiˁī and at times Ḥanbalī schools as need be. Nevertheless, there are max-
ims that are accepted by several, or all schools in this voluminous work.
Although Maqqarī analyses the maxims in his work according to the
arrangement of issues in substantive law, he also deals with principles of juris-
prudence, logic and linguistics. At times he leaves the subject at hand and
discusses other maxims in detail. However, his definition of the maxim in his
introduction as “every universal that is more specific than jurisprudence and
other general maxims based on thought and more general than contracts and all
specific legal sub-maxims” indicates that the author does not limit maxims to
issues of substantive law, but on the contrary has a more general approach.24

19 In this era which was rich with scholarly voyages many scholars such as Ibn Baṭūṭa (d. 775/
1374) travelled to the east. Cf. Maqqarī, al-Qawāˁid, editor’s introduction, 1: 34–37, 59–60.
20 Maqqarī, Nafḥ al-ṭīb, 5: 340–341; Ebü’l-Ecfān, “Makkarī,” DİA, 27: 446–447.
21 Maqqarī, al-Qawāˁid, 1: 293, 316, 327; 2: 389.
22 Nadwī, Qawāˁid, 198.
23 Maqqarī, al-Qawāˁid, 1: 213; 239, 256, 329; 2: 432, 590.
24 Maqqarī, al-Qawāˁid, 1: 212.
114 Chapter 6

2.3 The Systemization of the Literature of Maxims: ˁAlāˀī (d. 761/1359)

and His Work al-Majmūˁ al-mudhhab
Although ˁAlāˀī, who, besides being a jurist, was also a well-known ḥadīth
scholar, studied under the supervision of many scholars of his era, he received
his legal education mainly from Kamāl al-Dīn al-Zamlakānī (d. 727/1327) and
Ibn al-Firkāḥ (d. 729/1329). ˁAlāˀī, who was Shāfiˁī in law and Ashˁarī in theol-
ogy, after receiving his education in Damascus and teaching for a while, went
to Jerusalem as a professor of law and ḥadīth. His debates with the Ḥanbalīs led
to Ḥanbalīs disliking him.25
Being well-informed on both the Shāfiˁī legal doctrine and the tradition of
writing on legal maxims, ˁAlāˀī developed this inheritance in al-Majmūˁ al-
mudhhab fī qawāˁid al-madhhab.26 Among the works and authors from whom
he benefited that he lists in the introduction of the work, Ibn al-Wakīl’s al-
Ashbāh had a noticeable impact on al-Majmūˁ al-mudhhab. He expresses this
as follows: “My awareness of the taˁlīq called al-Ashbāh wa l-naẓāˀir of the great
scholar Ṣadr al-Dīn Abū ˁAbd Allāh b. al-Murahhil [Ibn al-Wakīl], who was from
the imāms [i.e. leading scholars] that I saw, is what led me to write this book.”27
Later, ˁAlāˀī states that he also benefited from al-Talkhīṣ of Ibn al-Qāṣṣ and
its commentaries, Rawnaq, which is attributed to Abū Ḥamīd al-Isfarāyīnī (d.
415/1024), al-Lubāb of Abū l-Ḥasan al-Mahāmilī (d. 415/1024), ˁIzz b. ˁAbd al-
Salām’s al-Qawāˁid and Qarāfī’s al-Furūq. The last two works had a significant
impact on ˁAlāˀī’s thought on maxims.28 Authors of works on maxims who
came after ˁAlāˀī, such as Ibn al-Subkī, Zarkashī and Suyūṭī, were influenced
by his scholarship. Suyūṭī especially utilized ˁAlāˀī’s scholarship in laying the
foundation for the universal maxims in his work. ˁAlāˀī’s writing on maxims
influenced not only Sunni but also Shiite authors.29
ˁAlāˀī, who wrote his work using a method different from that of his prede-
cessors, separated maxims into those relating to jurisprudence and substantive
law, hierarchically ordering these according to their scope. This pattern was
followed in many works written after his. Hence the standard arrangement
of works of maxims began with ˁAlāˀī’s al-Majmūˁ al-mudhhab, which was

25 Ibn al-Subkī, Ṭabaqāt, 10: 35–36; Ibn al-ˁImād, Shadharāt al-dhahab, 8: 327.
26 Ibn al-Subkī mentions the work as al-Ashbāh wa l-naẓāˀir. Ibn al-Subkī, Ṭabaqāt, 10: 35–36.
27 ˁAlāˀī, al-Majmūˁ al-mudhhab, 1: 208. For other examples see ibid, 1: 297, 348; 2: 396, 527,
547, 590.
28 ˁAlāˀī, al-Majmūˁ al-mudhhab, 1: 208. For ˁIzz b. Abd al-Salām and Qarāfī see ˁAlāˀī, ibid,
1: 265, 298, 302, 332, 352, 359, 364; 2: 387, 416, 431, 433, 478, 721.
29 ˁAlāˀī, al-Majmūˁ al-mudhhab, the editor’s introduction, 1: 169.
The 8/14th–9/14th Centuries and the Rise 115

praised by many authors.30 In this respect, the study can be regarded as a turn-
ing point in the literature on legal maxims.
ˁAlāˀī explains in detail the system he tried to establish in the introduction
to his work. According to this, he puts the principle of acquiring benefits and
preventing evil (jalb al-maṣāliḥ wa darˀ al-mafāsid), which encapsulates all the
subjects of Islamic law, at the beginning of his work. In this section, which can
be considered a summary of ˁIzz b. Abd al-Salām’s al-Qawāˁid, ˁAlāˀī defines
Islamic law and analyses legal rulings in the fields of worship, transactions and
penal law by establishing their relationships with the objectives of Islamic law
(maqāṣid al-sharīˁa). Here, ˁAlāˀī reveals an important detail, saying that his
master, Kamāl al-Dīn b. al-Zamlakānī, dictated this section to him.31 This infor-
mation shows that al-Zamlakānī was aware of previous maxim works as well
as ˁAlāˀī’s book on maxims and that ˁAlāˀī started this work before the death
of his master in 727/1327. ˁIzz b. ˁAbd al-Salām’s impact on both ˁAlāˀī and al-
Zamlakānī is also clear in that they studied Islamic legal thought within the
framework of maxims.
After stating that Islamic legal rulings were established to ensure the human
being’s happiness in this world and the hereafter, and that this can be concisely
expressed as acquiring benefits and preventing evil (jalb al-maṣāliḥ wa darˀ al-
mafāsid), ˁAlāˀī goes on to the second section in which he analyses rulings of
the Sharīˁa within the framework of forms of address consisting of obligation
(taklīf) and designation (waḍˁ). He explains these in the same way by estab-
lishing their relationships with issues of worship, transactions and penal law.32
After this section, he states that he will examine the five foundational maxims
on which all legal issues are based, focusing on how they are related to legal
issues.33 He states that after these five maxims he will discuss other maxims
in the order of their importance, followed by exceptions to them and similar
issues.34 This ordering is significant as it was followed by the majority of later
authors who wrote on maxims.
Before discussing the five foundational maxims, ˁAlāˀī relates the incident
concerning the independent gathering of maxims. According to this, Qāḍī
Ḥusayn al-Marwarrūzī (d. 462/1070) stated that the Shāfiˁī school is based

30 Ibn Ḥajar al-Asqalānī, al-Durar al-kāmina, 2: 91; Ibn al-ˁImād, Shadharāt al-dhahab, 8: 328;
Kātip Çelebi, Kashf al-ẓunūn, 2: 1358.
31 ˁAlāˀī, al-Majmūˁ al-mudhhab, 1: 209.
32 Ibid, 1: 233–252.
33 For the implementation of these maxims in Islamic criminal law see Zakariyah, Legal
Maxims in Islamic Criminal Law: Theory and Applications.
34 Ibid, 1: 209.
116 Chapter 6

upon four maxims: “certainty is not overruled by doubt,” “hardship begets facil-
ity,” “harm is removed” and “custom is made a referee.”35 However, ˁAlāˀī sets out
the opinion of his master, Abū al-Maˁālī b. al-Zamlakānī, that one needs to be
cautious about stating that all of Islamic law is based upon these four maxims.
Nevertheless, ˁAlāˀī acknowledges that a great share of Islamic law is indirectly
related to one of these four maxims. As has been stated, ˁAlāˀī adds to these
four maxims which were widely accepted by the Shāfiˁī school the maxim
“matters shall be judged by their objectives,” a change that was adopted by later
Shāfiˁī maxim authors such as Ibn al-Subkī and Suyūṭī. ˁAlāˀī stated that in a
taˁliqa he saw in Cairo, a virtuous person added a fifth maxim to these four and
that, because he considered this nice, he added this maxim to his work.36
ˁAlāˀī, who mentions the five foundational maxims in the very beginning,
explains these together with the statements from the Qurˀān and the Sunna
on which they are based. He tries to establish that all legal issues are related
to these maxims. In fact, after explaining these maxims, he states that all legal
issues are related to one of these five maxims either directly or indirectly.37 The
fact that ˁAlāˀī, unlike previous maxim authors, tries to prove the five foun-
dational maxims by statements from the Qurˀān and the Sunna shows that
the fundamental principles of Islamic law are inspired by the Qurˀān and the
Sunna and that legal scholars obtained these from the Qurˀān and the Sunna
through induction to apply them to issues of substantive law. This pattern,
which ˁAlāˀī tried to develop, was adopted by nearly all maxims authors who
strove to present basic legal maxims together with the evidence on which they
are based. The fact that ˁAlāˀī was one of the leading ḥadīth scholars of his age
is apparent in his critique of the information on the sources of these maxims.
For instance, he stated that the narration presented as the source of the maxim
of custom, “what Muslims regard as beautiful is beautiful according to Allah,” is
not a ḥadīth but a saying of ˁAbd Allāh b. Masˁūd.38
ˁAlāˀī’s statements in al-Majmūˁ al-mudhhab have the aim of proving that
the examples mentioned under each maxim are actually based on that maxim.
For instance, after discussing the first maxim of the work, “matters shall be
judged by their objectives,” at length, ˁAlāˀī stated, “this is sufficient to show

35 ˁAlāˀī mentions Marwarrūzī’s opinions in many places. Ibid, 1: 285, 286, 294, 298, 320;
2: 375.
36 It is possible that this taˁliqa belongs to Qāḍī Ḥusayn al-Marwarrūzī, since Ibn al-Subkī
mentions his al-Taˁliqa in al-Ashbāh. Cf. Ibn Subkī, al-Ashbāh, 1: 61, 66, 280, 446. ˁAlāˀī,
al-Majmūˁ al-mudhhab, 1: 253–255. Cf. Bannānī, Ḥāshiyat al-ˁAllāmā al-Banānī, 1: 356–357.
37 ˁAlāˀī, al-Majmūˁ al-mudhhab, 2: 435. Cf. ibid, 1: 279.
38 Ibid, 2: 399–400.
The 8/14th–9/14th Centuries and the Rise 117

that many legal issues, or most of them, are based on intention and purpose.”39
Similarly, after setting out the second maxim, “certainty is not overruled by
doubt,” he provides the evidence on which the maxim is based, explaining the
maxim with a few examples. He then states, “it is possible to base most legal
issues on this maxim itself or the evidence for the maxim.”40
After these five maxims, ˁAlāˀī states that he will discuss particular max-
ims, giving precedence to jurisprudential ones.41 Unlike Maqqarī, ˁAlāˀī also
discusses at length the maxims he takes up after the five fundamental ones,
providing many examples and thus establishing the link between maxims
and issues of substantive law. However, in this section he does not focus on
the sources of the maxims from the Qurˀān and the Sunna. ˁAlāˀī’s method of
mentioning maxims of narrower scope under the fundamental maxims is a
first in the maxim literature that shows that in his mind there is a hierarchy of
maxims in terms of scope. For instance, right after the maxim “certainty is not
overruled by doubt” he mentioned the maxim “the fundamental principle is that
the status quo is upheld (al-aṣlu baqāˀ mā kāna ˁalā mā kāna).”42 Although the
author follows the maxim order of diminishing scope, proceeding from qāˁida
(maxims) to fāˀida (literally benefits), and then to masˀala (issue), it is difficult
to say that the headings of the maxims of narrower scope are systematic. The
differentiation of the maxims in this way was achieved by later maxim authors.
The fact that ˁAlāˀī considers jurisprudential and legal maxims in different cat-
egories demonstrates that he separated these two.43 Because of ˁAlāˀī’s con-
scious differentiation of these two types of maxims, in nearly all later studies
on al-Majmūˁ al-mudhhab, the work is analysed in comparison to Isnawī’s al-
Tamhīd, which discusses jurisprudential maxims.
Due to its leading features, many studies were conducted on al-Majmūˁ
al-mudhhab starting with the time in which the author lived. However,
most of these studies combined the works of ˁAlāˀī and Isnawī. For exam-
ple, in Mukhtaṣar qawāˁid al- ˁAlāˀī wa l-tamhīd lil-Isnawī, Abū ˁAbd Allāh
Muḥammad b. Sulaymān al-Sarhadī (d. 792/1390) abridged these two works,
adding his critique.44 In addition, Ibn al-Khaṭīb al-Dahsha (d. 834/1431) brings
together the works of ˁAlāˀī and Isnawī and abridges them, using Nawawī’s

39 Ibid, 1: 303.
40 Ibid, 1: 304. For other maxims see ibid, 1: 346; 2: 377, 382, 405.
41 Ibid, 2: 435.
42 ˁAlāˀī, al-Majmūˁ al-mudhhab, 1: 303.
43 In some places where a jurisprudential maxim comes up he states that he will discuss this
and similar subjects in the section pertaining to jurisprudential maxims. Ibid, 1: 286.
44 Ibn Qāḍī Shuhba, Ṭabaqāt, 3: 224–225; Ibn al-ˁImād, Shadharāt al-dhahab, 8: 556.
118 Chapter 6

chapter headings in al-Minhāj. From the author’s statements it is understood

that he wrote the book for educational purposes.45 In some sources a work
entitled Taḥrīr al-qawāˁid al-ˁAlāˀiyya wa tamhīd al-masālik al-fiqhiyya by Ibn
al-Hāˀim (d. 815/1413) is also mentioned.46

2.4 Transcending the Borders of the Shāfiˁī School: Tāj al-Dīn Ibn al-
Subkī’s (d. 771/1371) al-Ashbāh wa l-naẓāˀir
Ibn al-Subkī, who was born in 727/1327 in Cairo, went to Damascus after
remaining for a while in Cairo. He studied under the leading scholars of both
Cairo and Damascus, beginning with his father, Taqī al-Dīn al-Subkī (d. 756/
1355), and including Dhahabī, Yūsuf b. ˁAbd al-Raḥmān al-Mizzī and Abū
Ḥayyān al-Andalusī. He also taught many students. Ibn Subkī, who also served
in some administrative positions,47 was familiar with previous works on max-
ims both in Cairo and Damascus when he wrote al-Ashbāh wa l-naẓāˀir, which
is considered one of the most important works in the field of legal maxims. In
some sources this work is also called al-Qawāˁid or al-Fawāˀid al-mushtamila
ˁalā l-ashbāh wa l-naẓāˀir.48
The impact of Ibn al-Subkī’s al-Ashbāh which was influenced by Ibn al-Wakīl
in terms of title and content, ˁAlāˀī in terms of its system, and ˁIzz b. ˁAbd
al-Salām in terms of its legal doctrine, transcended the Shāfiˁī school. In the
introduction to his work, the author tries to state the close links of the work to
the Shāfiˁī tradition as well as to the maxim literature. Ibn al-Subkī mentions
the pioneering role of ˁIzz b. ˁAbd al-Salām, saying that he ushered in a new
era and that his al-Qawāˁid left no need for another work in the field.49 This
approach, which sees ˁIzz b. ˁAbd al-Salām as the pioneer in the field of max-
ims, was espoused by ˁAlāˀī as well and indicates the inclination of the Shāfiˁī
jurists to think of the Shāfiˁī school as having the dominant role in the devel-
opment of this genre. However, considering the formative role of the efforts
of the Iraqi Ḥanafī jurists predating ˁIzz b. ˁAbd al-Salām in the development
of the legal thought on maxims, the approach of the Shāfiˁī jurists represents
only one part of the picture. However, although before ˁIzz b. ˁAbd al-Salām

45 Ibn Khaṭīb al-Dahsha, al-Mukhtaṣar, 1: 62–64.

46 İsmail Paşa, Īḍāḥ al-maknūn, 1: 233.
47 Ibn Ḥajar al-Asqalānī, al-Durar al-kāmina, 2: 425–428; Ibn Tagrībardī, al-Nujūm al-ẓāhira,
11: 86–87; Ibn al-ˁImād, Shadharāt al-dhahab, 8: 379–380; Shawkānī, al-Badr al-ṭāliˁ, 283.
48 Cf. Ibn Ḥajar al-Asqalānī, al-Durar al-kāmina, 2: 425; Shawkānī, al-Badr al-ṭālīˁ, 283. ˁAbd
Allāh b. Sulaymān al-Jarhazī in al-Mawāhib al-saniyya, his commentary on al-Farāˀid al-
bahiyya, calls Ibn al-Subkī’s al-Ashbāh his Qawāˁid. Cf. Fadānī, al-Fawāˀid al-janiyya, 1: 87.
49 Ibn al-Subkī, al-Ashbāh, 1: 6–7.
The 8/14th–9/14th Centuries and the Rise 119

legal maxims had the function of explaining divergence of opinion within and
between legal schools, with ˁIzz b. ˁAbd al-Salām the Islamic legal thought
began to be analysed using a maxim-centred approach. Thus, the pioneering
role of ˁIzz b. ˁAbd al-Salām should be seen not in starting the tradition of writ-
ing on maxims, but in analysing Islamic legal accumulation based on maxims.
Ibn al-Subkī states that Ibn al-Wakīl made a major contribution with his al-
Ashbāh, but that, because the author died before putting the work into its final
form, it has certain shortcomings, which is why he decided to write al-Ashbāh
wa l-naẓāˀir.50 As mentioned above, although Ibn al-Wakīl’s work remained
disordered because the author died before its completion, it significantly influ-
enced later maxim works. In fact, Ibn al-Subkī points to this function of the
work and implies that this feature made some people jealous.51 Although Ibn
al-Subkī does not openly mention whom he means, considering the debates
Ibn al-Wakīl had with the Ḥanbalīs and the debates between Ḥanafīs and
Shāfiˁīs in both theology, as regards the Ashˁarī and Māturīdī schools, and law,
Ibn al-Subkī probably means members of other schools.
Ibn al-Subkī himself states that he based his work on Ibn al-Wakīl’s and
neatly organised the maxims it contained.52 After starting to write the book,
Ibn al-Subkī read a section of it to his father, Taqī al-Dīn al-Subkī, who really
liked it. Ibn al-Subkī states that based on this he continued where he had left
off, completing his work by making additions to, or deleting parts from, Ibn
al-Wakīl’s study and adding new maxims.53 From the statements he makes in
the introduction to al-Ashbāh wa l-naẓāˀir, Ibn al-Subkī is not pleased with his
political and intellectual environment. Ibn al-Subkī states that both jurists and
the professors need to pay careful attention to maxims and that they are ben-
eficial both in understanding and explaining legal differences of opinions and
uniting disorganized legal issues.54 According to him, it is necessary for the
jurist to consider maxims on which issues are based to remove any legal ambi-
guities and to attain depth in legal perception. Listing issues of substantive
legal rules and particular legal subjects without linking them to legal principles
and the sources of law does not develop the legal faculty or achieve the aims of

50 In fact, Suyūṭī stated that Ibn al-Subkī, at his father’s request, organized Ibn al-Wakīl’s
work and published it. Suyūṭī, al-Ashbāh wa l-naẓāˀir fī l-naḥw, 1: 7.
51 Ibn al-Subkī, al-Ashbāh, 1: 7. At a different point, he stated that the work burns jealous
hearts. Ibid, 1: 8. Cf. Ibid, 1: 9–10.
52 In fact, Fādānī (d. 1990) stated that Ibn al-Subkī had based his work on Ibn al-Wakīl’s al-
Ashbāh. Fādānī, al-Fawāˀid al-janiyya, 1: 87.
53 Ibn al-Subkī, al-Ashbāh, 1: 8. For the content of Ibn al-Subkī’s al-Ashbāh see Musa, “Legal
Maxims as a Genre of Islamic Law”, ILS, 2014, pp. 334–335.
54 Ibid, 1: 5–6.
120 Chapter 6

the jurist.55 Hence, jurists, professors and students who devote themselves to
law need to know issues of substantive law together with the legal maxims on
which they are based.
After stating that understanding Islamic legal thought and memorizing
it with the maxims on which it is based is necessary in the discipline of law,
Ibn al-Subkī tries to introduce this view with a quotation from al-Juwaynī.
According to this, it is necessary for rulings of the Sharīˁa to be known with
the principles on which they are based and new issues need to be understood
based on those principles, without filling the mind with numerous particular
issues. Therefore, one receiving an education in Islamic law can avoid wasting
time by memorizing maxims and understanding the sources of rulings.56
After the general introduction, Ibn al-Subkī focuses on concepts such as
qāˁida, ḍābiṭ, madrak and maˀkhadh. According to him, a qāˁida is “the uni-
versal matter by which the rulings of its particulars are understood and with
which most of its particulars are in harmony.” After stating this definition, he
stated that maxims are of two types. One type, as in the example of “certainty
is not overruled by doubt,” consists of general maxims that encompass many
legal issues, while the other type, as in the example of “every expiation which
is occasioned by an act of disobedience has to be carried out immediately,” com-
prises maxims that cover similar issues in one subject and are called ḍābiṭ.57
Although he separates the maxim and sub-maxim in terms of their scope, he
calls both concepts maxims in the beginning and only afterwards points out
their differences in terms of scope. Another aspect that is noteworthy in Ibn
al-Subkī’s definition is the opinion that maxims cover most of their particulars.
According to this approach, it is not possible for a maxim to be valid without
there being an exception in all of the issues it covers; it is sufficient that it is
applicable to most. This has been stated by later maxim authors as preponder-
ance (aghlabiyya) and many jurists took note of this aspect of the maxim in
their definitions.58
After defining the maxim and indicating the difference between it and the
sub-maxim, Ibn al-Subkī deals with the relationship between the concepts of
madrak, maˀkhadh, maxim and sub-maxim. According to this, if a maxim cov-
ers a single chapter and brings together similar forms, this is called a ḍābiṭ. If
what is meant by a maxim is the common measure shared by the form and
ruling in an issue, this is called a madrak. Without looking at the maˀkhadh

55 Ibid, 1: 10.
56 Ibid, 1: 11.
57 Ibid, 1: 10.
58 Cf. Ḥamawī, Ghamz ˁuyūn al-baṣāˀir, 1: 51.
The 8/14th–9/14th Centuries and the Rise 121

(the source), if a rule can cover these forms, it is called a ḍābiṭ, and if it cannot,
it is called a qāˁida.59 Since Ibn al-Subkī is one of the first legal scholars among
maxim authors to define the maxim and indicate the difference between it
and the sub-maxim, he considers the possible objections to the distinction he
makes. One of these objections is how one can explain the transmission of
an issue of substantive law which uses the word qāˁida in its beginning. For
example, how can one explain Ghazālī’s expression, “Qāˁida: if one performs
the ritual prayer in a legally disliked time, there are two positions concerning the
validity of this ritual prayer?” Ibn al-Subkī stated that in such expressions there
is a qāˁida on which the substantive issue is based, though the author sets
out the issue without mentioning the maxim as a maxim. For instance, in the
example of Ghazālī, he related that the issue is based on the following: “does
the fact that an action is performed at a prohibited time negate the fact that it
is performed?.”60 This explanation is an answer to objections such as why an
issue of substantive law is mentioned as a maxim in maxim literature and why
legal scholars such as Ibn al-Wakīl set out similar issues in their works. This
aspect on which Ibn al-Subkī focuses in the introduction is significant as it
explains many examples in maxim literature.
It is noteworthy that Ibn al-Subkī, who finished his work in 768/1367, does
not mention ˁAlāˀī although he mentions other previous maxim authors such
ˁIzz b. ˁAbd al-Salām and Ibn al- Wakīl. This may have been for two reasons.
Either he was not aware of the work of ˁAlāˀī, who was a contemporary, or
he was aware of it but did not find it worthy of mention. It is unlikely that
two Shāfiˁī jurists who lived in the same period and geographical location
were unaware of each other’s work. In fact, in the prosopographical book he
wrote, Ibn al-Subkī mentions ˁAlāˀī’s maxim work.61 The fact that Ibn al-Subkī
emphasizes ˁAlāˀī’s role as ḥadīth scholar rather than a jurist and that he men-
tions ˁAlāˀī’s maxim work without any comment indicates that he was aware
of the work but did not consider it significant. His statements in the introduc-
tion to al-Ashbāh also point in this direction. Ibn al-Subkī related that Qāḍī
Ḥusayn (d. 462/1070) stated that Islamic law was founded on four maxims,
which are “certainty is not overruled by doubt,” “harm is removed,” “custom is
made a referee” and “hardship begets facility.” Ibn al-Subkī then adds that some
who claim to have established the truth concerning this matter (taḥqīq) have
stated that Qāḍī Ḥusayn has ignored a fifth maxim, which is “matters shall be

59 Ibn al-Subkī, al-Ashbāh, 1: 11.

60 Ibn al-Subkī, al-Ashbāh, 1: 11 and passim.
61 Ibn al-Subkī, Ṭabaqāt, 10: 36.
122 Chapter 6

judged by their objectives.”62 It is probable that with this statement Ibn al-Subkī
is referring to ˁAlāˀī, who stated that he added this fifth maxim to the four
foundational maxims.63
Ibn al-Subkī states that the opinion that Islamic law is based on five max-
ims is based on the five pillars of Islam and is forced, since the additional fifth
maxim is already included in the first and second maxims. Although, within
the Shāfiˁī school, Islamic law is said to be based on four or five maxims, Ibn
al-Subkī mentions ˁIzz b. Abd al-Salām’s opinion that Islamic law is based on
acquiring benefits and preventing evil (jalb al-maṣāliḥ wa darˀ al-mafāsid). He
says that this can be reduced to bringing benefits, since removing harm, or
evil, is part of it. Ibn al-Subkī goes on to state that one of these five maxims is
sufficient, and this is the maxim “harm is removed,” while acknowledging that
the number of maxims on which substantive rulings are based will be greater.
Lastly, Ibn al-Subkī states that he will analyse these maxims, by showing the
relationship between maxims and substantive law issues with the use of exam-
ples and by focusing on exceptions as the need arises.64
Beginning with ˁAlāˀī, Shāfiˁī maxim works, in particular, first analyse the
five maxims and then try to demonstrate that these maxims cover all legal
issues. With the exception of the fifth and final maxim, Ibn al-Subkī also
begins the maxims in an order that is different from ˁAlāˀī’s, without focusing
on the evidence for these maxims from the statements of the Sharia. Under
each maxim, Ibn al-Subkī analyses different issues under the heading “sec-
tion” (faṣl), provides maxims of a lesser scope related to the main maxims and
points out exceptions as need be.65 He not only casts light on the relationship
between the maxims and substantive law issues, but also extensively discusses
issues of legal methodology when relevant.66
After analysing the five foundational maxims, Ibn al-Subkī provides infor-
mation concerning the outline of his work.67 According to this, after the five
foundational maxims, he deals with what he calls “general maxims (al-qawāˁid
al-ˁamma),” which are maxims that are not limited to one legal area but are
applicable to different areas. In this section the author discusses maxims that

62 Ibn al-Subkī, al-Ashbāh, 1: 12.

63 Cf. ˁAlāˀī, al-Majmūˁ al-mudhhab, 1: 254. At a different point, while transmitting an
issue from ˁAlāˀī’s teacher Ibn Firkāḥ, it seems that he alludes to ˁAlāˀī. Ibn al-Subkī,
al-Ashbāh, 2: 73.
64 Ibn al-Subkī, al-Ashbāh, 1: 12.
65 Ibid, 1: 29–30, 45–46.
66 Ibid, 1: 69–72.
67 Ibid, 1: 93–94.
The 8/14th–9/14th Centuries and the Rise 123

are applicable to many legal issues based on the sources of the Shāfiˁī school.68
Afterwards, he discusses maxims that he calls “specific maxims (al-qawāˁid al-
khaṣṣa),” which are maxims that deal with one legal area, based on the order
of substantive law under the related legal area. Ibn al-Subkī discusses issues
of worship, transactions, marriage and penal law as they relate to maxims and
sub-maxims under the titles of “qāˁida” and “fāˀida,” as opposed to the first two
sections in which he uses the titles “qāˁida” and “faṣl.”69
After examining maxims in these three categories, Ibn al-Subkī discusses
some theological issues which are related to rulings of Islamic law and which
a jurist has to know, such as the pair ism and musammā,70 the reality of the
mind, ḥusn and qubḥ (the good and the repellent), and the reality of the human
being. Ibn al-Subkī mentions many maxims whilst discussing these theologi-
cal issues. While mentioning these maxims using the subheading “issues which
fall under this maxim,” Ibn al-Subkī treats substantive issues related to these
theological discussions.71 The author extensively discusses subjects of legal
methodology because of their close relationship to substantive legal rules.
Following the order of Jamˁ al-jawāmiˁ, Ibn al-Subkī discusses subjects such as
the Qurˀān, the Sunna, consensus, analogy, the statements of the companions,
juristic preference (istiḥsān), and ijtihād. Ibn al-Subkī relates that in his works
of legal methodology such as Rafˁ al-ḥājib ˁan mukhtaṣar Ibn al-Ḥājib, al-Ibhāj
fī sharḥ minhāj al-Bayḍāwī and Jamˁ al-Jawāmiˁ, he has tried to derive issues
of substantive law through legal methodology and that he will do the same
again, adding some subjects that he did not treat in his other works, within
the framework of the relationship between legal methodology and maxims.72
The author, who sets out jurisprudential principles under the heading “maxim”
(qāˁida), discusses the substantive issues based on these. For instance, he sets
out the maxim “that which completes an obligatory act is also obligatory,” dis-
cussing many matters related to this concept.73 Under the heading ‘masˀala’
(issue), he deals mostly with issues that are debated.
After discussing jurisprudential issues, Ibn al-Subkī deals with subjects of
Arabic language and grammar such as the indefinite (nakira), the definite

68 Ibid, 1: 94–199.
69 Ibn al-Subkī, al-Ashbāh, 1: 200–452.
70 “In logical and philosophical discussions, ism denotes the entire linguistic symbol,
whereas musammā is either the correlating thought or the object in the outer world”. See
Versteegh, C.H.M., Leaman, O.N.H. and Bencheikh, J.E., “Maˁnā”, EI2.
71 Ibid, 2: 3–77.
72 Ibid, 2: 77–202.
73 Ibid, 2: 88–89.
124 Chapter 6

(maˁrifa), the state (ḥāl), the noun of the action (maṣdar), the exception (istith-
nāˀ), the noun of the agent (ism al-fāˁil), and the adjective of resemblance (al-
ṣifa al-mushabbaha) within the framework of their relationship to substantive
issues.74 Ibn al-Subkī also covers comparative law, which was the main theme
of early maxim works, within the framework of the differences between Shāfiˁī
and Ḥanafī jurists, trying to show that the differences in substantive issues
are due to the different principles which founding jurists espoused.75 Lastly,
Ibn al-Subkī deals with legal puzzles, anecdotes from the lives of jurists and
miscellaneous issues.76 Ibn al-Subkī adds to the end of his work the exegesis
of a Qurˀānic verse which he discussed in a lesson he gave in the Aminiyya
Madrasa in 763/1362. Taking the scholarly milieu of the period into considera-
tion, he discusses the traits a professor should have and issues such as jealousy,
which is mentioned in the verse. However, it seems that the real impetus for
dealing with this issue at the end of his work is to answer those who are jealous
of him because of his status as a scholar.77 Ibn al-Subkī completes his work
with prayers and remembrances of Allah that are mentioned in the Sunna.78
The fact that Ibn al-Subkī takes up issues of theology and the Arabic language
as regards their relationship with substantive legal rules indicates that the lit-
erature of maxims revolves around the axis of substantive law.
At the end of the section on comparative law, before the section on legal
puzzles, Ibn al-Subkī deals with various issues related to maxims. He discusses
criteria for separating issues that are mentioned in works on maxims but are
not related to maxims and focuses on the importance for the jurist of knowing
maxims. According to the author, there are three kinds of jurists. One group
consists of jurists who know the maxims but do not know how they are applied
to the issues of substantive law. The second group knows many issues of sub-
stantive law but does not know the maxims on which they are based. Then
there is a group which is blessed by Allah’s generosity which knows both max-
ims and their applications in substantive legal rules.79 Ibn al-Subkī indicates
that there are many examples from substantive law of the maxims he dis-
cusses, stating that this knowledge will give one perspective and competence
in the sciences of the Sharīˁa, and qualify one as a muftī.80

74 Ibid, 2: 202–254.
75 Ibid, 2: 254–302.
76 Ibid, 2: 311–346.
77 Ibn al-Subkī, al-Ashbāh, 2: 349–385.
78 Ibid, 2: 386–390.
79 Ibid, 2: 302. For a similar classification cf. 348–349.
80 Ibid, 2: 302. Ibn al-Subkī’s opinions on the importance of knowledge of maxims for the
jurist were acknowledged by later scholars. Cf. Ibn Nujaym, al-Ashbāh, 10.
The 8/14th–9/14th Centuries and the Rise 125

Ibn al-Subkī states that some authors present classifications from previous
sources as maxims in their own works, but that these are not maxims in any
real sense, and he gives examples of such instances.81 Later he states that some
jurists include legal causes within maxim works to bring together rulings of the
same type, which is especially helpful in understanding the issues on which
Abū Ḥanīfa and Shāfiˁī have differed. However, according to Ibn al-Subkī, who
discusses one such example, these common causes cannot be considered legal
maxims.82 Ibn al-Subkī also gives various examples of aspects of jurisprudence
and substantive law that are mentioned in some maxim works, saying that
these issues have no relation to maxims.83 Ibn al-Subkī focuses on such issues
because some authors think that these are related to maxims and discuss these
in maxim works. Most of the examples he gives are from the works of Ibn al-
Wakīl and ˁAlāˀī.84
Like Ibn al-Wakīl and ˁAlāˀī, Ibn al-Subkī draws on al-Talkhīṣ of Ibn al-
Qāṣṣ and its commentaries, al-Rawnaq, which is attributed to Abū Ḥāmīd
al-Isfarāyīnī, and Abū l-Ḥasan al-Maḥāmilī’s al-Lubāb.85 He also refers to ˁIzz
b. ˁAbd al-Salām, Qarāfī and Qāḍī Ḥusayn in many places.86 The fact that the
Shāfiˁī maxim authors frequently refer to these works is significant in showing
their impact on the legal thinking on maxims.
As Ibn al-Subkī states in various places in his work, he tries to bring max-
ims together systematically, developing the methods of previous authors.87
His work has shaped maxim works written after his. Therefore, Ibn al-Subkī,
who categorizes maxims according to their scope, is one of the pioneers of
the categorization used in works entitled al-Ashbāh wa l-naẓāˀir. Suyūṭī and
Ibn Nujaym among later maxim authors have mainly remained loyal to Ibn
al-Subkī’s categorization, to such an extent that both authors have included
in their works a section on legal puzzles after Ibn al-Subkī, who wrote that
he added a section on these to his work although they are not directly related
to maxims because he considers them beneficial for the jurist.88 Hence Ibn
al-Subkī played a leading role in terms of the classification of maxims and

81 Ibid, 2: 306–308.
82 Ibid, 2: 308–309.
83 Ibid, 2: 309–311.
84 E.g. Ibid, 1: 288–292; 302–304.
85 E.g. Ibid, 1: 15, 16, 29–30, 83, 202, 205, 305–306, 318–319, 330–332, 362, 379.
86 For ˁIzz b. ˁAbd al-Salām see Ibn al-Subkī, al-Ashbāh, 1: 21, 38, 310–311, 379, 397; 2: 325. For
Qarāfī see 1: 119, 2: 58, 94. For Qāḍī Ḥusayn see 1: 61, 66, 113, 213, 263, 280, 307, 327, 329, 387,
446, 452; 2: 83, 113, 184, 221, 329.
87 E.g. ibid, 2: 349.
88 Ibid, 2: 311.
126 Chapter 6

the method of writing maxim works that transcended the Shāfiˁī school. Ibn
Nujaym’s statement at the beginning of his al-Ashbāh that Ḥanafī jurists have
not written a work parallel to Ibn al-Subkī’s al-Ashbāh89 refers to this.

2.5 The Alphabetical Method in Maxim Literature: Zarkashī’s al-

Manthūr fi l-qawāˁid
Zarkashī, who was born in Cairo and studied under the leading authorities of
his period such as Isnawī and Sirāj al-Dīn al-Bulqīnī, travelled to Damascus to
read ḥadīth from Ibn Kathīr, and then to Aleppo to take lessons from Shihāb
al-Dīn al-Adhraˁī.90 Zarkashī wrote many books in different disciplines. His
work on maxims, al-Manthūr fī l-qawāˁid, is significant by reason of its orig-
inal arrangement. Zarkashī did not adopt ˁAlāˀī and Ibn al-Subkī’s method of
listing the maxims according to their scope from the most general to the more
specific, which largely influenced later maxim literature, but rather arranged
the maxims alphabetically.
When one looks at the maxim works in the 8/14th century other than that
of Ibn al-Wakīl, one finds three different methods: the method of listing max-
ims from the general to the more specific sub-maxims that began with ˁAlāˀī’s
al-Majmūˁ al-mudhhab and became established with Ibn al-Subkī’s al-Ashbāh;
that of arrangement based on the chapters of substantive law, which was
adopted in Maqqarī’s al-Qawāˁid and Ibn Rajab’s Taqrīr al-qawāˁid; and the
alphabetical method, which Zarkashī applied for the first time in al-Manthūr.
In this aspect, Zarkashī’s work was original for his time.
At the beginning of his work Zarkashī discusses the importance of the knowl-
edge of maxims. According to this, a jurist who knows maxims that encom-
pass many substantive issues will know issues together with the principles on
which they are based. Moreover, a person who wants to be educated in Islamic
law needs to have both general and detailed legal knowledge, which can be
achieved only through the knowledge of maxims. As a consequence, Zarkashī
states that he arranged his work alphabetically to facilitate access for those
who want to obtain knowledge of maxims.91 By mentioning the relationship
between maxims and education, Zarkashī tries to emphasize the importance
of maxims in legal education and the potential of maxims to encompass vari-
ous rulings that are mentioned in the works of the jurists of the legal schools.
This approach highlights the function of maxims to explain the legal doctrine

89 Ibn Nujaym, al-Ashbāh, 10.

90 Ibn Hajar al-Asqalani, al-Durar al-kāmina, 3: 397–398; Ibn al-Imad, Shadharāt al-dhahab,
8: 572–573; Ziriklī, al-Aˀlām, 6: 60–61.
91 Zarkashī, al-Manthūr, 1: 65–67.
The 8/14th–9/14th Centuries and the Rise 127

of the schools within the framework of legal principles. Whereas in previous

centuries maxim works focused on comparative law, in this period they gather
together the common points of the rulings of the founding jurists in order to
pass these on to students. Hence, maxim works in this period state the princi-
ples on which issues of different areas of law are based in an abstract manner,
having the function of passing the legal accumulation of the schools on to stu-
dents based on these abstract principles. Zarkashī’s quotation from the con-
temporary Shāfiˁī jurist Quṭb al-Dīn al-Sunbātī (d. 722/1323) that legal under-
standing is knowledge of naẓāˀir (the legal distinctions between seemingly
similar cases) reflects the approach that was dominant at the time. Zarkashī’s
statement that maxims facilitate an understanding of the legal methodology
of the school, the sources of Islamic law, and connect fragmented issues and
guide the extraction of rulings also echoes the same thought.92
In the introduction to al-Manthūr, Zarkashī deals with important issues
concerning the character and variety of Islamic legal knowledge. The informa-
tion he provides is significant in that it encompasses various sub-disciplines
of Islamic law. Zarkashī states that Islamic law has ten sub-disciplines and
that the most beneficial, useful and complete among these is knowledge of
maxims and sub-maxims.93 Suyūṭī’s statement that the source of Zarkashī’s
categorization is Ibn al-Subkī’s al-Ashbāh wa l-naẓāˀir as the only work that
brings together this information94 demonstrates that Zarkashī used the accu-
mulation of the knowledge of the Shāfiˁī school in writing his work. Zarkashī’s
discussion of Islamic jurisprudence, substantive law, legal puzzles, legal dis-
tinctions, maxims and legal devices indicates that he aims to develop the legal
faculty of students and pass on the legal heritage of the school.
Unlike ˁAlāˀī and Ibn al-Subkī, Zarkashī does not refer to the tradition of
writing on maxims, but at one point in the introduction mentions Ibn al-
Wakīl.95 Zarkashī also refers in his introduction to other jurists who are cited
by authors of legal maxims such as Qāḍī Ḥusayn, ˁIzz b. ˁAbd al-Salām and
Qarāfī.96 However, he does not mention the works of ˁAlāˀī and Ibn al-Subkī,

92 Ibid, 1: 66.
93 Ibid, 1: 71.
94 Suyūṭī, al-Ashbāh wa l-naẓāˀir fī l-naḥw, 1: 7.
95 Zarkashī, al-Manthūr, 1: 72.
96 For Qāḍī Ḥusayn see Zarkashī, al-Manthūr, 1: 67, 75, 118, 130, 152, 158. For ˁIzz, see ibid, 1: 77,
98, 143, 348; 2: 14, 128; 3: 173. For Qarāfī see 1: 330.
128 Chapter 6

which shows that he was either not aware of their works or he purposely does
not refer to them.97
Zarkashī primarily discusses maxims, sub-maxims and jurisprudential max-
ims in alphabetical order, but also analyses various issues that are related to
Islamic law and maxims such as those concerning creed and ethics. Rather
than adducing evidence for the maxims, Zarkashī gives many examples from
substantive law, and also devotes attention to the exceptions to the maxims
as need be.98 The author also focuses on the sources of the maxims and their
historical development. For instance, he relates that the maxim “when a matter
becomes difficult, its rule becomes expanded” belongs to Shāfiˁī. Immediately
afterwards he has a section entitled “if a matter is extended, it is constricted,”
in which he wrote that this maxim is also expressed as “everything that trans-
gresses its boundaries is returned to its opposite.”99 Maxims that the author sets
out in the form of questions are mostly sub-maxims that are debated within
the Shāfiˁī school, concerning which he states his preferences. It is evident in
this work that Zarkashī utilizes the extensive legal accumulation of the Shāfiˁī
school.100
Zarkashī’s al-Manthūr became famous among jurists and was the subject of
significant study. Although some sources mentioned Sirāj al-Dīn al-ˁAbbādī’s
(d. 947/1541) two-volume commentary, Nadwī states that this work is not
a commentary in the real sense, but rather brings together three glosses by
different scholars.101 According to Nadwī, these glosses comprise mostly criti-
cisms, corrections and additions concerning issues the author did not discuss
in al-Manthūr.102 Some sources also mentioned ˁAbd al-Wahhāb b. Aḥmad
al-Shaˁrānī’s (d 973/1566) commentary al-Maqāṣid al-saniyya fī l-qawāˁid
al-fiqhiyya.103

97 ˁAbd al-Raḥmān b. ˁAbd Allāh, who has edited Ḥiṣnī’s work states that in many places
Zarkashī uses the same expressions as ˁAlāˀī. Hiṣnī, Kitāb al-qawāˁid, editor’s introduc-
tion, 1: 136.
98 Zarkashī, al-Manthūr, 1: 95, 135–136, 147–148.
99 Ibid, 1: 120–123.
100 For other features of the work see ibid, the editor’s introduction, 1: 47–52; Nadwī, al-
Qawāˁid, 231–233.
101 Ibn al-ˁImād, Shadharāt al-dhahab, 10: 385; Kātip Çelebi, Kashf al-ẓunūn, 2: 1359.
102 Nadwī, al-Qawāˁid, 234–236.
103 Ḥiṣnī, Kitāb al-qawāˁid, editor’s introduction, 1: 68.
The 8/14th–9/14th Centuries and the Rise 129

2.6 An Important Work of Ḥanbalī Maxim Literature: Ibn Rajab’s (d.

795/1395) Taqrīr al-qawāˁid wa taḥrīr al-fawāˀid
Ibn Rajab was born in Damascus and travelled to major centres of learning such
as Nablus, Jerusalem, Cairo and the Ḥījāz to attend the study circles of the lead-
ing scholars of his time. After his travels, Ibn Rajab settled in Damascus, and
when his master, Ibn Qāḍī al-Jabal (d. 771/1370), died he began to teach in his
place. Ibn Rajab, who was a disciple of Ibn Qayyim al-Jawziyya, trained many
students including Muḥammad b. Aḥmad al-Maqdisī and Ibn al-Laḥḥām who
was also the author of a maxim work.104 Ibn Rajab, who heard ḥadīths from
the Shāfiˁī maxim author ˁAlāˀī while the latter was in Jerusalem, was probably
influenced by ˁAlāˀī and the studies he saw in Cairo, Damascus, Nablus and
Jerusalem in his decision to write a work on maxims.105
Taqrīr al-qawāˁid wa taḥrīr al-fawāˀid, in which Ibn Rajab tries to present
the legal accumulation of the Ḥanbalī school in a language that is based on
principles, begins with statements similar to those found in the introduction to
Zarkashī’s al-Manthūr.106 Ibn Rajab mentions the importance of maxims, not-
ing that they enable the jurist to discern the foundations of the legal school and
the sources of law, and to bring together scattered legal issues.107 In contrast to
other maxim works, Ibn Rajab focuses in Taqrīr al-qawāˁid on the bases of the
differences of opinion within his legal school, attempting to elucidate the rela-
tionship between these differences and legal maxims. Thus, he evaluates the
legal heritage of the Ḥanbalī school up to his time, analysing the maxims on
which this heritage is based. While doing this, he sets out his scholarly compe-
tence giving his preferences concerning the differences of opinion within his
school. Additionally, the fact that he mentions many examples from different
areas of law for each maxim is one of the important indicators of the success of
the work in encompassing various legal subjects. Although Ibn Rajab’s style of
expressing maxims and sub-maxims is longer in comparison to other maxim
works, his work contains the main maxims that are found in them.
Since the work is the most effective and a unique Ḥanbalī work on maxims,
there have been various studies on it. Among these are abridgements such as
those of ˁAbd al-Razzāq al-Ḥanbalī (d. 819/1417), Aḥmad b. Naṣr Allāh b. ˁUmar

104 For his life see Ibn Ḥajar al-Asqalānī, al-Durar al-kāmina, 2: 321–322 and Inbāˀ ’al-ghumr,
1: 460–461; Ibn al-ˁImād, Shadharāt al-dhahab, 8: 579–580; Shawkānī, al-Badr al-ṭāliˁ, 228–
229; Kallek, “İbn Receb,” DİA, 20: 243–247.
105 Ibn Rajab, al-Dhayl ˁalā ṭabaqāt al-Ḥanābila, editor’s introduction, 1: 16, 21.
106 Ibn al-ˁImād, Shadharāt al-dhahab, 8: 579–580. Kātip Çelebi stated that this is a useful
work and one of the wonderful works of its times. Kātip Çelebi, Kashf al-ẓunūn, 2: 1359.
107 Ibn Rajab, Taqrīr al-qawāˁid, 1: 4.
130 Chapter 6

al-Makhzūmī (d. 844/1441) and ˁAbd Allāh b. Abd al-Raḥmān Abā Tīn (d. 1121/
1710), all entitled Mukhtaṣar qawāˁid Ibn Rajab.108 Yūsuf b. ˁAbd al-Raḥmān
al-Ḥanbalī (d. 900/1495), after reorganizing and refining the work in Cairo, pre-
sented it to the leading Ḥanbalī scholars of the time and earned their praise.109
Although some sources mention that Shams al-Dīn Muḥammad b. ˁUthmān
b. Ḥusayn al-Jazīrī (d. 888/1484) began to organize the substantive law subjects
of the work, there is no information that he completed this work.110

2.7 Other Maxim Works Written in the 8/14th Century

In the 8/14th century in which maxim works were systematized in terms of
their arrangement and composition, there were undoubtedly many studies
other than the ones discussed. However, many of these either remained as first
drafts or are no longer extant. Therefore, one needs to be cautious while deal-
ing with works from this period that are no longer extant. It may be misleading
to think that some books are maxim works based on their names which include
the word qāˁida or qawāˁid in bibliographical works, since we know that in the
previous periods there were studies that were not maxim works that included
similar expressions in their titles. In this period, jurists who influenced legal
doctrine wrote works on maxims, including works not related to maxims, as a
result of which the use of such expressions became widespread.
Although two works by Najm al-Dīn al-Ṭūfī (d. 716/1316), who was a jurist
who lived in this century, concerning maxims are mentioned, it is difficult
to speculate about the content of these works since they are not extant.111
However, both the fact that he used maxims in his other works and the fact that
he is one of the first authors to define the maxim according to extant works
increase the possibility that he wrote a work on maxims.112 However, since the
work is not extant one cannot be certain. In this period there is also the men-
tion of al-Mudhhab fī ḍabṭ qawāˁid al-madhhab by Muḥammad b. ˁAbd Allāh
b. Rāshid al-Bakrī (d. 736/1336), who was a Mālikī jurist and a pupil of Qarāfī,
as an unparalleled work within the Mālikī school.113 There is no information
on whether this book, which Wansharīsī mentions in a discussion on bequests
with the title al-Mudhhab fī ḍabṭ masāˀil al-madhhab, is a work on maxims.114

108 Cf. Abū Zayd, al-Madkhal al-mufaṣṣal, 2: 934–935; Ibn Rajab, Taqrīr al-qawāˁid, the edi-
tor’s introduction, 1: 18–19.
109 Ṭabbākh, Iˁlām al-nubalāˀ, 5: 348–349.
110 Sakhāwī, al-Ḍawˀ al-lāmiˁ, 8: 142.
111 Kātip Çelebi, Kashf al-ẓunūn, 2: 1359.
112 For its definition see Ṭūfī, Sharḥ mukhtaṣar al-rawḍa, 2: 95–96.
113 Ibn Farḥūn, al-Dībāj al-mudhhab, 417–418.
114 Wansharīsī, al-Miˁyār, 9: 316.
The 8/14th–9/14th Centuries and the Rise 131

Although the word maxim is used in the title of Ibn Taymiyya’s (d. 728/1323)
work al-Qawāˁid al-nūrānīyya al-fiqhiyya, it is a standard work of substantive
law. In this work the author tries to show that the school of Ahl al-ḥadīth (peo-
ple of ḥadīth) constitutes the middle path between the Iraqis and the Ḥijāzīs.
Although maxims and sub-maxims are mentioned in the work as need be,
they were not used any more frequently than in other works of substantive
law. Consequently, this book by Ibn Taymiyya is not a maxim work but a work
of substantive law that discusses the opinions of the legal schools.
Isnawī (d. 772/1370), who lived in the same period as Ibn al-Subkī and was
the master of maxim authors such as Zarkashī and Sirāj al-Dīn ibn al-Mulaqqin,
contributed to the literature on jurisprudential maxims with his book entitled
al-Tamhīd in the field of Takhrīj al-furūˁ ˁalā l-uṣūl. Additionally, in al-Kawkab
al-durrī he analyses the relationship between rules of syntax and substantive
law and in Maṭāliˁ al-daqāˀiq fī taḥrīr al-jawāmiˁ wa l-fawāriq he discusses the
distinctions between legal issues.115 A work on maxims is also attributed to the
author, who composed many such works in fields close to maxims. However,
there is no information on whether this work, which is mentioned in the
sources as a short first draft, is extant.116
Kātip Çelebi mentions that the Shāfiˁī scholar ˁAlī b. ˁUthmān al-Ghazzī
(d. 799/1397), who was a student of Ibn Qāḍī Shuhba and Ibn al-Subkī, wrote
al-Qawāˁid fī l-furūˁ, which discusses maxims together with their exceptions
and includes the legal puzzles of Isnawī and adds to them.117 However, other
sources do not attribute such a work to Ghazzī and there is no information on
whether the work is extant.118

2.8 9/15th Century Maxim Literature

The tradition of writing on maxims became systematized with the works writ-
ten in the 8/14th century. Many of the authors in the 9/15th century conducted
studies on maxim works written the previous century, and this sustained
endeavour led to the formation of a stable writing method. This dominant fea-
ture of the field of maxims in this period is similar to the developments in

115 This work is mentioned in some sources as al-Lawāmiˁ wa l-bawārik fī l-jawāmiˁ wa l-

fawāriq. Ibn Qāḍī Shuhba, Ṭabaqāt, 3: 135.
116 Cf. Suyūṭī, al-Ashbāh wa l-naẓāˀir fī l-naḥw, 1: 8; Isnawī, Maṭāliˁ al-daqāˀiq, 2: 9. For his life
and works see Ibn Qāḍī Shuhba, Ṭabaqāt, 3: 132–135; Köse, “İsnevī,” DİA, 23: 160, 161.
117 Kātip Çelebi, Khashf al-ẓunūn, 2: 1359. İsmail Paşa (d. 1338/1920) mistakenly wrote that
Ibn al-Ghazzī was Ḥanafī. İsmail Paşa, Hadiyyat al-ˁārifīn, 2: 726.
118 Cf. Ibn Ḥajar al-Asqalānī, al-Durar al-kāmina, 3: 205–206; Ibn al-ˁImād, Shadharāt al-
dhahab, 8: 614; Ziriklī, al-Aˁlām, 5: 105.
132 Chapter 6

the fields of Arabic language, ḥadīth and jurisprudence.119 As in previous peri-

ods, Shāfiˁī jurists composed a considerable number of works and outstripped
other schools in terms of the quantity of their works.

2.8.1 Ibn al-Mulaqqin (d. 804/1401) and His Work al-Ashbāh wa l-naẓāˀir
fī qawāˁid al-fiqh
Sirāj al-Dīn b. Mulaqqin, who was of Andalusian origin and was an expert
in ḥadīth and Arabic language, travelled to Cairo, Aleppo, Damascus and
Jerusalem, taking lessons from many scholars including maxim authors such
as ˁAlāˀī and Ibn al-Subkī.120 Although Ibn al-Mulaqqin was Shāfiˁī and was the
student of Shāfiˁī maxim authors, he did not follow the method of his masters
in his work, but rather ordered it according to the chapter sequence of works
of substantive law, like Maqqarī and Ibn Rajab. However, in the beginning of
the work he establishes a firm relationship with the Shāfiˁī tradition of max-
ims, providing information on the sources of his work. Leaving aside the Mālikī
jurist Qarāfī, he mentioned maxim authors such as ˁIzz b. ˁAbd al-Salām, Ibn
al-Wakīl and ˁAlāˀī, and stressed the importance of their works. The fact that
Ibn al-Mulaqqin, unlike Ibn al-Subkī and Zarkashī, mentioned ˁAlāˀī is signif-
icant in showing the importance of his master in the formation of his view on
maxims. Although he does not mention Ibn al-Subkī in the introduction, he
refers to him many times in his work as “our shaikh.” However, the fact that he
takes some maxims and examples from Ibn al-Subkī without identifying their
source has led some authors to say that his work is taken primarily from Ibn
al-Subkī’s book.121
Although Ibn al-Mulaqqin, who focuses mainly on the opinions and dis-
putes within the Shāfiˁī school, mentions many maxims and sub-maxims, he
does not deal with certain foundational maxims. He is loyal to the system of
substantive law, beginning with the book of purification and ending with the
book of the rulings of slaves. Under the chapter titles, he puts sub-headings in
which he transmits a maxim or a sub-maxim, which he tries to link with the
examples he presents. For instance, in the book of purification he has a chap-
ter entitled “the occasions of bodily impurity” in which he analyses the maxim
“certainty is not overruled by doubt,” presenting the opinions of the leading
authorities of the Shāfiˁī school on the subject.122

119 Ibn al-Mulaqqin, al-Ashbāh, the editor’s introduction, 1: 57.

120 Ibn Ḥajar al-Asqalānī, Inbāˀ al-ghumr, 2: 216–219; Sakhāwī, al-Dawˀ al-lāmiˁ, 6: 100–105.
121 Kātip Çelebi, Kashf al-ẓunūn, 1: 100. For examples see Ibn al-Mulaqqin, al-Ashbāh, 1: 406–
407 and Ibn al-Subkī, al-Ashbāh, 1: 275–276. For other examples see Nadwī, al-Qawāˁid,
238–239.
122 Ibn al-Mulaqqin, al-Ashbāh, 1: 135–136.
The 8/14th–9/14th Centuries and the Rise 133

2.8.2 The Work that Brings Together ˁAlāˀī and Ibn al-Subkī: Taqī al-Dīn
al-Ḥiṣnī’s (d. 829/1426) Kitāb al-qawāˁid
Taqī al-Dīn al-Ḥiṣnī, who spent a large part of his life in Damascus, travelled to
Jerusalem and Aleppo where he studied with the scholars of these two cities.123
He was the pupil of Abū ˁAbd Allāh Muḥammad b. Sulaymān al-Sarḥadī (d.
792/1390), who abridged ˁAlāˀī’s al-Majmūˁ al-mudhhab, and ˁAlī b. ˁUthmān
al-Ghazzī, who was the author of al-Qawāˁid fī l-furūˁ. Ḥiṣnī wrote an original
work that brought together the methods of ˁAlāˀī and Ibn al-Subkī. However,
since the author benefited greatly from ˁAlāˀī’s al-Majmūˁ al-Mudhhab, his
work has been considered an abridgement of that work.124 Nevertheless, what
the author did in Kitāb al-qawāˁid necessitates that we consider it not as an
abridgment, but rather as a work that is based on ˁAlāˀī’s study.
Ḥiṣnī, who was known for his asceticism and piety and who wrote works
on these subjects, like ˁAlāˀī first mentions the importance of knowledge and
then deals with various subjects concerning the definition and features of
Islamic law. After this introduction, the author focuses on the subject of the
ruling (al-ḥukm).125 Next he narrates that the Shāfiˁī school is based on four
maxims, stating that ˁAlāˀī added a fifth to these. He analyses these five max-
ims in detail.126 After these foundational maxims, Ḥiṣnī discusses various max-
ims most of which are related to jurisprudence. Subsequently, he deals with
maxims of substantive law and related legal cases.

2.8.3 Other Studies on the Legal Accumulation of the Previous Periods

In this century, in which Shāfiˁī jurists were at the forefront of writing on max-
ims, most of the books were studies on works of the previous centuries. In the
independent works written by Shāfiˁī authors, there was a significant impact
by ˁIzz b. ˁAbd al-Salām and ˁAlāˀī to a significant degree. Additionally, the
studies on the works of these two authors also proliferated compared with
the previous period. For example, the studies of Sirāj al-Dīn ˁUmar b. Raslan
al-Bulqīnī (d. 805/1403) and Ibn Jamāˁa al-Kinānī (d. 819/1417) on ˁIzz b. ˁAbd
al-Salām’s al-Qawāˁid are among these. The works of Ibn al-Hāˀim (d. 815/1413)
and Ibn Khaṭīb al-Dahsha (d. 834/1431) were also based on ˁAlāˀī’s al-Qawāˁid,

123 For his life see Ibn Ḥajar al-Asqalānī, Inbāˀ al-ghumr, 3: 374–375; Ibn Qāḍī Shuhba,
Ṭabaqāt, 4: 97–99; Shawkānī, al-Badr al-ṭāliˁ, 113.
124 Ḥiṣnī, Kitab al-qawāˁid, the editor’s introduction, 1: 12, 117–124. For a similar approach see
Nadwī, al-Qawāˁid, 241.
125 Ḥiṣnī, Kitāb al-qawāˁid, 1: 182–202.
126 Ibid, 1: 203–208.
134 Chapter 6

which they studied in comparison with the work of Isnawī.127 Ibn Rajab’s
maxim book got the attention it deserved, especially among Ḥanbalī jurists,
who produced many studies on it. The abridgements of ˁAbd al-Razzāq al-
Ḥanbalī (d. 819/1417) and Aḥmad b. Naṣr Allāh b. ˁUmar al-Makhzūmī (d. 844/
1441) are chief among these.128
There were also independent works on maxims in the 9/15th century. The
leading jurist to write a work in this century was Muḥammad b. Muḥammad
al-Khudrī al-Zubayrī al-Ayzarī (d. 808/1406). Ayzarī, who studied under the
leading scholars of the period such as Ibn al-Qayyim, Taqī al-Dīn al-Subkī, Tāj
al-Dīn b. al-Subkī, Ibn Kathīr (d. 774/1373) and Sirāj al-Dīn al-Bulqīnī, wrote
works in many fields. Ayzarī, who was influenced especially by Ibn al-Subkī
and Bulqīnī, with whom he studied law for a long time, wrote the maxim work
Asnā l-maqāṣid fī taḥrīr al-qawāˁid.129 This study of Ayzarī, which was influ-
enced by ˁIzz b. ˁAbd al-Salām’s maxim-centred legal thought and was proba-
bly based on his work, has not reached us.
Some biographical sources also mention Naẓm al-zahāˀir fī l-ashbāh wa l-
naẓāˀir by ˁAbd al-Raḥmān b. ˁAlī al-Maqdisī (d. 876/1472) who, like Ayzarī,
was Shāfiˁī.130 Al-Maqdisī, who studied law under Ibn al-Hāˀim, met many
scholars, especially Shāfiˁī jurists, and attended their classes during his travels
between Cairo, Damascus and the Ḥijāz. He focused on maxims, writing Naẓm
al-zahāˀir which, according to Sakhāwī’s (d. 902/1497) uncertain statement,
was based on the works either of both Ibn al-Jawzī and Ibn al-Zaghūnī or just
one of them.131 However, this work is no longer extant.
In this period, Ḥanbalī jurists wrote various works focusing on Ibn al-Rajab’s
study on legal maxims. However, they also wrote some independent works.
Foremost among these is the study entitled Ḥawāshī l-qawāˁid al-fiqhiyya by
Muḥibb al-Dīn Aḥmad b. Naṣr Allāh al-Ḥanbalī (d. 844/1441), who was born in
Baghdad and lived in Cairo, where he served as the chief justice (qāḍī al-quḍāt).
It is said that Ibn Naṣr Allāh wrote a study on Ibn Rajab’s maxim work.132 In the
time he spent in Cairo, Ibn Naṣr Allāh was influenced by ˁIzz b. ˁAbd al-Salām’s
thought on maxims and attended the classes of scholars who wrote works in

127 See Ibn Khaṭīb al-Dahsha, al-Mukhtaṣar, 1: 62–64; Kātip Çelebi, Khashf al-ẓunūn, 2: 1359–
1360; İsmail Paşa, Īḍāḥ al-maknūn, 2: 205, 233, 243.
128 Cf. Abū Zayd, al-Madkhal al-mufaṣṣal, 2: 934–935; Ibn Rajab, Taqrīr al-qawāˁid, the edi-
tor’s introduction, 1: 18–19.
129 Sakhāwī, al-Dawˀ al-lāmiˁ, 9: 218. For the work see Kātip Çelebi, Khashf al-ẓunūn, 1: 90;
İsmail Paşa, Hadiyyat al-ˁārifīn, 2: 178.
130 İsmail Paşa, Hadiyyat al-ˁārifīn, 1: 533; Īḍāḥ al-maknūn, 2: 659.
131 Sakhāwī, al-Dawˀ al-lāmiˁ, 4: 95.
132 Bāḥusayn, al-Qawāˁid, 340.
The 8/14th–9/14th Centuries and the Rise 135

this field. Ibn Naṣr Allāh, who was for a while the student of Ibn al-Mulaqqin
who had written a work on maxims, later moved to Damascus and took lessons
from Ibn Rajab.133 Since he wrote glosses on works in many different fields, it
is very possible that he wrote glosses on maxims also, and that he wrote a gloss
on the maxim-text al-Qawāˁid of his teacher Ibn Rajab.134
133 Ibn Ḥajar al-Asqalānī, Inbāˀ al-ghumr, 4: 164–166; Ibn al-ˁImād, Shadharāt al-dhahab,
9: 364.
134 Sakhāwī writes that Ibn Naṣr Allāh wrote glosses on various sciences. Sakhāwī, al-Dawˀ
al-lāmiˁ, 2: 237. For other works written in this century see Nadwī, al-Qawāˁid, 139–140;
Bāḥusayn, al-Qawāˁid, 336–341.
 chapter 7

10/16th Century
The Systemization of Maxim Literature in Terms of Language and Style

In the works written in the 10/16th century the formulations of maxims become
fully developed. Ḥanafī Ibn Nujaym in his al-Ashbāh followed Shāfiˁī scholars
ˁAlāˀī and Ibn al-Subkī’s qawāˁid compilation style. This style is recognized
by authors outside the Shāfiˁī school as a common and standard pattern. The
works of Suyūṭī and Ibn Nujaym, which are the chief works of the period and
represent its characteristic features, have greatly influenced works written in
later centuries and served as a bridge between the authors before and after
them. Although in previous centuries references were made to authors such as
ˁIzz b. ˁAbd al-Salām, ˁAlāˀī and Ibn al-Subkī, after this century these authors
gave way to Suyūṭī and Ibn Nujaym. Moreover, the total number of studies on
Ibn Nujaym’s al-Ashbāh beginning with this century is equivalent to the num-
ber of works written in previous periods.
One of the primary features of this period is the poetization of legal max-
ims and sub-maxims, in which Mālikī jurists took a leading role. Such com-
pilations of maxims were met with great interest in the places in which the
Mālikī school was widespread. Several studies were conducted on al-Manhaj
al-muntakhab by ˁAlī b. Qāsim al-Zaqqāq (d. 912/1506), who played a pioneer-
ing role in this respect. Although the poetization of maxims created certain
changes in their mature formulations, the aim of this writing style was edu-
cational. Considering that primary texts in syntax, creed, ḥadīth and jurispru-
dence were taught to students through the committing of them to memory,
the same was done for legal maxims to demonstrate the basic approach of the
legal schools.
After Ibn Rajab, Ḥanbalī jurists also showed greater interest in writing on
maxims. Works by students who attended Ibn Rajab’s study circle and were
directly trained by him influenced Ḥanbalī jurists who came after. However, it
is difficult to say that Ḥanbalī jurists in this century followed a set method in
their works. As a result, although the number of their maxim works increased,
the fact that Ḥanbalī jurists did not develop a set approach negatively affected
the writing of Ḥanbalī works in later centuries. The works composed in this
century are briefly discussed below.
10/16th Century 137

1 Shāfiˁī and Mālikī Maxim Works

In the 10/16th century, while Shāfiˁī jurists spent time studying maxim works
written in previous periods, there was a considerable increase in the number
of Mālikī jurists who wrote maxim works. The fact that maxims were poetized
so that they could be placed in the curricula of educational institutions to pass
on the legal accumulation of the school within the framework of maxims had a
particularly positive effect on writing. For instance, many commentaries were
written on the poetic work of Zaqqāq.

1.1 Suyūṭī (d. 911/1505) and His Work al-Ashbāh wa l-naẓāˀir fī qawāˁid
wa furūˁ fīqh al-Shāfiˁīyya
When Suyūṭī, who was born in Egypt in 849/1446, lost his father at a young age
he was brought up and educated by the leading scholars of the time such as
Kamāl al-Dīn b. al-Humām (d. 861/1457). Suyūṭī, who attended the classes of
many scholars including Jalāl al-Dīn al-Maḥallī (d. 864/1459),1 was a polymath
of deep learning. Suyūṭī wrote works in many different fields, ranging from law
to history, exegesis, ḥadīth, theology, linguistics and other disciplines. His work
on maxims entitled al-Ashbāh wa l-naẓāˀir fī qawāˁid wa furūˁ fiqh al-Shāfiˁiyya
influenced not only the Shāfiˁī school of law but others as well.
In the introduction to al-Ashbāh wa l-naẓāˀir, Suyūṭī stated that Islamic
law includes sub-disciplines, the most beneficial of which is knowledge of
the ashbāh and naẓāˀir of issues of substantive law.2 Two aspects of Suyūṭī’s
approach are worthy of note. The first is his opinion that Islamic law consists
of various sub-disciplines. The common claim that Islamic law consists of the
two genres of jurisprudence and substantive law excludes other genres which
developed under Islamic law. For this reason, Suyūṭī’s mention of various
sub-disciplines of Islamic law in the beginning of his book is an interpreta-
tion that takes into consideration the various genres that emerged up to that
point, indicating that maxims are one of the sub-disciplines of Islamic law. The
second striking aspect of Suyūṭī’s approach is the opinion that of the various
legal sub-disciplines the most beneficial is knowledge of ashbāh and naẓāˀir.
Considering that ashbāh refers to issues that resemble each other in terms of
form and ruling and naẓāˀir refers to issues that resemble each other in form
but differ in their rulings, it can be observed that knowledge of ashbāh and
naẓāˀir is the most beneficial because it is a sign of the presence of the legal

1 Ibn al-ˁImād, Shadharāt al-dhahab, 10: 74–78.

2 Suyūṭī, al-Ashbāh, 4.
138 Chapter 7

faculty that requires subtle observation. The refinement of concepts in paral-

lel to the development of Islamic law and the emergence of sub-disciplines
that pay attention to subtle distinctions represents an important phase. Suyūṭī
calls this knowledge beneficial because in the sub-disciplines that emerged as
result of this process the careful analysis and differentiation of concepts and
the identification of principles on which issues are based by looking at their
similarities and differences was achieved through the legal faculty. Hence,
maxim works in which aspects of similarity and difference of many issues are
expressed in axiomatic language are of paramount importance because they
represent the development of legal-theoretical thought in this respect.
Suyūṭī stated that because students and those interested very much liked a
short work he wrote on maxims and sub-maxims, he wrote al-Ashbāh, which
he describes as his life’s work.3 Suyūṭī stated that knowledge of ashbāh wa l-
naẓāˀir is very beneficial, since through it one becomes familiar with the real-
ities of Islamic law, its sources and its secrets. With knowledge of ashbāh wa l-
naẓāˀir one comprehends issues which are not mentioned in previous sources
and becomes skilled in understanding Islamic law, producing legal knowledge
and derivation. He tried to demonstrate this approach with two quotations.
One is Quṭb al-Dīn al-Sunbātī’s opinion, set out by Zarkashī, that Islamic law is
knowledge of naẓāˀir. The second is ˁUmar b. al-Khaṭṭāb’s advice to Abū Mūsā
al-Ashˁarī in a letter he sent to him that he should learn ashbāh and compare
with them issues that are not in the sources with them.4
Suyūṭī continues his introduction by relating the incident concerning Abū
Ṭāhir al-Dabbās and his efforts to base Ḥanafī law on certain maxims, which
ˁAlāˀī discussed in detail, whereas Ibn al-Subkī mentioned the consequences of
the incident rather than its details. Here Suyūṭī mistakenly stated that Dabbās
was from the ulama of Transoxiana. Suyūṭī then alluded to Ibn al-Subkī’s opin-
ion that reducing Islamic law to four maxims is rather forced and discussed
the view of ˁAlāˀī that it was necessary to add a fifth maxim to these.5 The fact
that Suyūṭī mentioned Qāḍī Abū al-Ḥusayn, ˁIzz b. ˁAbd al-Salām, ˁAlāˀī, Ibn
al-Subkī and Zarkashī in the introduction proves that he was trying to link his
work with the legal heritage of the Shāfiˁī school in this field.
Although Suyūṭī does not deal with the maxim tradition of the Shāfiˁī school
in his legal work al-Ashbāh, he discusses this in his syntax work with the same
name. He states that the only distinctive feature of Zarkashī’s al-Manthūr is the
alphabetical arrangement of maxims and that Ibn al-Wakīl’s al-Ashbāh ranks

3 Suyūṭī, al-Ashbāh, 5.
4 Suyūṭī, al-Ashbāh, 6–7. Cf. Zarkashī, al-Manthūr, 1: 66.
5 Suyūṭī, al-Ashbāh, 7–8.
10/16th Century 139

much lower than the studies of Ibn al-Subkī and Zarkashī. However, he also
states that Ibn al-Subkī, at the request of his father, arranged Ibn al-Wakīl’s
work for publication.6 Suyūṭī states that ˁIzz b. ˁAbd al-Salām was the pioneer
in the field of legal maxims with his works al-Qawāˁid al-kubrā and al-Qawāˁid
al-sughrā. He further states that Isnawī began to compose a work in this field,
but because he died all they had of the work was a rough draft consisting of
five fascicles. However, Suyūṭī notes that Isnawī wrote al-Tamhīd in the field
of deriving substantive law from jurisprudence and al-Kawkab al-durrī in the
field of deriving substantive law from linguistic principles and that these two
fields were included in Ibn al-Subkī’s al-Ashbāh. Suyūṭī then stated that Ibn
al-Mulaqqin has a work entitled al-Ashbāh wa l-naẓāˀir that is arranged accord-
ing to the order of the chapters of substantive legal rules and that this work is
superior to Isnawī’s work but ranks below the others. Lastly, he states that he
wrote al-Ashbāh wa l-naẓāˀir in a style different from that of the works previ-
ously mentioned.7
Suyūṭī’s al-Ashbāh wa l-naẓāˀir consists of seven main chapters. Suyūṭī, who
with an original style subdivides maxims according to their scope, in the first
chapter discusses the five foundational maxims in detail, stating that all sub-
jects of Islamic law are based on these maxims.8 Suyūṭī analyses these maxims
in an order that is different from that of Ibn al-Subkī. Because of his familiarity
with the sciences of ḥadīth, Suyūṭī begins with the legal form of the ḥadīth
of intention with which ḥadīth books usually begin: “Matters shall be judged
by their objectives.”9 While discussing the maxims, sub-maxims and issues that
come under this general maxim, Suyūṭī mentions many examples from ḥadīth,
following a pattern that is different in this respect from previous sources of
the Shāfiˁī school. For example, while discussing the maxim “matters shall be
judged by their objectives” he states, “know that the transmissions from lead-
ing scholars as regards knowing the importance of the ḥadīth of intention have
attained an undeniable status (mutawātir).” Thus, by citing many narrations he
stresses the importance of the intention.10 One of these is from Shāfiˁī that
70 chapters of knowledge come under the ḥadīth of intention. Mentioning
many examples, Suyūṭī then states how this maxim is applied to legal issues.
He states that the examples he cites are from more than 70 different subjects,

6 Suyūṭī, al-Asbāh wa l-naẓāˀir fī l-naḥw, 1: 7.

7 Ibid, 1: 8.
8 Suyūṭī, al-Ashbāh, 7–101.
9 Suyūṭī, al-Ashbāh, 8.
10 Suyūṭī, al-Ashbāh, 9.
140 Chapter 7

pointing out that this is in response to those who claim that Shāfiˁī’s opinion is
exaggerated regarding the importance of intentions.11
Suyūṭī stated that the foundational legal maxims can be applied to all areas
of law and that they encompass many other maxims. For instance, while dis-
cussing the maxim “certainty is not overruled by doubt” he stated that under this
came other maxims such as “the fundamental principle is that the status quo
is upheld” and “the fundamental principle is freedom from liability.”12 Suyūṭī’s
approach influenced the definition of maxim as set out by some later authors.
For instance, according to Ömer Nasuhi Bilmen, “each one of the legal max-
ims is an axiom of considerable scope that attains the attribute of ‘universal’ by
not coming within the framework of other maxims.”13 Likewise, while defining
maxims, Muḥammad Anīs ˁUbāda divides them into the two categories of the
universal and subsumed. The former consists of those that encompass other
maxims, while the latter are maxims that are within the scope of a universal
maxim.14
In the second chapter Suyūṭī investigates forty universal maxims on which
many particular issues are based, stating that these cover many legal subjects.15
In this section Suyūṭī provides the sources of the maxims from the verses of
the Qurˀān and ḥadīths as well, establishing the relationship between maxims
and statements of the Sharīˁa. In the third chapter Suyūṭī discusses 20 maxims
that have the quality of being sub-maxims and are debated within the Shāfiˁī
school, presenting them mostly in the form of questions.16 Suyūṭī sets out the
differences concerning these maxims with their sources, presenting the var-
ious opinions on the subject within the school. For example, he wrote titles
such as “acquittance: Is it a relinquishment or possession? There are two opinions
on this issue (al-ibrāˀ: hal huwa isqāṭun aw tamlīkun? Qawlān)” and “is mutual
annulment of a sale a revocation or a new sale? There are two opinions on this
issue (al-iqālah: hal hiya faskhun aw bayˁun? Qawlān).” Under these headings,
he presents the debates of the Shāfiˁī jurists on these issues and the conse-
quent differences in rulings.17
In the fourth chapter Suyūṭī discusses issues that come up frequently and
that it would be shameful for the jurist not to know.18 Suyūṭī, who bases this

11 Suyūṭī, al-Ashbāh, 11.

12 Suyūṭī, al-Ashbāh, 51, 53. For other examples see ibid, 83–84.
13 Bilmen, Hukukı İslāmiyye ve Istılahatı Fıkhiyye Kamusu, 1: 254.
14 ˁUbāda, Qawāˁid, 1.
15 Suyūṭī, al-Ashbāh, 101–162.
16 Suyūṭī, al-Ashbāh, 162–187.
17 Suyūṭī, al-Ashbāh, 171–173.
18 Suyūṭī, al-Ashbāh, 187–422.
10/16th Century 141

section on the ḥadīth “Allah will not hold his community responsible for things
they do by mistake, by forgetfulness, and under coercion,” first discusses issues
related to forgetfulness, not knowing and coercion, and then the situation
of sleeping, insane, fainted and drunk persons as regards transactions and
penalties. He continued extensively to discuss the licence of the minor, the
adult and the slave, as well as various issues related to women, the ambigu-
ous hermaphrodite, the visually impaired, the non-Muslim, the non-Muslim
living in a Muslim country, the jinn and the relatives whom one is forbidden
to marry. He ends this chapter by discussing some issues of worship and trans-
actions. Considering the subjects he discusses in this chapter and his pattern,
he chooses issues concerning which many questions of legal responsa (fatwā)
are asked and that can be confused because of the subtle distinctions between
them. He tried to explain these issues based on maxims. Thus, Suyūṭī designed
this chapter in a way that would be useful for muftīs and judges, setting out
issues of substantive law with their principles.
In the fifth chapter Suyūṭī discusses various issues following the system
of substantive law.19 While discussing such issues he groups those that come
under one legal chapter together with their sub-maxims. Thus, the general
method of the fifth chapter is to mention various sections under each title and
to explain these with sub-maxims as much as possible. Additionally, Suyūṭī
categorizes issues of substantive law, briefly explaining the rulings on various
matters.
In the sixth chapter, as in works of legal distinctions (furūq), Suyūṭī treats
issues that have different rulings although they resemble each other, men-
tioning the differences in the form of short clauses. He studies the differences
between legal subjects following the structure of substantive law.20 He some-
times discussed the differences between concepts and sometimes the differ-
ences between issues, such as the differences between minor ablution (wudūˀ)
and major ablution (ghusl), minor ablution and dry ablution (tayammum),
the ritual prayer of Eid and Friday, paying in advance (salam) and charitable
loan (qarḍ), the interdiction of the capacity to dispose (ḥajr) of the spendthrift
(safīh) and the bankrupt (muflis), and testimony (shahādah) and narration
(riwāyah).
In the seventh chapter, which is the last section of the book, Suyūṭī discusses
various issues of jurisprudence and substantive law that were not previously
treated.21 He states that ignorance of these issues cannot be excused and that

19 Suyūṭī, al-Ashbāh, 422–515.

20 Suyūṭī, al-Ashbāh, 515–531.
21 Suyūṭī, al-Ashbāh, 531–542.
142 Chapter 7

some have brought these issues together in the form of poetry. He completes
his work with 30 issues in poetic form, which he probably chose to facilitate
the training of students.
Suyūṭī, whose proficiency in the area of ḥadīth is described by Ibn al-ˁImād
(d. 1089/1679) as “he is the one who knows the sciences of ḥadīth best in his time,”22
tries to give the sources of the maxims he discussed from the Qurˀān and the
Sunnah, often basing maxims on ḥadīths.23 In this regard he differs from Ibn al-
Subkī, following a method closer to that of ˁAlāˀī who, like Suyūṭī, was a ḥadīth
expert. However, while ˁAlāˀī bases the five foundational maxims on ḥadīth,
Suyūṭī tries to do this for other maxims as well. Suyūṭī relates the maxims he
discusses to the main sources of the Shāfiˁī school as well, but he also uses
maxim works, at times making explicit references. He frequently mentions
previous maxim scholars and their works, making references to ˁIzz b. Abd al-
Salām, Ibn al-Wakīl, ˁAlāˀī and Zarkashī.24 Unlike Ibn al-Subkī and Zarkashī,
Suyūṭī makes frequent references to ˁAlāˀī but mentiones Qarāfī only once.25
In many places in al-Ashbāh wa l-naẓāˀir, Suyūṭī stated that the maxims
he analysed were applicable to disciplines besides law. This is significant in
showing the scope of the maxims he discussed. For example, he stated that the
maxim “matters shall be judged by their objectives” is also relevant for the Arabic
language. He stated that Sībawayh (d. 180/796) and the majority of the scholars
of Arabic linguistics accepted this maxim and based their definition of speech
(kalām) on it, arguing that the utterances of one who is asleep, one who forgets
and trained animals cannot be considered speech. Suyūṭī then gave examples
of how this maxim is applicable to syntax.26 While discussing the main moti-
vation of why he composed al-Ashbāh wa l-naẓāˀir fī al-naḥw, Suyūṭī stated
that he wanted to deal with Arabic in a similar way as law. He mentions that
he wished to apply the categorization of later scholars who composed works
of al-ashbāh wa l-naẓāˀir to the Arabic language.27 In fact he stated that his
al-Ashbāh wa l-naẓāˀir fī al-naḥw was similar to Ibn al-Subkī’s al-Ashbāh, but
that the beginning of the work was alphabetical like the maxims in Zarkashī’s
al-Manthūr.28

22 Ibn al-ˁImād, Shadharāt al-dhahab, 10: 76.

23 Suyūṭī proudly states this at the beginning of the work. Suyūṭī, al-Ashbāh, 5.
24 Suyūṭī, al-Ashbāh, 11, 19, 47, 74, 77, 81, 97, 105–106, 110, 112, 115, 212, 163, 169, 235, 269, 276,
295, 317, 376, 378, 386, 452, 496, 534, 535, 536.
25 Suyūṭī, al-Ashbāh, 105.
26 Suyūṭī, al-Ashbāh, 49–50. For another example see ibid, 138.
27 Suyūṭī, al-Ashbāh wa l-naẓāˀir fī l-naḥw, 1: 6.
28 Suyūṭī, al-Ashbāh wa l-naẓāˀir fī l-naḥw, 1: 8.
10/16th Century 143

Other scholars followed the method Suyūṭī used as regards maxims even in
his own time. He had a noticeable impact on al-Ashbāh by Ibn Nujaym, who
was a Ḥanafī author of maxims of the same period. Below is a list of studies on
Suyūṭī’s al-Ashbāh wa l-naẓāˀir:

1. Abū Bakr b. Abī al-Qāsim b. al-Ahdal (d. 1035/1626): al-Farāˀid al-bahiyya

fī l-qawāˁid al-fıqhiyya. The author, who lived in the following century,
poetized the maxims of Suyūṭī’s al-Ashbāh for educational purposes. This
work became well-known in the Shāfiˁī school and there were many stud-
ies on it. Some of these are:
a. ˁAbd Allāh b. Sulaymān al-Jarhazī (d. 1201/1787): al-Mawāhib
al-saniyya.
b. Yūsuf b. Muḥammad al-Battāh al-Ahdal (d. 1246/1831): al-Mawāhib
al-ˁilliyya sharḥ al-farāˀid al-bahiyya.
c. Abd Allāh b. Saˁīd Muḥammad ˁAbbadī (d. 1989): Īḍāḥ al-qawāˁid al-
fıqhiyya li-ṭullāb al-madrasa al-Sūlatiyya, Jedda, 1410.
d. Muḥammad Yāsīn b. ˁĪsā al-Fādānī (d. 1990): al-Fawāˀid al-janiyya
ḥāshiyat ˁalā al-mawāhib al-saniyya sharḥ al-farāˀid al-bahiyya fī
naẓm al-qawāˁid al-fıqhiyya. Published by Dār al-Fikr in 1997.
2. Abū Zayd ˁAbd al-Raḥmān b. Abd al-Qādir al-Fāsī (d. 1096/1685): al-
Bāḥir fī ikhtiṣār al-ashbāh wa l-naẓāˀir.
3. Ḍiyāˀ al-Dīn ˁAbd al-Hādī b. Ibrāhīm al-Ahdal: al-Aqmār al-muḍiyya
sharḥ al-qawāˁid al-fıqhiyya. Published by Maktabat Jidda in 1986.
4. Bahāˀ al-Dīn Muḥammad b. Muḥammad Bāqir al-Ḥusaynī al-Imāmī (d.
1133/1721): Ḥāshiyat al-Ashbāh wa l-naẓāˀir.
5. ˁAbd Allāh b. ˁAlī Suwaydān (d. 1234/1819): Sharḥ al-qawāˁid al-khams.
6. Ibrāhīm b. al-Sayyid Sibghat Allāh al-Haydarī (d. 1299/1882): Ḥāshiyat
ˁalā l-ashbāh wa l-naẓāˀir lil-Suyūṭī.
7. Sayyid ˁAlawī b. Aḥmad al-Sakkāf (d. 1917): al-Fawāˀid al-Makkiyya fīmā
yaḥtājuh ṭalabat al-Shāfiˁiyya min al-masāˀil wa l-ḍawābiṭ wa l-qawāˁid
al-kulliyya.29

1.2 The Poetizing of Maxims for Educational Purposes: Zaqqāq (d. 912/
1506) and His Work al-Manhaj al-muntakhab
The fact that Qarāfī’s opinions were greeted cautiously within the Mālikī
school and references to the work were in the main made not by the Mālikīs
but by members of other schools gave prominence to other maxim works such

29 For an extensive list see Bāḥusayn, al-Qawāˁid, 352–358.

144 Chapter 7

as Maqqarī’s al-Qawāˁid. Therefore, Maqqarī was the most influential scholar

among the Mālikīs in the field of maxims. Among authors who conducted
studies on Maqqarī’s work and attained an important position within the
Mālikī maxim literature is ˁAlī b. Qāsim al-Zaqqāq.
Zaqqāq, who was of Moroccan origin and was well-known for his poetiza-
tions, influenced works after him by his poetization of Maqqarī’s al-Qawāˁid
entitled al-Manhaj al-muntakhab ilā uṣūl al-madhhab.30 The fact that Zaqqāq,
in an unprecedented way, poetized maxims shows that he had a specific inten-
tion. Considering that in the works written by legal scholars of other schools in
the 10/16th century the aspect of educating is prominent, therefore, this work
was written with a similar intention. Although the work expresses the lore of
the Mālikī school in a poetic way that facilitates its memorization by students,
this method has certain disadvantages for the purpose of facilitating under-
standing. To eliminate these disadvantages many studies have been conducted
on the work beginning with the century in which the author lived. In fact, ˁAlī
b. Aḥmad al-Manjūr (v. 995/1587), who wrote one of the best-known commen-
taries on al-Manhaj al-muntakhab entitled Sharḥ al-manhaj al-muntakhab ilā
qawāˁid al-madhhab, stated that he had written the work to explain the diffi-
culties found in the poetization.31
Although Zaqqāq’s work consists of 443 verses, when the introduction and
the conclusion are subtracted, there are 415 verses that deal with maxims.
In Zaqqāq’s study, which is based on the structure of substantive law, there
are changes to the forms of expression of some maxims as a result of poeti-
zation.32 Like other maxim authors Zaqqāq sets out issues that are debated
among jurists of the same school and that have the quality of sub-maxims with
question particles.33 In fact, this approach was also followed by later commen-
tators. There are many studies on the work and on Manjūr’s commentary as
well. Some of these are the following:

1. ˁAlī b. Aḥmad al-Manjūr (d. 995/1587): Sharḥ al-manhaj al-muntakhab

ilā qawāˁid al-madhhab,
2. Abū l-Ḥasan ˁAlī b. ˁAbd al-Wāḥid al-Anṣārī (d. 1057/1648): Sharḥ
al-manhaj,

30 Ziriklī, al-Aˁlām, 4: 320; Kaḥḥāla, Muˁjam al-muˀallifīn, 2: 487.

31 Manjūr, Sharḥ al-manhaj al-muntakhab, 1: 96.
32 Cf. Bāḥusayn, al-Qawāˁid, 370–371.
33 Manjūr, Sharḥ al-manhaj al-muntakhab, 1: 110, 307.
10/16th Century 145

3. Abū ˁAbd Allāh Muḥammad b. Aḥmad Mayyāra (d. 1072/1662): al-

Takmīl. In this work the author adds certain maxims and sub-maxims that
are not found in al-Manhaj al-muntakhab by using Manjūr’s commentary.
a. Abū ˁAbd Allāh Muḥammad b. Aḥmad Mayyāra: Bustān fikr al-
muhaj. In this work Mayyāra comments on his al-Takmīl,
a.a. Muḥammad Yaḥyā b. Muḥammad al-Mukhtār (d. 1912): al-Baḥr al-
tāmī dhū l-lujaj ˁalā bustān fikr al-muhaj,
b. ˁAbd al-Qādir b. Muḥammad b. ˁAbd al-Malik (d. 1187/1774): Sharḥ
al-takmīl al-manhaj al-muntakhab is a commentary on al-Takmīl,
c. Muḥammad al-Amīn b. Aḥmad Zaydān al-Shanqītī (d. 1908): Sharḥ
al-takmīl.
c. Muhammed al-Amīn b. Aḥmad Zaydān al-Shanqītī (d. 1908): al-
Manhaj ilā l-manhaj ilā uṣūl al-madhhab al-mubarraj.
d. Aḥmad b. Aḥmad al-Mukhtār al-Shanqītī: Iˁdād al-muhaj lil-istifāda
min al-manhaj.34

1.3 North African Mālikī Maxim Thought: Wansharīsī (d. 914/1508) and
His Work Īḍāḥ al-masālik ilā qawāˁid al-Imām Mālik
Wansharīsī, who migrated at a young age from Wansharīs to Tilimsān,
completed his education there and engaged in teaching, writing and issuing
fatāwā. Because of a disagreement with the ruler of the time, Wansharīsī was
forced to move from Tilimsān to Morocco in 874/1469, continuing his teaching
and issuing fatāwā there.35 Although Wansharīsī’s masters were mostly North
African, some of them had benefited from the heritage of knowledge that was
available in the destinations to which they travelled in search of knowledge.36
The Mālikī maxim literature which began with Qarāfī and Maqqarī contin-
ued in the 10/16th century with Wansharīsī’s Īḍāḥ al-masālik, which Ḥajwī (d.
1956) describes as “a useful legal philosophy.”37 As Wansharīsī stated in the intro-
duction to the work, he wrote Īḍāḥ al-masālik to enable students of Islamic law
to see the relationship between legal maxims and substantive legal rules by
analysing the maxims on which the Mālikī school is based together with exam-
ples of their application in substantive law.38 The author brought together 118

34 For an extensive list of the works see Sijilmāsī, Sharḥ al-yawāqīt al-thamīna, 1: 67–72.
35 Wansharīsī, al-Miˁyār, 8: 341. Cf. Miknāsī, Jazwat al-iktibās, 1: 156–157.
36 For instance, among his masters, Abū l-Faḍl Qāsim b. Saˁīd al-ˁUkbānī (d. 854/1450)
received authorization in ḥadīth from Ibn Ḥajar (d. 852/1449). See Wansharīsī, Īḍāḥ al-
masālik, editor’s introduction, 49. For a biography of Wansharīsī see Kızılkaya and Yılmaz,
“Venşerīsī”, DİA, 43: 47–49; Lagardère, V., “al-Wansharīsī”, EI2.
37 Ḥajwī, al-Fikr al-sāmī, 2: 265.
38 Wansharīsī, Īḍāḥ al-masālik, 133.
146 Chapter 7

maxims that cause differences of opinion within the school so that judges were
aware of them and could memorize them, thus showing that differences in
issues of substantive law are based on fundamental maxims. However, most of
the maxims passed on are not general but rather sub-maxims that represent
some differences within the Mālikī school. The maxims that are set out in the
form of questions, in particular, connote sub-maxims that are disagreed upon
within the school and the divergent opinions are based upon them.39
Wansharīsī’s interest in maxims is apparent in his other works. For exam-
ple, in his principal work, al-Miˁyār al-muˁrib wa-l-jāmiˁ al-mughrib ˁan fatāwā
ˁulamāˀ Ifrīqiya wa-l-Andalus wa-l-Maghrib, there are frequent references to
authors who have composed works on maxims such as ˁIzz b. ˁAbd al-Salām,
Qarāfī and Maqqarī.40 In addition, Wansharīsī’s interest in maxims is apparent
in that he includes a biographical study on Maqqarī who had a pioneering role
in the Mālikī maxim literature.41 Though Wansharīsī frequently refers to Mālikī
maxim authors such as Maqqarī and Qarāfī,42 he did not benefit from maxim
authors of other schools in Īḍāḥ al-masālik.43 Because of this, both the maxims
discussed in the work and its organization are very different from works writ-
ten by other scholars in the same period or earlier in other regions.
Because of the features of Wansharīsī’s Qawāˁid, it was not a popular work
within the school and there are no studies on it. It was poetized only by his son,
Abū Mālik al-Wansharīsī (d. 955/1549), in 1500 verses in a work entitled Thanāˀ
al-muktabas or al-Nūr al-muktabas li-fahm qawāˁid al-Imām Mālik b. Anas.44

2 Ḥanbalī Maxim Literature in the 10/16th Century

After Ibn Rajab’s Taqrīr al-qawāˁid wa taḥrīr al-farāˀid, studies on maxims in

the Ḥanbalī school were abridgments (ikhtiṣār), refinements (tahzīb) or rear-
rangements (tartīb) of Ibn Rajab’s work, or books based on the maxims he dis-
cussed. In the Ḥanbalī school no work surpasses that of Ibn Rajab, and neither
were there any original works after it. In the 10/16th century, besides ˁAbd al-
Raḥmān al-Ḥanbalī’s (d. 900/1495) work that refines and rearranges Taqrīr al-
qawāˁid, there are only Ibn al-Mibrad’s (d. 909/1503) works.

39 Wansharīsī, Īḍāḥ al-masālik, 154, 178 262.

40 Wansharīsī, al-Miˁyar, 1: 196, 347, 405, 443.
41 Castro, “Las Obras de Ahmad al-Wansarīsī,” Anaquel, 3: 92–94.
42 Wansharīsī, Īḍāḥ al-masālik, 158, 160, 178, 184, 221, 291, 331.
43 There is only a single reference to ˁIzz b. ˁAbd al-Salām. Wansharīsī, Īḍāḥ al-masālik, 155.
44 Nadwī, al-Qawāˁid, 207.
10/16th Century 147

Ibn al-Mibrad, who was a member of the Ḥanbalī tradition of Damascus,

studied under the supervision of the leading scholars of the period and became
proficient in exegesis, syntax, sufism, as well as law and ḥadīth.45 The fact that
among his masters was Muḥibb al-Dīn Aḥmad b. Naṣr Allāh al-Ḥanbalī (d. 844/
1441), who was a disciple of Ibn Rajab, may be considered the main factor that
led him to conduct a study on maxims. Although Ibn al-Mibrad had a book
entitled al-Qawāˁid al-kulliyya wa l-ḍawābiṭ al-fiqhiyya in the introduction to
which he stated that he had brought together maxims necessary for students
of Islamic law to understand and remember, this work is not a work of max-
ims, but rather briefly discusses legal subjects in 100 articles.46 However, Ibn al-
Mibrad adds 66 maxims to the end of his work entitled Mughnī dhawī l-afhām
under the heading “the universal maxims on which all particular issues of fiqh
are based.”47
In this section Ibn al-Mibrad does not provide any explanations for the max-
ims which he presents as clauses and sets out the maxims without following
the order of previous maxim scholars. The author, who lays down certain theo-
logical principles and ḥadīths in addition to jurisprudential and legal maxims,
also passes on many foundational legal maxims and sub-maxims. For instance,
he lays down maxims such as “certainty is preferred to probability,” “necessity
permits the prohibited” and “consideration is given to the predominant.”48 Ibn
al-Mibrad does not display, in legal issues, the skill he has in passing on certain
theological issues and ḥadīths in the form of maxims.

3 The Rebuilding of the Ḥanafī Thought on Maxims: Ibn Nujaym (d.

970/1563) and His al-Ashbāh wa l-naẓāˀir

Because of the activities of successful disciples who attended Mālik’s study cir-
cle and because Shāfiˁī himself resided in Egypt and trained skilled students
there, both the Mālikī and Shāfiˁī schools were well established in Egypt. It
became possible for the Ḥanafī school, which entered Egypt at a late date
compared with the other two schools, to expand there for two reasons: the
appointment of Ḥanafī judges in Egypt49 and the migrations from Iraq to

45 Ibn al-ˁImād, Shadharāt al-dhahab, 10: 62; Najdī, al-Suhab al-wābila, 3: 1165–1169.
46 Ibn al-Mibrad, al-Qawāˁid.
47 Ibn al-Mibrad, Mughnī dhawī l-afhām, 519–522.
48 Ibid, 519, 520.
49 For evidence that Ḥanafī judges were appointed to this region from an early date see
Qurashī, al-Jawāhir l-muḍiyya, 1: 438. Because nearly all the judges appointed to Egypt
in the early period were sent from Iraq, they were not well liked by Egyptian society and
148 Chapter 7

Egypt. The Ḥanafī judges appointed to Egypt by the Abbasids, besides their
official position, established many study circles. The activities of students who
attended these circles constituted the prime factor in establishing the Ḥanafī
school in Egypt. In addition, the Ḥanafīs who migrated from Iraq settled in
Egypt and contributed to the extension of the school. In fact, migration from
Iraq to Egypt continued until the 3/9th century.50 Because Abū Ḥanīfa and the
disciples who attended his study circle were situated in Iraq, and the centre
of development of the Ḥanafī schools was first Iraq and then Transoxiana, the
Ḥanafī school in Egypt was weak compared to the Shāfiˁī and Mālikī presence
there. Nevertheless, in different periods important Ḥanafī jurists were edu-
cated in Egypt. Among these is Ibn Nujaym, who has an important place in the
literature of maxims.
Ibn Nujaym, who was born in Cairo in 926/1520 and studied with scholars
such as Sharaf al-Dīn al-Bulqīnī and Ibn Shalabī (d. 947/1540), is considered
to be among the eminent Ḥanafī scholars of Egypt. Ibn Nujaym, who taught
many students such as his brother Sirāj al-Dīn b. Nujaym and ˁAbd Allāh al-
Timurtāshī and had Sufi leanings, is an author who became well-known
because of his works. Foremost among the many works he wrote are al-Baḥr al-
rāˀiq, al-Fawāˀid al-zayniyya fī madhhab al-Ḥanafiyya, al-Fatāwā al-zayniyya,
Fatḥ al-Ghaffār fī sharḥ al-manār.51
In his commentary al-Baḥr al-rāˀiq on Kanz al-daqāˀiq, which is considered
an important legal compendium in the Ḥanafī school, when he comes to the
section on invalid sale contracst (bayˁ al-fāsid) he states that he wrote the work
al-Fawāˀid al-zayniyya fī fiqh al-Ḥanafiyya.52 However, al-Fawāˀid al-zayniyya,
as the author himself stated, is a concise work that analyses sub-maxims and
exceptions; it does not treat fundamental maxims. Without going into detail or
designating chapter headings, Ibn Nujaym brings together sub-maxims from
the main sources of the school. In most cases, he mentions a sub-maxim and
then lists the exceptions to it.53 Ibn Nujaym’s decision to write, after al-Fawāˀid
al-zayniyya, a work that also incorporates maxims resulted in al-Ashbāh wa

were removed from their posts. For instance, Muḥammad b. Masrūq al-Kindī al-Kūfī, who
was one of the judges appointed to Egpyt, came from Iraq like his predecessors. He was
removed from his post, to which he was appointed in 177/793, in 185/801. Qurashī, al-
Jawāhir l-muḍiyya, 3: 368.
50 Tsafrir, The History of an Islamic School of Law, 95–98.
51 Ibn al-ˁImād, Shadharāt al-dhahab, 10: 523; Kaḥḥāla, Muˁjam al-muˀallifīn, 1: 740; Özel,
“İbn Nüceym,” DİA, 20: 236–237. For an extensive list of his works see Özel, “İbn Nuceym,”
AÜİİFD, 3: 370–375.
52 Ibn Nujaym, al-Ashbāh, 10.
53 E.g. Ibn Nujaym, al-Fawāˀid al-zayniyya, 37–38, 53–54, 90.
10/16th Century 149

l-naẓāˀir. He wrote al-Ashbāh wa l-naẓāˀir, which he modelled on Ibn al-Subkī’s

study on the same subject, in seven chapters. Al-Ashbāh wa l-naẓāˀir, which
the author wrote in six months and completed in 969/1562, was the fruit of the
author’s accumulation of legal knowledge.54
As has been stated before, the tradition of writing on maxims in Egypt begin-
ning with the 7/13th century, which was led by Shāfiˁī jurists, influenced Syria,
Iraq and North Africa. Authors who were mostly Shāfiˁī, Mālikī and Ḥanbalī
wrote important works in this field. In the period up to Ibn Nujaym, in compar-
ison with other legal schools, the works of Ḥanafī jurists in the field of maxims
were few for two reasons: first, maxims were not among the genres on which
the Ḥanafī legal doctrine of Transoxiana focused; second, although Cairo’s aca-
demic vivacity led scholars from different cultures to write in different fields,
the Shāfiˁī legal school was dominant in that city. In fact, both of these factors
were at play in Ibn Nujaym’s writing of his work. As understood from his intro-
duction to al-Ashbāh in which he explains why he wrote the work, Ibn Nujaym
was not pleased with the current situation of the Ḥanafī school in terms of
legal maxims. The fact that Ḥanafīs, in comparison with the Shāfiˁī tradition
of writing on maxims which started with ˁIzz b. ˁAbd al-Salām and reached its
zenith with legal scholars such as Ibn al-Subkī and Suyūṭī, had no such works
led Ibn Nujaym to write a work in this field. After pointing to the pioneering
role of Abū Ḥanīfa and those who followed him in Islamic law, Ibn Nujaym
states the purpose of his writing as follows:

The noble predecessors wrote for us works consisting of concise and long
texts, commentaries and fatāwā. They engaged in ijtihād, gave fatāwā,
wrote works, and reviewed what was written. May Allah reward their
efforts. However, I did not find a work of theirs such as that of Shaikh Tāj
al-Dīn al-Subkī al-Shāfiˁī that encompasses different disciplines of fiqh.
In the commentary of al-Kanz, while revising the section on invalid con-
tracts, I composed a compendium bringing together the related ḍawābiṭ
and exceptions, and I called it al-Fawāˀid al-zayniyya fī fiqh al-Ḥanafiyya.
This book reached 500 ḍawābiṭ. I wanted to write a book encompassing
seven disciplines, of which al-Fawāˀid al-zayniyya would comprise the
second, in the same fashion as the previous [i.e. Ibn al-Subkī’s book].55

54 Ibn Nujaym, al-Ashbāh, 522; Kātip Çelebi, Kashf al-ẓunūn, 1: 98–99. His ability displayed
in al-Ashbāh led to comments saying that he was capable of takhrīj (legal derivation). Cf.
Garayba, “Dirāsa taḥlīliyya wa naqdiyya,” Muˁta lil-buḥūth wa l-dirāsāt, 11: 438.
55 Ibn Nujaym, al-Ashbāh, 10. Ibn Nujaym’s disciple, al-Timurtāshī, likewise stated that he
had written al-Wuṣūl ilā qawāˁid al-uṣūl fī takhrīj al-furūˁ ˁalā l-uṣūl to write a work similar
to al-Tamhīd of the Shāfiˁī scholar al-Isnawī. Timurtāshī, al-Wuṣūl, 3–4. The expressions
150 Chapter 7

From Ibn Nujaym’s statement above the factors that led him to write al-Ashbāh
are clear. Ibn Nujaym, who saw that while Ḥanafī jurists used legal maxims and
sub-maxims in works of substantive law but did not write independent works
that brought these together, first wrote al-Fawāˀid al-zayniyya. However, seeing
the fame of Ibn al-Subkī’s work in the Shāfiˁī environment in which he lived,
he wanted to write a similar work. In fact, from a simple comparison of the two
works it is obvious that Ibn Nujaym benefited from Ibn al-Subkī’s al-Ashbāh in
terms of method and content. Consequently, after Taˀsīs al-naẓar, the Ḥanafī
tradition of maxims was rebuilt by Ibn Nujaym in the 10/16th century based
upon the works of Shāfiˁī authors.
As can be understood from Ibn Nujaym’s expressions, Ḥanafī jurists had
not been interested in composing independent works on maxims. They were
occupied with writing foundational texts, commentaries upon those texts and
fatāwā. The claim of Ibn Nujaym, who had mastery over the legal heritage of
the school, that he did not find a work similar to that of Ibn al-Subkī refers to
a work that brings together the different legal disciplines that are discussed
in the literature of al-Ashbāh wa l-naẓāˀir. Timurtāshī (d. 1055/1645), who
is among the commentators on the work, writes that he perused al-Ashbāh
repeatedly and did not find a work equivalent to it in the Ḥanafī school.56
Aware that he was rebuilding the maxim tradition of the Ḥanafī school, Ibn
Nujaym also made some contributions that are not found in the dominant
Shāfiˁī writings of the time. For example, by formulating the maxim “there is
no reward without intention” he increased the number of foundational maxims
to six.57 Although this statement, which Ibn Nujaym was the first to articulate
in the format of a maxim, was recognized by some maxim authors such as
Khādimī, it is difficult to justify its addition to other foundational maxims.58 It
seems that by adding this maxim, unlike the Shāfiˁī maxim authors, he agrees
with Ibn al-Subkī’s critique that reducing Islamic law to five maxims is forced.
However, this was the adoption of another forced approach, since it is difficult
to explain why Ibn Nujaym mentioned this maxim of intention immediately
before the maxim “matters shall be judged by their objectives” which shows
strong parallelism.
From the time of its writing, Ibn Nujaym’s al-Ashbāh was the subject of
numerous commentaries, notes, glosses and abridgements such that there is

of Ibn Nujaym and Timurtāshī illustrate that while writing works on different legal disci-
plines in this period, Ḥanafī jurists took Shāfiˁī scholarship into consideration.
56 Timurtāshī, Ẓawāhir al-jawāhir, fol. 1b.
57 “Lā thawāba illā bi al-niyyah” Ibn Nujaym, al-Ashbāh, 14.
58 See Khādimī, Majāmiˁ al-haqāˀiq, fol. 35b.
10/16th Century 151

no comparison between it and other maxims works in this respect. Although

after the writing of Majalla, maxim writing was centred upon it, even then
there were many more studies on Ibn Nujaym’s al-Ashbāh. The following are
some of those studies:
1. Çivīzāde Mehmed Efendi (d. 995/1587): Taˁliqāt ˁalā l-ashbāh wa
l-naẓāˀir.
2. Kınalızāde Ali Efendi (d. 997/1589): Taˁliq ˁalā l-ashbāh wa l-naẓāˀir.
3. Ahizāde Abdülhalim Efendi (d. 1013/1605): Taˁliq ˁalā l-ashbāh wa
l-naẓāˀir.
4. Shaikh al-Islām Abū l-Mayāmin Muṣtafā (d. 1015/1607): Taˁliq ˁalā l-
ashbāh wa l-naẓāˀir.
5. Sharaf al-Dīn ˁAbd al-Qādir b. Barakāt al-Ghazzī (d. 1034/1625): Tanwīr
al-baṣāˀir ˁalā al-ashbāh wa l-naẓāˀir.
6. Ibn Ghānim al-Maqdisī (d. 1036/1627): Ḥashiyat al-ashbāh wa l-naẓāˀir.
7. Azmizāde Mustafa Efendi (d. 1037/1628): Taˁliq ˁalā l-ashbāh wa l-naẓāˀir.
8. Ṣāliḥ b. Muḥammad al-Timurtāshī (d. 1055/1645): Ẓawāhir al-jawāhir al-
nadāˀir ˁalā l-ashbāh wa l-naẓāˀir.
9. Karaçelebīzāde (d. 1068/1658): Ḥall al-ishtibāh ˁan ˁuqad al-ashbāh.
10. Khayr al-Dīn al-Ramlī (d. 1081/1671): Nuzhat al-nawāzir ˁalā al-ashbāh
wa l-naẓāˀir.
11. Aḥmad b. Muḥammad al-Ḥamawī (d. 1098/1784): Ghamz ˁuyūn al-
baṣāˀir sharḥ kitāb al-ashbāh wa l-naẓāˀir.
12. Pīrizāde Ibrāhīm b. Ḥusayn b. Aḥmad (d. 1099/1785): ˁUmdat dhawī al-
baṣāˀir li-ḥall muhimmāt al-ashbāh wa l-naẓāˀir.
13. Muḥammad b. ˁUmar al-Kafīrī (d. 1130/1718): Kashf al-sarāˀir ˁalā al-
ashbāh wa l-naẓāˀir.
14. Abd al-Ghanī b. Ismāˁīl al-Nāblusī (d. 1143/1731): Sharḥ al-ashbāh wa
l-naẓāˀir.
15. Muḥammad Abū l-Suˁūd b. ˁAlī al-Ḥusaynī (d. 1172/1758): ˁUmdat al-
nāẓir ˁalā al-ashbāh wa l-naẓāˀir.
16. Muḥammad Hibat Allāh b. Muḥammad al-Tājī (d. 1224/1809): al-Taḥqīq
al-bāḥir sharḥ al-ashbāh wa l-naẓāˀir.
17. Muḥammad b. ˁUmar b. ˁĀbidīn (d. 1252/1857): Rafˁ al-ishtibāh ˁan
ˁibārat al-ashbāh.
18. Muḥammad b. ˁUmar b. ˁĀbidīn (d. 1252/1857): Nuzhat al-nawāzir ˁalā
l-ashbāh wa l-naẓāˀir.
19. Muḥammad Abū al-Fatḥ (d. 1275/1895): Itḥāf al-abṣār wa l-baṣāˀir bi-
tabwīb kitāb al-ashbāh wa l-naẓāˀir.
20. ˁAbd al-Qādir b. Muṣtafā al-Rāfiˁī (d. 1906): Taqrīr ˁalā l-ashbāh wa
l-naẓāˀir.
152 Chapter 7

21. Mawlānā Muḥammad al-Sūfī: Hādi al-sharīˁa. The author reordered al-
Ashbāh into two parts: uṣūl (postulates) and wasāˀil (means), and furūˁ
(substantive law) and masāˀil (legal issues).
22. Muḥammad b. Khālid al-Anṣārī (d. 1945): al-Ashbāh wa l-naẓāˀir.59

3.1 The Content of Ibn Nujaym’s al-Ashbāh wa l-naẓāˀir and the Purpose
of Its Composition
The facts that before Ibn Nujaym’s al-Ashbāh wa l-naẓāˀir there was no work in
the Ḥanafī school of that scope and that to a great extent it guided the works
after it, and that many commentaries and glosses were written on it show the
important position of the work within the school. Ibn Nujaym’s al-Ashbāh, in
which he follows Shāfiˁī jurists such as Ibn al-Subkī and Suyūṭī in terms of
method, and the legal heritage of previous Ḥanafī jurists in terms of content,
consists of seven chapters. Before these chapters there is an introduction in
which he talks about the importance of maxims, his purpose in writing the
work, the sources he benefited from, and a contents section in which he sets
out the framework of the study. Ibn Nujaym uses many of the main sources
of the Ḥanafī school, of which he mentions al-Hidāya, Kanz al-daqāˀiq,
Mukhtaṣar al-Qudūrī, Majmaˁ al-baḥrayn, al-Wiqāya, al-Jāmiˁ al-ṣaghīr and
their commentaries, other works such as Badāˀiˁ, al-Mabsūṭ, al-Ikhtiyār, fatwā
works such Khāniyya, Bazzāziyya, Ẓahriyya, Walwālijiyya, as well as works of
merits (manāqib) of great people and prosopographies.60
The main chapters of al-Ashbāh, which Ibn Nujaym wrote in a sense by
combining the maxim works of Ibn al-Subkī and Suyūṭī and by adding other
sections, are as follows in order:
First chapter: al-Qawāˁid. The author divides this chapter into two sections: the
six maxims that encompass all subjects of Islamic law and the 19 maxims
from which many particular rulings are derived.
Second chapter: al-Fawāˀid (benefits). This chapter, in which many sub-maxims
governing subjects ranging from purity to inheritance are discussed, follows
the order of the famous Ḥanafī compendium Kanz al-daqāˀiq.

59 For an extensive list of the studies on Ibn Nujaym’s al-Ashbāh see Kātip Çelebi, Kashf al-
ẓunūn, 1: 99–100; Ibn Nujaym, al-Ashbāh, the editor’s introduction, 10–14; Ziriklī, al-Aˁlām,
4: 46; 6: 112; Kaḥḥāla, Muˁjam al-muˀallifīn, 2: 198–199; 3: 272; Garayba, “Dirāsa taḥlīliyya wa
naqdiyya”, Muˁta lil-buḥūth wa l-dirāsāt, 11: 460–461; Shithrī, al-ˁUlamāˀ, 80, 83; Özel, “İbn
Nüceym,” DİA, 20: 236.
60 For a full list of these works see Ibn Nujaym, al-Ashbāh, 12–13.
10/16th Century 153

Third chapter: al-Jamˁ wa l-farq (common elements and distinctions). These

are issues that arise repeatedly. If a jurist does not know these issues, it is
considered a shortcoming.
Fourth chapter: al-Alghāẓ (legal puzzles).
Fifth chapter: al-Ḥiyal (legal devices).
Sixth chapter: al-Ashbāh wa l-naẓāˀir. Although in the contents section Ibn
Nujaym calls this section al-ashbāh wa l-naẓāˀir, within the work he uses
the name furūq (legal distinctions). Under this heading, he mainly discusses
legal subjects and concepts that fall within the genre of furūq.
Seventh chapter: al-Ḥikāyāt wa l-murāsalāt. The merits of Abū Ḥanīfa and
other founding Ḥanafī jurists.
Considering the distribution of the subjects within the book, Ibn Nujaym was
attempting to write a substantive law-centred maxim work. Hence, he does
not devote an independent section to jurisprudential maxims, which ˁAlāˀī
and Ibn al-Subkī treated at length, but rather mentions these as need be in
some chapters. Unlike Suyūṭī, who follows these two authors by discussing
jurisprudential maxims in the final section of his work, Ibn Nujaym discusses
legal devices. While Ibn al-Subkī discusses maxims of language and theology in
an independent chapter, Ibn Nujaym mentions these as need be within other
subjects. Additionally, other than in the first and last chapters, in nearly all the
chapters he analyses issues following the structure of substantive legal rules.
He collects the subjects in the independent sections on legal puzzles, legal dis-
tinctions and personal virtues, considering their relationships with legal rul-
ings from the works of the scholars of the Ḥanafī school.
Ibn Nujaym, in the introduction to al-Ashbāh, mentions the superiority of
the science of fiqh to other sciences and points to the superior standing of
those who devote themselves to this discipline. Then he states that the activity
of the Ḥanafī jurists starts before that of others and that Shāfiˁī is very fair in
his observation that “whoever wants to gain depth in law should look in the works
of Abū Ḥanīfa.”61 The fact that Ibn Nujaym passes on Shāfiˁī’s opinion as he
discusses the pioneering role of Abū Ḥanīfa and his disciples in the science of
fiqh and then follows this up with similar opinions of other Shāfiˁī jurists con-
cerning Abū Ḥanīfa is most likely due to the concentration of Shāfiˁīs where
he lives.
While stating why he wrote al-Ashbāh, Ibn Nujaym is aware of the scarcity
of the works of Ḥanafī jurists in the field of legal maxims. He states that Ḥanafī
jurists wrote important works in other legal fields, but acknowledges that they

61 Ibn Nujaym, al-Ashbāh, 9–10.

154 Chapter 7

did not write a maxim work equivalent to that of Ibn al-Subkī. Ibn Nujaym
states that he wrote al-Ashbāh to address this lack, whereas the work he pre-
viously composed, al-Fawāˀid al-zayniyya fī fiqh al-Ḥanafiyya, deals mostly
with sub-maxims and their exceptions. Because Ibn Nujaym is of the opinion
that al-Fawāˀid al-zayniyya was not equivalent to Ibn al-Subkī’s book, he states
that he attempted to write such a work by incorporating the subject matter of
al-Fawāˀid al-zayniyya into it.62 Although Ibn Nujaym also benefited from his
contemporary Suyūṭī, the fact that he refers to Ibn al-Subkī is because Ibn al-
Subkī was considered by the Shāfiˁīs to be the authority in both maxims and
jurisprudence. In fact, Suyūṭī also refers to Ibn al-Subkī in his work and bene-
fits greatly from his scholarship.63
Ibn Nujaym begins to describe the contents of his book, which he divides
into seven main chapters, with the chapter on maxims as the first. According to
him, legal scholars derive substantive rulings from these maxims, and because
of this feature maxims are the roots of law (uṣūl al-fiqh). The jurist who has
knowledge of maxims reaches the degree of ijtihād even if it is in giving fatāwā.
He states that the substantive rulings related to these maxims are scattered
in different sources but he will pass on sound and accepted opinions of the
Ḥanafī school, indicating as much when he passes on a weak opinion. He also
narrates the story about Abū Ṭāhir al-Dabbās and the collection of maxims.64
The meaning Ibn Nujaym attributes to legal maxims is significant, since he
says that legal derivation (takhrīj) can be made from legal maxims. Considering
that in the 4/10th century, the period in which maxims were independently
collected, Karkhī and Dabbās searched the legal heritage of the Ḥanafī school
from this perspective, it is clear that legal maxims are an indispensable ele-
ment of legal derivation. Ibn Nujaym’s opinion casts light on the relationship
between legal derivation and maxims in his period. Additionally, Ibn Nujaym’s
approach that ijtihād is to be made on the basis of these maxims brings to light
the fact that it is necessary for ijtihād to be made through the maxims on which
the school relies. This depends on establishing the principles that constitute
the foundation of the legal rulings of the school, which is acquired through
knowledge of maxims.65 Because of this, Ibn Nujaym states that maxims are

62 Ibn Nujaym, al-Ashbāh, 10.

63 Suyūṭī, al-Ashbāh, 7–8.
64 Ibn Nüceym, al-Ashbāh, 10. Although Ibn Nujaym emphasizes that he will transmit sound
opinions, Pīrīzāde, in the introduction to his commentary on al-Ashbāh, states that there
are weak narrations in the work. Pīrīzāde, Sharḥ al-Ashbāh, fol. 1b.
65 Pīrīzāde says that Ibn Nujaym’s statement that with knowledge of maxims one can reach
the degree of ijtihād even if it is in giving fatwās denotes being a mujtahid within the
10/16th Century 155

in fact the roots of law (uṣūl al-fiqh).66 The Shāfiˁī maxim author Zarkashī,
who lived before Ibn Nujaym, made the same claim, that maxims are in reality
the roots of law, in al-Manthūr.67 It seems that, although Ibn Nujaym does not
mention this in his introduction, he read the Shāfiˁī maxim works in terms of
both method and sources and benefited considerably from these studies in his
work. In this work, in which he takes into consideration the followers of the
Shāfiˁī school which was dominant in his region, he tries to create bridges with
the tradition of that school to legitimize his work among Shāfiˁīs.
The second chapter of the work is on sub-maxims, which Ibn Nujaym says
he treated previously in al-Fawāˀid al-zayniyya fī fiqh al-Ḥanafiyya. After stat-
ing that in this chapter he studies issues that come under sub-maxims or are
exceptions to them, Ibn Nujaym states that this chapter is the one that is most
valuable for professors, muftīs and judges and he gives many relevant exam-
ples.68 While in the first chapter of al-Ashbāh Ibn Nujaym discusses maxims
which are also accepted by other schools and are applied to many areas of
law, in the second chapter he relates sub-maxims concerning different sub-
jects of law from purity to inheritance following the order of Kanz al-daqāˀiq.
Ibn Nujaym emphasizes the importance of maxims he discusses in the first
chapter in understanding the general philosophy of Islamic law. As regards the
maxims of the second chapter, he underlines their practical functions such as
education, issuing fatāwā and the administration of justice. Considering that
in comparison with general maxims legal sub-maxims better echo the basic
character and distinctive aspects of the legal school, fatāwā based on sub-
maxims will be more consistent and more accurate. As a consequence, Ibn
Nujaym extensively examines sub-maxims and illustrates their relationship
with substantive law by giving many examples.
Ibn Nujaym discusses the issues which Suyūṭī takes up in the fourth chap-
ter of his work in the third chapter under the heading al-jamˁ wa l-farq (com-
mon elements and distinctions), for the most part following Suyūṭī’s system.
In this section he focuses on issues that arise repeatedly and that it would be
shameful for the jurist not to know. After stating that in the fourth chapter he
discusses legal puzzles, in the fifth chapter legal devices, in the sixth al-ashbāh
wa l-naẓāˀir and in the seventh the merits of the Ḥanafī founding jurists, he

school. He also observes that Ibn Nujaym’s statement implicitly indicates that he was a
mujtahid in fatwās. Pīrīzāde, Sharḥ al-Ashbāh, fol. 3a.
66 Among the commentators on the work, Ḥamawī states that these are not really roots of
law but are like roots of law. Ḥamawī, Ghamz ˁuyūn al-baṣāˀir, 1: 34.
67 Zarkashī, al-Manthūr, 1: 71.
68 Ibn Nujaym, al-Ashbāh, 11.
156 Chapter 7

indicates the practical benefits his work aims to have. He states that when he
finishes the book he hopes that it becomes a reference for professors, a source
for scholars who are able to do independent research, and a reliable source for
judges and muftīs.69
Ibn Nujaym states that the first discipline he studied was fiqh, that he spent
a lot of effort on this, that he studied the majority of the works available in
Cairo, that he read many works of jurisprudence of the Ḥanafī school, and that
he wrote a commentary on Nasafī’s Manār al-anwār in jurisprudence.70 After
these statements that indicate the knowledge Ibn Nujaym possessed while
writing the work, he states that he took the name of the book from a chapter
within it. Finally, he states that knowledge of fiqh as a discipline cannot be
attained with hopes and wishes, but rather requires hard work and determi-
nation, ending the introduction by naming the sources he had with him and
benefited from towards the end of the year 968/1561.71

3.2 Ibn Nujaym’s Method in al-Ashbāh and Content Analysis

3.2.1 The Chapter of al-Qawāˁid al-Kulliyyah (Universal Maxims)
In this chapter, which Ibn Nujaym divides into two parts, he first analyses the
six universal maxims and then the 19 maxims “from which an innumerable
quantity of particular rulings are derived.” In this chapter, Ibn Nujaym studies
some other maxims under the first six, showing how maxims are applied to
particular issues by setting down issues that are derived from those maxims
as need be. In nearly all of these maxims, Ibn Nujaym analysed their origins in
explicit statements of the Qurˀān and the Sunna, and referred to Shāfiˁī maxim
authors such as ˁAlāˀī and Ibn al-Subkī.
Ibn Nujaym begins the chapter on universal maxims with the maxim “there
is no reward without intention.”72 As stated previously, this maxim has a mean-
ing that is covered by the second maxim he analyses: “matters shall be judged
by their objectives.” This is because while the latter maxim has a general qual-
ity that encompasses all the subjects of Islamic law from laws of worship to
transactions, the former deals mainly with laws of worship and related issues.
Therefore, it is difficult to recognize it among the foundational maxims on
which Islamic law is based. In fact, while elaborating this maxim, Ibn Nujaym
for the most part provides examples from worship, stating, while discussing
other subjects, that they come under this maxim if they are done with the

69 Ibn Nujaym, al-Ashbāh, 11.

70 Ibn Nujaym, al-Ashbāh, 11–12.
71 Ibn Nujaym, al-Ashbāh, 12–13.
72 Ibn Nujaym, al-Ashbāh, 14.
10/16th Century 157

intention of worship. For example, he explains the issue of emancipating a

slave as follows:

According to us, emancipating a slave in terms of its designation is not

an act of worship, since a non-Muslim can also emancipate a slave and
an act of worship for a non-Muslim is unthinkable. If a person intends
to do it for the sake of Allah while emancipating a slave, in this case the
emancipation becomes an act of worship and he attains reward for it. But
if he emancipates the slave with explicit statements without intending
an act of worship, although the emancipation is valid, he does not attain
any reward.73

While discussing issues such as endowments (waqf), adjudication (qaḍāˀ),

retaliation (qiṣāṣ) and divorce (ṭalāq), Ibn Nujaym once again stipulates the
condition of intention. As his statements reveal, the maxim “there is no reward
without intention” is not one of the foundational maxims on which Islamic law
is built, but rather has to be evaluated as a maxim that, in terms of its mean-
ing, can govern all Islamic law, but in terms of its application governs acts of
worship. In fact, while analysing the maxim “matters shall be judged by their
objectives,” Ibn Nujaym stated that these two maxims concern issues related to
intention and can be analysed under ten headings, focusing extensively on the
issue of intentions.74
While evaluating maxims, Ibn Nujaym not only provides examples that are
derived from the maxims, but also examines exceptions. For example, towards
the end of the discussion of the maxim “certainty is not overruled by doubt,”
Ibn Nujaym focuses on certain exceptions to it.75 Moreover, under universal
maxims he also mentions more particular maxims as well as sub-maxims. If
the maxims are relevant for other disciplines, he briefly mentions these as well.
For instance, at the end of the discussion of the maxim “matters shall be judged
by their objectives,” he states that this maxim is also considered in the Arabic
language and provides various related examples.76
At times Ibn Nujaym presents maxims in the form of questions. It is very
obvious that the maxims expressed in this form connote a divergence of opin-
ion. But the controversy between scholars is sometimes between two particu-
lar issues, sometimes between the principles on which the issues are based,

73 Ibn Nujaym, al-Ashbāh, 17.

74 Ibn Nujaym, al-Ashbāh, 24.
75 Ibn Nujaym, al-Ashbāh, 81–83.
76 Ibn Nujaym, al-Ashbāh, 58–59.
158 Chapter 7

and sometimes between two maxims. Hence, maxims that are expressed as
questions in maxim works denote differences of opinion between two legal
schools or between jurists of the same school. If more specific maxims that
have the properties of sub-maxims are expressed in question form, they tend
to indicate a divergence of opinion within the school. He gives the following
example: “is the assumption that things are permissible until there is evidence
of prohibition, which is the view of Imam Shāfiˁī, or that they are prohibited
until there is evidence of permission?” Ibn Nujaym discusses whether what is
assumed in things is that they are permissible (ibāḥa), or that one should wait
for evidence (tawaqquf), or that they are prohibited (ḥaẓr), taking into consid-
eration the views of not only Ḥanafī jurists such as Kāsānī, Nasafī, Karkhī and
Marghīnānī, but also Shāfiˁī jurists such as Shāfiˁī and Suyūṭī. He then provides
examples resulting from this difference of opinion.77
After analysing the universal legal maxims, Ibn Nujaym then discusses the
19 maxims that can be applied to many fields of law. Ibn Nujaym, who selected
these from the forty maxims that Suyūṭī discussed under the same head-
ing and in the same order in his al-Ashbāh, added two maxims not found in
Suyūṭī’s work. These are the maxims “the mentioning of something that cannot
be divided is equivalent to mentioning all of it” and “if one who directly commits
an action and the one who causes it come together, the ruling is attributed to the
one who directly commits the action.”78
In his writing, Ibn Nujaym was influenced to a great extent by the Shāfiˁī
region he was in. For instance, he set out a maxim such as “is preferring relatives
reprehensible?” saying that he did not find this addressed in the works of Ḥanafī
jurists.79 Then he included within the discussion of this maxim, which is too
specific to be applied to various different areas of law, issues which Suyūṭī in
his al-Ashbāh passed on based on Shāfiˁī sources without any change.80 This
issue, which Ibn Nujaym treated as a maxim even though Ḥanafī sources do
not focus on it, illustrates the impact of the intellectual environment in which
he was situated.

3.2.2 The Chapter of al-Fawāˀid (Benefits)

After analysing the 25 general maxims, Ibn Nujaym goes on to the second chap-
ter which he entitles “al-fawāˀid.” Before getting into the subject, he states that

77 Ibn Nujaym, al-Ashbāh, 73–74.

78 Ibn Nujaym, al-Ashbāh, 189–190.
79 Ḥamawī states that this issue is addressed in Ḥanafī sources and tries to demonstrate this
with the examples he provides. Ghamz ˁuyūn al-baṣāˀir, 1: 358.
80 Ibn Nujaym, al-Ashbāh, 132. Cf. Suyūṭī, al-Ashbāh, 116–117.
10/16th Century 159

he has written about the issues in this section before, referring to al-Fawāˀid
al-zayniyya, and that they reached 500 in number. However, since in that work
they were collected together in no particular order such that it was hard to
benefit from them, Ibn Nujaym states that following the order of well-known
works of fiqh such as al-Hidāya and Kanz al-daqāˀiq and with some additions,
he brought these sub-maxims together in al-Ashbāh. Here Ibn Nujaym states
the difference between sub-maxims and maxims in a very concise manner to
elucidate the difference between the maxims in the previous chapter and the
sub-maxims in this one. According to this, a maxim brings together substan-
tive rulings from different areas of law whereas a sub-maxim encompasses rul-
ings from only one area of law.81
In this chapter, which begins with the subject of purity and ends with inher-
itance, Ibn Nujaym discusses issues that are analysed in works of substantive
law. Like Suyūṭī, and unlike other maxim authors, he does not use subtitles
within each subject of law. He sets out the sub-maxims and their examples,
dealing with exceptions as they arise. For instance, after setting out the maxim
“remaining is easier than beginning,” he states that the revocation of a judge
immediately after he commits an act of transgression is an exception to this
maxim.82

3.2.3 The Chapter of al-Jamˁ wa l-Farq (Common Elements and

Distinctions)
In this chapter Ibn Nujaym examines the issues which Suyūṭī discussed in the
fourth chapter of his work under the heading “issues that come up frequently
and that would be a shame for the jurist not to know.” After stating this in this
chapter, he writes that these are issues such as forgetfulness, ignorance, com-
pulsion, being a minor, slavery, intoxication, visual impairment and pregnancy,
adding to these various issues related to transactions and laws of worship.83
Considering the issues which he discusses and his style, it is obvious that he
follows Suyūṭī to a large extent and selects issues that constitute the subjects
of fatāwā. As the chapter heading denotes, these are subjects that can be
confused due to subtle differences which he tries to explain through maxims
and sub-maxims. Hence these are issues of substantive law, the knowledge of
which is especially useful for muftīs and judges.
In this chapter, in which Ibn Nujaym analyses rulings on different issues
based on the sources of the Ḥanafī school, he treats subjects that are similar in

81 Ibn Nujaym, al-Ashbāh, 192.

82 Ibn Nujaym, al-Ashbāh, 268.
83 Ibn Nujaym, al-Ashbāh, 359–465.
160 Chapter 7

form but have different rulings sometimes in detail and sometimes by listing
the facts. For instance, after stating that there are legal differences between
one who is asleep and one who is awake, he states that the two conditions
have the same ruling in 25 issues and sets them out one by one.84 In this sec-
tion, Ibn Nujaym also categorizes legal issues. For example, he indicates that a
sale contract is categorized as effective (nāfidh), suspended (mawqūf), binding
(lāzim), not-binding (ghayr lāzim), invalid (fāsid) and null and void (bāṭil). He
then analyses these concepts from the perspective of laws of worship, mar-
riage and transactions. Then he discussed what these concepts mean in the
Shāfiˁī school of law.85
Although the title of this chapter is al-jamˁ wa l-farq, Ibn Nujaym mostly
discusses issues that arise frequently in daily life. At the end of this chapter,
he says, “now with the help and strength of Allah, we will discuss distinctions”
and focuses on the differences between legal issues and concepts. For instance,
he focuses on the distinctions between concepts and subjects such as minor
ablution (wudūˀ) and major ablution (ghusl), minor ablution and dry ablution
(tayammum), the first (adhān) and second calls to ritual prayer (iqāmah), rent
(ijārah) and sale (bayˁ), apostate (murtad) and disbeliever (kāfir), invalid (fāsid)
and valid (ṣaḥīḥ) sales, testimony (shahādah) and transmission (riwāyah), and
the executor of a bequest (waṣī) and agent (wakīl).86 The author analyses these
issues, which are mainly discussed in works of legal distinctions, in a way that
reflects the general character of works of al-ashbāh wa l-naẓāˀir by considering
them within the framework of the maxims and sub-maxims on which they
are based.
At the end of this chapter, Ibn Nujaym focuses on maxims and sub-maxims
that govern different subjects. The author, who analyses issues of jurisprudence
and substantive law as well as other issues under headings such as qāˁida and
fāˀida, treats issues which do not come within the scope of previous chapters.
For instance, he studies branches of learning the knowledge of which is an
individual (farḍ ˁayn) or communal obligation (farḍ kifāya), those that are rec-
ommended (mandūb), prohibited (ḥarām), discouraged (makrūh) and lawful
(mubāḥ), the conditions for being a ḥadīth scholar in the fullest sense, condi-
tions for being the head of state, and those people whose ritual prayer will not
be accepted.87 In this section, besides legal issues, he also discusses subjects
that are the focus of other disciplines.

84 Ibn Nujaym, al-Ashbāh, 380–381.

85 Ibn Nujaym, al-Ashbāh, 400–401.
86 Ibn Nujaym, al-Ashbāh, 441–449.
87 Ibn Nujaym, al-Ashbāh, 449–465.
10/16th Century 161

3.2.4 The Chapter of al-Alghāz (Legal Puzzles)

Although with Ibn al-Subkī’s al-Ashbāh legal puzzles started to have an inde-
pendent place in maxim works, Suyūṭī did not include them in his al-Ashbāh.
Ibn Nujaym did not follow Suyūṭī who was his contemporary, but rather Ibn al-
Subkī by having an independent section on legal puzzles. At the beginning of
the section, he analyses the concept of legal puzzles and then mentions works
such Ḥayrat al-fuqahāˀ, al-ˁUmda and al-Zakhāˀir al-ashrafiyya fī l-alghāz lil-
Sādat al-Ḥanafiyya, saying that he chose the legal puzzles from those works. In
doing so, he states that he excluded those legal puzzles that are built on weak
opinions.88 From purity to inheritance, Ibn Nujaym includes many legal puz-
zles concerning various areas of law. Considering the subjects of these puzzles,
they were gathered mostly for educational purposes. In educational institutions
in particular, legal puzzles, which were deceptive questions posed to develop
the legal faculty of the students and to enable them to apply their knowledge
to different circumstances, were an important part of the curriculum.

3.2.5 The Chapter of al-Ḥiyal (Legal Devices)

The concept of legal device, which was defined by Ḥanafīs as reaching legit-
imate results by using legitimate means, has been defined by other schools as
“obtaining a result that is forbidden by the law by apparently [in form] legitimate
means.” The legal device has three elements: it should apparently be accord-
ing to the law, it should be against the spirit of the law, and the intention of
using the device.89 Despite the criticism that Ḥanafīs regard every type of legal
device as permissible, they come up with solutions and issue fatāwā in which
they use legitimate means to reach legitimate results. The fact that some of the
examples in prosopographies and books of virtues that reflect Abū Ḥanīfa’s
subtle legal understanding have been understood as legal devices constitutes
the basic reason for this misunderstanding. Ibn Nujaym, in contrast to previ-
ous maxim authors who discussed legal devices, has played a pioneering role
in maxim literature by showing that such examples in fatāwā that reflect the
subtle grasp of the founding jurists of the school are based on legal maxims.
He begins the chapter by analysing the concept of legal devices, relating that
Ḥanafī jurists have differed on how they express the concept, some using the
term ḥiyal, while others use the term makhārij.90

88 Ibn Nujaym, al-Ashbāh, 466.

89 Köse, İslam Hukukunda Kanuna Karşı Hile, 112. Cf. Köse, “Hiyel”, DİA, 18: 171.
90 Ibn Nujaym, al-Ashbāh, 477. In fact, the oldest extant work on legal devices is entitled al-
Makhārij fī l-hiyal. Köse, “Hiyel”, DİA, 18: 170.
162 Chapter 7

Probably because of the criticisms directed at Ḥanafī scholars on the issue

of legal devices, Ibn Nujaym reports the comment of Abū Sulaymān al-Juzjānī
concerning his teacher Shaybānī, “they slander Muḥammad [al-Shaybānī]; he
has no work on legal devices.” Ibn Nujaym then states that the aim of the solu-
tions put forward by jurists of the Ḥanafī school was to avoid what is prohib-
ited, which is something good, and recorded statements from the revelation
that are used to justify the use of legal devices. He sets out the verse of the
Qurˀān “take in your hand a bunch of stalks and hit with it and do not break
your oath (Q 38/44),” in which Allah commands the Prophet Ayyūb (Job), who
swore to hit his spouse a hundred times, to take a bunch of stalks consisting
of one hundred stalks and to strike her once. From the Sunna, Ibn Nujaym
adduces the incident in which the Prophet guides a person who buys a unit
of dates with two units of dates, which constitutes forbidden interest, to sell
the dates and then to buy the other dates. After recording this, he states that
one can use a legal device if it does not harm anyone.91 After this introduc-
tion to legal devices Ibn Nujaym discusses legal devices in 25 different subjects
beginning with worship and including marriage, divorce, oaths, emancipation,
endowments, companies, gifts, sales, rent, intercession and bequests.92

3.2.6 The Chapter of al-Furūq (Legal Distinctions)

Ibn Nujaym states that he has treated various issues related to legal dis-
tinctions in previous chapters. In this section, he states that he will quote
some examples from Karābīsī’s book on legal distinctions entitled Talqīḥ al-
Maḥbūbī.93 In this chapter, in which Ibn Nujaym analyses various examples
from purity, ritual prayer, required almsgiving, fasting, pilgrimage, marriage,
divorce and emancipation, he concentrates on legal distinctions between
issues of substantive law. In contrast to Qarāfī’s method, which discusses the
difference between maxims, Ibn Nujaym discusses distinctions between legal
issues, trying to establish relationships between the examples he gives and the
maxims on which they are based. Unlike in other chapters, he does not deal
with other legal subjects. Ibn Nujaym’s brother, Sirāj al-Dīn ˁUmar b. Nujaym,

91 Ibn Nujaym, al-Ashbāh, 477.

92 Ibn Nujaym, al-Ashbāh, 477–488.
93 Ibn Nujaym, al-Ashbāh, 489. Maḥbūbī, who is the grandfather of Ṣadr al-Sharīˁa, has a
work entitled Talkīḥ al-ˁuqūl. It is probable that in the publication of al-Ashbāh the two
works were mixed up. The correct expression would be al-Furūq of Karābīsī and Talkīḥ
al-ˁuqūl of Maḥbūbī.
10/16th Century 163

wrote a complement (tatimma) to this chapter, which was added to the end of
Ḥamawī’s commentary Ghamz ˁuyūn al-baṣāˀir.94

3.2.7 The Chapter of al-Ḥikāyāt and al-Murāsalāt (The Stories and

Merits of Abū Ḥanīfa and other founding Ḥanafī jurists)
Ibn Nujaym states that this chapter, which is the last in the work, is an exten-
sive field of knowledge. He points out that he has frequently read about such
topics at the end of fatwā works, and in works such as Manāqib by al-Kardarī
and Ṭabaqāt ˁAbd al-Qādir. He states that in this chapter he has gathered some
examples that are related to legal rulings.95 In this chapter, in which he relates
several incidents concerning Islamic law that occurred between Abū Ḥanīfa,
his disciples and founding jurists who lived in the same period, Abū Ḥanīfa
has a central role. Ibn Nujaym also relates the bequest of Abū Ḥanīfa to Abū
Yūsuf. With the incidents he relates in this chapter, he tries to establish the
legal acumen and depth of knowledge of the founding jurists. The fact that the
examples he selects are related to legal rulings shows that he did not choose
these virtue stories just to give historical information, but to display the inner
consistency of the legal doctrine of the founding jurists and that this thought
is based on maxims.
94 Ḥamawī, ˁGhamz ˁuyūn al-baṣāˀir, 4: 327–344. This additional section is on pages 493–511
in the 1983 Damascus publication of Muḥammad Mutīˁ al-Ḥāfiẓ.
95 Ibn Nujaym, al-Ashbāh, 512.
 chapter 8

The Period between the 11/17th Century and

the Majalla
Commentaries and Glosses

The 10/16th century can be described as a period in which masterworks of the

literature were written. Since the studies of Suyūṭī and Ibn Nujaym that resulted
from the sifting of the legal heritage of the Shāfiˁī and the Ḥanafī schools deter-
mined the structure of the genre in terms of their systematic and enduring
expression and organization, later authors conducted studies on these two works.
In the Mālikī maxim literature, writing maxims in poetry which was started by
Zaqqāq gained acceptance. There were studies conducted on Zaqqāq’s work as
well as independent works of maxims in poetry. In the Ḥanbalī maxim tradition,
Ibn Rajab’s influence lasted for a long time and continued with Ibn al-Mibrad’s
maxim work. However, after Ibn al-Mibrad, Ḥanbalī authors mainly conducted
studies on Suyūṭī’s al-Ashbāh instead of writing independent maxim works. Thus,
in the period between the 11/17th century and the Majalla most of the maxim
works were commentaries, glosses, abridgements and notes on the maxim works
of the previous century. Below, there will be a discussion of the maxim works writ-
ten by legal scholars of the period between the 11/17th century and the Majalla.

1 Mālikī, Shāfiˁī and Ḥanbalī Maxim Works

The tendency among Mālikī jurists in the 10/16th century to write maxim works
in poetry continued in this period. This style of writing, which was not limited
to law but also used in other fields, was the dominant approach in the Mālikī
works in these two centuries and the centuries that followed. The maxim liter-
ature of this period developed within the framework of poetry and the studies
conducted on these works.
Foremost among the works written in this period is ˁAlī al-Anṣārī’s (d. 1057/
1648) al-Yawāqīt al-thamīna. The author, who wrote most of his works in poetry,
wrote the maxim work, whose full title is al-Yawāqīt al-thamīna fī mā intamā
li-ˁālim al-Madīna fī l-qawāˁid wa l-naẓāˀir wa l-fawāˀid al-fiqhiyya, in poetry.1
As the title suggests, he brings together maxims, sub-maxims and similar cases

1 İsmail Paşa, Īḍāḥ al-maknūn, 1: 256–257.

The Period between the 11/17th Century and the Majalla 165

belonging to the Mālikī school, following the system of substantive law. In the
introduction the author writes that he composed the work on the basis of a
request by a friend to gather together the maxims of the Mālikī school and
the legal methodology on which its substantive legal rules are based.2 He then
begins extensively to discuss the differences between the concepts of niyyah
(intention), taˁabbud (a pure act of servanthood) and taˁlīl (rational analysis).
After the substantive law sections which begin with purity and end with litiga-
tion, in the last section, which he devotes to miscellaneous issues, the author
discusses matters such as justice, grave sins, commanding the right and forbid-
ding the evil, the Sunna, and innovations in religion.3 Abū l-Qāsim al-Sijilmāsī
(d. 1214/1800) wrote a commentary on al-Yawāqīt al-thamīna. In it he draws on
Mālikī works such as Qarāfī’s al-Furūq, Zaqqāq’s al-Manhaj, Wansharīsī’s Īḍāḥ
al-masālik and Manjur’s al-Manhaj.4 Other than the commentaries and glosses
mentioned above in the discussion of Suyūṭī’s al-Ashbāh, there were no signif-
icant Shāfiˁī or Ḥanbalī studies on legal maxims in this period.

2 Ḥanafī Maxim Works: The Alphabetic Ordering of Maxims

Both Nāzirzāde and Khādimī, who were Ḥanafī scholars and wrote maxim
works in this period, ordered the maxims alphabetically. This ordering indi-
cates that the authors wrote the works for educational purposes and to facili-
tate access to maxims. Below, there will be a discussion on the works written
by these two Ḥanafī jurists in this period.

2.1 Nāzirzāde (d.c. 1061/1651) and His Tartīb al-laˀālī fī silk al-amālī
There is almost no information about the life of Nāzirzāde Mehmed b. Suleyman,
who was among the Ḥanafī scholars of the 11/17th century. Speculation con-
cerning why there is no such information is dubious since it is not based on
historical documents.5 Khālid b. ˁAbd al-ˁAzīz, the editor of Nāzirzāde’s Tartīb
al-laˀālī fī silk al-amālī, asserts that he was from Gallipoli, basing this assertion

2 Sijilmāsī, Sharḥ al-yawāqīt al-thamīna, 1: 137.

3 Ibid, 2: 847–894.
4 Ibid, the editor’s introduction, 1: 115–120.
5 The editor of Tartīb al-laˀālī suggests that it is possible that he was unknown because he had
theological and political leanings that went against the general tendencies of the society at
the time. Nāzırzāde, Tartīb al-laˀālī, introduction by the editor, 1: 22. But there is no informa-
tion in the book that proves this claim.
166 Chapter 8

on certain assumptions.6 Nāzirzāde’s statement in the introduction that he

presented the work to Shaikh al-Islām Esad Efendi indicates that he lived in
this period and finished the work at a time when Esad Efendi was in office.7
From the information he provided we also learn that he had two other trea-
tises, but we have no information on whether these are extant.8
Nāzirzāde stated that he was authorized to issue fatāwā and narrate legal
subjects from the books after he completed his education and reached a cer-
tain level of knowledge. He explained that he looked at the works of previous
scholars so that the hearts of those who asked him questions would be satisfied
with his answers, and that in these works he found maxims and principles that
could be used as answers.9 This information indicates that he wrote the work
having in mind practical benefits such as answering questions and convincing
those who ask him for fatāwā. It is also understood that beginning with the 11/
17th century legal maxims were directly used in response to legal questions
and in the verdicts issued in the judiciary. This casts light on why there is the
restriction in Esbāb-ı Mūcibe Mazbatası (Minutes concerning the factors that
necessitated the writing) of the Majalla that a judge cannot refer to a maxim
without an explicit reference.
Nāzirzāde stated that he arranged his work alphabetically and that this
arrangement facilitated the use of the work as a reference when a question
was asked.10 From these statements it becomes clear that in the period dur-
ing which the author was alive muftīs and jurists who were asked questions
preferred easier and more practical works rather than sophisticated sources
in which issues are discussed at length. This also explains certain practical
needs that were listed for the preparation of the Majalla, since it was stated
that those who are in positions of issuing fatāwā or judgments are not able to
investigate issues in depth in extensive works, but rather need works such as
the Majalla. Therefore, the inability to find issues in sources and apply them
to real situations that is mentioned in the introduction to the Majalla began in
the period in which Nāzirzāde lived.
Although authors of legal maxims who wrote works prior to the 11/17th cen-
tury did not focus on maxims as legal evidence, in this century legal maxims

6 Based on this, the editor mentions the possibility that Nāzırzāde may be the father of
Shayhīzāda, the eminent author of Majmaˁ al-anhur fī sharḥ Multaqā al-abḥur. Nāzırzāde,
Tartīb al-laˀālī, introduction of the editor, 1: 43.
7 Nāzırzāde, Tartīb al-laˀālī, introduction by the editor, 1: 192–195.
8 Nāzırzāde, Tartīb al-laˀālī, introduction by the editor, 1: 488, 497.
9 Nāzırzāde, Tartīb al-laˀālī, 1: 188–189.
10 Nāzırzāde, Tartīb al-laˀālī, 1: 189–190.
The Period between the 11/17th Century and the Majalla 167

were regarded as legal evidence. Nāzirzāde’s statements indicate that he recog-

nized legal maxims as evidence. The author stated in his introduction to Tartīb
al-laˀālī that the maxims he analysed had exceptions that could be confusing,
but that he tried to explain the reasons these cases were excluded from the
scope of the maxim. With such an effort he tried to show that because max-
ims are universal, they encompass many examples of substantive legal rules
and the fact that there are some exceptions does not take anything away from
the maxims’ universal quality. He added that he aimed to remove any doubts
about the comprehensiveness of maxims and defend them against the rejec-
tion of their status as evidence.11 Thus, Nāzirzāde regarded maxims as among
the sources of evidence that could be utilized when there was a need.
Nāzirzāde stated that legal maxims were the principles on which legal issues
were based and that because of this one who mastered those maxims would
be able to find solutions to the problems he faced. Nāzirzāde related that he
presented this work he entitled Tartīb al-laˀālī fī silk al-amālī to the Shaikh al-
Islām of the period, Abū Saˁīd b. Asad. He also stated that if his life permitted,
he would add maxims that he derived from Ḥanafī legal sources to this work.12
However, according to the extant sources he did not have any other maxim
works, which shows that he died before he could fulfill this wish.
Tartīb al-laˀālī consists of 27 chapters. In each chapter the author sets out
various maxims with examples from substantive legal rules and exceptions
based on Ḥanafī sources. For example, in the first chapter that begins with the
Arabic letter alif, he mentions 50 maxims and sub-maxims of jurisprudence
and substantive law.13 Because the work is arranged alphabetically, Nāzirzāde
does not follow Ibn Nujaym’s arrangement and mentions only three of the five
foundational maxims that are generally accepted by all legal schools.14
Nāzirzāde, at the beginning of the book, does not list the works from which
he benefited, stating generally that while reading the works of scholars who
were a source of guidance he found many maxims which he arranged alpha-
betically in his work.15 However, from the attributions in the book, besides
the major texts of the Ḥanafī school, he also benefited from works of maxims.
Among these he refers most often to Ibn Nujaym.16 It is striking that although
Nāzirzāde follows an alphabetic arrangement, he does not mention Zarkashī.

11 Nāzırzāde, Tartīb al-laˀālī, 1: 190.

12 Nāzırzāde, Tartīb al-laˀālī, 1: 191–195.
13 Nāzırzāde, Tartīb al-laˀālī, 1: 201–418.
14 Nāzırzāde, Tartīb al-laˀālī, 1: 411; 2: 801, 821. He does not mention “certainty is not overruled
by doubt” and “hardship begets facility,”
15 Nāzırzāde, Tartīb al-laˀālī, 1: 189.
16 Nāzırzāde, Tartīb al-laˀālī, 1: 205, 234, 448; 2: 699, 849, 893, 909.
168 Chapter 8

Looking at the general structure of the work, Nāzirzāde does not go into
differences of opinion concerning maxims and issues of substantive law, is
not interested in approaches other than that of the Ḥanafī school, and focuses
only on maxims and examples that the Ḥanafī school recognizes. For instance,
although maxims such as “wage and responsibility cannot come together (al-ajr
wa-ḍ-ḍamān lā yajtamiˁān)” and “there can be no analogy based on what is con-
trary to analogy (mā thabata ˁalā khilāf al-qiyās fa ghayruh lā yuqāsu ˁalayh)”
are debated between other schools and the Ḥanafīs, Nāzirzāde does not men-
tion anything about these differences.17
The periods in which Nāzirzāde and Khādimī lived were close to each other.
There are certain similarities between the maxims at the end of Khādimī’s
Majāmiˁ al-haqāˀiq and Tartīb al-laˀālī. Although these similarities are numer-
ous enough to occasion interpretations that Khādimī saw and benefited from
Tartīb al-laˀālī,18 it is difficult to accept this claim. This is because there is no
information countering the probability that Nāzirzāde lived in Istanbul and
it is known that Khādimī went to Istanbul only twice, one occasion being for
a short stay.19 In addition, the fact that Nāzirzāde’s work is not mentioned in
later maxim works and other sources demonstrates that the work was not well
known. Also the maxims that are deemed similar are for the most part maxims
and sub-maxims that were set out in Ibn Nujaym’s al-Ashbāh. Considering that
both authors draw on Ibn Nujaym, it is more accurate to say that Khādimī was
influenced not by Nāzirzāde, but rather by Ibn Nujaym.

2.1.1 The Content Analysis of Tartīb al-laˀālī

Nāzirzāde uses various Arabic particles in front of the maxims he quotes to
show the relationship between maxims and substantive law. Since Nāzirzāde
planned the work for the benefit of muftīs and judges, he does not go into deep
discussions in the examples he provides, briefly setting out legal rulings con-
cerning the issue and the exceptions. For instance, after setting out the maxim
“wage and responsibility cannot come together,” he provides many examples to
which the maxim is applicable. Some of these are as follows: if one rents an
animal and overloads it and the animal suffers an injury as a result, he pays

17 Nāzırzāde, Tartīb al-laˀālī, 1: 252; 2: 1030. However, in some maxims he points to differ-
ences of opinion by using expressions such as “according to our scholars” and “according
to us,” without going into the details of the disagreement. E.g. Nāzırzāde, Tartīb al-laˀālī,
1: 401, 491; 2: 1120.
18 Khālid b. ˁAbd al-ˁAzīz, the editor of Tartīb al-laˀālī, claims that two-thirds of Majāmiˁ is
taken from Tartīb al-laˀālī. Nāzırzāde, Tartīb al-laˀālī, 1: 100–110.
19 Sarıkaya, Ebü Said el-Hādimī, 122.
The Period between the 11/17th Century and the Majalla 169

the indemnity, but does not pay rent. If a person purloins an animal or takes
over a house, he does not pay an indemnity for using it. There is also no indem-
nity for separate additions to usurped properties.20 Likewise under the maxim
“silence when there is a need for declaration is a declaration” he states, “there are
innumerable examples of this in substantive law,” providing one example and
then listing exceptions. Some of these exceptions are as follows: the silence of
someone who sees a stranger sell his property and does not stop him does not
make the seller an agent. The silence of someone who sees someone destroy
his property is not considered permission. The silence of someone who sees
someone use his property does not mean that he lent it to him. The silence
of pledgee when he sees that the one who gave the pawn is selling it does not
invalidate the pawn contract.21
In his work Nāzirzāde continuously calls attention to the relationship
between the examples he gives and the relevant maxim, mentioning examples
that reveal this relationship. For instance, after transmitting the maxim “the
fundamental principle is freedom from liability” he said:

Because of this, the testimony of a single person is not accepted.22

According to this maxim, the legally valid claim is that of the defend-
ant, and the burden of proof is on the plaintiff. If the defendant makes a
confession concerning a right or something else and makes a declaration
concerning a thing that has a value, the legally valid claim is that of the
confessor together with his oath [concerning the value].23

Nāzirzāde utilizes Ḥanafī legal sources and criticizes them as he sees fit. For
example, in the maxim “one who commands someone [to do damage] is not lia-
ble for the indemnity because of the command [to do damage],” he states that
the sultan and the master are exceptions to this. As regards this maxim, he
discusses the issues in which a slave damages the property of someone else.
Nāzirzāde, after a detailed discussion of the examples, quotes statements of
Ibn Nujaym in al-Ashbāh on this subject, and states that it is apparent that Ibn
Nujaym made a mistake.24

20 Nāzırzāde, Tartīb al-laˀālī, 1: 252–256.

21 Nāzırzāde, Tartīb al-laˀālī, 2: 755–759.
22 Islamic law requires two eyewitnesses for the plaintiff’s case to be proven; hence, the
testimony of a single witness does not prove a case. If the plaintiff cannot produce two
eyewitnesses, the defendant’s claim under oath that he is innocent is accepted.
23 Nāzırzāde, Tartīb al-laˀālī, 2: 1: 318–319. Nāzırzāde takes this section completely from Ibn
Nujaym. Cf. Ibn Nujaym, al-Ashbāh, 64.
24 Nāzırzāde, Tartīb al-laˀālī, 1: 201–206. Cf. Ibn Nujaym, al-Ashbāh, 339.
170 Chapter 8

Compared to that of earlier works on maxims, the structure of the legal lan-
guage in Tartīb al-laˀālī fī silk al-amālī is more concise. This is undoubtedly influ-
enced by the author’s aim to make muftīs and judges understand legal issues.
Nāzirzāde aims to set out concisely many issues from legal sources so that each
maxim on which the issues are based is memorized or quickly remembered so
that it can be related to these cases. Hence, in Tartīb al-laˀālī maxims that are
found in legal sources and prior works on maxims are expressed more concisely.
Moreover, even the examples from substantive legal rules that are set out for each
maxim are also expressed in a manner that is concise and easy to remember and
memorize.
Another important feature of Tartīb al-laˀālī is that the author focuses mainly
on legal maxims without analysing jurisprudential maxims, sub-maxims and
legal issues as maxims. For example, while Tartīb al-laˀālī, which like Zarkashī’s
al-Manthūr is arranged alphabetically, sets out only maxims under which legal
issues are analysed, Zarkashī discusses various concepts, theological issues and
jurisprudential maxims.25 This is also the case for Ibn Nujaym’s and other maxim
works, whereas Nāzirzāde meticulously chooses the maxims he uses, being care-
ful to mention only maxims related to substantive legal rules.

2.2 Combining Jurisprudence and Maxims: Khādimī’s (d. 1176/1762)

Majāmiˁ al-ḥaqāˀiq
Abū Saˁīd al-Khādimī was born in the town of Hādim in Konya in 1113/1701. After
receiving his early education from his father, he attended the lessons of Ibrahim
Efendi in the Madrasa of Karatay in Konya for five years. He then went to Istanbul,
taking lessons from Kazabadī Ahmed Efendi. After completing his education in
Istanbul, he went back to Hādim with a large number of books, teaching in his
father’s Madrasa. The fame of this madrasa, to which students from many dif-
ferent places in Anatolia came, quickly reached Istanbul. The Ottoman Sultan
invited him to Istanbul and proposed that he should stay and teach in Istanbul.
However, Khādimī went back to the madrasa in his town with new books that he
bought in Istanbul. The works of Khādimī who, considering the conditions of the
time, established a sizeable library were sent to the Yusuf Ağa library in Konya.26
Khādimī, who has an important place among the Ottoman muftīs and legal
scholars of his age, wrote works in different areas such as language, logic,
poetry, theology, law, jurisprudence, sufism, exegesis, ḥadīth and ethics.27 His

25 Zarkashī, al-Manthūr, 1: 73, 90, 111, 208, 217; 2: 7, 112, 175, 3: 84, 166, 392.
26 Cf. Önder, Büyük Ālim Hz. Hādimī, 6–13. Şimşek, Muhammed Hādimī, 29–48.
27 For an extensive list of his works see Sarıkaya, Ebü Said el-Hādimī, 104–107. Cf. Aydın, Ebū
Saīd Muhammed el-Hādimī’nin Hayatı, 46–61.
The Period between the 11/17th Century and the Majalla 171

jurisprudential work, Majāmiˁ al-ḥaqāˀiq, was so well respected that it replaced

a work like Molla Khusraw’s Mirˀāt al-uṣūl, which was taught for many years
in Ottoman madrasas and was regarded as a standard textbook.28 Majāmiˁ
al-ḥaqāˀiq also became the foundation of Sava Pāshā’s work İslam Hukuku
Nazariyatı Hakkında Bir Etüd and influenced efforts to codify Islamic law.29
The author, who alphabetically lists 154 maxims in the conclusion of his work,
which consists of an introduction, two sections and a conclusion, derives these
maxims mostly from Ibn Nujaym’s al-Ashbāh. These maxims, which were also
among the sources of the Majalla, were studied by different authors such as
Güzelhisārī (d. 1253/1837), who wrote a commentary on Majāmiˁ al-ḥaqāˀiq.
Khādimī, who besides being a jurist also wrote works on exegesis and educa-
tion, did not write an independent work on maxims, analysing some maxims and
sub-maxims in the conclusion (khātima) of Majāmiˁ al-ḥaqāˀiq, which is a work
of jurisprudence.30 Before Khādimī, the Ḥanbalī jurist Ibn al-Mibrad listed 66
maxims at the end of his jurisprudential work Mughnī dhawī al-afhām under the
heading “universal maxims from which particular issues are derived in the entirety
of law.”31 Bannānī (d. 1198/1784), who lived in the same period as Khādimī, also
analysed legal maxims in the conclusion he added to the section on sources of law
in his gloss on Jamˁ al-jawāmiˁ. Bannānī explains why he treats maxims right after
sources of law by saying that maxims resemble sources of law.32 This indicates
that there was a tendency at the time to add a conclusion to works of jurispru-
dence in which some maxims were analysed, and that this tendency influenced
Khādimī.33
The general features of Majāmiˁ al-ḥaqāˀiq and the curriculum of the
Anatolian madrasa in which Khādimī taught show that the work was pre-
pared as a textbook. Consequently, the maxims in the conclusion are gath-
ered together as short clauses for students to memorize. Because of this, like
Zarkashī’s method in al-Manthūr, he arranges the maxims alphabetically.

28 Yaşaroğlu, “Mecāmiu’l-hakāik,” DİA, 28: 217.

29 Sarıkaya, Ebü Said el-Hādimī, 261.
30 Khādimī has some exegetical treatises such as Risālat al-basmala. Studies have been con-
ducted on some of these works. E.g. Fırat, Ebü Said el-Hadimī ve Risāletü Tertīli’l-Kur’ān.
31 Ibn al-Mibrad, Mughnī dhawī al-afhām, 519–522.
32 Bennānī, Ḥāshiyat al-ˁAllāma al-Bannānī, 1: 356.
33 For a detailed analysis of Khādimī’s legal maxims and their relationship with jurispru-
dence see Kızılkaya, “18. Yüzyıl Osmanlı Hukuk Düşüncesinde Değişim: Küllî Kâideler-
Fıkıh Usûlü İlişkisi,” Sahn-ı Semân’dan Dârülfünûn’a Osmanlı’da İlim ve Fikir Dünyası,
179–201.
172 Chapter 8

Although Khādimī mentions 154 maxims in the conclusion, considering the

whole work these reach a number of between 170 and 180.34
Among the various studies written on Majāmiˁ in different periods, the best-
known is Güzelhisārī’s Manāfiˁ al-daqāˀiq. Güzelhisārī, who wrote the com-
mentary using mainly Ḥamawī’s Ghamz ˁuyūn al-baṣāˀir, explains the maxims
using a few examples. In the examples he analyses he mentions at times the
Ḥanafī sources he utilized and the names of the jurists who discussed the
issue. At times he also briefly explains the words that are used in the max-
ims.35 Among other commentaries of Majāmiˁ are Manāfiˁ al-daqāˀiq sharḥ
majāmiˁ al-haqāˀiq of Khādimī’s son Abdullah Efendi, Mehmed b. Mustafa al-
Konevī’s Sharḥ majāmiˁ al-Khādimī and Necib al-Ayıntābī’s Sharḥ majāmiˁ al-
Khādimī.36 The work also has two translations into Ottoman, the first of which
is Lawāmiˁ al-daqāˀiq fī tarjamat majāmiˁ al-haqāˀiq by Şirvanlı Ahmed Hamdi
Efendi and the second is Hanīf İbrahim Efendi’s Tercüme-i mecāmi‘ fi’l-uṣūl.37

2.2.1 Content Analysis of Majāmiˁ al-ḥaqāˀiq

Majāmiˁ al-ḥaqāˀiq is a seminal work as regards both jurisprudence and legal
maxims. Although Khādimī does not explain why he added these maxims to
the concluding section of his work on jurisprudence, as noted earlier, it was
done for educational purposes and was influenced by legal change in the
period. While teaching in the madrasa that belonged to him, he put these
maxims in Majāmiˁ so that his students could memorize the principles on
which the Ḥanafī school is based, which is also why he arranged the maxims
alphabetically.
Khādimī begins the conclusion with the qualification that the legal maxim
is universal or preponderant.38 The reason the author says that maxims are
preponderant without any explanation is that legal maxims have many excep-
tions. Güzelhisārī focuses on the meaning of this qualification, utilizing mainly
Ḥamawī’s commentary on Ibn Nujaym’s al-Ashbāh. Güzelhisārī first defines
the maxim in a manner close to Taftāzānī’s definition as “the universal ruling
that is applied on all particulars so that the ruling of the particulars is known
through it.”39 However, he then states that this definition is not appropriate for

34 Çeker, “Ebū Saīd Muhammed el-Hādimī’nin Mecāmiu’l-Hakāik Adlı Eseri,” SÜİFD, 8: 48.
35 e.g. Güzelhisārī, Manāfiˁ al-daqāˀiq, 307, 309, 314, 326, 330, 334.
36 Çeker, “Ebū Saīd Muhammed el-Hādimī’nin Mecāmiu’l-Hakāik Adlı Eseri,” SÜİFD,
8: 43–44.
37 Cf. Aydın, Ebū Saīd Muhammed el-Hādimī’nin Hayatı, 68.
38 Khādimī, Majāmiˁ al-haqāˀiq, fol. 35b.
39 Taftāzānī defines maxim as “the universal ruling that is applied on all particulars so that the
ruling of the particulars is known through it.” Taftāzānī, al-Talwīḥ, 1: 35.
The Period between the 11/17th Century and the Majalla 173

the legal maxim, offering a new definition for it. According to this, the maxim
is “the preponderant ruling that is applied to the majority of the particulars.”
However, Güzelhisārī stated that to say that the maxim has a more general
meaning than that it is universal or preponderant, as in Khādimī’s qualifica-
tion, is preferable.40
After stating that legal maxims are important and useful, Khādimī first set
out the ḥadīth “actions are according to their intentions.”41 Although it is not
immediately clear whether this is a maxim or an introductory sentence, the
fact that he uses the expression “another maxim” at the beginning of the next
maxim, which is “matters shall be judged by their objectives,” shows that he con-
siders the ḥadīth “actions are according to intentions” to be a maxim. There can
be two reasons why Khādimī treats this ḥadīth as a maxim, even though previ-
ous maxim authors did not treat it as such: first, this narration, which is cited
at the beginning of ḥadīth collections, emphasizes the central role of intention
for the validity of every action, which is also the case in law; second, it is pos-
sible that the author sets out this maxim in order to follow the alphabetical
order according to which he composed his work. Considering that the maxim
concerning intention is treated as a maxim in Ibn Nujaym’s al-Ashbāh and
other maxim works, by treating this ḥadīth as a maxim Khādimī is following
Ibn Nujaym. However, Khādimī quotes the maxim, which in al-Ashbāh takes
the form “there is no reward without intention” in the form of a ḥadīth because
the maxim is based on the ḥadīth and also in order to follow the alphabetical
order of the book.42
Khādimī not only does not explain the maxims, he also includes jurispru-
dential and theological maxims together with the legal maxims which consti-
tute the vast majority. For instance, the author mentions jurisprudential max-
ims such as “as long as there is no evidence to the contrary, the meaning that is
established by the indication of an explicit statement is considered,” “of the two
parts of an attribute, the last is considered,” “indication is not considered when
there is a clear statement” and “what is not qualified remains unqualified,”43 as
well as creedal maxims as in the example “in creed, probable evidence is not con-
sidered.”44 Together with general maxims that encompass many areas of law,
there are also sub-maxims in the work that relate to only one legal area such

40 Güzelhisārī, Manāfiˁ al-daqāˀiq, 305.

41 Khādimī, Majāmiˁ al-haqāˀiq, fol. 35b.
42 Ibn Nujaym sets this out in the form “lā thawāb illā bi l-niyya.” Ibn Nujaym, al-Ashbāh, 14.
43 Khādimī, Majāmiˁ al-haqāˀiq, fol. 36b, 37a, 37b.
44 Khādimī, Majāmiˁ al-haqāˀiq, fol. 37a.
174 Chapter 8

as “the action of a minor before adulthood is not described as reprehensible” and

“oaths are based upon utterances, not intentions.”45
Khādimī expresses differently the maxims “certainty is not overruled by
doubt” and “hardship begets facility,” which are considered to be fundamental
maxims. For example, he mentions the former as “if something is established as
the original condition concerning what is permissible or prohibited and what is
pure or impure, this original condition is removed only with something certain”
and “whoever is in doubt concerning whether he should do something or not, the
rule is that he should not do it.”46
45 Khādimī, Majāmiˁ al-haqāˀiq, fol. 36a, 37a.
46 Khādimī, Majāmiˁ al-haqāˀiq, fol. 36a, 37 b.
 chapter 9

From Legal Maxims to Codification

Mecelle-i Ahkāmı Adliye

As Nāzirzāde says in the introduction to Tartīb al-laˀālī fī silk al-amālī, which

was written in the 11/17th century, from this period onwards it become difficult
for judges and muftīs to refer to basic sources of Islamic law in which legal
issues were extensively discussed.1 Studies addressing this problem took dif-
ferent forms in different periods. For example, while some authors such as
Nāzirzāde placed the maxims in alphabetic order to facilitate access to them
and to make them easy to remember, others proposed different solutions. One
solution proposed under the influence of the scholarly and political debates of
the period, as well as the codification movement that began in Europe in the
18th century, was to prepare a legal code that would be applied in courts. This
situation was the chief factor leading to the composition of Mecelle-i Ahkām-ı
Adliye (Majallat al-aḥkām al-ˁadliyya).
In the Ottoman state, before the Majalla both works of Islamic law and
kānūnnāmes (decrees of the Ottoman Sultan containing legal clauses on a par-
ticular subject), which were issued in various periods and applied together with
Islamic law, regulated legal life. The functions of the judiciary, which until the
Tanzimat period (the administrative reforms of the Ottoman government that
commenced in 1839) were based on Islamic legal works, began to be impeded
because of a lack of scholars who were qualified to peruse these works. The
complaint in the Minutes of the Majalla that, because of the decrease in the
number of scholars skilled in the disciplines of the Sharīˁa, one cannot find
experts who can refer to Islamic legal corpora when there is a need to do so
in the legal cases brought before the Ottoman Nizāmiye courts clearly illus-
trates this problem.2 To address this problem in the Ottoman judiciary and to
meet the need for judges in the Nizāmiye courts, a school called Muālimhāne-i
Nüvvāb was established in 1270/1854. However, because the graduates of this
school were no more knowledgeable than the judges who were trained in the
madrasas, they failed to meet the needs of the Ottoman courts. Because of this,

1 Nāzırzāde, Tartīb al-laˀālī, 1: 188–190.

2 Mecelle Mazbatası, 8.
176 Chapter 9

Islamic law needed to be codified for the Nizāmiye courts judges, and this is
why a legal code like the Majalla became necessary.3
Although there were many factors that influenced the promulgation of the
Majalla as a legal code, the most striking were the inadequacy of the legal
personnel forming the judiciary, pressure from European states for the prom-
ulgation of statutes for non-Muslim members of the Ottoman state, and the
movement of legal codification that began in Europe at the end of the 18th
century and from there spread to the rest of the world.4 These influences trig-
gered the Ottoman desire to issue new statutes in both political and social
terms. Thus, beginning with the middle of the 19th century, in areas such as
commercial, maritime and penal law, statutes were issued that were mostly
adaptations of French law. In contrast, there were also indigenous laws such as
the Penal Statutes of 1256/1840 and 1267/1851, the Land Statute of 1274/1858 and
the Majalla of 1285/1869.5 The emergence of courts based on two different legal
systems, those based on laws that were adapted from Europe and those based
on the Sharīˁa gradually led to a lack of coordination between them.

1 A Book Whose Text is Strong: Mecelle-i Ahkāmı Adliye

The Majalla is a legal text that was composed by the Majalla assembly under the
leadership of Ahmet Cevdet Pāshā, who was experienced in preparing laws.6
The text, which was prepared between 1868 and 1889, was in force for 57 years
until the Swiss Civil Code was adopted in 1926. Ahmet Cevdet Pāshā himself
told the story of the preparation of the Majalla, which was the most impor-
tant product of the codification movement after the Tanzimat and was based
on Ḥanafī law. According to this account, both the desire of non-Muslim sub-
jects of the Ottoman empire not to go to Sharīˁa courts and European pressure
on the Ottomans in this regard led some individuals in the Ottoman empire
to advocate the translation of French laws. Ahmet Cevdet Pāshā expressed
his concerns in this regard by saying, “since to thus change and replace the

3 Aydın, “Mecelle’nin Hazırlanışı,” Osmanlı Araştırmaları, 38.

4 Cf. Veldet, “Kanunlaştırma Hareketleri ve Tanzimat”, Tanzimat I, 143. Aydın, “Mecelle’nin
Hazırlanışı,” Osmanlı Araştırmaları, 35–44.
5 Veldet, “Kanunlaştırma Hareketleri ve Tanzimat,” Tanzimat 1: 176–187. Cf. Yavuz, “Ahmet
Cevdet Paşa ve Mecelle’nin Tedvini,” Ahmet Cevdet Paşa, 281. See also Ayoub, “The Mecelle,
Sharia, and the Ottoman State,” Journal of the Ottoman and Turkish Studies Association,
127–130.
6 Akgündüz, “Ahmet Cevdet Paşa ve Kanunlaştırma Hareketleri,” Ahmet Cevdet Paşa, 337–341.
From Legal Maxims to Codification 177

fundamental laws of a people is tantamount to annihilating that people, this is

not an attractive option,” and began a counter movement.7
While a group among the Ottomans advocated laws that were translated
from French, another group, consisting of Ahmet Cevdet Pāshā and those who
were like-minded, wanted laws that were based on Islamic law. The first group
sought solutions to societal problems based on Western values, while the sec-
ond group argued that Islamic law would guide them in solving these prob-
lems and that it was necessary to put together a body of laws that was loyal
to the tradition shaped by Islamic law.8 The second group was successful and
Mecelle-i Ahkām-ı Adliye was created.
A commission was formed from among the leading scholars of the period
for the preparation of the Majalla. However, the commission disbanded before
the completion of the text. Then a new commission was established under the
leadership of Ahmet Cevdet Pāshā. In his own words, this is how they worked:

In those issues in which the leading Ḥanafī jurists differed, those opin-
ions that complied the most with the statements of the Sharīˁa and were
most beneficial were preferred and in this way a Majalla named Ahkām-ı
Adliye was composed. The Exalted Will decreed that in the Sharīˁa and
Nizāmiye courts it would become the legal standard.9

The general principles in the introduction to the Majalla and the Chapter of
Transactions came into effect in 1869, while the last section, the Chapter of
Legal Procedures, was published and came into effect in 1876. The Majalla
assembly later carried out certain studies for the completion of the Majalla
and in 1888 its activities were suspended on the basis that it would reassemble
in case of need. Although in 1916 and 1923 commissions were established for
the improvement of the Majalla, the articles prepared by them did not come
into effect.10
Considering the conditions that gave birth to it, the Majalla, which was
a product of the period of the Tanzimat,11 was an important and successful
study. When considering that the Majalla was the product of Ahmet Cevdet
Pāshā’s efforts to compose a work that was nurtured by the traditional her-
itage of the Ottoman society against those who, under the influence of the

7 Cevdet Paşa, “Vak’anüvīs Cevdet Paşa’nın Evrakı,” TOEM, 47: 282–283.

8 For these debates see Şentürk, İslām Dünyasında Modernleşme ve Toplumbilim, 144–145.
9 Cevdet Paşa, “Vak’anüvīs Cevdet Paşa’nın Evrakı,” TOEM, 47: 283–284.
10 Ekinci, Şimşirgil, Ahmet Cevdet Paşa, 55–56, 58.
11 Cf. Onar, “The Majalla”, Law in the Middle East I, 292.
178 Chapter 9

pressure of Western states on the Ottoman Empire and the codification move-
ment in the West, wanted the French civil code to be translated and applied
in the Ottoman state, the Majalla achieved its aim. The fact that the Majalla
was in effect for a considerable time and that even after its abolition in 1926 it
was applied in other countries illustrates this success. However, when Majalla
is evaluated in terms of its importance in maxim literature, it is difficult to say
that it was successful to the same extent as it gained as a legal code.

1.1 The Significance of the Majalla as Regards Maxim Literature

The fact that the Majalla was a legal text prepared according to the Ḥanafī
school is made clear in Esbāb-ı Mūcibe Mazbatası (the Minutes of the Majalla)
by the expression “in short, this Majalla does not go out of the Ḥanafī school.”12
In the Minutes there are frequent references to Ibn Nujaym, who has an impor-
tant place in Ḥanafī maxim literature. For instance, it is stated that the univer-
sal maxims at the beginning of the Majalla were composed with the help of the
works of Ibn Nujaym and the jurists after him: “the second article of the intro-
duction are the maxims collected by Ibn Nujaym and the jurists who followed his
path.”13 This statement refers to the universal maxims at the beginning of the
Majalla that were based on the works of Ibn Nujaym and maxim authors after
him such as Khādimī. In addition, the Minutes mention Ḥanafī sources such
as al-Hidāya, al-Fatāwā al-Hindiyya and Tātārkhāniyya.14 Besides these books
whose names are mentioned, there is no document that shows which other
works the Majalla assembly used in preparing it. Ebül’ulā Mardin gives an
extensive list of the works the Majalla assembly might have used based on the
articles of the Majalla. Most of these are works that are known to those who
are familiar with the Ottoman madrasas and scholarship. Among these are
major works such as al-Mabsūṭ, Badāˀiˁ, al-Hidāya, al-Baḥr al-rāˀiq, al-Ikhtiyār
and al-Wiqāya and fatwā works such as al-Fatāwā al-Hindiyya, al-Fatāwā al-
Tātārkhāniyya, Qāḍīkhān, Fetavā-i Ankaravī and al-Bazzāziyya.15
It has been stated that among the sources used in the preparation of the
Majalla are Majmaˁ al-anhur and Multaqāˀ, and that these sources consti-
tute the basis for approximately 350 maxims of the Majalla either directly or
indirectly.16 In addition, it has also been stated that since Khādimī benefited
from the work of Nāzirzāde and the Majalla benefited from Khādimī’s work,

12 Mecelle Mazbatası, 14.

13 Mecelle Mazbatası, 12.
14 Mecelle Mazbatası, 10.
15 Mardin, Medenī Hukuk Cephesinden Ahmet Cevdet Paşa, 167–168.
16 Has, A Study of Ibrāhīm al-Ḥalabī, 337–345; Has, “Mülteka’l-ebhur,” DİA, 31: 550.
From Legal Maxims to Codification 179

Nāzirzāde’s Tartīb al-laˀālī is among the indirect sources of the Majalla.17

Based on the extant sources and the articles of the Majalla, while the universal
maxims at the beginning of the Majalla were prepared with the help of Ibn
Nujaym’s work and the Ḥanafī maxim works that came after him, the remain-
ing articles were based on the commentaries, compendia and fatwā books that
were extant at the time. Apart from the fact that some of the 99 universal max-
ims in the Majalla are repetitive and some are not universal but particular,
Majalla as a text of maxims is to a great extent unlike previous legal maxim
works. Considering that the Majalla influenced subsequent works, with it the
literature of maxims entered a new phase.
It is important to note that maxim works prior to the Majalla are doctrinal.
These works were written with aims such as discussing differences of opin-
ion between schools and identifying the legal foundations on which a particu-
lar school was based. The basic features of these works were explanations of
examples of substantive law to which the legal maxims were applied, discus-
sions of the evidence, and presentation of exceptions. Works written prior to
the Majalla that had the primary aim of instruction had, in addition to these
goals, the purpose of transmitting the legal heritage of a school to the gen-
erations to come. With the Majalla, the doctrinal dimension in which issues
were discussed, mostly within a theoretical framework, was reduced and the
aspect of application under the influence of codification in Europe became
prominent.
There are obvious differences between the basic aims of the Majalla and
those of other works of the maxim literature. Because maxim books are doc-
trinal works that analyse the maxims on which a legal school relies, the aim of
these works is to relate legal issues to the principles on which they are based.
Although some of these maxim works discuss the issues within a single legal
school while others compare them with other schools, the examples discussed
are presented within this framework. As such, these works are not legal codes
that are put into effect by a political authority. However, this is not the case
with the Majalla. Since the Majalla is a legal code that was prepared so that
it would be applied in courts, the factors that generated it are not academic;
rather it was designed to answer practical needs that emerged in the judiciary.
Hence, analysing the maxims on which legal rulings are based and demon-
strating the relationship between them is not one of the factors that led to the
preparation of the Majalla. Although some maxim works also aimed to assist
muftīs and judges, that is different from preparing a legal code and was only

17 Nāzırzāde, Tartīb al-laˀālī, introduction by the editor, 1: 110.

180 Chapter 9

one of the aims of those works. In this respect, the Majalla and other maxim
works are different in terms of the factors that led to their composition and
their aims.
The second fundamental element that separates the Majalla from other
maxim works is its content. Maxim works in terms of their subject analyse
issues that are discussed in classical works of Islamic law. For example, Ibn
Nujaym in his al-Ashbāh follows the system of substantive law, analysing sub-
stantive legal rules in relation to the relevant maxims. Maxim works, in the
ordering of issues in each chapter, follow the system of widely accepted clas-
sical works within a particular school. For instance, Ibn Nujaym wrote the sec-
tion on fawāˀid, which is the second section of al-Ashbāh, based on the system
of well-known substantive law works such as al-Hidāya and Kanz al-daqāˀiq.18
The Majalla not only does not follow such a system, it does not cover all chap-
ters of Islamic law. Since the Majalla excludes the laws of worship, penal laws
and marriage laws, in this aspect it is a work neither of maxims nor of substan-
tive law. Hence, the Majalla is not a book of maxims in the technical sense, but
rather “a modern book of law that is consistent in itself” that is based on legal
works.19
Although the Majalla in terms of its content is fed by Islamic law, the style
of its preparation and its arrangement resembles the text of a legal code of a
Western legal system. Though the Majalla was prepared using works of Islamic
substantive law and fatwā collections, it did not follow the system of those
works, having a new arrangement of subjects. Instead of the usual order of fiqh
books that begin with the laws of worship and continue with marriage laws,
the laws of transactions and penal laws, the Majalla partly follows the struc-
ture of substantive law and partly follows maxim works, separating the laws of
worship from other areas treated by Islamic law.20
Considering the factors that generated the Majalla, together with the facts
that there is no comparable work in the history of Islamic law and that it was
written not out of necessity due to the internal dynamics of fiqh but for other
reasons, it becomes apparent that the Majalla was influenced by the codifica-
tion activities in the West. These features of the Majalla have led to inaccurate

18 Ibn Nujaym, al-Ashbāh, 192.

19 Görgün, “ ‘Yeni’ Anlama ve Yorumlama Yöntemlerinin Fıkıh Usūlüne Göre Durumu,”
İslāmī İlimlerde Metodoloji (Usūl) Mes’elesi, 1: 685. Tahsin Görgün expresses this in the fol-
lowing way: “What is certain is that the Majalla is not a work of Islamic law, but a work of
modern law that is consistent in itself. The fact that all of its articles are taken from works of
Islamic law does not change this fact.”
20 Kaşıkçı, İslām ve Osmanlı Hukukunda Mecelle, 34.
From Legal Maxims to Codification 181

interpretations that it constituted a step in the secularization of law. One of

these interpretations is as follows:

The Majalla, in codifying rulings of Islamic law, has at least in form sep-
arated the law of transactions in Islamic law from religion, nationalizing
and secularizing it, and in this way has prepared the way for truly secular
laws in these fields. Therefore, the promulgation of the Majalla consti-
tutes progress for that period.”21

The Majalla has strongly influenced maxim works composed after it. For
instance, if one leaves aside the commentaries on the Majalla, there is an
effort to explain the 99 maxims of the Majalla in nearly all maxim works of this
period. However, if one considers the maxims and subjects treated by maxim
works in the course of the history of Islamic law, the 99 maxims constitute only
a small part of these. Also, the fact that some of these maxims are repetitions
and are organised in a particular way denies the unity of the subjects under
discussion.

1.2 Studies on the Majalla

From the day of its writing, the Majalla has been the subject of many studies.
Most of these are commentaries. These fall into two groups: studies that com-
ment on all of the Majalla and those that comment on a part or chapter of it.
Those commentaries that cover a part or chapter of the Majalla can be fur-
ther divided into three: incomplete commentaries, commentaries on chosen
sections or articles, and commentaries on the universal maxims.22 Excluding
some of the sources in the modern era, the following is a list of studies on the
Majalla.
1. Abdüssettar Efendi (d. 1304/1886): Tashrīḥ al-qawāˁid al-kulliyya.
2. Mesud Efendi (d. 1310/1892): Mir’at-ı Mecelle.
3. Kuyucaklızade Mehmet Atıf Bey (d. 1312/1894): Mecelle Şerhi.
4. Atıf Ahmed Efendi (v. 1316/1898): Mecelle-i Ahkām-ı Adliye Şerhi ve Kavāid-
i Küllīye’nin İzahı.
5. Khālid b. Muḥammad b. Abd al-Sattār al-Atāsī (d. 1909): Sharḥ majallat
al-aḥkām al-ˁadliyya. Atāsī wrote a commentary as far as the book of
sales, but then died before completing the work. His son, Muḥammad
Ṭāhir b. Khālid al-Atāsī, completed his father’s commentary.

21 Veldet, “Kanunlaştırma Hareketleri ve Tanzimat,” Tanzimat I, 195.

22 Cf. Erdem, “Türkçede Mecelle Literatürü,” TALİD, 3: 679.
182 Chapter 9

6. Süleyman Hasbī Efendi (d. 1909): Tafṣīl li-tawḍīḥ al-qawāˁid al-fiqhiyya

wa l-uṣūliyya fī awwal majallat al-aḥkām al-ˁadliyya.
7. Şemsī Efendi: Şerh-i Mecelle-i Ahkām-ı Adliyye.
8. Mehmed Rasim Efendi: Mecelle-i Ahkām-i Adliyye Şerhi.
9. Serkiz Orpilyan: Miftāḥ al-Majalla.
10. Mehmed Ali: Rehber-i Tālibīn-i Mecelle.
11. Zağralı Fehmi: Zubdat al-Majalla.
12. Muḥammed Sāliḥ al-Ghazzī: Kitāb al-adillat al-aṣliyya al-uṣūliyya sharḥ
majallat al-aḥkām al-ˁadliyya fī qism al-huqūq al-madaniyya.
13. Muḥammad Ṣāliḥ al-Maḥasinī: Sharḥ al-majalla.
14. Muḥammad Ṭāhir al-Atāsī: Sharḥ al-Majalla.
15. Mansurizāde Mehmed Said Bey: Tatbikāt-ı Mecelle.
16. Gelibolulu Mehmed Rifat Bey: Tevāfukāt-ı Kavā‘id-i Külliye.
17. Ahmed Şükrü: Tevşīh-i Kavā‘id-i Külliye.
18. H. Mehmed Ziyāeddin Efendi: Mecelle-i Ahkām-ı Adliye Şerhi.
19. Ali Ulvi: Telhis-i Kavā‘id-i külliye ve ıstılahāt-ı fıkhiyye.
20. Cevded Bey: Mecelle Şerhi: Kısm-ı Evvel Kavāid-i Külliye.
21. Hacı Reşid Paşa: Rūḥ al-Majalla.
22. Yusuf Asaf: Mir’at-ı Mecelle.
23. Sālim b. Rustam Bāz: Sharḥ al-Majalla.
24. Ahmed Lütfi Bey: Zubdat al-ajwiba min al-Majallat al-aḥkām al-ˁadliyya.
25. Hilmi Ergüney: İzahlı ve Mukayeseli Mecelle Külli Kaideleri.
26. Mustafa Fevzi Bey: Mecelle-i Ahkām-i Adliyye’den Kitabu’ş-Şirket.
27. Ahmed Ziya Efendi: İslam Hukukunun Genel İlkeleri: Kavāid-i
Külliye Şerhi.
28. Saˁīd b. Abī al-Khayr (d. 1934): Sharḥ Majallat al-aḥkām al-ˁadliyya.
29. Ali Haydar Efendi (d. 1935): Durar al-ḥukkām sharḥ Majallat al-aḥkām.
30. Muhammed Saīd b. Abdilganī er-Rāvī (d. 1935): Sharḥ Majallat al-aḥkām
al-ˁadliyya wa sharḥ al-qawāˁid al-kulliyya min majallat al-aḥkām
al-ˁadliyya.
31. Aḥmad al-Zarqā (d. 1938): Sharḥ al-qawāˁid al-kulliyya.
32. Saˁīd Murād al-Ghazī: Sharḥ Majallat al-aḥkām al-ˁadliyya.
33. Muḥammad Mahdī al-Wahhāb: Muḥāḍarāt fī sharḥ al-Majallat al-
aḥkām al-ˁadliyya.
34. Munīr b. Khidir b. Yūsuf al-Qāḍī: Sharḥ al-Majalla.
35. Najīb Hawāwīnī: Kitāb jāmiˁ al-adilla fī mawādd al-Majalla.23

23 For an extensive list of works on the Majalla see Erdem, “Türkçede Mecelle Literatürü,”
TALİD, 3: 709–721; Bāḥusayn, al-Qawāˁid, 378–381; Shithrī, al-ˁUlamāˀ, 78–80, 86–88.
From Legal Maxims to Codification 183

2 The Content Analysis of Mecelle-i Ahkāmı Adliye

Perhaps the greatest success of the Majalla as regards maxims is its simple and
comprehensible language. Since it was prepared especially for members of the
judiciary serving in Nizāmiye courts who were not experts in Islamic law as a
reference for them in the legal cases they heard, the articles were written in
simple language and examples were provided as needed. However, it treated
neither issues that fell within the scope of the Sharīˁa courts such as per-
sonal, family and inheritance law, nor the personal law of non-Muslims who
were members of their religious communities and followers of their religious
authorities. In addition, penal, land and tax laws did not fall within the scope
of the Majalla.
The Majalla, which has 73 chapters and 1.851 articles, has an introduction
that has the 99 universal maxims in its beginning and consists of 16 books.
These books are arranged according to the order of the relevant sections in
substantive law. The Majalla, which is arranged into books, chapters, sections
and articles, has the following parts: the book of sales, the book of rent, the
book of guarantee, the book of remittance, the book of pawn, the book of safe-
keeping, the book of gifts, the book of arrogation and destruction, the book
of interdiction, duress and intercession, the book of companies, the book of
agency, the book of amicable settlement and absolution, the book of confes-
sion, the book of legal cases, the book of legal proof and oath, and the book of
adjudication. As can be understood from these titles, issues related to transac-
tions and adjudication were codified. Although the Majalla was intended as
a civil code, it excluded issues of civil law such as personal, family and inher-
itance law, as well as real and personal property.24
In the introduction to each part of the Majalla there are the relevant legal
terminologies and certain general maxims. This information, which is pro-
vided to facilitate the understanding of related issues, concurrently indicates
that individuals who were in positions to adjudicate were not familiar with the
legal terminology. Otherwise, the concepts in the Majalla, which reformulates
some of the rulings, maxims and sub-maxims found in books of Islamic law,
are at a level that can be easily understood by someone who is familiar with
Islamic legal culture. However, the fact that individuals who were in positions
of adjudication in this period did not have sufficient knowledge to understand
these concepts prompted the Majalla assembly to explain them. This lack of

24 Veldet, “Kanunlaştırma Hareketleri ve Tanzimat,” Tanzimat I, 191.

184 Chapter 9

knowledge led to the writing of commentaries and studies on the Majalla

early on.25

2.1 Esbāb-ı Mūcibe Mazbatası and the First Article

The Esbāb-ı Mūcibe Mazbatası (Minutes concerning the reasons that necessi-
tated the writing of the Majalla), which is at the beginning of the Majalla, has
an instrumental role in explaining the text since it contains general informa-
tion about the Majalla. In the introduction to the Minutes, problems due to
the facts that after the translation of Western laws in 1839 there were two legal
systems in the Ottoman Empire and that individuals who work in adjudica-
tion do not know the rulings of the Sharīˁa are mentioned. After stating that
in this period it takes skill and faculty to solve problems that are frequently
encountered, the Minutes say that it is very difficult to take a sound opinion
according to the sources of the Ḥanafī school and apply it. It is stated that with
the changing of times those rulings which are based on custom and habit also
change, which does not mean that the sources of evidence have changed. It
is emphasized that maxims of the Sharīˁa are constant, but their application
changes as new situations arise, that fatwā works fulfill this function, but that
it is difficult to collect the information together in these works.26
The Majalla assembly assigns a pivotal role to Ibn Nujaym. The Minutes
state that Ibn Nujaym successfully brought together maxims and issues up
to his time, but that after him there were no scholars of his calibre who con-
tinued this work. Because there were no individuals who were skilled in the
disciplines of the Sharīˁa, the needs of the Nizāmiye and Sharīˁa courts were
not met.27 From these problems that are voiced in the Minutes, it is under-
stood that, beginning with the 11/17th century, there were gradually fewer and
fewer people who were skilled in the Sharīˁa disciplines and this continued
in the period of the Tanzimat. In that period, the Minutes mention that those
in charge of the courts of appeal, trade and the Nizāmiye were not able to
search for the rulings of the cases they encountered in Islamic legal sources.
The Majalla assembly states that the Majalla could address this problem by
choosing sound opinions from the sources of the Ḥanafī school and by bring-
ing these together in comprehensible language, which would be of benefit to
the appointees of the Nizāmiye courts.28

25 Erdem, “Türkçede Mecelle Literatürü,” TALİD, 3: 679.

26 Mecelle Mazbatası, 8–10.
27 Mecelle Mazbatası, 10.
28 Mecelle Mazbatası, 10–11.
From Legal Maxims to Codification 185

In the Minutes of the Majalla it is stated that opinions on legal transactions

that meet the needs of the period were brought together based on the Ḥanafī
legal sources and were divided into various parts.29 In later pages examples
are provided that substantiate the superiority of the Ḥanafī school to other
schools in issues of transactions and the fact that the Majalla is based solely on
the Ḥanafī school is emphasized.30
Esbāb-ı Mūcibe Mazbatası states that the universal maxims at the beginning
of the Majalla are those which were put together by Ibn Nujaym and the jurists
who followed him, but that in Sharīˁa courts rulings cannot be issued based
solely on those maxims. It is worth citing this passage:

The second article of the introduction comprises the legal maxims that
were collected by Ibn Nujaym and the jurists who followed his path.
Judges of the Sharīˁa cannot judge based on these maxims as long as
they are not able to find an explicit transmission. However, being ben-
eficial for the memorization of legal cases, people who study them will
be able to memorize the issues together with their evidences and will be
an authority for other civil servants in all aspects. With these [maxims]
someone can make his transactions, as much as possible, correspond to
the Sharīˁa or bring them closer to it.31

This passage implies that the judges appointed to the Sharīˁa courts were not to
adjudicate based on the universal maxims when there was no explicit example
in the Ḥanafī legal sources. Considering the complaint in the previous pages of
the Minutes that there was a lack of judges who had the legal capacity to refer
to Islamic legal sources, it seems that understanding the legal maxims in the
Majalla and being able to relate these to examples of substantive law required
a certain amount of experience and acumen, which individuals serving in the
courts might not have had. In addition, the Majalla assembly indicates that in
issuing a ruling judges should use not the section on legal maxims but rather
the sections in which issues are explained in detail in the form of articles. This
quotation, which mentions the function of the universal maxims in presenting
a legal framework, emphasizes the fact that they are also a source for the larger
society in understanding the laws of the Sharīˁa.

29 Mecelle Mazbatası, 11.

30 Mecelle Mazbatası, 11–14.
31 Mecelle Mazbatası, 12. The Jordanian civil code, as opposed to the Majalla, states that
when there is no relevant ruling in the legal code adjudication will be based on those
maxims. Hasan, “A Comparative Study of Islamic Legal Maxims,” IQ, 48: 53.
186 Chapter 9

After the Esbāb-ı Mūcibe Mazbatası, under the heading “the first article” the
definition of fiqh is provided. According to this, “fiqh as a branch of knowledge
is to know issues of Sharīˁa that are related to practice.” After fiqh is defined,
it is stated that jurists relate issues of substantive law to universal maxims
and that these maxims are accepted. It is emphasized that the fact that there
are exceptions to these maxims does not contravene their universality. The
Majalla’s interpretation of universality and the opinions put forward by Ali
Haydar Efendi in this regard are significant as regards debates on the univer-
sality of legal maxims. According to the Majalla, “although some of the maxims
when taken individually have exceptions, this does not hinder their universality
and generality as a totality since they restrict and qualify one another.”32 It is
inevitable that legal maxims, like the maxims of other branches of knowl-
edge, when taken individually might have exceptions. However, when max-
ims are considered as a whole together with their exceptions, they qualify and
limit each other. Therefore, their quality of universality continues. Ali Haydar
Efendi presents some related examples that show that a maxim or a ruling
that is an exception to a maxim is related to a general rule since it falls under
another maxim. Hence, the existence of exceptions does not constitute a
contradiction.33

2.2 The Second Article: The Legal Maxims

The universal maxims are discussed under the heading “the second article.” The
maxims of the Majalla have been gathered to a great extent from the works
of Ibn Nujaym and maxim authors after him such as Khādimī. However, the
maxims discussed in the introduction to the Majalla are ordered in a way that
is different from all previous methods. Because of this, it is difficult to say what
system these maxims are collected and ordered according to. The maxims in
the Majalla are not categorized according to jurisprudential and legal max-
ims, nor are they discussed according to the extent of their scope as is done
in works of al-Ashbāh wa l-naẓāˀir. For instance, of the five foundational max-
ims mentioned in maxim works, the maxim “custom is made a referee” is item
36, “harm is removed” is item 20 and “hardship begets facility” is item 17. Some
authors have criticized this aspect of the Majalla. For example, Hıfzı Veldet
criticizes the universal maxims at the beginning of the Majalla as follows: “The
introduction of the Majalla that consists of one hundred items is a section that

32 Mecelle, 6.
33 Ali Haydar Efendi, Durar al-ḥukkām, 1: 26. Ömer Nasuhi Bilmen also adopts this approach
by stating that maxims complete each other by qualifying and limiting each other.
Bilmen, Hukukı İslāmiyye Kamusu, 1: 254.
From Legal Maxims to Codification 187

results from the unsystematic listing of some maxims that are not entirely gen-
eral, most of them being general, while others being specific, without any links,
relationship, or harmony.”34
The maxims in the Majalla are not ordered according to their subjects. As
a matter of fact, maxims which are related to each other in terms of their sub-
jects are discussed in different places. For instance, although the twelfth item
of the Majalla, which is “what is assumed in a discourse is the literal meaning,”
deals with the same subject as the maxims “it is better to attribute a meaning
to a discourse than attributing no meaning,” which is item 60, “when the literal
meaning is impossible, the figurative meaning is taken,” which is item 61, and “if
attributing a meaning to a discourse is not possible, no meaning is attributed,”
which is item 62, it is not mentioned together with those maxims.35 Moreover,
although items 60 and 62 are very close in meaning, they are listed as two sep-
arate maxims.
The Majalla assembly, under the influence of the debates of the period,
gave ample space to maxims relating to custom. The Majalla considers cus-
tom, which is mentioned many times in the Minutes of the Majalla, as a source
of law, making “custom is made a referee” item 36. The following maxims are
related to the importance of custom: “the custom of the people is a legal proof
according to which action is necessary,” “what is customarily impossible is con-
sidered really impossible,” “the literal meaning is abandoned by the indication of
custom,” “custom is only considered if it is continuous or preponderant,” “what is
known by custom is as if it is stipulated,” “what is customary among merchants is
as if it is stipulated between them” and “designation by custom is like designation
by an explicit statement.”36 Since the remaining sections of the Majalla, other
than the universal maxims at the beginning, are the codification of rulings that
are found in works of substantive law as articles, it is difficult to say that they
have a direct relationship with the legal maxims.

3 Maxim Literature after the Majalla

Most of the studies on maxims after the Majalla were complete or partial com-
mentaries on, or abridgements of, the maxims of the Majalla. In addition to
the studies on the Majalla, there have been many studies on maxims in the
modern period. These studies can be categorized as follows: the critical edition

34 Veldet, “Kanunlaştırma Hareketleri ve Tanzimat”, Tanzimat I, 194.

35 Cf. Öztürk, Osmanlı Hukuk Tarihinde Mecelle, 122.
36 Mecelle, items 37, 38, 40, 41, 43, 44, 45.
188 Chapter 9

and publication of legal maxim works, works that historically study the litera-
ture on maxims, encyclopedias that collect legal maxims, the identification of
maxims in works of substantive law of jurists of different schools, the analysis
of maxims as they relate to contracts and other legal concepts, independent
studies on the foundational maxims that are presented at the beginning of
maxim works, independent sections on maxims in introductions to Islamic
law and articles on maxims.37
Studies after the Majalla, as noted earlier, do not have the features of maxim
works that took their final form in the genre of al-Ashbāh wa l-naẓāˀir. This is
due to the weakening of the doctrinal side of maxim works beginning with
the Majalla and the fact that the commentaries on universal maxims repeat
the information found in earlier sources. Most of the studies on maxims in
the modern period are commentaries by Ḥanafī and Syrian scholars on the
Majalla. Some of the works composed in this period are as follows:
1. Maḥmūd b. Ḥamza al-Ḥusaynī: al-Farāˀid al-bahiyya fī l-qawāˁid wa l-
fawāˀid al-fiqhiyya.
2. Musa Jārullah Bigiyaf: Kavāid-i Fıkhiyye.
3. Aḥmad Ḥajjī al-Kurdī: al-Qawāˁid al-kulliyya.
4. Muḥammad ˁAmīm al-Iḥsān al-Mujaddidī al-Barkātī al-
Banjlādīshī: Qawāˁid al-fıqh.
37 For an extensive list see Kızılkaya, Kāsānī’nin Bedāyi‘ İsimli Eserinde Kavāid’in Yeri, 83–87.
 pa rt 3
The Legal Nature and Function of Maxim

∵
 chapter 10

The Legal Nature of the Maxim

Every discipline has its own maxims. The conciseness of maxims and their
ability to reflect common points on which particular issues that come under
them are based are vital features of maxims for all disciplines. Therefore, deter-
mining the elements that distinguish maxims of one discipline from others is
important to shed light on the aspects which differentiate between disciplines.
Although Islamic law has maxims common to other disciplines, it also has its
own specific maxims that echo the general features of Islamic law or even the
legal structure of schools. These maxims are in harmony with the nature of
Islamic law, distinguishing it from other branches of learning. This part of the
work will focus on the meaning and function of maxims in Islamic law. After
discussing the five main features of legal maxims, I will analyse the function
of the legal maxims based on different legal genres. Presenting the function of
legal maxims will not only cast light on the role they play within Islamic law
but will also evidence how they are different from maxims of other disciplines.
Studying the nature of legal maxims gives rise to some important ques-
tions: what are the analytical tools that make a sentence or a legal proposition
a maxim? Is every concise expression or general rule a maxim? For instance,
is it possible to accept the following legal statements as maxims: “the destruc-
tion of the payment does not prevent the revocation of the sale (iqāla),”1 “deposit
(wadīˁa) that is entrusted to depositary’s (mūdaˁ) safekeeping has the ruling of
‘entrusted goods’ (amāna).”2 The question of what differentiates maxims from
such expressions necessitates finding the features by which maxims differ
from such propositions and their ways of expression. If sentences that begin
with a verbal noun or the word lā/no as a categorical negation, an attribute,
a comprehensive obligation, the words maxim (al-qāˁida) and axiom (al-aṣl)
regarded as maxims without being based on any criteria, then this would lead
to most rulings in legal corpora being considered maxims. As will be discussed
in detail below, the words al-aṣl and in later periods al-qāˁida do not always
refer to maxims. The fact that debated issues in maxim works are sometimes
presented in question form beginning with the word al-qāˁida is an indication
of this.

1 Marghīnānī, al-Hidāya, 3: 994.

2 Marghīnānī, al-Hidāya, 3: 1241.
192 Chapter 10

Considering the features of Arabic, many substantive sentences in legal

sources appear as maxims.3 However, just as this feature does not qualify every
legal proposition as a maxim, it can be misleading to evaluate maxims purely
based on form. This would make one think that every concise proposition is a
maxim. Similarly, since verbal sentences are in most cases not maxims, to see
whether a proposition is substantive or verbal as a criterion for determining a
maxim is also not sound. For instance, Yaˁqūb b. ˁAbd al-Wahhāb al-Bāḥusayn,
after observing that the proposition “it is not permissible for another person to
act upon the property of a person without his permission” is in one aspect a legal
ruling and in another aspect a maxim, states that the proposition is a ruling
because it is a verbal sentence.4 The author reaches this conclusion based on
the Arabic of the proposition, lā yajūzu li aḥadin an yataṣarrafa fī milk al-ghayr
bi lā idhnih. If this were the case, had the proposition been expressed as a sub-
stantive sentence, as is normal for Arabic, in the form al-taṣarrufu fī milk al-
ghayr bi lā idhnih lā yajūzu (acting upon the property of another without his
permission is not permissible), then one would have to conclude that it was a
maxim. Hence it might not be accurate to generalize the feature of being a ver-
bal or substantive sentence as a criterion for determining whether a proposi-
tion is a legal maxim or ruling. Therefore, we need to have criteria to determine
what makes a sentence or a proposition a maxim.
In its third meeting held in Amman in October 1407/1986, Majmaˁ al-Fiqh
al-Islāmī touched upon the importance of maxims and decided to determine
the criteria by which maxims differ from other rulings.5 However, the decision

3 Maxims are usually in the format of substantive sentences. Bāḥusayn analyses the maxims in
al-Ashbāh wa l-naẓāˀir of Suyūṭī and Ibn Nujaym and the Majalla in this respect, and reaches
the following conclusion. All five foundational maxims in Suyūṭī’s al-Ashbāh wa l-naẓāˀir are
substantive sentences. Of the 40 maxims after these five, 34 are substantive sentences, four
are verbal sentences, and two are conditionals (substantive sentences constitute 85% of the
maxims). In the third group which consists of 20 maxims that are debated, 18 are substantive
sentences, one is a verbal sentence, and one is a conditional (here substantive sentences
constitute 90%). The six foundational maxims in Ibn Nujaym’s al-Ashbāh wa l-naẓāˀir, like
Suyūṭī’s, are also substantive sentences. Of the following 19 maxims, 15 are substantive sen-
tences, two are verbal sentences, and two are conditionals (substantive sentences consti-
tute 78%). Among the 99 principles of the Majalla, 78 are substantive, 12 are verbal, and
nine are conditional (substantive sentences constitute 78%). Bāḥusayn, al-Maˁāyīr, 118–120.
Bāḥusayn’s observation concerning the Majalla is partially inaccurate. This is because some
of the Majalla maxims that have been translated into Arabic as verbal sentences can also be
translated as substantive sentences. In this case, the percentage of maxims that are substan-
tive sentences will be greater.
4 Majalla, cl. 96. Bāḥusayn, al-Maˁāyīr, 129–130.
5 Majallat Majmaˁ al-Fiqh al-Islāmī, Decision no.: (12), 2041.
The Legal Nature of the Maxim 193

taken by the academy is not enough to determine the fundamental features of

legal maxims since it is not detailed. Hence, for the most part, academic stud-
ies on maxims after this decision have not followed the criteria. Contemporary
scholars who have conducted studies on the subject generally focus on fea-
tures such as the concise form of the maxim and its indication of legal rulings,
considering these as distinctive characteristics.6 Although Bāḥusayn wrote an
independent work to determine the criteria for legal maxims, he was not able
to put forward a framework that addresses the true nature of the subject. For
instance, some of the examples he gives while discussing the criteria for deriv-
ing maxims from legal sources do not correspond to the true nature of the
legal maxim.7 This chapter will focus on the fundamental features of the legal
maxim with its structure in mind to establish the criteria for identifying it.

1 The Fundamental Features of the Legal Maxim

Islamic law as a discipline deals with the actions of legal persons and the rulings
concerning those actions according to the Sharīˁa. In other words, expressions
of rulings in works of Islamic law are in the form of propositions (qaḍiyya),
their subjects (mawḍūˁ) are the actions of legal persons and their attributes
(maḥmūl) are the ruling of the Sharīˁa such as permissibility (ibāḥa), disap-
proval (karāha), obligation (wujūb) and prohibition (ḥurmah). Since human
actions vary, it is impossible to establish the ruling for all real or possible inci-
dents. Scholars of Islamic law, therefore, bring together the common features
of legal rulings and express these legal norms in the form of propositions. For
instance, in the proposition “the sale of something that does not exist (bayˁ al-
maˁdūm) is invalid (bāṭil)” the subject is sale, which is one of the actions of the
legal person, and the predicate is invalidity (buṭlān), which is a legal ruling of
the Sharīˁa.8
Propositions that relate such legal rulings do not always have to be legal
maxims. As stated in the first chapter, although maxims are related to the
actions of legal persons, they do not directly regulate these actions. Instead,
they have an encompassing scope that brings together propositions regarding
different issues and that presents these with abstract expressions. Thus, max-
ims are more closely related to narrow maxims and sub-maxims than the indi-
vidual actions of legal persons. This is also evident from the fact that in legal

6 Rūgī, Qawāˁid al-fiqh al-Islāmī, 109–110.

7 See Bāḥusayn, al-Maˁāyīr, 28–30.
8 Atıf Bey, Mecelle-i Ahkām-ı ‘Adliyye’den Kavā‘id-i Külliyye-i Fıkhiyyenin Īzāhı, 3–4.
194 Chapter 10

maxim literature maxims are arranged and analysed from the more general
and the abstract to the more specific and concrete.
Although individual maxims do have legal value, what makes them signif-
icant is the role they play and the meanings they communicate as a whole in
legal thought. This is because legal maxims restrict and specify the scope of
one another. Ali Haydar Efendi in his commentary on the Majalla highlights
this feature of legal maxims, stating that although individual maxims have
exceptions, because maxims restrict and specify the scope of one another, they
are still considered universal and general. As a result, a legal issue that is an
exception to the ruling or the scope of one maxim falls under another maxim
that carries its ruling.9
Another element that regulates the use of maxims in addition to their
mutual restriction and specification of scope is that they cannot contradict
the main sources of Islamic law. This is a factor that also determines the lim-
its of maxims. More precisely, the most fundamental condition of the validity
of legal maxims is that they do not run counter to the sources of the Sharīˁa.
In the Minutes of the Majalla, the limitation that judges cannot rule on the
basis of maxims alone without another proof from the Sharīˁa emphasizes this
aspect.10
It is necessary to understand the nature of the legal maxim to discern the
meaning attributed to maxims in legal corpora. Hence, the chapter below
will attempt to discuss the fundamental features of legal maxims. Within this
framework I will examine both the features mentioned in works of legal max-
ims and the application of maxims in sources of substantive law.

1.1 The Concise Form of Expression of the Maxim

The feature of being concise is not limited to Islamic legal maxims but is also a
feature of maxims of other fields of knowledge, as well as those of other legal
systems.11 However, this feature sometimes leads to mistakes in understanding
and applying maxims. The formulations of legal maxims are concise in both
the maxims mentioned in sources of substantive law and those mentioned in

9 Ali Haydar Efendi, Durar al-ḥukkām, 1: 26; Bilmen, Hukukı İslāmiyye Kamusu, 1: 254;
Nadwī, al-Qawāˁid al-fıqhiyya, 43.
10 In studies that discuss the use and legal importance of maxims in Western legal culture,
opinions that say that maxims have to be in harmony with other legal principles and are
restricted by them can be considered reflections of the same approach in the Western
legal tradition. Cf. Smith, “The Use of Maxims in Jurisprudence,” HLR, 9: 16.
11 For examples related to Western legal systems see Smith, “The Use of Maxims in
Jurisprudence,” HLR, 9: 13.
The Legal Nature of the Maxim 195

maxim works. The process of the historical development of maxims demon-

strates that this feature was acquired gradually. For instance, the maxim
expressed in Karkhī’s al-Risāla as “what is established through certainty is not
overruled by doubt”12 is expressed in later maxim and substantive law sources
as “certainty is not overruled by doubt.”13
Similarly, the maxim of the Majalla “necessities make prohibited things per-
missible (aḍ-ḍarūrāt tubīḥu al-maḥẓūrāt)” is expressed by Sarakhsī (d. 483/
1090) as “the case of necessity is an exception to a prohibition established by the
Sharīˁa” and by Kāsānī (d. 587/1191) in the form “cases of necessity are excep-
tions to what is established by the Sharīˁa.”14 As can be seen in this example,
a ruling or proposition found in previous sources over time becomes concise
and is expressed in a form that covers numerous issues.

1.2 The Comprehensiveness of the Maxim and Its Abstractness

The fact that the maxim has a comprehensive structure is what distinguishes
it from sentences that express legal rulings. However, since rulings in legal cor-
puses are also extensive enough to cover the subjects and persons to which
they are related, it is necessary to distinguish between the maxim and the
legal ruling in terms of comprehensiveness. Accordingly, substantive rulings
are directly related to individuals or incidents that are the main focus of these
rulings. In contrast, for a concise formulation that expresses a ruling to be
considered a maxim it must cover rulings that concern more than one sub-
ject or type of individual. Take, for example, the following maxim: “Harm is
removed” is a maxim because it covers maxims that express different rulings
such as “necessities make prohibited things permissible (aḍ-ḍarūrāt tubīḥu al-
maḥẓūrāt),” “necessity is estimated according to its quantity (aḍ-ḍarūra tuqa-
ddar bi-qadarihā),” “when two forms of harm oppose one another, the greater
is taken care of by committing the lesser (idhā taˁāraḍat mafsadatān rūˁiya
aˁẓamuhumā ḍararan bi irtikābi akhaffihimā),” “preventing evil has precedence
over acquiring benefits (dafˁ al-mafāsid awlā min jalb al-maṣāliḥ)” and “need,
whether of public or private in nature, is considered a necessity (al-ḥājatu tunaz-
zilu manzilat aḍ-ḍarūra, ˁāmma kānat aw khāṣṣa).”15 Each of these covers yet
other maxims and rulings. Of these, the maxim “when two forms of harm oppose
one another, the greater is taken care of by committing the lesser” covers many
subjects. Some of these are as follows:

12 al-Aṣlu anna mā thabata bi l-yaqīn lā yazūl bi l-shakk. Karkhī, Risāla, 110.

13 Al-yaqīn lā yazūl bi l-shakk. E.g. Kāsānī, Badāˀiˁ al-ṣanāˀiˁ, 1: 73; Majalla, cl. 4.
14 Sarakhsī, al-Mabsūṭ, 24: 28; Kāsānī, Badāˀiˁ al-ṣanāˀiˁ, 1: 215.
15 Cf. Ibn Nujaym, al-Ashbāh, 94–100.
196 Chapter 10

1. A person with a wound will perform the ritual prayer while sitting, per-
forming the bow and prostration by means of gestures if his wound
bleeds when he prostrates. This is because abandoning prostration is less
serious than abandoning ritual prayer.
2. One who is so old that he cannot perform ritual prayer standing up per-
forms the ritual prayer sitting down, since omitting to stand is less seri-
ous than omitting ritual prayer.
3. One performs ritual prayer while seated if standing up causes a part of
the body to be uncovered so as to invalidate ritual prayer, because sit-
ting down while performing ritual prayer is less serious than performing
it with a part of the body uncovered.16 As these examples demonstrate,
under the general maxims there is another maxim which in turn covers
various rulings. Although the maxim is general, every maxim that falls
under it becomes increasingly more specific, leading in the end to a rul-
ing on an action or an individual.
Likewise, the maxim “a statement is not attributed to one who remains silent (lā
yunsab li-sākit qawlun)” covers many substantive issues.17 The examples below
represent just some of these:
1. If a person does not stop a stranger from selling the person’s property,
this does not mean that he has designated the person as a proxy for the
purpose of selling his property.
2. If a judge remains silent when he sees a minor or mentally deficient
(maˁtūh) person buying and selling, his silence does not mean that he
has permitted them to trade.
3. If one destroys the property of another in front of him, the silence of the
owner of the property does not indicate consent to the action.
4. If a slave sells the property of his master and the master does not stop
him when he sees this, this does not indicate consent to the contract.18
Here again the maxim covers rulings concerning different legal subjects.

16 Ibid, 98.
17 Although here the examples illustrate that silence does not indicate consent, some
sources have provided many examples in which silence does mean consent. Ibn al-Shihna
(d. 921/1515) wrote an independent poetic treatise on this subject in which he presents
the 30 widely-known issues in which silence indicates consent. Saffet Köse, who pub-
lished the treatise, states that the prose part after the poetry might have been penned
by Ibn al-Shihna’s pupil, Nūr al-Dīn al-Ṭarāblusī (d. 942/1535). Köse, “Hanefī Fakīhi
Seriyüddīn İbnü’ş-Şıhne’nin (851–921/1448–1515) Nazmü’l-mesāili’lleti’s-sükūt fīhā rızā
Adlı Risalesinin Tahkīkli Neşri,” İHAD, 3: 326.
18 Ibn Nujaym, al-Ashbāh, 178.
The Legal Nature of the Maxim 197

Although the comprehensive scope of the maxim is an important feature

that distinguishes it from substantive rulings, it is also possible to find rulings
that are comprehensive in terms of the issues that are related to those rulings.
In fact, rulings in legal corpora are expressed in general terms as long as there is
no exception because they cover every individual in that situation. For exam-
ple, the rulings “everything that ends ablution ends dry ablution” and “some-
thing that is intentionally entrusted to another’s safekeeping has the ruling of
something that is unintentionally left with someone” cover all related individuals
and issues.19 However, even though they might encompass many legal persons,
the fact that legal rulings in law manuals produce the ruling for one particular
issue is their fundamental feature. The comprehensiveness of the maxim is
different from the comprehensiveness of the ruling in that the maxim encom-
passes other rulings more than issues and individuals. Hence, while rulings of
the Sharīˁa deal with legal persons, maxims encompass legal rulings. The fact
that maxims are applicable to rulings from different legal areas distinguishes
it from legal rulings. In this respect, maxims are abstract and theoretical. The
abstract quality of the maxim means that it encompasses rulings relating to
the actions of legal persons. However, this comprehensiveness has an exten-
sive framework that does not deal with the actions themselves but rather the
attributes of actions, which is why the principles are abstract. Hence, maxims
are abstract propositions that cover all areas of law from the law of worship to
the law of transactions.
Although being comprehensive is a fundamental feature of the maxim, the
limits of the comprehensiveness of a maxim can be established by meticu-
lously analysing its structure of expression and the issues it covers. Considering
the subjects of some maxims, one can think that they deal with individuals. In
this case, such a maxim can be called a ruling because of this feature. However,
when the focus is not on whether the maxim deals with individuals but rather
on its legal matter, it covers an extensive legal area. Hence there are expres-
sions both in legal corpora and in the literature of maxims that are rulings
in one respect and maxims in another. However, legal scholars consider such
expressions to be maxims and discuss these in their works. For instance, the
maxim “whoever hastens something before its due time is punished by being
deprived of it (man istaˁjala al-shayˀa qabla awānih yuˁātabu bi ḥirmānih)” is
one such expression.20 Since the person who hastens something can be a spe-
cific individual, the proposition seems contrary to the restriction that maxims

19 Marghīnānī, al-Hidāya, 1: 63; 3: 1241.

20 Majalla, cl. 99.
198 Chapter 10

should encompass rulings, not individuals, that was mentioned above as a crite-
rion for identifying maxims. However, considering how hastening occurs, the
maxim deals with universal propositions. For instance, rulings concerning one
who kills someone to get his inheritance, or one who kills the testator to get the
bequest, come under this maxim.21
The fact that the maxim is abstract is related to the structure of its expres-
sion and is an important feature that distinguishes it from particular (juzˀī)
rulings. The abstractness of a maxim is that the structure of the maxim’s
expression possesses a generality that can be applied to many issues. However,
abstractness is not related just to expression, but denotes being more general
than one issue. This feature of the maxim allows it to be applied to all or most
of the various issues that have the same legal cause. If a general expression is
related to a single issue and cannot be applied elsewhere, it cannot be consid-
ered a maxim. Moreover, if the maxim is not abstract it also loses its feature
of being comprehensive. Maxims acquire abstraction when an encompassing
expression is designated for numerous substantive legal issues that have the
same ratio legis (ˁillah) instead of specifying the ruling of each one. This can
be explained by two examples:
1) If a pregnant animal is sold or given as a gift, the foetus within it is also
sold or given as a gift.
2) If a person temporarily becomes insane, in this period, just as the obliga-
tion to offer ritual prayer is dropped, so are the Sunna ritual prayers that
are performed with them.
These and similar issues are not qualified to be maxims since they are par-
ticular (juzˀī). However, they are brought together taking into consideration
their common legal effective cause in the abstract form of the maxim “what
follows something in existence also follow it in its ruling (at-tābiˁ tābiˁun).”22 The
abstract form of the maxim’s expression and the fact that it has a meaning
beyond a particular issue are features that distinguish it from substantive legal
rulings and definitions.

1.3 Obtaining the Maxim through Induction

Induction (epagôgê/istiqrāˀ) is the reasoning process through which one
reaches a universal conclusion from particular propositions. Classical schol-
ars have defined induction differently according to their disciplines. Ghazālī
defines induction as “investigating many particulars under a universal meaning

21 For extensive information see Bāḥusayn, al-Maˁāyīr, 97–104.

22 Ibn Nujaym, al-Ashbāh, 133–134.
The Legal Nature of the Maxim 199

and predicating something about the universal through the ruling obtained from
these particulars.”23 Sakkākī (d. 626/1229) defines induction by connecting
the degree to which it encompasses particulars with the knowledge it pro-
duces “as extracting a universal ruling from particulars.”24 Jurjānī (d. 816/1413)
defines induction by focusing on its feature of coming to a conclusion by ana-
lysing some particulars: “Making a ruling about a universal because it is found
in most of its particulars.” Jurjānī is of the opinion that if the general ruling
can be applied to all its particulars (juzˀiyyāt), that is not induction. He calls
the process in which one reaches a ruling by analysing all particulars al-qiyās
al-muqassim.25
Induction is of two types, complete (tām) and incomplete (nāqiṣ), which are
also called al-qiyās al-muqassim and al-qiyās al-burhānī; or al-istiqrāˀ al-ḥaqīqī
and al-istiqrāˀ al-mustawī. Complete induction is reaching a general ruling by
looking at all particulars (juzˀiyyāt) of a universal (kullī) and results in certain
knowledge. For example, one can say that “every object is either an animal,
or a plant, or inanimate. All of these occupy space; therefore, every object
occupies a space.” In the incomplete induction, which produces probability or
possibility rather than certain knowledge, a ruling is reached by considering
most of the particulars. For instance, looking at domestic and wild animals, if
one concludes that all animals chew by moving their lower jaws, this indicates
probability rather than certainty, since the crocodile is an exception to this
conclusion.26
As the definitions above indicate, obtaining maxims through induction is
not restricted to Islamic law, but is a method also used by other disciplines.27
The process by which a universal ruling is reached by analysing particulars is
also the same method by which maxims are derived. Maxims mentioned in
legal corpora of fiqh or in the literature of maxims are obtained by establishing
the common principles on which all or some issues of Islamic law are based.
However, investigating the particulars does not mean considering all of them,
as is done in complete induction, but rather most of them. The qualification
in the definition of the legal maxim that it encompasses most, not all, of its
particulars is a reflection of this reality. Hence, legal maxims were obtained
through an inductive analysis of the statements of the Qurˀān and the Sunna,
as well as the legal accumulation that began with the earliest period of Islamic

23 Ghazālī, Miˁyār al-ˁilm, 115.

24 Sakkākī, Miftāḥ al-ˁulūm, 504.
25 Jurjānī, al-Taˁrīfāt, s.v. “al-istiqrāˀ.”
26 Tahānawī, Kashshāf iṣṭilāḥāt al-funūn, 1: 172.
27 Aḥmad, al-Istiqrāˀ, 152.
200 Chapter 10

law. Here what comes to mind is the question of how the legal reasoning of
jurists of the early period was based on certain principles. If legal maxims were
obtained through inductive analysis of the Islamic legal heritage, how can one
explain the principles that governed the juristic reasoning of the legal scholars
of the Islamic legal schools? This question can be answered by determining
whether the propositions obtained through induction predate the process of
reasoning. Each of the propositions mentioned above attests that every object
occupies space that actually existed before their formulation. More precisely,
the thought that objects occupy space was in the mind of the thinker and pre-
dated the formulation of propositions. What was done in the argument was to
bring the propositions together in a logical sequence to express the idea in a
specific form. This is also true for legal maxims. The jurist before stating a rul-
ing on an issue follows a logical sequence and adjudicates accordingly. He tries
to find a solution to an issue by using the evidence and maxims in his mind
even though he may not mention these. Thus it is a known fact that jurists have
legal proofs and maxims in mind in order to produce systematic legal knowl-
edge, and that this is a prerequisite for scholarly consistency.
Each generation of legal scholars inherited the material that was produced
by the legal efforts of the previous generations in addition to the knowledge
of legal proofs and principles. Following the period in which legal schools
became systematized and institutionalized, jurists analysed the legal heritage
to establish the principles on which substantive rulings are based. The process
of constructing the proofs and maxims on which independent issues are based
necessitated inductive analysis. This way, connections between substantive
rulings that were analysed were established through maxims and these con-
nections were gradually expressed in certain formulations.
The maxim expressed in the Majalla as “a new matter is attributed to its
closest time (yuḍāf al-amr al-hādith ilā aqrab al-waqt),” which was obtained by
means of the process of induction being applied to many substantive rulings
in different legal areas, is an example of how legal scholars used the induc-
tion method.28 For instance, a person who sees an impurity on his clothes and
does not know when it got there will repeat the ritual prayers he performed
after the last time his ablution ended. Abū Ḥanīfa and Abū Yūsuf among the
Ḥanafī jurists adopted an approach on an issue which provides the founda-
tion for this maxim. If a dead mouse is found in a well, they stated, on the
basis of this maxim, that the water in the well is considered impure from the
moment the mouse is found without the need to repeat any ritual prayers that

28 Majalla, cl. 11.

The Legal Nature of the Maxim 201

were performed following ablution with water from the well. This is because,
since the mouse falling into the well is a new event, it is assumed that this
happened in the moment closest to the present, which is when the mouse was
spotted. This maxim governs not only issues of worship, but also other fields.
For instance if a woman claims that her husband pronounced an irrevocable
divorce (al-ṭalāq al-bāˀin) during his mortal illness (maraḍ al-mawt), claiming
that she should have right of inheritance, and the other heirs claim that he
divorced her before his illness, the woman’s statement is accepted and she is
given her share of the inheritance.29 These and similar examples substantiate
the fact that the attribution of an event to the closest time is the point of inter-
section and that this was articulated as a maxim with the statement “a new
matter is attributed to its closest time.” Hence, the main ingredients of works of
legal maxims are concise articulations of the common points on which legal
issues are based and these common points are established through the induc-
tive analysis of substantive legal issues.

1.4 The Legal Maxim Articulated in the Form of a Proposition

Legal maxims were expressed in the form of both predicative (ḥamliyya) and
conditional (sharṭiyya) propositions. In a maxim there must be a rational
implication (at-talāzum al-ˁaqlī) between the subject (mawḍūˁ) and the attrib-
ute (maḥmūl) in a predicative proposition and between the antecedent (muqa-
ddam) and the consequent (tālī) in a conditional proposition. For instance, in
the maxim “whoever owns something owns everything that is a necessary part of
it,” there is such a necessary implication between “whoever owns something,”
which is the subject, and “owns everything that is a necessary part of it,” which
is the attribute.30 In this maxim, without the subject the attribute cannot be
conceived, since to own everything that is a necessary part of something one
first has to own that thing. As a result, one naturally owns the irremovable
parts and indispensable elements of something one owns. However, there
is an aspect here that needs to be considered: the attribute of a predicative
proposition and the consequent of a conditional proposition should not be
the ruling of a single legal issue or relate to single individuals but must have a
broader structure.31 To explain this with an example, in the maxim “certainty
is not overruled by doubt,” the attribute “is not overruled by doubt” is a ruling;
however, it has a structure that encompasses many maxims and rulings rather
than individual ones.

29 Ibn Nujaym, al-Ashbāh, 71–72.

30 Majalla, cl. 49.
31 Cf. Bāḥusayn, al-Maˁāyīr, 121–124, 133.
202 Chapter 10

In maxim works written in the modern period, the legal maxim is conceived
as a major premise and ideas about how particular rulings are derived from
it are set out. The maxim that has a general meaning is taken as the major
premise and then minor premises or rulings are derived from it. Let us take
the sub-maxim, “every transaction that results in lack of ownership of what is
bequeathed is a revocation of the bequest.” According to this, if the one who
bequeaths property sells that property, the transaction falls within the scope
of the major premise, since it results in the removal of ownership. Hence the
result is as follows:

Major premise: Every transaction that results in lack of ownership of

what is bequeathed is a revocation of the bequest
Minor premise: The sale of what is bequeathed is a transaction that
removes ownership
Conclusion: Therefore, the sale of what is bequeathed is a revocation
of the bequest.32

Considering the function of the maxim in works of substantive law and in the
literature of legal maxims, such an approach is not right. This is because max-
ims have the function of explaining rulings and displaying their causes. Their
function is retrospective in that they support and strengthen rulings of the
past. Therefore, the meaning ascribed to maxims in the modern period does
not accurately represent the role maxims have played in the Islamic legal tradi-
tion. In the Minutes of the Majalla, the limitation that rulings cannot be based
on maxims indicates this reality.

1.5 Universality of the Maxim

The universal which is the opposite of the particular is that which has com-
monality in terms of its essence. As in the example of the universality of the
human being, the universality of something is relative to the particular.33 The
universality of the maxim that encompasses many substantive rulings is dif-
ferent from the concept of universality in logic, in that it does not mean that
it can be applied without exception to all relevant cases. As general principles,
maxims are applicable to most of the issues they encompass. This aspect of the
maxim is prominent in its definitions from early on. For instance, in his defi-
nition of the maxim, Tāj al-Dīn Ibn al-Subkī emphasizes that it is applicable to

32 Cf. Bāḥusayn, al-Qawāˁid al-fiqhiyya, 36.

33 Jurjānī, al-Taˁrīfāt, s.v. “al-kullī.”
The Legal Nature of the Maxim 203

most of the particular rulings it encompasses with the qualification “many par-
ticulars are in accordance with it.”34 This and similar limitations in time have
led to various debates concerning the universality of the maxim.
The recurrence of exceptions to the general rule in substantive law has
brought up the question in the literature of maxims whether they are univer-
sal or preponderant. Although this debate is not seen in the maxim works of
the early period, there is a dispute about the universality and preponderance
of qawāˁid in the later periods. Makkī, who wrote a gloss on Qarāfī’s al-Furūq,
referred to this aspect of the maxim with the statement “as is known, most of
the legal maxims are preponderant.”35 Debates concerning the universality of
the maxim gradually necessitated the determination of certain of its aspects.
For instance, based on the perception that a maxim by nature cannot be uni-
versal, Ḥamawī stated that the universality of the maxim should be understood
to mean that a maxim cannot be the subset of another maxim, although there
may be some exceptions.36 This approach, which brings a new dimension to
the maxim’s universality, was recognized by some later authors and frequently
mentioned in debates concerning universality. Güzelhisārī, for instance, while
defining the maxim states that it has a meaning that is beyond universality
or preponderance and remains loyal to Ḥamawī’s framework in the examples
he provides. According to him, the maxim covers a universal ruling such as
“a command means obligation,” which in turn covers subjects such as the fact
that ritual prayer and alms-giving (zakāt) are obligatory. The obligation of
ritual prayer and alms-giving covers particular issues such as the ritual prayer
and alms-giving of a particular individual (X, Y, Z) being obligatory.37 Ömer
Nasuhi Bilmen (d. 1971) also follows this line, wording this aspect of the maxim
as follows: “each of the legal maxims is quite a comprehensive rule that attains
the attribute of being universal inasmuch as it does not enter the framework of
another maxim.”38 Ali Haydar Efendi made a contribution to this discussion
by stating that maxims are universal as a whole rather than being universal as
individual maxims. According to him, it is inevitable that individual maxims
will have exceptions; however, since maxims qualify and limit each other, an
issue that does not fall under one maxim will fall under another so that there
is no legal issue that does not fall under any maxim.39

34 Ibn al-Subkī, al-Ashbāh wa l-naẓāˀir, 1: 11.

35 Makkī, Tahdhīb al-furūq, 1: 36.
36 Ḥamawī, Ghamz ˁuyūn al-baṣāˀir, 1: 51.
37 Güzelhisārī, Manāfiˁ al-daqāˀiq, 305.
38 Bilmen, Hukukı İslāmiyye ve Istılahatı Fıkhiyye Kamusu, 1: 254.
39 Ali Haydar Efendi, Durar al-ḥukkām, 1: 26. Ömer Nasuhi Bilmen also adopts this opinion,
stating that maxims become universal because of this attribute. Bilmen, op. cit., 1: 254. For
204 Chapter 10

Considering that every maxim is obtained through induction, it is clear that

the conclusion arrived at by this process will not be limited to the cases on
which it is based, but will also provide information concerning other cases.
The sample below illustrates its broader application:

The first rose I saw smelled nice

The second rose I saw smelled nice
The third rose I saw smelled nice
Therefore, all roses smell nice.

As this example illustrates, the conclusion has a meaning that transcends each
particular. Although the conclusion is limited by the roses one smells, it leads
to a general statement. It is possible that there may be roses one does not smell
and that there are roses that do not smell nice. The same is true of maxims.
Although a general conclusion is reached through individual rulings, it is diffi-
cult to say that this conclusion encompasses all possible cases without excep-
tion. Therefore, some maxim authors emphasize that maxims are not univer-
sal but rather preponderant.
While discussing the universality of the three main aspects Islamic law
seeks to preserve, which are necessities (ḍarūriyyāt), needs (ḥājiyyāt) and
refinements (taḥsīniyyāt), Shāṭibī points out that universality does not change
the meaning of maxims. According to Shāṭibī, who at times evaluates maxims
at a meta level, legal maxims that constitute the foundation of Islamic law are
certain because they are established through the induction of legal sources
based on reasoning and transmission. The fact that some particulars do not
follow the rule does not alter the certainty and universality of the maxims. In
addition, what is preponderant is just as legally valid as what is general and
certain.40 Shāṭibī’s approach is significant in that it shows that whether max-
ims are universal or preponderant does not affect their validity.

2 The Mode of Expression of the Legal Maxim

Legal maxims have been expressed in legal texts in different forms. Apart from
the literature on maxims, the forms in which maxims are expressed do not have
a direct relationship to their structure. Although in maxim works maxims have

extensive information concerning the universality of maxims see Kızılkaya, Kāsānī’nin

Bedāyi‘ İsimli Eserinde Kavāid’in Yeri, 25–27.
40 Shātibī, al-Muwāfaqāt, 2: 79–84.
The Legal Nature of the Maxim 205

been categorized according to their scope in encompassing issues, according to

their generality, and according to whether there is consensus on the particular
maxim, a similar situation does not exist in works of substantive law. In maxim
works, foundational maxims are generally treated at the beginning and have
been given names such as al-qawāˁid al-kulliyya al-kubrā (the major univer-
sal maxims) and al-qawāˁid al-khamsa (the five maxims). Maxims which fall
under these and do not have such scope but are nevertheless general have been
called al-qawāˁid al-ˁāmma (general maxims) or al-kawāˁid al-aṣliyya (founda-
tional maxims). Maxims of narrower scope and sub-maxims have been called
al-qawāˁid al-khāṣṣa (specific maxims) and ḍawābiṭ (sub-maxims).41 Although
these are distinct expressions, the term “maxim” is used in all of them. In con-
trast, in other sub-disciplines of Islamic law, legal maxims have been expressed
by the terms aṣl (axiom), qiyās (analogy) and wajh (aspect). This section will
focus on how maxims are expressed in legal genres other than legal maxim
literature.

2.1 The Expression of Legal Maxims using the Word al-Aṣl (Axiom)
As stated in the first chapter, in texts of substantive law maxims are generally
expressed using the term al-aṣl. Although it is frequently used in the singu-
lar, it is sometimes also used in the plural (uṣūl).42 Although maxims and sub-
maxims expressed using the word al-aṣl in the sources are not differentiated
according to their scope and universality, depending on how such expressions
are compounded it can be seen that certain aspects were taken into considera-
tion. For example, in usages such as the aṣl of Abū Ḥanīfa, the aṣl of Abū Yūsuf
and the aṣl of Muḥammad Shaybānī the legal differences between the found-
ing jurists of the Ḥanafī School are discussed.43 However, if the term al-aṣl is
used without qualification, it generally connotes differences between Ḥanafī
jurists and jurists of other schools.44
As will be discussed in detail below, the method followed in the commen-
taries on Shaybānī’s al-Jāmiˁ al-kabīr is to express Shaybānī’s opinions by relat-
ing them to maxims and sub-maxims. However, after adopting his opinions,
commentators sometimes present maxims and sub-maxims that govern the

41 For extensive information see Kızılkaya, Kāsānī’nin Bedāyi‘ İsimli Eserinde Kavāid’in
Yeri, 65–71.
42 Cf. Jaṣṣāṣ, Sharḥ al- Jaṣṣāṣ ˁalā l-jāmiˁ al-kabīr, fol. 295b.
43 E.g. Jaṣṣāṣ, Sharḥ al- Jaṣṣāṣ ˁalā l-jāmiˁ al-kabīr, fol. 230b; Marghīnānī, Mukhtārāt al-
nawāzil, fol. 109a. These expressions are used in Taˀsīs al-naẓar as al-aṣl ˁinda Abī Ḥanīfa,
al-aṣl ˁinda Abī Yūsuf, al-aṣl ˁinda Muḥammad. Dabūsī, Taˀsīs al-naẓar, 8 and passim.
44 Jaṣṣāṣ, Sharḥ al- Jaṣṣāṣ ˁalā l-jāmiˁ al-kabīr, fol. 233b.
206 Chapter 10

whole legal chapter under discussion. For instance, Jaṣṣāṣ follows this method
in a chapter dealing with legal proof:

Muḥammad [Shaybānī] said that if two people have possession of a

house and each one of them presents evidence that the house is his and
subsequently a stranger brings evidence that the house belongs to him,
the stranger gets half of the house, while each of the other two gets a
quarter. Abū Bakr [Jaṣṣāṣ] said that the aṣl in this chapter is that while
evidence that shows that what is under one’s possession belongs to them
is not accepted, evidence for ownership of something in someone else’s
possession is accepted.45

As this example demonstrates, Jaṣṣāṣ gives Shaybānī’s opinion concerning this

subject immediately at the beginning of the chapter, expressing the general
principle governing the subject using the term al-aṣl. Later he discusses many
examples, relating them to this axiom.46
Sharaf al-Dīn Abū Mūsā al-Malik al-Muˁaẓẓam, in his commentary on
Shaybānī’s al-Jāmiˁ al-kabīr, followed the style of previous commentaries by
referring to the maxims on which the issues are based as al-aṣl. For instance,
under the heading “ritual prayer, the two Eid prayers, the takbīrs in them, and the
days of tashrīq,” he introduced the subject by saying, “the axiom (al-aṣl) con-
cerning this issue is this: “the masbūq (the person whose imam has preceded him
a few rakˁahs or the whole prayer) follows his opinion in the ritual prayer he prays
by himself.” He then explained this, discussing the issue as follows:

Another axiom (al-aṣl) regarding the issue is this: When a judge makes a
decision on an issue on which there is disagreement, his decision is valid
and it is as if there is consensus upon it. When he makes a decision upon
the invalidity of which there is consensus, this ruling is not valid. Another
axiom (al-aṣl) is this: A ruling established by ijtihād once it is complete
cannot be invalidated by another juristic reasoning like it. However, if the
ijtihād is not complete, it can be invalidated. This is an axiom (al-aṣl) that
is valid in ritual prayer and the decision of the judge in the court.

al-Malik al-Muˁaẓẓam then gives various examples explaining the axioms he

uses.47 The author’s common pattern is to explain all issues using a principle

45 Ibid, fol. 274b.

46 For another example of this approach see Jaṣṣāṣ, ibid, fol. 281b.
47 al-Malik al-Muˁaẓẓam, Uṣūl al-jāmiˁ al-kabīr, 26–27.
The Legal Nature of the Maxim 207

or principles. This demonstrates that the study is based on maxims and that
jurists who analyse various issues read and understand them in the framework
of the principles on which they are based.
The term al-aṣl is used to express maxims and sub-maxims in the sources on
the works of the founding jurists of legal schools. In these works, an axiom is
set out followed by substantive legal issues based on it. For example, Nāṭifī (d.
446/2054) in the chapter on emancipation first gives an axiom on which many
issues in which Abū Ḥanīfa, Abū Yūsuf and Shaybānī differ are based, and then
discusses various related examples. According to this, while Abū Ḥanīfa thinks
that emancipation can be divided, Abū Yūsuf and Shaybānī think that it can-
not. Before repeating their opinions, Nāṭifī transmits the axioms at the begin-
ning of the discussion using the expressions “min aṣl Abī Ḥanīfa (of the axiom
of Abū Ḥanīfa)” and “min aṣl Abī Yūsuf wa Muḥammad (of the axiom of Abū
Yūsuf and Shaybānī).”48
Sometimes the word al-aṣl is used not in isolation but in a compound. The
expression al-aṣl al-maˁhūd (the familiar axiom) which Samarqandī and his
disciple Kāsānī used is an example of this. Although they generally use the
expression for comprehensive legal maxims, sometimes they also use it for
sub-maxims of a narrower scope. For example, Samarqandī uses the expres-
sion to quote a sub-maxim while discussing issues of burying and washing
martyrs. He says:

Considering the ruling for washing the martyr, we say that martyrs are
two groups. One group is washed and the other is not. The group that is
not washed are like the martyrs of Uhud. Based on the ḥadīth we previ-
ously transmitted, this group resembles the martyrs of Uhud in not being
washed. Otherwise, the familiar axiom (aṣl al-maˁhūd) is valid, which is
that washing of the dead is a Sunna.49

Kāsānī uses the expression al-aṣl al-maˁhūd more than Samarqandī, mainly to
express comprehensive maxims. In a discussion concerning bequests, Kāsānī
set out the opinions of Abū Ḥanīfa and Abū Yūsuf concerning the case of a
person who bequeaths a third of his wealth but claims afterwards that this
third is 1.000 silver coins while in fact it is more. Kāsānī focuses on the maxim
on which Abū Yūsuf bases the issue. According to this, the bequest of a person
who bequeaths a third of his wealth is valid, because the validity of the bequest

48 Nāṭifī, Kitāb al-ajnās wa l-furūq, 217–221. For another example see ibid, 696.
49 Samarqandī, Tuḥfat al-fuqahāˀ, 1: 258.
208 Chapter 10

is not dependent on the amount that is bequeathed; rather, the bequest is valid
independently of the amount it consists of. The amount that is mentioned by
mistake does not change the original bequest of a third of the estate. Two situ-
ations are possible concerning the 1.000 silver coins. The first possibility is that
the testator annulled the previous amount which was more than 1.000. The
second possibility is that theamount was stated by mistake, which would cause
a doubt concerning the validity of the bequest. Kāsānī based this on “the famil-
iar axiom (al-aṣl al-maˁhūd) that what is established by certainty is not overruled
by doubt.”50

2.2 The Expression of Legal Maxims Using the Term Analogy (Qiyās)
As a concept of legal methodology, legal analogy can be concisely defined as
applying the ruling in the original case to another because the two cases have
the same ratio legis (ˁillah). However, to understand the qiyās solely within
this framework would be to ignore some of the ways in which it is used in
the extensive literature on Islamic law. Considering how the word is used in
substantive legal rules and legal methodology, it is also used to mean legal
opinion (raˀy), ijtihād, scriptural text (naṣṣ) and general principle.51 Especially
in the Ḥanafī school, legal analogy, which is used with varying meanings in
the sources, including the legal maxim, has a meaning beyond legal analogy.
Beginning with the earliest periods of Islamic law, legal scholars who analysed
the opinions of the jurists of the previous generations were trying to identify
the principles on which those opinions were based. Such an approach allowed
the application of these principles to various issues, instead of expressing the
opinions of the jurist one by one. In the Ḥanafī sources, the concept of qiyās
has a central role in understanding the basic approach of the school.
Just as qiyās with the meaning of general principle and rule can refer to a
maxim that is applicable to many issues, it can also refer to a principle accepted
by the school or sub-maxim concerning a single subject. In all three usages,
qiyās refers to principles which founding jurists obtain by induction from the
sources of the Sharīˁa or other forms of legal reasoning and is related to the
concept of istiḥsān.52 As long as there is no other relevant evidence, these
principles are applied to various legal issues. When these principles are con-
tradicted by another form of evidence, this issue that falls under the general

50 Kāsānī, Badāˀiˁ al-ṣanāˀiˁ, 7: 381.

51 Shalabī, Taˁlīl al-aḥkām, 337; Hasan, Analogical Reasoning, 10.
52 For a more detailed discussion of the istiḥsān see Kayadibi, Istiḥsān: The Doctrine of
Juristic Preference in Islamic Law.
The Legal Nature of the Maxim 209

rule is designated as an exception by the statement that an opinion contrary to

analogy is adopted, which is also known as istiḥsān.53
The term analogy (qiyās) is used in works of substantive law to mean
ratio legis and principle. As a concept, it is mostly invoked by jurists to dis-
cuss debates around a certain issue. It is used in genitive constructions with
the word opinion (qawl) in phrases such as “the analogy of the opinion of Abū
Ḥanīfa,” “the analogy of the opinion of Abū Yūsuf,” “the analogy of the opinion
of Muḥammad [Shaybānī]” and “the analogy of the opinion of Abū Yūsuf and
Muḥammad.”54 There is a parallel between the need for an original issue in
a legal analogy to transfer the ruling of the original to another issue and the
use of the expression “the analogy of the opinion” to mean a legal maxim. For
instance, in the expression “the analogy of the opinion of Abū Ḥanīfa,” if the
word aṣl (axiom) were used instead of analogy, there would be no change in
the meaning. In fact, Shaybānī refers to the principle of not acting on doubt
when there is certain knowledge as analogy.55
The use of analogy to refer to a principle on which an opinion is based can
be found in the works of Shaybānī. As opposed to the usage of later jurists,
in texts of the formative period legal inferences based on the practice of the
Companions and the Successors are also called analogy. For instance, Shaybānī,
who criticizes the scholars of Medina for their view on a person in the state of
iḥrām who kills a predatory animal, takes a practice of the Caliph ˁUmar as
his basis. Accordingly, a person who kills a predatory animal other than the
five mentioned in the ḥadīth does not perform expiation if the animal attacks
him; however, if he kills the animal without the animal attacking, expiation
becomes necessary. This is because ˁUmar killed a hyena and ordered the sac-
rifice of a ram to be distributed to the poor as expiation, saying, “I started first.”
After setting out this opinion, Shaybānī stated that if an animal is killed with-
out attacking expiation is necessary, and if it attacks it is not necessary, saying,
“this is the analogy of the statement of ˁUmar (hādhā qiyāsu qawli ˁUmar).”56

53 SḤalabī, Taˁlīl al-aḥkām, 337. For the view that istiḥsān is a ruling that is an exception to a
qiyās (general principle) see Qaḍī Nuˁmān, Kitāb al-ikhtilāf fī uṣūl al-madhāhib, 41, 98–99.
For the abandoning of qiyās for custom see Qāḍī Khān, al-Fatāwā, 2: 109.
54 e.g. Jaṣṣāṣ, Sharḥ al-Jaṣṣāṣ ˁalā l-jāmiˁ al-kabīr, fol. 230b.; Abū l-Layth, ˁUyūn al-masāˀil, 15.
For this usage in the literature of fatāwā and nawāzil see Ṣadr al-Shahīd, Kitāb al-wāqiˁāt,
fol. 7a.; Qāḍī Khān, al-Fatāwā, 1: 22. For similar usage see Boynukalın, İmam Muhammed
b. Hasan eş-Şeybānī’nin Kitabü’l-Asl Adlı Eserinin Tanıtımı, 72–77. Boynukalın states that
such expressions are used to prove that the opinion arrived at concerning an issue is in
harmony with a previous opinion.
55 Boynukalın, ibid, 182.
56 Shaybānī, al-Ḥujja, 2: 243–246.
210 Chapter 10

As this example illustrates, the concept of analogy is used to mean the prin-
ciple on which the legal opinion is based. If the analogy here had meant the
legal analogy of Islamic legal methodology, ˁUmar’s position would need to be
based upon evidence from a primary legal source. However, as the example
demonstrates, Shaybānī repeats ˁUmar’s opinion without such evidence as the
analogy of it, formulating it as a sub-maxim in the form “expiation is necessary
if you kill the animal without it attacking and is not necessary if you kill it because
it attacks.”
The expressions qiyās al-aṣl (the analogy of the axiom) and qiyās al-uṣūl (the
analogy of the axioms), which are mentioned in both sources of legal method-
ology and substantive law, are also used to mean the principle which the legal
school takes as its basis and is most often called istiḥsān. In his jurisprudential
work, Jaṣṣāṣ stated that analogy of the axiom is called istiḥsān, and explained
this with an example. According to analogy, a person who ejaculates during
sleep in ritual prayer must perform major ritual ablution and should continue
where he left off, completing his ritual prayer. In this issue analogy has been
abandoned in favour of istiḥsān, so that the person after performing the major
ablution repeats the ritual prayer. Here analogy is based on the ḥadīth concern-
ing the person whose ritual purity ends in the ritual prayer. According to the
analogy, the person should have continued the ritual prayer after major ablu-
tion. However, this analogy is abandoned because it goes against the principle
that ritual impurity prevents the completion of ritual prayer where it is left
off. Jaṣṣāṣ calls the istiḥsān in this example the analogy of the axiom (qiyās al-
aṣl).57 Here the discussion is based on three points: The analogy of the axiom
(qiyās al-aṣl), the ḥadīth and the issue. The analogy of the axiom is the sub-
maxim which Jaṣṣāṣ expresses as “the axiom is ritual impurity prevents contin-
uing the ritual prayer from where one leaves off (al-aṣl anna al-ḥadath yamnaˁ
al-bināˀ).” However, the ḥadīth indicates that if ritual impurity occurs during
ritual prayer, one can pick up where one leaves off after performing ablution.
The issue is ejaculation during ritual prayer. In this legal issue, Jaṣṣāṣ does not
compare ejaculation to breaking the state of ritual purity, using a different
principle, as he regards these two things to be different. He concludes that after
major ritual ablution one needs to restart the ritual prayer. Hence, he makes
a legal analogy based not on the ḥadīth but on another analogy of the axiom
(qiyās al-aṣl). This is the istiḥsān mentioned in works of jurisprudence.

57 Jaṣṣāṣ, al-Fuṣūl fī l-uṣūl, 4: 242. Nāṭifī (d. 46/1054) explains this issue with a general prin-
ciple as follows: “Every ritual impurity that necessitates major ablution prevents continuing
the ritual prayer.” Nāṭifī, Kitāb al-ajnās wa l-furūq, 38.
The Legal Nature of the Maxim 211

The concept of analogy of the axiom (qiyās al-aṣl) is used not only in
works of jurisprudence but also in sources of substantive law. For example,
Sarakhsī mentions the concept in a few places. Sarakhsī, who discussed the
disagreement between Ḥanafī jurists and Ibn Abī Laylā (d. 148/765) concern-
ing whether continuing to eat and drink after the second dawn breaks one’s
fast, stated that in this case the fast is broken.58 Based on the maxim “analogy
can be made on a special issue that is taken out of the scope of legal analogy by
a statement of revelation,” Ibn Abī Laylā compares the person to one who eats
forgetfully while fasting, coming to the conclusion that his fast will not break.
In contrast, the Ḥanafīs, who adduce the maxim “analogy cannot be made on
a special issue that is taken out of the scope of legal analogy by a statement of
revelation,” consider that this situation is contrary to the analogy of the axiom.
According to this position, there must be similarity between one who eats
or drinks forgetfully and one who eats and drinks after the second dawn in
every aspect, which is not the case.59 Here Sarakhsī, like Jaṣṣāṣ, considers the
issue within the framework of three points. These are the analogy of the axiom
(qiyās al-aṣl), the related ḥadīth and the issue that is the subject of the legal
analogy. In this example, the analogy of the axiom is that one’s fast is broken if
one eats or drinks. The relevant ḥadīth is that eating or drinking forgetfully will
not break one’s fast. The issue that is being debated is the situation of a person
who eats or drinks after the second dawn. Sarakhsī sees eating or drinking for-
getfully as different from eating after dawn, stating that because of the differ-
ence between the two issues it is not possible to have a legal analogy between
them. Thus, the issue in which a legal analogy was attempted must be analysed
on the basis of a principle other than the ḥadīth, which is that eating or drink-
ing breaks one’s fast. This principle leads to the conclusion that the fast of one
who continues to eat or drink after dawn is broken.
Kāsānī mentions this concept while discussing the effect of ambiguity on
an agreement with a mukātab slave on contract.60 If someone agrees to free
his slave if the slave works for a month, this agreement is permissible based
on istiḥsān because the agreement is general and hence is regulated by cus-
tom. However, since the work is unspecified, the agreement is not permissible

58 When the light of the sun first appears in the sky in the morning, it is vertical. Afterwards
the light becomes horizontal on the horizon. Muslim jurists call the vertical light first
or false dawn and the horizontal light the second or true dawn, which is the time when
fasting starts and the time for the morning ritual prayer begins.
59 Sarakhsī, al-Mabsūṭ, 3: 55. For other examples see ibid, 17: 64; 30: 131.
60 Mukātaba is an emancipation contract where the slave becomes free by paying a certain
agreed-upon amount to his master. See Brunschvig, R., “ʿAbd”, EI2.
212 Chapter 10

according to legal analogy. The basis of istiḥsān is that the unspecified service
is determined by custom or that the field in which the master will make the
slave work will be understood from the status of the master or the condition
of the slave. Ḥanafī jurists are of the opinion that since a mukātaba con-
tract in this form is similar to a verbal definition of service, ambiguity will be
removed. Additionally, since such a contract is deemed permissible in rent-
ing, it will be more so in a mukātaba contract. While this is the outcome of
the situation according to istiḥsān, a different result is obtained through legal
analogy because of the lack of clarity concerning where and in what kind of
job the service will be performed. Based on the submaxim “ambiguity in pay-
ment will prevent the validity of the mukātaba contract,” it has been stated that
such a contract will not be permissible based on legal analogy. After providing
this information, Kāsānī stated that a mukātaba contract in which a master
agrees to emancipate his slave if the slave serves someone else for one month
is permissible based on legal analogy, stating that the issue is mentioned in
Shaybānī’s al-Aṣl in this manner. However, he observes that Shaybānī did not
follow the principle (qiyās al-aṣl) mentioned in the example above but permit-
ted this contract by analogy with the istiḥsān.61 As in the previous examples, in
this opinion, which Kāsānī attributes to Shaybānī and agrees with him, there
are three elements. These are the analogy of the axiom (qiyās al-aṣl), istiḥsān
concerning a similar issue, and the issue to which a legal analogy is made. The
analogy of the axiom is the sub-maxim “ambiguity in payment will prevent the
validity of the mukātaba contract.” The istiḥsān concerning a similar issue is
that, although the framework of the contract is not specified by the two par-
ties, custom is made a referee, or that the contract is considered permissible
because the type of work is obvious from the status of the master and the slave.
The issue that is the subject of the legal analogy is the mukātaba contract in
which the slave will be emancipated in exchange for working for a month for
someone else. In this example, Shaybānī and Kāsānī, who follows him, did not
reach a conclusion based on the basic principle, but reached a different con-
clusion based on a reasonable istiḥsān. The reason they reached a conclusion
based not on the related principle but rather on istiḥsān is probably that there
was a customary practice in the regions they lived in, so they eliminated the
ambiguity by the arbitration of custom in a manner that would not cause a dis-
pute between the two parties. Hence, in this example the analogy of the axiom
is mentioned but for some reason has not been applied.

61 Kāsānī, Badāˀiˁ al-ṣanāˀiˁ, 4: 139.

The Legal Nature of the Maxim 213

The expressions qiyās al-aṣl and qiyās al-uṣūl are not found just in the Ḥanafī
sources but are also used by jurists of other schools. For example, Juwaynī (d.
478/1005) has a section entitled “the section concerning the permissibility of pre-
senting as a legal cause something that is contrary to the analogy of the axiom,”
in which he discusses some issues similar to the examples set out above.62
According to Ḥanafī jurists, one criterion for applying solitary report (khabar
al-wāḥid) is that if the narrator is not known as a jurist capable of independent
legal reasoning the ḥadīth he applies must not be contrary to legal analogy and
the principles of the Sharīˁa.63 Thus, Ḥanafī jurists have not accepted some
reports for this reason, as in the ḥadīth of muṣarrāh.64 This requirement for the
application of the khabar al-wāḥid is expressed as qiyās al-uṣūl, which means
a maxim. However, this approach of the Ḥanafīs has been criticized by some
jurists who state that they use qiyās al-uṣūl as a criterion for the application of
the khabar al-wāḥid. One of these criticisms is made by the Ḥanbalī jurist Ibn
Qudāma (d. 620/1223).65 Ibn Daqīq al-ˁĪd (d. 702/1302) also analyses the diver-
gence between the legal reasoning of jurists of different schools concerning
the ḥadīth of muṣarrāh. He discusses in detail the criteria of the Ḥanafī jurists
for applying khabar al-wāḥid, which he criticizes in certain aspects. Ibn Daqīq
al-ˁĪd refers to the Ḥanafī approach to khabar al-wāḥid, according to which
reports cannot be contrary to general principles, using expressions such as the
analogy of the axioms (qiyās al-uṣūl), the analogy of known principles (qiyās
al-uṣūl al-maˁlūma) and known principles (al-uṣūl al-maˁlūma). He referred
to the second Ḥanafī justification in not acting upon such a report as follows:

62 Juwaynī, Kitāb al-talkhīṣ, 3: 315–318.

63 Sarakhsī, al-Uṣūl, 1: 338–342.
64 Muṣarrāh: A camel, cow or sheep whose milk is left in its udder to persuade the buyer
that the animal gives plenty of milk. The animal has not been milked by its owner for
a few days, so the milk accumulates in its udder to impress the purchaser. This is a type
of deceit in transactions. According to a ḥadīth that was quoted by Abū Hurayrah the
Prophet Muhammad said: “Avoid leaving off milking a camel or a sheep. Whoever buys such
an animal has two choices to rescind the transaction after milking the animal. If he is sat-
isfied, he keeps it; and if not, he may return it to the owner, and make up for the milk with
one ṣāˁ (a cubic measure) of dates.” See al-Bukhārī, al-Saḥīḥ, 4: 361. According to Ḥanafī
jurists this ḥadīth contradicts a sound qiyās which is based on the Qurˀān, the widespread
Sunnah and the consensus. The sound qiyās indicates that compensation for things must
be for an equal value, and in this case one ṣāˁ of dates is not equivalent to milking an
animal. See Sarakhsī, al-Uṣūl, 1: 341.
65 See Ibn Qudāma, al-Mughnī, 10: 297–298. For other criticisms directed at the Ḥanafī
school see Ibn Taymiyya, Majmūˁ fatāwā, 11: 341.
214 Chapter 10

As for the second situation, it is when the single report is contrary to the
analogy of known principles (qiyās al-uṣūl al-maˁlūma), in which case it is
not necessary to act upon such a report. This is because known principles
(al-uṣūl al-maˁlūma) are certain in the Sharīˁa, whereas khabar al-wāḥid
is probable. What is probable cannot be contrary to what is certain.66

The concept of qiyās al-uṣūl and qiyās al-uṣūl al-maˁlūma, which Ibn Daqīq
al-ˁĪd clearly mentions and later goes on to criticize, refers to the maxims the
Ḥanafī school recognizes. Although Ibn Daqīq al-ˁĪd states that qiyās al-uṣūl
and uṣūl are different from each other, uṣūl referring to the sources of proof of
the Sharīˁa and qiyās al-uṣūl referring to rulings obtained from these sources,
it is conspicuous that rulings derived from the proofs of the Sharīˁa cannot
be the origin of another legal analogy.67 This is because if two issues have the
same legal cause, the issue that is the subject of the legal analogy is directly
compared to the original issue, and if the legal causes are different it is not
possible to make a legal analogy. Therefore, qiyās al-uṣūl refers to the maxims
and sub-maxims the school has derived from the main sources of the Sharīˁa.
Zanjānī also stated that if the khabar al-wāḥid is contrary to legal analogy
the opinion of Shāfiˁī is that it will be applied. The fact that the report is from
the infallible Prophet is an important factor that makes it stronger than the
analogy of the jurist who can make mistakes. However, Ḥanafīs have reached
the conclusion that qiyās al-uṣūl is preferable to khabar al-wāḥid because such
an analogy is based on many statements of revelation and due to the fact that
the ijtihād of the jurist is certain according to him while such a certainty is
not found in the repetition of the report. Zanjānī then gave an example from
substantive law that is based on this difference between legal principles.
According to this, Shāfiˁī is of the opinion that the foetus of an animal that
is slaughtered is edible based on the Prophet’s reply to such a question that
the slaughter of the mother counts as the slaughter of the foetus. In contrast,
Ḥanafīs consider the meat unlawful as they do not consider the foetus within
the animal to have been slaughtered by the slaughter of the mother. Ḥanafīs
have rejected the ḥadīth since it is contrary to qiyās al-uṣūl because, according
to them, “the rule in the Sharīˁa is that what is impure is forbidden. That which
has blood that is impure within it is also forbidden. Hence the fetus in the womb
is also like that.”68 As this example illustrates, Ḥanafī jurists take a principle,
the applicability of which is certain according to the Sharīˁa, and make it a

66 Ibn Daqīq al-ˁĪd, Iḥkām al-aḥkām, 3: 121.

67 Ibn Daqīq al-ˁĪd, Ibid, 3: 121.
68 Zanjānī, Takhrīj al-furūˁ ˁalā l-uṣūl, 363–365.
The Legal Nature of the Maxim 215

criterion for the applicability of the khabar al-wāḥid. This conclusion, which
was obtained through legal thinking, can be expressed as a syllogism as follows:

Everything that is impure is forbidden,

An animal whose blood is not drained through slaughter is impure,
The foetus in the mother’s womb has died without the blood being
drained,
Therefore, the foetus in the mother’s womb is impure.

Although the concepts of qiyās al-aṣl and qiyās al-uṣūl are used in the early
Ḥanafī works of jurisprudence and substantive law, after the 6/12th century
these concepts are not used.69 There are two reasons for this. First, the the-
ory of the Ḥanafī school concerning the application of the khabar al-wāḥid
became standardized by the 6/12th century, while discussions continued based
on select previous issues. In the 6/12th century debates concerning which
reports should be accepted gave way to the development of the classical the-
ory. In addition, the criticisms directed at the Ḥanafī jurists concerning the
application of ḥadīths contributed to bringing depth to these discussions. The
second reason why the expressions qiyās al-aṣl and qiyās al-uṣūl are not used in
works written after the 6/12th century is that after that century the term qāˁida
and other terms that have the same meaning were used for these two concepts.
Based on this, the concepts of qiyās al-aṣl and qiyās al-uṣūl were used in texts
of the early period usually to mean maxims, principles and axioms of a legal
school.
The concept of qiyās (legal analogy) can also refer to the legal maxim when
it is used with concepts other than istiḥsān. For instance, if a ruling accepted
by the school is based upon a verse of the Qurˀān or a Prophetic tradition, it is
stated that the ruling is based upon an authoritative/scriptural text (naṣṣ) as
opposed to analogy. For instance, after stating that sleep, fainting and insan-
ity end the state of ritual purity, Burhān al-Sharīˁa asserted that laughter in
ritual prayer also ends ritual purity. However, the condition for laughter end-
ing ritual purity is that the person who is performing the ritual prayer is an
adult and the ritual prayer is one that includes bowing and prostration. Ṣadr al-
Sharīˁa, who commented on this opinion, stated as regards the first condition
that the laughter of children in ritual prayer does not end ritual purity and as
regards the second that laughter will not break ritual purity if the ritual prayer

69 ˁAbd al-ˁAzīz al-Bukhārī’s use of the concept of qiyās al-uṣūl in a different context in
an issue he takes from al-Maḥṣūl can be considered an exception. See ˁAbd al-ˁAzīz al-
Bukhārī, Kashf al-asrār, 3: 458.
216 Chapter 10

is a funeral ritual prayer or a prostration of recitation (sajdat al-tilāwa).70 Ṣadr

al-Sharīˁa tied the fact that laughter ends ritual purity to the ḥadīth on this
subject, observing that the ḥadīth is contrary to analogy as follows: “these con-
ditions have been mentioned [ for laughter breaking the ritual prayer], because
that these will end ritual purity is established by ḥadīth contrary to analogy.”71
Then he stated that this situation is based on the conditions mentioned in the
ḥadīth and cannot be applied to other situations.72 The analogy mentioned
here is the general principle that ritual purity will be broken if impurity or
urine and faeces are discharged from a person. That laughter invalidates ritual
purity is not within the scope of this general principle, but rather is established
by other evidence, which is why certain conditions are stipulated. These con-
ditions have been determined by the event which occasioned the ḥadīth, such
as the fact that the ritual prayer in question was one that included bowing and
prostration. Therefore, laughter does not invalidate a ritual prayer that does
not have these conditions, such as the funeral ritual prayer, which does not
have bowing and prostration, and the ritual purity in the funeral ritual prayer.
The fact that the author stated that what is contrary to the rule is applicable
only to itself and cannot be applied to other situations shows that maxims can
be applied to numerous issues.
Maydānī (d. 1298/1881) uses the concepts of legal analogy and istiḥsān
together in an issue in which the founding Ḥanafī jurists have differed, indicat-
ing in this example that what is meant by analogy is a maxim. In this example,
which will be discussed extensively below, if a mouse is found decomposed in
a well, according to Abū Ḥanīfa the ritual prayer of three days and nights must
be repeated. According to Abū Yūsuf and Shaybānī, however, no ritual prayer
should be repeated until it is determined when the mouse fell into the water.
After Maydānī had repeated the justification for the latter’s position using the
maxim “certainty is not overruled by doubt,” he stated that Abū Ḥanīfa’s stance
is based on istiḥsān, whereas their position is based on analogy.73
Ḥamawī clearly stated that the word analogy is used for the concept of
maxim. Ibn Nujaym discussed the same issue under the maxim “what is

70 Some Ḥanafī jurists are of the opinion that laughter invalidates the prostration of recita-
tion. Cf. Quhistānī, Jāmiˁ al-rumūz, 1: 23.
71 According to the narration, while the Prophet leads the Companions in a ritual prayer, a
visually impaired person falls into a well while trying to perform the prayer, which makes
some of the Companions laugh. After finishing the prayer, the Prophet commands those
who laughed to repeat their ablution and prayer. Dāraquṭnī, Sunan, 1: 167.
72 Ṣadr al-Sharīˁa, Sharḥ al-wiqāya, 1: 33.
73 Maydānī, al-Lubāb, 1: 50. Cf. Zabīdī, al-Jawhara al-nayyira, 1: 59–60; ˁAynī, Ramz
al-ḥaqāˀiq, 1: 22.
The Legal Nature of the Maxim 217

assumed is that a new matter is attributed to its closest time.” He stated that based
on this maxim the opinion of Abū Yūsuf and Shaybānī is that the well’s water
will be considered impure from the moment the dead mouse is found so that
no ritual prayer has to be repeated. In contrast, based on istiḥsān, Abū Ḥanīfa is
of the opinion that if the mouse is bloated or decomposed the three-day ritual
prayers need to be repeated and, if not, one day’s ritual prayer needs to be
repeated. Ḥamawī, who discussed this maxim and the example, explained Ibn
Nujaym’s statement “the two Shaykhs [i.e. Abū Yūsuf and Shaybānī] applied this
maxim” by saying “because of this their opinion is the legal analogy, while that of
Abū Ḥanīfa is istiḥsān.”74 The concept of istiḥsān and the related rulings in the
sources show that it is an exception to the general rule and is often mentioned
with legal analogy, which suggests that legal analogy is used in the sense of
legal maxim. Ḥamawī’s statement on this issue corroborates this stance.

2.3 The Expression of Legal Maxims Using the Expression Wajh

(Aspect)
The term wajh (aspect) is used in legal texts and especially in commentaries
to explain legal issues in detail. After the use of the term in most cases the
issue that is mentioned is explained by discussing the evidence on which the
opinions are based using a comparative method. In the discussion of the evi-
dence for the issue item by item, legal maxims are also presented. This concept
is used for articulating both the legal dimension and the evidence for issues
of substantive law concerning each incident, individual and situation, as well
as the philosophical foundations of these rulings. After the principles and the
philosophical dimensions of various issues are discussed under the heading
wajh al-masˀala (the aspect of the subject/issue) the subject is elaborated
upon using other examples, with the aim of showing that all these examples
are based upon common ground. For instance, Jaṣṣāṣ in an issue regarding liti-
gation extensively discusses the plaintiff’s obligation to prove and the defend-
ant’s obligation to take an oath by presenting evidence and providing two
examples that illustrate the issue. He then states, “we explained the legal aspect
of the two issues (wajh al-masˀalatayn) that are based upon the main idea of this
section.”75 After this statement, he provides many examples from substantive
legal rules that are applications of the theoretical framework he outlines.
Another link between the term wajh (aspect) and the legal maxim is that
the expression is generally referred to in the discussion of the ratio legis of

74 Ḥamawī, Ghamz ˁuyūn al-baṣāˀir, 1: 218.

75 Jaṣṣāṣ, Sharḥ al-Jaṣṣāṣ ˁala l-jāmiˁ al-kabīr, fol. 279b.
218 Chapter 10

opinions. After constructing the legal case for an issue, it is then extended by
being applied to similar issues by using the expression wajh al-masˀala. For
instance, Ghazālī stated that once the legal cause of an issue is established, the
ruling for the issue can be generalized to other issues that have the same legal
cause, giving as an example the legal cause of interest. Once it is established
that interest applies to the exchange of food, he says:

Every foodstuff is subject to interest,

Quince is a foodstuff,
Therefore, quince is subject to interest.

Ghazālī continues by saying that since the legal cause of the prohibition of
alcoholic beverages is intoxication, it can be applied to date wine:

Everything that is intoxicating is prohibited,

Date wine is intoxicating,
Therefore, date wine is prohibited.76

In works of substantive law, the legal cause is constructed after the use of the
term wajh (aspect) and in most cases reference is made to legal maxims while
generalizing. For instance, while discussing an issue related to litigation, Jaṣṣāṣ
used the term wajh, explaining the approach of the Ḥanafī jurists within the
framework of a maxim. If someone claims with evidence that a garment or a
house in someone else’s possession belongs to him, and that person says that
he took what was in his possession from someone else who is absent under a
contract of safekeeping (wadīˁa), as a gift (hība), by usurpation (ghaṣb) or by
leasing (ijārah), according to Shaybānī that person cannot get the case against
him dismissed by making such a claim. However, if that person brings evidence,
the case will not be heard until the absent person comes back. Ibn Abī Laylā
is of the opinion that the defendant will not be able to get the case dismissed
even if he brings evidence, whereas Ibn Shubruma is of the opinion that the
defendant will get the case dismissed simply by making the claim. Jaṣṣāṣ states
that the approach of the Ḥanafī jurists on this and similar issues is based upon
the principle “it is not permissible to rule against one who is absent,” and that
related issues are explained within the framework of this assumption.77 The
noteworthy aspect here is that Jaṣṣāṣ states that many issues are based upon

76 Ghazālī, Asās al-qiyās, 43.

77 Jaṣṣāṣ, Sharḥ al-Jaṣṣāṣ ˁalā l-jāmiˁ al-kabīr, fol. 233b. Cf. Kirmānī, Nukat al-Jāmiˁ al-kabīr,
fol. 85a.
The Legal Nature of the Maxim 219

a principle and that he will treat the opinions of the Ḥanafī jurists within the
framework of this principle. The statements “this and similar issues are based
upon the maxim of our companions that it is not possible to rule against one who
is absent” and “we will discuss the wajh (aspect) of this issue within the framework
of this maxim” are especially important. The section that is referred to as the
aspect of the issue (wajh al-masˀala) and in which the legal structure of the
issue is discussed is one in which both Jaṣṣāṣ and other jurists most frequently
mention maxims. Legal analyses follow the designation “aspect,” which can be
considered as the title for the section in which the legal bases of the opinions
transmitted in the commentaries are articulated. These sections, which discuss
legal opinions in different ways, draw upon verses of the Qurˀān and ḥadīths
as well as maxims while mentioning the evidence on which an issue is based.
The maxim that is usually expressed as “ruling against someone who is not
present based on legal proof is not permissible” forms the foundation for many
differences of opinion between the Ḥanafīs and Shāfiˁīs in substantive law,
since it is used in diverse areas of law, such as pre-emption in a sale (shufˁā),
the law of sales (bayˁ), marriage (nikāḥ), alimony (nafaqa), legal testimony
(shahāda), procedural law (qaḍāˀ), the law of litigation (daˁwā), the law
regarding missing persons (mafqūd), the distribution of shared property (qis-
mah), confessions and the law of agency (wakāla).78 Sarakhsī, in the chapter
on litigation, while discussing whether it is permissible to rule against some-
one who is absent stated that all of the examples he set out were based upon
the maxim of the Ḥanafī school of law that ruling against one who is absent is
not permissible. Ḥanafī jurists mention that the Prophet’s warning to ˁAlī not to
give a ruling between two parties without listening to the other side forms the
basis of this maxim. In contrast, Shāfiˁī accepts as the basis of his opinion the
case in which the Prophet tells Hind when she complains about Abū Sufyān’s
meanness that she could take what is necessary for her and her children. Based
on this, Shāfiˁī concluded that to rule against one who is absent when there is
evidence is permissible, applying this to different legal issues.79

3 Areas in Which Maxims are Used in Legal Works

After legal schools became independent flourishing systems of thought, one of

the chief ways in which jurists referred to maxims was in seeking evidence from

78 e.g. Sarakhsī, al-Mabsūṭ, 15: 12; 17: 39; Kāsānī, Badāˀiˁ al-ṣanāˀiˁ, 3: 210; 5: 24; Zaylaˁī, Tabyīn
al-haqāˀiq, 3: 59; 4: 163.
79 Jaṣṣāṣ, Sharḥ al-Jaṣṣāṣ ˁalā l-jāmiˁ al-kabīr, fol. 236b-237a; Sarakhsī, al-Mabsūṭ, 17: 39.
220 Chapter 10

the legal heritage of the previous eras. In this kind of ijtihād that was carried
out within the framework of the tradition of the schools, maxims constituted
a factor that enabled this effort to be at the level of principles. The fact that in
works of substantive law derivation (takhrīj) and determining preponderance
(tarjīḥ) are based on maxims is a clear indication of maxims’ significance.
While discussing issues, legal scholars explained them in various ways. Jurists
have shaped legal doctrine by constantly referring to the accumulated knowl-
edge of the legal school and adopting it as their foundation. While forming a
link between the heritage of the past and the period in which they lived, legal
scholars have focused on three points: determining preponderance by search-
ing the legal accumulation (tarjīḥ), making derivations based on the legal tra-
dition (takhrīj), and giving the legal causes of the conclusions obtained (taˁlīl).
Each of these three efforts is linked directly or indirectly with legal maxims. As
the above examples demonstrate, legal maxims are referred to for derivation,
determination of preponderance and ratiocination. This section will focus on
how legal maxims were utilized during those processes.

3.1 Takhrīj (Derivation)

Derivation, which refers to the process of obtaining legal knowledge, is based
upon the sources of the Sharīˁa and the knowledge of the school. Although
the fact that exercising takhrīj is based upon the legal heritage of the school
of law necessitates that it takes place after the formation of the schools, the
first examples of takhrīj are to be found in some of the ijtihāds of the found-
ing jurists and legal scholars of their immediate circles. Hence, derivation as a
form of producing legal knowledge can be defined as the process in which later
jurists provide solutions for new issues concerning which there is no statement
from previous jurists based upon the principles the predecessors used in some
other legal matters.80 An example mentioned above is Shaybānī’s conclusion,
“if a person kills a predator because the predator attacks him, he does not have to
expiate; however, he has to expiate if he kills it before the predator attacks him,”
based upon ˁUmar’s explanation for sacrificing a ram during Hajj after he had
killed a hyena by saying “I started [attacking] first.”81

80 For a more detailed discussion of takhrīj see Bāḥusayn, al-Takhrīj; Hallaq, “Takhrīj and the
Construction of Juristic Authority”, Studies in Islamic Legal Theory, 317–337: 420. For the
role of takhrīj within the Mālikī school of thought and its evaluation as regards ijtihād and
taqlīd see Jackson, Islamic Law and the State, 91–96.
81 Shaybānī, al-Ḥujja, 2: 243–248. In early works such as those of Shaybānī sometimes the
concept of qiyās is used for takhrīj. On Shaybānī’s derivation from the scholars of the
Companions and the Successors such as Abū Bakr, ˁAlī, ˁAbd Allāh b. Masˁūd, Shurayḥ,
The Legal Nature of the Maxim 221

To find solutions for new issues which early legal scholars did not discuss
based on the methodology they used in reaching rulings on different issues
first necessitates constructing the principles that formed the foundation of
their opinions. Therefore, obtaining legal knowledge based on takhrīj is closely
related to producing legal maxims and sub-maxims. Based on this, some con-
temporary scholars have said that takhrīj was done in three ways:
1. Obtaining maxims from substantive law (takhrīj al-uṣūl min al-furūˁ): in
this form of derivation, the methodology and maxims of the founding
jurists are established on the basis of their rulings.
2. To obtain substantive rulings from maxims (takhrīj al-furūˁ ˁalā l-uṣūl): in
this method substantive rulings are obtained through the maxims of the
founding jurists.
3. To obtain substantive rulings from substantive law (takhrīj al-furūˁ ˁalā
l-furūˁ): this method is more commonly used not only in works of sub-
stantive law, but also in works of jurisprudence and fatāwā.82
As this categorization illustrates, all types of derivation are related to maxims.
In the first type a link is established between different issues to identify the
maxim on which they are based. The second type of derivation starts with
maxims to obtain rulings for substantive issues. The third type is similar to
the first type as regarding maxims, since to go from one substantive legal issue
to another there is a need first to identify the maxim on which the first issue
is based and then establish the relationship between the two issues based on
that maxim.
In the process of obtaining maxims from substantive law, legal scholars ana-
lyse the rulings of the founding fathers through induction to determine their
methodology. While this is being done, the legal causes of the rulings are iden-
tified, and the ruling of the prior issue is applied to the issue that occurs later by
reason of the common legal cause. Consequently, in works of substantive law
the legal causes of the rulings of the founding jurists have been identified using
expressions such as “the analogy of the opinion of Abū Ḥanīfa or Abū Yūsuf or
Shaybānī.” Thus, a maxim was obtained and applied to another issue. Although
the concept of analogy in these expressions has the meaning of maxim and
principle, it is similar to the legal analogy in jurisprudence in that it resembles
the process of obtaining the ruling for a substantive issue from evidence as in
the jurisprudential analogy (al-qiyās al-uṣūlī).

and Ibrāhīm al-Nakhaˁī see Boynukalın, İmam Muhammed b. Hasan eş-Şeybānī’nin

Kitabü’l-Asl Adlı Eserinin Tanıtımı, 72, 277.
82 Bāḥusayn, al-Takhrīj, 6.
222 Chapter 10

Ḥanafī jurists have obtained maxims from the substantive issues known as
the twelve issues in which Abū Ḥanīfa and the other two founding jurists of
the Ḥanafī school disagree.83 Taˀsīs al-naẓar, which gathers together the rul-
ings of Abū Ḥanīfa and his disciples concerning various issues on this subject,
extracts from Abū Ḥanīfa’s opinions the sub-maxim “what changes an obliga-
tion in the beginning also changes it at its end.”84 The method of obtaining legal
knowledge here is to analyse many issues through induction to identify their
common points and to glean maxims from these examples. In Taˀsīs al-naẓar,
this sub-maxim is set out at the beginning of the section that deals with these
issues. Then the related issues in which Abū Ḥanīfa and his disciples Abū Yūsuf
and Shaybānī differ have been mentioned under this principle.
Extracting legal maxims and sub-maxims from the opinions of the found-
ing fathers of the legal schools on issues of substantive law and then applying
these to new issues continued after the century in which Taˀsīs al-naẓar was
written. Scholars such as Sarakhsī and Kāsānī frequently used this method.
For instance, Sarakhsī states that Shaybānī is of the opinion that “the assump-
tion concerning things is their permissibility.” Sarakhsī derives this maxim from
the fact that Shaybānī accepts that drinking wine and eating meat that is not
slaughtered according to Islam are forbidden only because of the prohibition
concerning them.85 In a similar manner Kāsānī derives a general sub-maxim
from the opinions of Shaybānī and Ḥasan b. Ziyād concerning the ritual prayer
of solar eclipse that is applicable to other issues. Kāsānī first tries to find an
answer to the question whether the ritual prayer of solar eclipse is a Sunna or
an obligation, saying:

Muḥammad Shaybānī uses an expression in al-Aṣl that indicates that

this ritual prayer is not obligatory. Muḥammad has said, “supererogatory
ritual prayers other than tarāwiḥ and solar eclipse are not performed in
congregation.” In this way, Imam Muḥammad excludes the ritual prayer
of solar eclipse from other supererogatory ritual prayers. The fact that an
exception is from the same kind of thing to which it is an exception, indi-
cates that the ritual prayer of solar eclipse is supererogatory. Likewise,

83 According to Abū Ḥanīfa if something that invalidates prayer occurs after one sits in
the last sitting for the duration of the tashahhud the prayer becomes invalid, whereas
according to Abū Yūsuf and Shaybānī it does not. There are 12 examples related to this
mentioned in sources which are called “twelve issues.” Cf. Dabūsī, Taˀsīs al-naẓar, 6–8. Ibn
ˁĀbidīn, al-Ḥāshiya, 1: 606–611.
84 Dabūsī, Taˀsīs al-naẓar, 6.
85 Sarakhsī, al-Mabsūṭ, 24: 77.
The Legal Nature of the Maxim 223

Ḥasan b. Ziyād narrates things that indicate this. Ḥasan b. Ziyād narrates
that Abū Ḥanīfa has said the following concerning the ritual prayer of
solar eclipse, “People can perform the ritual prayer of solar eclipse in two,
four, or more rakˁas (units).” Having a choice takes place in supereroga-
tory acts of worship, not in obligations.86

Here the references to the two founding jurists and the fact that the conclu-
sions derived from these are expressed as principles are significant in terms
of maxims. After setting out the opinions of two founding jurists concerning a
substantive issue such as the ritual prayer of solar eclipse, Kāsānī extracts the
principle between the lines and expresses it as a sub-maxim.
Kāsānī makes a similar derivation concerning the unauthorized agent
(fuḍūlī), providing further examples for the principle he extracts. Fuḍūlī refers
to a person who carries out a transaction in someone else’s name without their
permission. The validity of such a transaction depends on the authorization
of the person in whose name the transaction was conducted. For the trans-
action of the fuḍūlī to be valid there must be someone who can permit the
transaction who is legally competent at the time the transaction is carried out.
Otherwise if there is no one who can permit the transaction as it is carried
out, this would make the benefit of the contract inconceivable. Therefore, one
cannot argue that the transaction is valid based upon permission that can pos-
sibly be given in the future. This is because in this case it is certain that there
is no one who is legally competent to approve the contract at the time that it
is carried out, while the benefit that will be obtained from the transaction if
permission is given in the future is in doubt. Therefore, based upon the maxim
“what is not established with certainty is not established by doubt,” permission is
given for transactions that are valid only as they are carried out. Kāsānī derives
other examples on the basis of this reasoning and the maxim on which it relies.
Accordingly, if the fuḍūlī frees an adult person’s slave, or gives his wealth as a
gift or as an act of charity, these legal actions are done pending the person’s
permission. This is because an adult can carry out these legal actions by him-
self. However, if he were to carry out these legal actions for a minor, the actions
are not valid, since the minor does not have the legal competence to carry out
these actions by himself.87
In his famous legal commentary al-Ikhtiyār, Mawṣilī sometimes investigates
issues that jurists of the early period did not consider, offering his opinion and

86 Kāsānī, Badāˀiˁ al-ṣanāˀiˁ, 1: 280.

87 Kāsānī, Badāˀiˁ al-ṣanāˀiˁ, 5: 149.
224 Chapter 10

relating them to maxims. For example, after he extensively discussed an issue

concerning dry ablution in which the jurists differ, Mawṣilī considers an issue
on which the founding jurists did not make a statement. Mawṣilī is of the opin-
ion that someone who forgets that there is water on his riding animal and per-
forms dry ablution and ritual prayer does not have to repeat this ritual prayer
afterwards. However, according to Abū Yūsuf this person must repeat the ritual
prayer because he performed dry ablution without investigating whether there
is water around. In contrast, Abū Ḥanīfa and Shaybānī are of the opinion that
the person does not repeat the ritual prayer because he performed dry ablu-
tion out of forgetfulness, which as a heavenly accident (i.e. beyond one’s con-
trol) removes legal obligation. After discussing the evidence of the two sides
concerning this issue, Mawṣilī considers a new issue which the two sides did
not discuss: what the ruling is concerning performing the ritual prayer with dry
ablution when the person thinks that there is probably no water? If a person
is not certain that there is no water but thinks that probably there is no water,
dry ablution is considered invalid. The author bases his view that dry ablution
in this case is not valid on the maxim “certainty is not removed with probabil-
ity.”88 Mawṣilī thus relates to this maxim an issue that was not discussed by
the founding jurists of the school because he observes that the difference of
opinion among the founding jurists concerning another issue of dry ablution
is shaped by arguments focusing on probability and certainty. It is also signifi-
cant that Mawṣilī uses the word “probability” instead of “doubt.” Although the
maxim is expressed in most sources in the form “certainty is not overruled by
doubt,” other expressions such as probability and suspicion are also used.

3.2 Tarjīḥ (Determining Preponderance)

The doctrine of determining preponderance (tarjīḥ) refers to the legal meth-
odology which is used as a way of evaluating different opinions of the jurists of
a school of law and choosing from among them the one which is regarded as
closest to the sources of Sharīˁa and most suitable to the circumstances. In the
process of tarjīḥ which is primarily preferring one item of evidence or opinion
to another when these are equivalent not in themselves but in their attributes,
there must be supporting evidence that makes one of these superior to the
other.89 In the process of determination of preponderance, since there is not
always clear evidence that makes one option superior to another, other legal

88 Mawṣilī, al-Ikhtiyār, 1: 31.

89 Sarakhsī, al-Uṣūl, 2: 250; ˁAbd al-ˁAzīz al-Bukhārī, Kashf al-asrār, 4: 133. On the fact that
the definition of tarjīḥ according to Ḥanafīs is different from that of other schools see
Binyūnis al-Walī, Dawābiṭ al-tarjīḥ, 52–67.
The Legal Nature of the Maxim 225

instruments are used. Chief among these are legal maxims. There are two prin-
cipal ways of tarjīḥ, determination through dirāya (intellectual appreciation),
which is selection based on jurisprudence and evidence, and riwāya (trans-
mission), which is selection based on choosing one of the opinions taught in
the legal school. Especially in works of substantive law, in the justification of
rulings based on tarjīḥ, selection is made between transmissions so that one
of the opinions within the school is accepted. In these cases, the opinions of
the legal scholars of the school are presented in hierarchical order and one of
them is selected. Hence selection in contrast to takhrīj does not produce new
knowledge, but rather involves choosing a certain piece of information.
There are various examples of tarjīḥ in legal corpora. However, the focus
here is on selection based on maxims. There are two opinions in the discus-
sion of the Ḥanafī jurists concerning whether human contact with water that
is contaminated by animal excretion invalidates the ritual prayer. One group
argues that it does invalidate it, while the other group is of the opinion that it
does not. After the expression of these opinions, the view that it does not inval-
idate the ritual prayer based on the maxim “certainty is not overruled by doubt”
was selected in al-Fatāwā al-Hindiyya.90
Likewise, Kāsānī discusses the differing opinions of both early jurists and
later Ḥanafīs, making his tarjīḥ based mostly on maxims. For example, on the
issue of whether one can perform ablution with water from a pool in which
someone has urinated or taken a bath while in a state of major ritual impu-
rity, Kāsānī adopts the opinions of the Ḥanafī jurists of Iraq and Transoxiana,
preferring the opinion of the latter. The Iraqis are of the opinion that ablu-
tion can be performed with water that is not taken from the place of urina-
tion or bath, comparing the case to perceivable impurity. The legal scholars
of Transoxiana, however, make a distinction between these two cases. Kāsānī
supports this opinion by saying that liquid impurity will spread so that there
can be no certainty as to where it is, quoting the maxim “certainty is not over-
ruled by doubt.”91 As this juristic reasoning determines, while making a prefer-
ence between opinions on an issue debated within the school Kāsānī adduces
his argument based on maxims.

3.3 Taˁlīl (Legal Ratiocination)

Providing ratio legis while treating legal issues is a methodology that was
applied, beginning with the earliest works of Islamic law. The fact that in the

90 Shaykh Niẓām, al-Fatāwā al-Hindiyya, 1: 47.

91 Kāsānī, Badāˀiˁ al-ṣanāˀiˁ, 1: 73. For other examples see Kāsānī, ibid, 2: 235; 7: 264.
226 Chapter 10

Qurˀān and the Sunna effective causes, rationales, intentions, purposes and
consequences are given for certain rulings and that legal scholars from the
time of the Rightly-Guided Caliphs (al-Khulafāˀ al-Rāshidūn) state that the
causes of their rulings are important factors that led the founding jurists of
the schools naturally to apply this method.92 Both the statements of revelation
and many examples of their interpretation and application in daily life must
have provided legal scholars with such a logical framework. Especially in the
process of producing rulings, the approach of understanding the statements
of revelation with their effective causes while obtaining rulings from them
led similarly to constructing the legal causes of the opinions of the founding
jurists of the schools.
Legal causes are presented in the process of explanation of the disagree-
ment among the legal scholars, while adducing evidence for the opinions
of the school or exercising takhrīj and making tarjīḥ between opinions. The
legal commentaries, in which opinions of jurists are extensively analysed,
contain more legal causes than the concise and condensed compendia. In
the main legal texts of other genres, legal causes of rulings are frequently
explained and legal maxims are used in this framework. This is also the case
for works of the first generation of Ḥanafī jurists who had a foundational
role in the establishment of the school. For instance, Shaybānī criticizes
Mālik and the jurists of Medina in the discussion of whether it is permissi-
ble to receive money from the sale of animals whose meat cannot be eaten
by giving counter examples to the Mālikī principle “there is no good in selling
something that eating of which is disapproved” using examples such as the
tanning of animals who are not slaughtered according to Islamic law and
the making of candles from them. Shaybānī justifies his opinion with the
following maxim: “the buying and selling of something the eating and using
of which is disapproved is also disliked; if there is no issue with benefiting from
something, there is no problem with selling it.”93 Likewise, Shaybānī uses the
maxim “wage and responsibility cannot come together”94 on the issue of a
slave who makes a deal to work for a year for someone else without the
master’s permission. According to this, if the master emancipates the slave
after six months, he does not deserve payment for the first six months,
because “wage and responsibility cannot come together” Shaybānī states that

92 For extensive information concerning the explanation of legal causes in the Qurˀān and
the Sunna as well as the rulings of the jurists beginning with the Companions and the
Successors see SḤalabī, Taˁlīl al-aḥkām, 14–94.
93 Shaybānī, al-Ḥujja, 2: 771–772.
94 Majalla, cl. 86.
The Legal Nature of the Maxim 227

although this is the general rule, in this case they make an exception to
the rule through istiḥsān.95 As both examples illustrate, Shaybānī tries to
explain the legal causes of rulings with the use of maxims.
In al-Nutaf fī l-fatāwā in the chapter on divorce, al-Sughdī discusses the
issue of getting divorced from someone by writing. He states that if this divorce
takes place by means of a letter, there are five possible cases. One of these is
that the letter reaches the female after the subject matter (maḥal al-ˁaqd) of
divorce has ceased to exist, an issue in which there is a dispute among the
Ḥanafī jurists. Sughdī states that some jurists are of the opinion that if the
letter reaches the female in this case, the divorce is not valid, and states the
reason for this approach by saying that these jurists are of the opinion that
“a written document is like an expression (al-kitābah ka-l-khiṭābah).”96 While
explaining the cause of this opinion, Sughdī uses the expression “writing is like
speaking (al-mukātabah ka-l-mukhāṭabah),” which is mentioned as a maxim
in later maxim literature.97 Likewise Sarakhsī adduces the maxim “certainty is
not overruled by doubt” to justify the view that one is in a state of dry ablution
as long as one is not certain that the state of purity has come to an end or that
there is water.98
After the causes of legal rulings are determined, the same ruling is applied
to other examples that have the same cause. Sometimes the determined cause
can be the foundation for rulings concerning different issues. For instance, in
the chapter on sale contract, Samarqandī (d. 539/1144) discusses the case in
which a house is bought after it has been described, comparing the situation
of a sighted person and a blind one. He grounded the fact that the ruling in
these two cases will be different on two maxims. In the case of a blind person,
if something is described to him and he buys it with consent, he will not have
the option of sight (khiyār al-ruˀya) if his eyes begin to see. Since the blind
person cannot see, the description of a thing he cannot see takes the place of
seeing. Samarqandī adduces this using the maxim “the possibility of doing the
original after the aim is achieved with the substitute does not change the ruling
of the substitute.” Samaqandī then considers the same issue from the perspec-
tive of a seeing person. In this case, if he buys something with consent after
it is described to him, this does not negate his option of sight. Samarqandī

95 Shaybānī, Kitāb al-aṣl, 3: 45.

96 Sughdī, al-Nutaf fī l-fatāwā, 1: 356–357.
97 Majalla, cl. 69.
98 Sarakhsī, al-Mabsūṭ, 1: 121. For another example see Sarakhsī, al-Mabsūṭ, 5: 19. For
detailed information on the subject and examples see Nadwī, al-Qawāˁid wa l-ḍawābiṭ
al-mustakhlaṣa min al-taḥrīr, 138–150.
228 Chapter 10

explained this using the maxim “if one is capable of doing the original, the sub-
stitute is not considered.”99
99 Samarqandī, Tuḥfat al-fuqahāˀ, 2: 91. Cf. Kāsānī, Badāˀiˁ al-ṣanāˀiˁ, 1: 60; 3: 173.
 chapter 11

The Function of the Maxim

Legal Maxims in The Literature of Compendia, Commentary and
Glosses Genres

To understand the functions of legal maxims it is necessary to analyse their

usage in legal corpuses. Such an analysis is significant as it will demonstrate
whether legal maxims are apodictic propositions. In other words, do legal max-
ims add something to our knowledge through their functions or are they mere
repetitions of facts? For instance, are they truisms of the kind “what is contrary
to the law is illegal,” or are they instruments obtained through legal doctrine
that check the ruling that is reached? While seeking answers to these questions
this chapter will attempt to show how legal maxims are used in main legal cor-
pora and the situations in which they are referred to, using the sources of the
Ḥanafī school. It will try to show the function of maxims in different genres of
legal writing. Emphasis will be on the use of maxims in works other than the
literature on maxims. Since investigating all types of legal literature is beyond
the scope of this study and some types of legal writing do not involve maxims,
the scope of the chapter will be confined to the genres of compendia, com-
mentaries and glosses, focusing on works and examples that will facilitate the
understanding of the use of maxims.
As their use in legal corpora demonstrates, legal maxims are generally
referred to within the framework of two approaches. The first is the approach
than can be called maslak al-taˁlīl (the method of ratiocination), which is used
mostly in legal derivation, determining preponderance and providing legal
ratiocination. The second is maslak al-taˀṣīl (the method of axiomatizations)
in which, after a legal maxim is set out, under a subject heading, issues that
exemplify the axiom are mentioned. The focus of this method is to substanti-
ate the relationship between the maxim and issues of substantive law.1 Maslak
al-taˁlīl, which is broadly used among the two, is applied in the discussion of
the explanations for an opinion in commentaries. In the explanation of the
causes of rulings, in legal derivation and in determination of preponderance
among opinions, the justification for the result obtained is at times made in a

1 For extensive examples of this see Nadwī, al-Qawāˁid wa l-ḍawābiṭ al-mustakhlaṣa min al-
taḥrīr, 138–172.
230 Chapter 11

concise manner. This lays the foundation for the maxims mentioned in later
sources. In this respect, maxims are axioms that are the legal causes of one
or more rulings or thoughts that constitute the foundation for preponderance
and derivation. Such maxims were gradually acknowledged as apodictic cer-
tainties and became agreed upon legal principles.
Maslak al-taˀṣīl, which appears in the form of first providing the axiom and
then mentioning the cases under its umbrella, was the method followed in the
literature of maxims rather than in legal commentaries. That said, the pattern
was applied in the commentaries on Shaybānī’s al-Jāmiˁ al-kabīr, where it rep-
resents the aim of showing that issues mentioned in legal works are essentially
based on legal principles. These maxims that are mentioned at the beginning
of each chapter of law are in the form of sub-maxims that govern the subject.
The structure of legal texts show that rulings discussed therein are to a
great extent in the form of propositions. When articulating propositions, legal
scholars are careful that these propositions do not contradict the opinions of
previous authorities, especially the founding fathers of legal schools. Such a
methodological consistency existed in the legal knowledge jurists produced
after the formation of the schools was completed. This effort facilitated the
systemization of legal knowledge and paved the way for producing maxims
based upon the legal causes of the opinions of the school.
The founding fathers of legal schools and the jurists who followed them
attempted to establish the bases of legal issues through the Qurˀān and the
Sunna. Although there are many factors that played a role in this approach, the
fact that these legal scholars saw the Successors and the Followers of them is
the primary one. In the environment of these jurists, the presence of ḥadīths
and the conduct of the Companions constituted a rich reservoir that they
could refer to for both theoretical discussions and the everyday problems they
encountered. As a result, the discussions of the period were based on the Sunna
and its applications by the Companions. The transmission of ḥadīths and their
application concerning legal issues as in the example of the Muwaṭṭaˀ is an
illustration of this approach.
It is natural that legal discussions of this period were based directly on
the Qurˀān and the Sunna and the first generation’s understanding of these
sources. The fact that the main material of the legal scholars who were close
to the first and succeeding generations of Muslims consisted of the Qurˀān
and the Sunna, and how these were understood by the Companions and the
Successors was a natural consequence of this period. In works written after
the founding fathers, when their opinions were compared with the views of
other schools, legal scholars emphasized the Qurˀān and the Sunna as the
sources of their opinions in their efforts to establish a direct link between legal
The Function of the Maxim 231

interpretations and the statements of revelation. In the 4/10th and 5/11th cen-
turies this situation began to change. Jurists of this period focused on the legal
articulation of the school and strove to establish the principles on which it was
based. The debates within each school—the most developed in this respect
being the Ḥanafī school—became subject to analysis and interpretation. In
this framework, Ḥanafī jurists explained the opinions of the founding jurists
on a variety of subjects in compendia and commentaries as well as other gen-
res of legal literature. While doing this, legal scholars tried to present the bases
of the differences of opinion, at times making selections among them. Hence,
from the early period works were written to explain the differences of opinion
inter-madhhab and intra-madhhab.
In this process which was the result of the gradual development of legal
doctrine, the divergence of opinion of the legal scholars on the same state-
ments of revelation was explained by differences in the legal principles that
were the basis of their approaches. This can be clearly seen in works written
since the 4/10th and 5/11th centuries. Given the existence of principles in addi-
tion to the Qurˀān and the Sunna as the bases of legal opinions, legal maxims
were referred to in works of this kind that tried to establish the common prin-
ciples that linked opinions on various issues.
The legal manuals of the Ḥanafī jurists of the early period are based to a
large extent on principles. Especially in issues of substantive legal rules, many
authors acknowledge that maxims played an instrumental role within the hier-
archy of evidence. For instance, while discussing Abū Ḥanīfa’s understanding
of legal evidence, ˁAbd al-ˁAzīz al-Dahlawī (d. 1239/1824) stated that in the
Sharīˁa there are two types of rulings, the first of which consists of legal maxims
that are coextensive (muṭṭarid) and coexclusive (munˁakis). These are some
examples of this type of rules: “A contract completes after offer and acceptence
(al-bayˁ yatimmu bi l-ijāb wa al-qabūl),” “profit goes where the responsibility lies
(al-kharāj bi ḍ-ḍamān),” “the burden of proof is on the claimant and the oath is
on the one who denies” (al-bayyina ˁalā l-muddaˁī wa al-yamīn ˁalā man ankar)”
and “profit earning is legitimized only by risk-sharing (al-ghunm bi l-ghurm).”
The second type of ruling, which looks like an exception to the general max-
ims, is more specific and relates to particular issues. Dahlawī indicated that
the Sharīˁa, in reality, consists of these universal maxims and mentioned that
Ḥanafī jurists applied them in various subjects of law.2 As this indicates, the
opinions of Ḥanafī jurists on issues of substantive law are the product of such
an approach.

2 Dahlawī, “Bayān maˀākhidh al-madhāhib al-aˀimma al-arbaˁa,” al-Buḍāˁat al-muzjāt, 129–130.

232 Chapter 11

The works and methodology of 4/10th century jurists such as Ṭaḥāwī, Karkhī
and Jaṣṣāṣ, who worked on the legal accumulation of the first generation of
Ḥanafī jurists by showing the relationship between their juristic achievement
and the Qurˀān and the Sunna, paved the way for the efforts of the follow-
ing generations to discern preceding differences of opinion and their revealed
(naqlī) and rational (ˁaqlī) bases. The legal activities of Qudūrī (d. 428/1037) and
his contemporaries are examples of such efforts. In addition to understanding
revealed (naqlī) and rational (ˁaqlī) bases there were increasing efforts in this
period to reconcile them. The works of Dabūsī echo the general inclination
of the Ḥanafī scholars of Transoxiana in this context. After the 5/11th century,
there were efforts to explain the similarities and differences between the epis-
temological foundations of the legal heritage and the logically based method-
ology. In all these approaches, issues that displayed the chief characteristics
of the school were considered and legal doctrine as a whole was expounded
through them.3
In both the works and published opinions of the Ḥanafī jurists of the first
generation there were maxims that would acquire their definite forms of
expression in later periods. The works of Abū Yūsuf and Shaybānī are full of
examples of such statements that are reminiscent of the established form
of later maxims. For instance, in the case of a slave who is prohibited from
making financial transactions but who nevertheless works for someone and
is then emancipated before the term is over, Shaybānī stated that the slave
will not receive payment, referring to a maxim which only the Ḥanafī school
adopts, “wage and responsibility cannot be combined (al-ajr wa al-ḍamān lā
yajtamiˁān).”4
There are numerous examples that demonstrate that later legal scholars
strove to relate the opinions of the first generation of Ḥanafī jurists to maxims.
Specifically, statements such as “the axiom (aṣl) of Abū Ḥanīfa,”5 “the axiom
of Abū Ḥanīfa and Abū Yūsuf,”6 “the axiom of Abū Ḥanīfa and Muḥammad
[Shaybānī],”7 “the axiom of the two”8 and “the axiom of the two Shaykhs [Abū
Ḥanīfa and Abū Yūsuf ]”9 show that later jurists studied the knowledge of the
first generation by identifying the axioms on which the legal heritage was

3 Wheeler, Applying the Canon in Islam, 12–13.

4 Shaybānī, Kitāb al-aṣl, 3: 39.
5 e.g. Sarakhsī, al-Mabsūṭ, 2: 96; 6: 222; 12: 106; 14: 62; Ibn Nujaym, al-Baḥr al-rāˀiq, 1: 141; 3: 69.
6 Sarakhsī, al-Mabsūṭ, 30: 239.
7 Marghīnānī, al-Hidāya, 4: 1675.
8 Ibn Nujaym, al-Baḥr al-rāˀiq, 3: 340.
9 Baghdādī, Majmaˁ al-ḍamānāt, 1: 287.
The Function of the Maxim 233

based. These expressions and their like provided material for maxims and sub-
maxims mentioned in the literature on maxims.
The 4/10th century witnessed two significant developments in Islamic legal
thought. Scholars used the legal heritage of the school to write commentaries
and compendia. At the same time, the first independent works of the maxim
literature were written. In less than two centuries the legal opinions of early
scholars were refined and some of the principles on which those opinions were
based were identified. Compendia and commentaries are the most impor-
tant elements of this process. Jurists of the 4/10th century had a tendency to
express particular rulings in universal forms, find the common points of issues
and summarize them as axioms or maxims. Such production of legal knowl-
edge can be seen among not only Ḥanafīs but also the Shāfiˁīs and Mālikīs. As
mentioned in chapter 5, Ibn al-Qāṣṣ in his al-Talkhīṣ and Khushanī in his Uṣūl
al-futyā mentioned many examples within this framework.

1 The Literature of Compendia

Compendia have the function of handbooks in certain disciplines such as exe-

gesis, ḥadīth, law, theology, history, literature and philosophy, and those that
have Arabic denotations such as mukhtaṣar, ikhtiṣār, khulāṣa, talkhīṣ, mulakh-
khaṣ, tahdhīb, muhadhdhab, muntakhab, muqtataf, ikhtiyār, mukhthār, wajīz
and mūjaz.10 Compendia, which scholars put together to systematize legal
doctrine, can be condensed from a longer legal corpora or a number of books,
or can be original works that do not follow other books. Since compendia are
concise, they do not discuss legal issues in detail. Instead general principles
and abstract rules are derived from common elements from different legal
fields.
In addition to the aims of memorization and instruction, on which Ibn
Khaldūn (d. 808/1406) comments in a critical manner in his famous book,
the goal of collecting the heritage of the past played an instrumental role in
the composition of legal compendia.11 Considering the limitations of the legal
theory articulated for the purpose of education in extensive texts that were
composed in the period in which the doctrinal development of legal schools
was continuing, the compendia played an important role in passing on the
knowledge of the schools and the development of legal terminology. Although

10 Arazi, “Mukhtaṣar,” EI2. Cf. Kara, İlim Bilmez Tarih Hatırlamaz, 21.
11 See Ibn Khaldūn, Muqaddima, 3: 1099.
234 Chapter 11

compendia became a specific genre in the 4/10th century, there were earlier
works which possessed the same features. In particular, the characteristic of
the compendia of the early period and the form of the legal works of the found-
ing period resemble each other in many ways. For instance, Ṭaḥāwī’s method
in his al-Mukhtaṣar is very similar to the way Shaybānī discusses issues in his
al-Jāmiˁ al-kabīr.
Since compendia were written to pass on the legal accumulation of the
schools. They were not always abridgements of a specific book, but rather
were concise summaries of knowledge produced by the founding jurists and
their disciples. This encompassing characteristic of compendia is highlighted
by several authors. For instance, Ṭaḥāwī begins his al-Mukhtaṣar by stating
that he builds his study on the legal opinions of Abū Ḥanīfa, Abū Yūsuf and
Shaybānī.12 Additionally, the main feature that distinguishes compendia from
detailed texts and commentaries is that they succinctly present the extensive
legal heritage. Hence, the structure of their expression is concise.
Compendia had a function that was different from that of the commentar-
ies in the development of the legal thought on maxims. In particular, the lan-
guage used in the compendia played a pivotal role in the terseness of the max-
ims in later periods. The systematic collection of opinions in both the works
of the founding fathers and later studies of jurists who examined the works
of the founding jurists represents an important stage in the development of
Islamic law. The fact that compendia bring together the legal issues in a meth-
odological integrity and pass them on in abridged form displays parallelism
to the legal approach to establishing maxims. Legal maxims and sub-maxims
are used in compendia in a concise manner to express the common feature of
the issues discussed without going into detail. This is how Ṭaḥāwī uses legal
maxims and sub-maxims in his al-Mukhtaṣar, which is considered to be the
first compendium in the Ḥanafī school.13 For instance, in the chapter on sales,
at the end of a section in which he discusses various issues he summarizes
the examples he has analysed with the sub-maxim “the choice [of returning
what is purchased] cannot be left as an inheritance.”14 The same sub-maxim is
mentioned in a similar way in primary sources such as al-Mabsūṭ and Badāˀiˁ,

12 Ṭaḥāwī, al-Mukhtaṣar, 14.

13 Cf. Ṭaḥāwī, al-Mukhtaṣar, the editor’s introduction, 3. Kātip Çelebi states that Ṭaḥāwī
arranged this work like al-Mukhtaṣar of Muzanī (d. 264/878). Kātip Çelebi, Khashf al-
ẓunūn, 2: 1627. Considering that Muzanī was Ṭaḥāwī’s uncle and that Ṭaḥāwī received
his first Islamic law education from him, such influence seems natural. Cf. Qurashī, al-
Jawāhir al-muḍiyya, 1: 273–274.
14 Ṭaḥāwī, al-Mukhtaṣar, 75.
The Function of the Maxim 235

but these works show extensive examples and differences of opinion within
the Ḥanafī school.15 Similarly, Ṭaḥāwī mentioned the issue of transferring the
right of pre-emption in the sale (shufˁā) of land, which is disputed within the
Ḥanafī school, by succinctly stating “[the right] of pre-emption cannot be left as
inheritance,” without going into detail.16 In contrast, Sarakhsī stated that this
is one of the issues mentioned in Shaybānī’s al-Aṣl, giving extensive informa-
tion about the issue. For instance, he stated that if someone commits apostasy
or dies in that state, his heirs cannot demand pre-emption since the right of
inheritance will not be transferred to them, because “the right of pre-emption
cannot be left as inheritance.”17
Just as in the genre of commentaries, in compendia sub-maxims are usu-
ally used to explain legal issues and differences of opinion. These sub-maxims
are mainly written using the expressions ‘whoever’ (man) and ‘all’ (kull). For
example, while discussing issues of the contract for sale, Ṭaḥāwī mentioned
the option of voiding the purchase of a product, bought unseen, after it is seen,
stating “a person who buys something he has not seen has the option of sight
(khiyār al-ruˀya).”18 Similarly while discussing partnership, after mentioning
the general features of the partnership types equal partnership (mufāwaḍa)
and partnership in traffic (ˁinān) Ṭaḥāwī summarizes the issue by stating “the
equal partnership is permissible with all properties with which the partnership
in traffic is permissible.”19 These sub-maxims not only summarize the subject,
but also have the functions of explaining the legal cause on which the issue is
based and facilitating the production of maxims. In this respect, such expres-
sions in the legal works of the formative period have paved the way for the
maxims and sub-maxims mentioned in maxim literature of later periods. The
sub-maxim in the Majalla “whatever is necessary for the validity of the partner-
ship in traffic is also necessary for the validity of equal partnership” represents
such relationship.20
The setting out of legal maxims in compendium literature has different var-
iations. They are set out in plain form using the terms “the axiom (al-aṣl)” and

15 Sarakhsī, al-Mabsūṭ, 7: 90; 8: 73; Kāsānī, Badāˀiˁ al-ṣanāˀiˁ, 4: 102, 106.

16 Ṭaḥāwī, al-Mukhtaṣar, 123.
17 Sarakhsī, al-Mabsūṭ, 14: 157. One can also mention within this framework sub-maxims
such as “the sale of something that is not in one’s possession is impermissible” and “deter-
mining the price of people’s properties is impermissible [ for the government].” Ṭaḥāwī, al-
Mukhtaṣar, 84, 90. Ibn Abī Shayba attributes this last statement in his Muṣannaf to Ibn
Sīrīn and Shaˁbī. Ibn Abi Shayba, Kitāb al-muṣannaf, 5: 23.
18 Ṭaḥāwī, al-Mukhtaṣar, 84.
19 Ibid, 108.
20 Majalla, cl. 1363.
236 Chapter 11

“the maxim (al-qāˁida)” as well. However, as has been discussed in the previous
chapter, in the early sources the word “maxim” is not often used; instead the
word “axiom” is used. Although in the early periods the word “axiom” does not
directly refer to the maxim, it was used to mean different things, including
the maxim. It was thus used in a form that prepared the way for its usage as
meaning maxim. In works of the early period such as Ṭaḥāwī’s al-Mukhtaṣar,
“axiom” is used to mean maxim and sub-maxim. For instance, Ṭaḥāwī uses
the word in this meaning while discussing the difference of opinion within
the Ḥanafī school about rent (ijāra). If one rents out a house and then sells it
before the term is over, there are different possible legal outcomes and conse-
quential rulings. After setting out the opinions of Abū Ḥanīfa, Abū Yūsuf and
Shaybānī on these issues, Ṭaḥāwī chooses one opinion, explaining his choice
as follows: “This opinion is closer to the agreed-upon axioms of Abū Ḥanīfa in
this issue.”21 The similarity of the way jurists in later works use legal maxims to
make selections between opinions on disputed issues within the school and
the way Ṭaḥāwī refers to the axioms of Abū Ḥanīfa while making a choice is
significant in illustrating the role maxims play in determining preponderance
in legal controversies.
Al-Mukhtaṣar of al-Qudūrī, which he wrote a century after Ṭaḥāwī and in
which he summarized the opinions of the founding jurists as well as jurists of
the early period such as Ṭaḥāwī, Karkhī and Jaṣṣāṣ, is a seminal work for both
the genres of maxims and compendia. Qudūrī’s Mukhtaṣar was highly influ-
ential and has had a determining role in the development of later Ḥanafī legal
doctrine. It has been stated that Qudūrī’s Mukhtaṣar is based on the work of
Jaṣṣāṣ, whose work is based on that of Karkhī, and Karkhī’s work is based on
that of Ṭaḥāwī.22 Compared to the compendia predating it, the terminology
and method Qudūrī uses in his Mukhtaṣar are quite developed.23 Both the ter-
minology of the work and its structure of expression have features that pave the
way for legal maxims. Therefore, it played an instrumental role in the develop-
ment of the legal thought on maxims in the Ḥanafī school both because of the
structure of its expression and the fact that it provides maxims in explaining
legal issues. In some chapters of the book, approximately every sentence is like
a maxim in terms of its structure of expression. This is an important factor that
influenced the concise forms of legal maxims in later periods. The chapter on
the revocation of a sale (iqāla) represents his articulation of issues in his book:

21 Ṭaḥāwī, al-Mukhtaṣar, 130–131. For a similar approach see ibid, 137.

22 Wheeler, Applying the Canon in Islam, 117, 118 fn. 19. For al-Qudūrī’s life and his work see
Al-Azem, Rule-Formulation and Binding Precedent in the Madhhab-Law Tradition, 23–36.
23 Meron, “The Development of Legal Thought in Hanafi Texts,” Studia Islamica, 78.
The Function of the Maxim 237

Revocation is permissible in a sale contract if it is given back with the

like of the first price. If a price that is lesser or greater than the first price
is stipulated, this condition is void and the like of the first price is given
back. According to Abū Ḥanīfa, the revocation is cancelation for the orig-
inal parties to the contract; for others it is a new sale. If the original pay-
ment ceases to exist, this is not an impediment for the validity of the
revocation. If the sold item ceases to exist, this impedes the validity. If a
portion of the sold item ceases to exist, revocation is permissible in the
remainder.24

Compared to Ṭaḥāwī, Qudūrī expresses legal rulings with a more concise struc-
ture of expression. Qudūrī changes rulings into sub-maxims by making their
expressions more abstract and transforms sub-maxims into maxims by increas-
ing their scope. For example, at the end of the section on cost-plus profit sale
(murābaḥa) and at-cost sale (tawliya) he discussed issues related to immediate
and postponed payments, stating as a general principle, “whoever sells a prop-
erty for an immediate payment and then postpones it, the contract becomes post-
poned.” Afterwards, he expresses this more abstractly as a maxim, “every imme-
diate debt becomes postponed when the creditor postpones it.”25 Considering the
abstract nature of maxims, these abstractions that are significant for Islamic
legal thought can be perceived as efforts to create maxims. It is conspicuous
that principles that have achieved enduring expression in maxims literature
written in later centuries result from such a tendency towards abstraction in
works of substantive law. Hence, articulating the common points of numer-
ous issues as sub-maxims through concise expressions and then combining
the common points of similar sub-maxims laid the foundation for universal
maxims.
Compared to commentaries, compendia, which contain only the cardinal
idea relating to the issues they discuss and express this in a succinct man-
ner, rarely go into explaining the causes of issues. Consequently, compendia
contain principles that have the nature of sub-maxims, which govern a nar-
rower subject and are applicable to all its issues. For examples, the sub-maxim
Qudūrī quotes at the beginning of the chapter on rent, “it is permissible for any-
thing that can be paid as price in a sale contract to be given as payment in a rent
contract,” is a principle that governs issues of rent.26 Although the meaning

24 Qudūrī, al-Mukhtaṣar, 85.

25 Ibid, 86.
26 “Mā jāza an yakūna thamanan fī al-bayˁ jāza an yakūna ujratan fī al-ijārati.” See Qudūrī,
ibid, 101.
238 Chapter 11

expressed by this sub-maxim was present as an idea in sources before Qudūrī,

he was the one who for the first time articulated the formulation mentioned
above. Abū al-Barakāt al-Nasafī (d. 710/1310) expressed the same principle in
the form “something that is valid as a price is valid as payment,” which is more
concise and abstract.27 This sub-maxim, which is discussed in various ways
within the commentaries on Nasafī’s compendium, is mentioned as follows in
the section on rent in the Majalla: “Just as what is suitable as a price in a sale
is suitable as payment in rent, what is not suitable as a price can also be used as
payment in rent.”28
As noted earlier, issues are usually explained through generalizations in spe-
cific forms in legal compendia. This style, which requires the governing prin-
ciple of the subject to be concisely explained, refers to the maxims and sub-
maxims predominating the legal reasoning of the school of law. For example,
the sub-maxim Qudūrī mentions at the beginning of the chapter on agency
(wakāla), “designating someone as a proxy is permissible in every contract that a
person can carry out himself,” succinctly states that agency depends upon legal
competence to make contracts.29 Contracts such as currency exchange (ṣarf)
and pre-payment for later delivery (salam), which Qudūrī discusses within the
framework of agency, are strongly linked with the opinion “parties in a contract
must have execution capacity (ahliyyat al-adāˀ).”30
The fact that compendia combine the common points of various issues and
express them in a concise manner, at times using abstractions, is a feature of
compendia composed in the middle period of the history of Islamic law. For
instance, Molla Khusraw (d. 885/1481), the author of Ghurar al-aḥkām, discusses
in the section on what breaks the ritual ablution some causes, presenting their
common point as a sub-maxim. Whether vomit or blood breaks the ritual ablu-
tion depends on whether it has mixed with another substance and its quantity.
Hence a small amount of vomit coming from the upper stomach and blood
that is mixed with saliva when its quantity is less than that of the saliva does
not break the ritual ablution. This is because a small amount of vomit comes
from the upper stomach which is not a place of impurity and a small amount
of blood, if it does not flow, is not impure. Flowing blood is impure because
human meat is prohibited, since Allah has ennobled the human being. Hence,
although flowing blood is prohibited, it is pure in its origin. Molla Khusraw

27 “Mā ṣaḥḥa thamanan ṣaḥḥa ujratan.” See Nasafī, Kanz al-daqāˀiq, 104.
28 Majalla, cl. 463.
29 “Kullu ˁaqdin jāza an yaˁqidahu al-insānu bi nafsihi jāza an yuwakkila bihi ghayrah”. See
Qudūrī, al-Mukhtaṣar, 115.
30 For similar generalizations see Qudūrī, 119, 122, 163.
The Function of the Maxim 239

formulates the governing idea of this issue as a sub-maxim by saying “what

does not break purity is not impure.”31
Molla Khusraw states the maxim that is mentioned in the Majalla as “writ-
ing is like speaking (al-mukātabah ka-l-mukhāṭabah)” in Ghurar al-aḥkām in
the form “writing and sending a letter are like speaking (al-kitāb wa al-risālah
ka-l-khiṭāb).”32 He refers to this maxim in the chapter on sales while explain-
ing that, just as a sale can take place orally, it can also take place by letter or
through sending news. Molla Khusraw thus shows that a contract can be made
by two persons who are not present through the sending of news in addition to
writing. Hence, contracts in which the parties are present and those completed
through writing or sending news are the same in terms of their legal conse-
quences. The author says this using a concise maxim in the form “writing and
sending a letter are like speaking.”33
Ibrāhīm al-Ḥalabī’s (d. 956/1549) al-Multaqāˀ was widely known especially
in Ottoman lands and was based on Qudūrī’s Mukhtaṣar, Mawṣilī’s al-Mukhtār,
Nasafī’s Kanz al-daqāˀiq and Burhan al-Sharīˁa’s Wiqāyat al-riwāya. However,
in terms of its arrangement Multaqāˀ follows Nasafī’s Kanz al-daqāˀiq. If the
opinion al-Ḥalabī prefers cannot be found in one of these works, it will be
found in al-Marghīnānī’s al-Hidāya or Muẓaffar al-Dīn Ibn Saˁātī’s (d. 694/
1295) Majmaˁ al-baḥrayn. Al-Multaqāˀ, which was described by Ahmed Cevdet
Paşa as “a robust text (metn-i metīn)”, and Shaykhīzāde’s (d. 1078/1667) famous
commentary, Majmaˁ al-anhur, had a noticeable impact on the maxims in the
Majalla.34 As in other compendia, there are legal maxims and sub-maxims in
al-Multaqāˀ. The author mentions a maxim or a sub-maxim at the beginning
of several subjects and then builds the remainder of the section on those prin-
ciples. For instance, at the beginning of the section in which he explains the
rulings on entitlement (istiḥqāq), he sets out the maxim “proof established by
oral testimony is transitive while confession is binding proof only on the confessor
(al-bayyinatu ḥujjatun mutaˁaddiyah wa al-iqrār ḥujjatun qāṣirah),” then lists
several examples which rely on that maxim.35

31 Molla Khusraw, Ghurar al-aḥkām, 1: 14–15. For the same sub-maxim and related exam-
ples see Ṣadr al-Sharīˁa, Sharḥ al-Wiqāya, 1: 30. The same subject is discussed in other
sources and is explained by the maxim “ruling is according to the majority.” E.g. Mawṣilī,
al-Ikhtiyār, 1: 16–17.
32 Majalla, cl. 69.
33 Molla Khusraw, Ghurar al-aḥkām, 2: 144.
34 Has, “The Use of Multaqa’l-abḥur in the Ottoman Madrasas and in Legal Scholarship,”
Osmanlı Araştırmaları, 393–418.
35 Ḥalabī, Multaqāˀ al-abḥur, 2: 42–45. For the same maxim see Majalla, cl. 78.
240 Chapter 11

In compendia, rulings are at times set out with universal modifiers such
as “all,” “whoever” and “whichever.” In the chapter on purification, Ibrāhīm al-
Ḥalabī explains some examples in this way, thus showing through these gener-
alizations that these rulings are applicable to similar issues. Propositions that
have universal forms such as “every hide that is tanned is pure,” “everything that is
purified through tanning is also purified through slaughtering” and “the urine of
every animal whose meat can be eaten is impure” are such examples.36 However,
these examples are not so much maxims as sub-maxims that encompass dif-
ferent forms of an issue or a ruling that is under a sub-maxim. Considering that
maxims and sub-maxims are formed when common elements of such expres-
sions are brought together, these paved the way to a great extent for obtaining
legal maxims.
Although compendia are significant for the literature on maxims because of
both the structure of their expression and the maxims and sub-maxims they
set out, some compendia do not contain legal maxims. One example of this is
Ibn Saˁātī’s (d. 694/1295) Majmaˁ al-baḥrayn, which is considered one of the
four primary texts of the Ḥanafī school and is based on Qudūrī’s al-Mukhtaṣar
and al-Manẓūma of Abū Ḥafs Najm al-Dīn ˁUmar al-Nasafī.37 Ibn Saˁātī sets
out intra-and inter-madhhab differences of opinion in an original scheme.
In Majmaˁ al-baḥrayn, Ibn Saˁātī quotes the opinions of the Ḥanafī founding
jurists without adducing evidence for them and he does not use legal maxims.
He does not select between the opinions he transmits and rarely mentions the
legal causes of rulings. Hence, compendium authors who do not go into the
evidence for the issues, do not provide causes for the rulings, and do not make
selections when there is a difference of opinion do not go into legal maxims
and sub-maxims.
Legal compendia have played a pivotal role in the systematic development
of legal-theoretical thought. The development of legal opinions by presenting
them in a theoretical framework and constantly evaluating them was made
possible by the literature on commentaries and glosses. Maxims and sub-
maxims fulfilled an important function in commentaries and glosses as later
jurists analysed the legal doctrine of previous generations, seeking to justify
their opinions and bring to light the principles they espoused.

36 Ḥalabī, Multaqāˀ al-abḥur, 1: 26.

37 Ibn al-Saˁātī, Majmaˁ al-baḥrayn, 60–68.
The Function of the Maxim 241

2 The Literature of Commentaries and Glosses

Commentaries (sharḥ) and glosses (ḥāshiya) are works that take an underlying
base text (matn) as their axis and aim to facilitate the correct understanding of
the text, preserve the legal tradition within it, establish continuity and register
related information.38 Commentaries are studies based on a text, while glosses
explain certain words, expressions and proper names that are in the text or the
commentary and discuss the statements from the Qurˀān and the Sunna and
lines of poetry that are used as proofs. One of the main impetuses that gave rise
to the compilation of glosses is that while commentaries discuss the evidence
for legal opinions, they do not elucidate all aspects of the text. Consequently,
glosses aim to explain expressions in the commentaries that are difficult to
comprehend. Moreover, glosses also provide additional information and at
times criticize the commentator.39
Commentaries and glosses on the foundational texts of legal schools
constitute an important scholarly tradition in Islamic law. In these works,
while jurists systematically analyse legal rulings, they keep the knowledge
of the school in mind and build their legal doctrine on that foundation. This
approach, which facilitates teaching within the system of the school and pro-
duces legal knowledge according to the school’s main principles, establishes
a link with the past and provides a bridge to the future. Establishing a link
with the past is not achieved in the form of directly obtaining rulings from
the scriptures, but rather by understanding how the first generation of legal
scholars understood those sources. This approach creates a tradition of legal
thought that is tightly connected. Understanding statements of revelation
through this tradition prevents eclectic and inconsistent thinking and enables
the opinions of jurists to be verified. Therefore, commentaries and glosses are
not just repetitions of previous works, but they are built on legal thought by
critiquing previous opinions. In this process, these works extensively explain
the evidence for previous opinions on various issues and how they differ from
other approaches. Hence, rather than directly interpreting statements of the
scriptures, these works attempt to identify how the predecessors understood
them and try to understand them in this way. This approach has significantly
contributed to efforts to achieve consistent and principled juristic thinking.
The second primary feature of the literature on commentaries and glosses
is that it constitutes a bridge between the past and the future. Just as legal

38 Kara, İlim Bilmez Tarih Hatırlamaz, 19.

39 Topuzoğlu, “Hāşiye,” DİA, 16: 419–420. For the function of ḥāshiya in Islamic law see El
Shamsy, “The Ḥāshiya in Islamic Law,” Oriens, 289–315.
242 Chapter 11

scholars who wrote commentaries and glosses have served the function of
grasping the wisdom of the past and explaining how issues were previously dis-
cussed, they have also influenced the legal doctrine of later jurists. The works
of those authors, which discuss in detail the school’s approach to legal issues
and establish the theoretical foundation of that approach, provide a method-
ology for later generations that shows them how to understand the legal her-
itage. This shows the pedagogical aspect of commentaries and glosses: They
illustrate how to select the most authoritative out of a spectrum of divergent
opinions within a legal school and how to weigh and choose between the dif-
ferent methods of understanding and interpretation within the school and
the criteria for those selections. These texts that bring together the accumu-
lation of legal knowledge from the first generation of the school in which the
school’s knowledge was first produced as well as later generations thus provide
a bridge between the early periods and the periods that follow the commen-
tator (shāriḥ).
The compilation of commentaries did not commence with the studies on
the works of the founding fathers of the school by the second, third and later
generations of followers of a legal school; on the contrary, the first examples
of commentaries are works of the first generation of scholars who tried to
interpret the scriptures. The way these jurists link statements of scriptures
with legal issues paved the way for the tradition of writing commentaries on
underlying base texts (mutūn). Commentaries thus are important as works
that produce legal knowledge by interpreting the accumulated knowledge of
the school. Authors of commentaries interpreted and transmitted the teach-
ings of leading jurists and converted them into the paradigm that came to
form the basis of the school’s maxims. As jurists systematically discussed the
legal heritage of the school taking into consideration the opinions and critique
of other jurists, it became necessary to show that the legal accumulation was
based upon certain principles and to adduce those principles to support the
opinions adopted. This approach necessitates referring to maxims and sub-
maxims in commentaries.
Identifying the principles on which statements in previous texts and com-
mentaries were based and stating the common principles that linked many
substantive issues are among the primary features of the genres of commentar-
ies and glosses. As a result, the material that paved the way for the literature on
maxims was primarily produced in commentaries and the glosses attached to
them. After attaining a degree of maturity, this material was brought together
in the literature on maxims. The effort to find the causes of legal rulings in
commentaries and extensive glosses naturally necessitated the presentation
of axioms upon which substantive issues were built. Articulating the common
The Function of the Maxim 243

link between the substantive issues in primary texts by identifying the causes
of legal issues and obtaining legal axioms from those causes is similar to infer-
ring major premises from minor premises.
Among the Ḥanafī jurists of the founding period who gathered together the
legal heritage of the school and became influential in legal doctrine by passing
this on to later generations was undoubtedly Shaybānī. Among his works, the one
that is especially important as regards maxims is al-Jāmiˁ al-kabīr. A remarkable
metaphor about how he wrote this work is set out:

Ṭaḥāwī narrates from Muḥammad b. al-Hasan b. Mirdās, and he from

Muḥammad b. Shujāˁ: “Muḥammad b. al-Ḥasan Shaybānī’s example in al-
Jāmiˁ al-kabīr is like that of a man building a house. Each time he raises the
house he builds a step and reaches to the highest point of the house. He
completes the building of the house in this way. Then he comes down and
destroys the stairs and says: Now you raise it.”40

The symbol of stairs in this metaphor is the principles on which al-Jāmiˁ al-kabīr is
based. As can be understood from the commentaries written on the work in later
periods, the fact that there is a maxim for every substantive issue is what makes
one think like this. Because of this aspect of the work, some of the commentaries
on al-Jāmiˁ al-kabīr will be analysed in detail below.
The first commentaries in the Ḥanafī school are on the works of Shaybānī.
Among these the ones that are important as regards maxims are the commen-
taries on al-Jāmiˁ al-kabīr. The concise style of expression in al-Jāmiˁ al-kabīr
paved the way for the concept of the maxim and led to many commentaries
being written on the work. Since the study of Jaṣṣāṣ, which is the first extant
commentary on al-Jāmiˁ al-kabīr, jurists commenting on this work have fol-
lowed the method of setting out at the beginning of the relevant chapter the
legal maxims that govern the legal issues discussed or the particular subject.
This method, which is called taˀṣīl or maslak al-taˀṣīl, is different from that
used in commentaries of referring to maxims as legal ratiocination (taˁlīl) and
was one of the factors that led to the birth of an independent genre on max-
ims. This style, which has been followed in commentaries since the 4/10th cen-
tury, does not pertain to the Ḥanafī jurists but can also be seen in other legal
schools.41

40 Kawtharī, Bulūgh al-amānī, 58.

41 For instance, Mālikī jurist al-Khushanī follows a similar method in his Uṣūl al-futyā. He
also first sets out an axiom related to the subject and then elaborates substantive issues
as instantiations. As in the examples of “the axiom of the opinion of Mālik b. Anas,” “the
244 Chapter 11

Jaṣṣāṣ’s commentary on al-Jāmiˁ al-kabīr is important for maxims both

because he was the pupil of Karkhī who played an instrumental role in the
literature on maxims and because his work encompasses numerous maxims
and sub-maxims and had an impact on other commentators. In this work, after
mentioning the opinions of Shaybānī on various legal issues, Jaṣṣāṣ sets out the
governing principle, analysing subsequent substantive issues by referring to it.
Although this method is not frequently followed in the literature on substan-
tive law, it has influenced subsequent works on maxims. In most cases, Jaṣṣāṣ
sets out the legal maxims and sub-maxims at the beginning of the issue he
deals with, referring to the maxim as he discusses the subject. In other cases
he does not mention the maxim at the beginning but instead while explaining
the legal cause or making derivations or determination of preponderance in
the discussion of the subject. Although Jaṣṣāṣ mentions the maxims related
to the subject he elaborates using expressions such as “the axiom concerning
that”, “the axiom in this chapter” and “the axiom in these issues,”42 sometimes he
says “because (li annahu)”, “that is because (dhālika li anna)”, or “that is because
the case is that (dhālika li annahu)”. Sometimes, he mentions maxims without
using any set phrase.43 Jaṣṣāṣ does not use these expressions only while trans-
mitting maxims; he mentions them in a wide range of usage that also includes
statements of scriptures and other sources of legal opinions.44 Here I will focus
on how Jaṣṣāṣ passes on legal maxims and how he builds legal issues on them.

axiom of the opinion of Mālik b. Anas and the transmitters of his companions,” “the axiom
of the opinion of Mālik b. Anas and the transmitters from his companions,” “from their well-
known axioms,” “the axiom of their opinion,” “the axiom of Mālik in this subject,” “of their
axioms in this chapter,” “of their axioms concerning rent,” al-Khushanī mentions the axi-
oms by attributing them to the eponymous founder of the school and his pupils. At other
times, using expressions such “the axiom in the sale of murābaḥa,” “the axiom concerning
debt,” “the axiom concerning foundling,” and “the axiom of the opinion concerning compen-
sation,” he applies maxims by attributing them directly to the issue being discussed. See
Al-Khushanī, Uṣūl al-futyā, 47, 49, 52, 59, 61, 132, 143, 146, 231, 239, 310, 331. For instance,
he says, “the axiom of Mālik b. Anas and his companions is the following: every water which
gets mixed with something pure or impure loses its feature of being water that is purifying
and with which one is commanded to do ablution if what is mixed with it becomes dominant
in terms of its smell, taste, or color.” Al-Khushanī then mentions many issues of ablution,
showing with examples how this sub-maxim governs them. His work, therefore, is signif-
icant in including many maxims and sub-maxims. Al-Khushanī, Uṣūl al-futyā, 47–48.
42 Jaṣṣāṣ, Sharḥ al-Jaṣṣāṣ ˁala l-jāmiˁ al-kabīr, fol. 128b, 131b, 138a, 145a, 146b, 169b, 176a,
178b, 180b, 190b, 250a-b, 264b, 265b, 295b, 312a, 319a, 332a, 333a, 339b, 347a, 352b, 357b,
399a, 401b.
43 Ibid, fol. 184b, 185a, 185b, 252a, 369b.
44 Ibid, fol. 132b, 214b.
The Function of the Maxim 245

Jaṣṣāṣ mentions the following concerning one who has to give alms (zakāt)
but is in debt. What type of property does he have to prioritize while paying
his debts?

Muḥammad [Shaybānī] says: Concerning a man who has camels, cows,

and sheep that grazes, silver and gold coins, as well as trade goods, but
also has debt that encompasses some of this property, Abū Yūsuf and
Muḥammad [Shaybānī] say that the debt will be taken from the silver
and gold coins and trade goods until it encompasses all of them. If there
is still debt remaining, it will be taken from the remaining properties.
Abū Bakr [Jaṣṣāṣ] says: The axiom concerning this subject is that debts
are paid by properties that are easiest to pay with.45

Jaṣṣāṣ then explains this axiom through other examples, stating that the debtor
should not be harmed by types of payment that are not beneficial for the cred-
itor. Jaṣṣāṣ states that this is the basis of Shaybānī and Abū Yūsuf’s opinion
concerning the order of types of property with which debts are to be paid, for
which they offered no explanation. As can be understood from references to
the maxim in the discussion of other issues related to the subject, Jaṣṣāṣ offers
this principle as the cause of substantive rulings, explaining related issues with
it. Jaṣṣāṣ mentions principles governing legal issues as causes of the opinions
he passes on from the founding jurists, which is a method he applies in various
places in his commentary. For example, he explains an opinion of Shaybānī
concerning bridal gift (mahr), which is the amount the bridegroom must pay
to his spouse, as follows:

Issue: If one marries a woman for clothes that are worth a hundred sil-
ver coins [as a mahr] and the woman does not take hold of them, and
then the clothes get ruined without the action of the man or anyone else
and their value drops to five silver coins, the woman has a choice. If she
wants, she can take the clothes. In this case nothing else is due to her.
If she wants, she can take the worth of the clothes on the day she gets
married. Abū Bakr [Jaṣṣāṣ] says, the axiom concerning this situation is
this: Indemnity is not paid for things that are sold based on a contract;
it is paid if they are taken into possession. This is because the separation
of sold items does not become valid through the contract, but by tak-
ing possession. When the woman has the choice, she chose to accept the

45 Ibid, fol. 127a and passim.

246 Chapter 11

item, because the parts of the item upon which the contract took place
could not be divided. In this case, based upon the maxim we stated ear-
lier, “indemnity is not paid for things that are sold based on a contract;
it is paid if they are taken into possession,” she does not have the right
to receive indemnity for the parts of the clothes that were ruined. The
clothes are in the possession of the husband as his responsibility accord-
ing to the contract. Likewise, they have stated concerning what is sold
that if a defect occurs in the possession of the seller, the buyer has the
option of either buying the item with the full price or canceling the sale
according to this maxim. He has distinguished the decrease in the price
from the defect in physical existence because the item in the contract is
present with all its parts even if the price has decreased. However, when
there is a deficiency in its physical existence, it is possible that some of its
parts are destroyed. Consequently, a decrease in the price and a decrease
in the physical existence are separate.46

As this example demonstrates, Jaṣṣāṣ adduced a maxim for the opinion of

Shaybānī concerning the mahr, explaining it with an example from contract
law. The fact that he refers to the maxim again after mentioning it at the begin-
ning and mentions it again as a cause concerning a different issue of selling
is significant, in that it shows that legal maxims are used in commentaries to
explain the effective causes of legal matters and to justify opinions. The fact
that a maxim can be explained by examples from different legal issues illus-
trates the abstract nature of maxims that makes them suitable to be applied to
different subjects.
In the genre of commentaries, the divergent opinions within the legal school
are discussed in detail together with the evidence on which the opinions are
based. Although the evidence and the principles that support the opinions may
not be explicitly mentioned in the sources, the commentator discusses them.
For example, concerning an issue in which Ḥanafī jurists of the early period
were at variance, Jaṣṣāṣ passes on Abū Ḥanīfa’s opinion using the phrase “Abū
Ḥanīfa built this issue upon his axiom (banā Abū Ḥanīfa hādhihi al-masˀala ˁalā
aṣlih).” Thus, he indicates that Abū Ḥanīfa’s difference of opinion with other
legal scholars is due to the axiom he adopted.47 This approach is significant
in that it proves that differences in classical sources among jurists of the same
school or among different schools are due to legal principles.

46 Jaṣṣāṣ, Sharḥ al-Jaṣṣāṣ ˁalā l-jāmiˁ al-kabīr, fol. 145b-146a.

47 Ibid, fol. 189b-190a. For other examples see ibid, fol. 223b, 224a, 230b.
The Function of the Maxim 247

Because authors do not always mention the principles that constitute the
bases of legal issues, they are sometimes difficult to identify. Despite this, later
jurists analysed issues in the works of early legal scholars and explained them
within the framework of maxims. In this respect, legal maxims have been used
as an important criterion in evaluating the legal articulation of the schools.
While treating a legal issue, jurists have shown that it is in harmony with other
examples through legal maxims. Therefore, legal maxims illustrate the consist-
ency of rulings concerning different subjects. For instance, after setting out
Shaybānī’s opinion on an issue related to bequests, Jaṣṣāṣ stated, “this is valid
based upon the axiom we have transmitted before,” indicating that an individual
issue is based on the same principle as others.48
In contrast to maxim works in which maxims and sub-maxims are catego-
rized according to the scope of their subjects, in legal corpora they are men-
tioned as the need arises within the framework of the issues to which they
are related. Although whether a maxim is generally accepted is rarely men-
tioned, there are times when it is stated that a maxim or sub-maxim belongs
to a certain school or is also accepted by other schools. While a maxim which
only one school adopts is significant in showing the characteristics of that
school, maxims that are agreed upon among schools echo the general fea-
tures of Islamic legal thought. Although commentaries usually transmit max-
ims without attributing them to a specific school, sometimes they do contain
attributions to the author’s school. Rarely do they mention that a maxim is
generally accepted. For example, after setting out an opinion of Shaybānī,
Jaṣṣāṣ mentions that the issue is based on a certain axiom. But at one point, he
states, “Muḥammad [Shaybānī] based this issue on an axiom that is agreed upon
among the people of knowledge (ahl-al ˁilm),” emphasizing that the axiom he
transmits is generally recognized by scholars. Considering the general charac-
teristic of the work, one can conclude that people of knowledge intended here
also include jurists outside the Ḥanafī school. By indicating that the principle
set out is not one which only Ḥanafī jurists accept, Jaṣṣāṣ shows the scope of
the maxim’s recognition. This distinction that is already being made in the 4/
10th century, which can be considered within the early period, between max-
ims that are generally accepted and those which a single school adopts is sig-
nificant as a feature that would influence the composition of maxim works in
later centuries. Afterwards Jaṣṣāṣ states the following concerning the examples
he sets out: “Muḥammad [Shaybānī] interprets this issue according to the axiom
concerning barāˀa [release, exemption from a duty or from an accusation] and

48 Jaṣṣāṣ, Sharḥ al-Jaṣṣāṣ ˁalā l-jāmiˁ al-kabīr, fl. 265a.

248 Chapter 11

bases the other issues on another axiom that is agreed upon.” These expressions
evince not only that substantive issues are based on axioms in general, but also
that each substantive issue Shaybānī mentions is based on a maxim. Jaṣṣāṣ
concludes this section as follows: “He [Shaybānī] refers each issue of substantive
law to the axiom it resembles.”49
Rukn al-Dīn al-Kirmānī (d. 543/1149), who wrote a commentary on al-Jāmiˁ
al-kabīr and was the leading Ḥanafī jurist of Khurasan, continues in his Nukat
al-Jāmiˁ al-kabīr the method he inherited from previous commentators of
indicating the maxims and sub-maxims related to the issues in the text.50 Like
Jaṣṣāṣ, he sets out maxims using phrases such as “the axiom concerning that”,
“the axiom in this chapter” and “the axiom in these issues”.51 For instance, the
chapter on ritual prayer starts as follows: “Chapter on ritual prayer: The axiom
in this subject is this. The ritual prayer performed after its due time is like a ritual
prayer which has been missed.”52 Afterwards al-Kirmānī gives examples related
to this issue, showing the principle mentioned being applied. As previously
stated, presenting maxims and sub-maxims at the beginning of a chapter and
then analysing related examples within the framework of those principles is
not widespread in the literature of substantive law, but is specific to the com-
mentaries on Shaybānī’s al-Jāmiˁ al-kabīr.
Al-Kirmānī, unlike Jaṣṣāṣ, uses expressions such as “the chapter is based on
that,” “this chapter is based on that,” “Shaybānī based the chapter on that” while
setting out maxims and sub-maxims. For example, he bases issues concerning
prostration (sajdah) on the maxim “this section is based on the fact that a session
encompasses those things that are repeated according to need”, which he sets out
at the beginning of the section. Then he gives examples showing that a single
prostration of recitation is necessary if several verses of prostration are recited
in a single session, analysing various issues related to the subject.53 Similarly, at
the beginning of the book of sales, he states the following concerning defects
that occur in sold items: “This subject is based on the fact that the right to return
an item due to a defect (khiyār al-ˁayb) is established after the defect occurs.”54
Then he tries to show that many examples related to the option in the case of
a latent defect are based on this maxim.

49 Jaṣṣāṣ, Sharḥ al-Jaṣṣāṣ ˁalā l-jāmiˁ al-kabīr, fl. 374a-b.

50 Qurashī, al-Jawāhir al-muḍiyya, 2: 388.
51 Kirmānī, Nukat al-Jāmiˁ al-kabīr, fl. 7a, 11b.
52 Ibid, fol. 1b.
53 Ibid, fol. 3a. For other maxims Kirmānī sets out using the same expression see ibid, fol.
42b, 60b, 69a, 107b, 141b, 165a, 167a.
54 Ibid, fol. 167a.
The Function of the Maxim 249

While al-Kirmānī sets out the maxims on which the issues Shaybānī men-
tions in each chapter are based in the beginning of that chapter, at times he
explicitly states that the whole chapter is based on a single maxim. He states
this in the following way in an issue related to indemnity:

The section on the usurpation (ghaṣb) of a minor, a freeman, and a

slave: Muḥammad b. Ḥasan [Shaybānī] mentions many issues in this sec-
tion. These are based on a maxim. This is that in an indemnity caused
by an action, a minor, an adult, and a slave are equivalent, because the
actions of each occurs in the same way.55

Legal corpora not only present substantive maxims, but also refer to juris-
prudential maxims as need be. For example, at the beginning of the section
in which he discusses oaths, al-Kirmānī sets out the maxim “Axiom: So long
as there is no evidence that a statement is figurative, it is literal.” He then eval-
uates the opinions of the jurists of his school on different issues within the
framework of that maxim.56 al-Kirmānī deepens the discussion of the figura-
tive meaning by passing on other maxims. While discussing issues concerning
oaths, he mentions maxims such as “what is assumed in a statement is its literal
meaning, by the indication of custom, the figurative meaning is taken” and “what
is assumed in a statement is its literal meaning.”57
In addition to principles on which legal issues are based and that echo the
legal doctrine of a school, legal analysis also involves linguistic and logical max-
ims. Legal scholars pass on principles of this kind as the need arises, discussing
rulings that are based on them. These principles which are related indirectly to
legal issues because of their subjects are significant in terms of reflecting the
relationship between legal thought on the one hand and language and logic on
the other. Such principles, like legal maxims, have the function of testing the
validity of rulings and highlighting their internal consistency. For example, in
various issues al-Kirmānī discusses maxims of this type, trying to illustrate the
principles on which the issues he analyses are based.58
Although maxims in legal corpora apply more to certain fields, such as
rent, agency, salam (prior payment for later delivery), marriage, etc., some

55 Ibid, fol. 166b.

56 Ibid, fol. 18b. This maxim is mentioned in the Majalla as “the original condition of speech is
that of being the real meaning.” Majalla, cl.12.
57 Kirmānī, Nukat al-Jāmiˁ al-kabīr, fol. 20a, 42a. For other jurisprudential maxims see ibid,
37a, 40a, 53a, 161b, 232b.
58 Ibid, fol. 21a-b, 25b, 26b, 28a, 30a, 36b, 44b, 45b, 54a, 268b.
250 Chapter 11

maxims govern particular chapters. The characteristic features of each school

are effective in such a relationship between a maxim and a particular subject.
For instance, in legal manuals of the Ḥanafī school of law, maxims related to
custom are especially significant and many rulings in certain legal fields are
based on these. This is proper with respect to the subject of oath taking in
which custom is a determining factor as regards rulings based on particular
statements. Within this framework al-Kirmānī mentions the maxim “what is
established by the indication of custom is similar to what is established by the
indication of statement”, basing various rulings on this.59 Al-Kirmānī men-
tions the discussion of custom as a determining factor in other issues as well,
attempting to present some basic principles concerning custom. For example,
at the beginning of the section in which he discusses divorce, al-Kirmānī states
that custom is decisive by using the maxim “the real meaning of utterances is
abandoned due to custom.” According to him, if one uses an expression that has
a customary meaning which is different from its real meaning, the real mean-
ing is abandoned and the customary meaning is considered.60
A similar situation is apparent in the contract of agency. The principle
mentioned in Nukat al-jāmiˁ al-kabīr as “the rights of the contract belong to the
proxy” is a sub-maxim that governs issues concerning agency and is frequently
used. This sub-maxim, which is mentioned under the heading of authorizing
someone as a proxy for a sale, is mentioned as the legal cause for the conclu-
sion reached in each one of the examples related to the subject.61 That the
rights of the contract belong to the proxy is true not only in a sale but also in
a purchase. Al-Kirmānī illustrates this matter with the same maxim, analysing
related examples within its framework.62

59 Ibid, fol. 45a. For a discussion of the concept that custom is a reference for the attribution
of meaning to people’s words see ibid, fl. 301b.
60 Ibid, fol. 141b. This principle is also mentioned in the discipline of waḍˁ (the science
of imposition/philosophy of language) as follows. The one (wāḍiˁ, i.e. the Positor or
Inventor) who attributes meaning to utterances uses them according to their literal, cus-
tomary, technical or revealed (Sharˁī) meanings. If attribution of meaning is mentioned
without restriction, the literal meaning is intended and other aspects of attribution are
based on this. Because of this, if there is a discrepancy between the literal meaning of a
word and its revealed or customary meaning, the literal meaning is abandoned while the
other meaning is attributed. Cf. Muhammed Rahmi Efendi, al-ˁUjālat al-raḥmiyya, 24–25.
For a detaled discussion of the discipline of waḍˁ see Weiss, “ˁIlm al-waḍˁ: An Introductory
Account of a Later Muslim Philological Science,” Arabica. See also El-Rouayheb, Islamic
Intellectual History in the Seventeenth Century, 31, 136–143.
61 Kirmānī, Nukat al-Jāmiˁ al-kabīr, fol. 262b and passim. This sub-maxim is mentioned in
the Majalla in the form “the rights of the contract belong to the one who makes the contract,
that is to say to the proxy.” Majalla, cl. 1461.
62 Kirmānī, Nukat al-Jāmiˁ al-kabīr, fol. 265b.
The Function of the Maxim 251

As stated previously, while some legal maxims are very general, some are so
specific that they relate to one subject or issue. The specificity of some maxims
does not mean that they do not reflect established legal doctrine and the legal
logic behind rulings. Sub-maxims that are related to one subject, compared to
more general maxims, directly indicate the rulings to which they are related.
Hence, to establish a ruling against such maxims there needs to be stronger
evidence to counter the ruling on which they are based. For instance, concern-
ing a difference of opinion between Abū Ḥanīfa, Shaybānī and Abū Yūsuf on
the recitation of takbīrs of tashrīq after ritual prayers during the Eid al-Aḍḥā,
al-Kirmānī explains Abū Ḥanīfa’s opinion with the sub-maxim “the rule in
prayer is secrecy,” stating “unless there is consensus to the contrary this principle
is not abandoned.”63 Al-Kirmānī’s approach can be explained by the fact that
the maxim on which Abū Ḥanīfa bases issues such as takbīr of tashrīq and
prayer directly indicates the ruling. In such a case, the maxim under discussion
can be abandoned only by strong evidence such as consensus; otherwise, it
remains a principle that needs to be taken into consideration in related issues.
Later commentaries clearly illustrate the fact that the issues in Shaybānī’s
works are based on a strong logic of maxims. The effort to relate each chapter
in al-Jāmiˁ al-kabīr to axioms is the strongest indication of this. However, com-
mentators do not always agree on the maxim or maxims on which an issue
is based. For example, while Jaṣṣāṣ discusses the chapter on litigation within
the framework of maxims and sub-maxims relating to testimony (bayyina), al-
Kirmānī bases it on the maxims of confession and related maxims and sub-
maxims.64 This evidences that later jurists interpreted and transmitted the
legal accumulation of the school in different ways, relating the opinions of the
authors of legal texts to different maxims.
al-Mabsūṭ of al-Sarakhsī, which is an important commentary in Ḥanafī law,
is paramount for the literature of maxims. Foremost among the features that
make al-Mabsūṭ significant as regards maxims are that the book contains max-
ims that were the bases of the opinions of the jurists of the early period, that
it gives the reader an idea of the legal fields in which maxims were used in
the primary texts, and that it provides the first usage of some maxims in the
main corpora of the school. Al-Sarakhsī turns many issues, which earlier jurists
expressed as rulings, into maxims and sub-maxims. In this respect, al-Mabsūṭ
is a source in which the first examples of numerous maxims that would be
transmitted to later legal and maxim works are given.

63 Ibid, fol. 5b.

64 e.g. Jaṣṣāṣ, op. cit., fol. 233b, 236b-237a; Kirmānī, Nukat al-Jāmiˁ al-kabīr, fol. 85a, 87b,
106a, 110a.
252 Chapter 11

Necessity is a key concept that in legal works various rulings are based on.
However, since necessities differ according to person, event and time, legal
scholars have striven to identify various criteria to determine the quality, quan-
tity and duration of necessity, formulating the maxim “necessities are estimated
according to their extent (al-ḍarūrāt tuqaddar bi qadarihā).” Al-Sarakhsī uses
this maxim in several legal issues he discusses in al-Mabsūṭ. For example, there
is a difference of opinion between Abū Ḥanīfa and Abū Yūsuf on the one hand
and Shaybānī on the other on whether someone who performs the funeral
prayer with a dry ablution and who wants to perform another funeral prayer
while not having the time to perform a regular ablution has to repeat the dry
ablution. According to Abū Ḥanīfa and Abū Yūsuf, the person who wants to
perform the second funeral prayer has to perform another dry ablution if he
has time, but performs the second funeral prayer with the first dry ablution
if he fears that he will miss the funeral prayer if he occupies himself with dry
ablution. Shaybānī, however, is of the opinion that the person must do another
dry ablution in both cases, since he performed the first dry ablution not to miss
the first funeral prayer. When the first funeral prayer is performed this aim is
realized, so the ruling for the dry ablution comes to an end. Afterwards, when
there is the need to perform another funeral prayer, a new dry ablution is nec-
essary. Al-Sarakhsī explains this opinion with the maxim “what is established
by necessity is confined to the extent of the necessity”.65 Here al-Sarakhsī, after
discussing the dispute among the founders of the school, sets out the opinions
of both sides together with the supporting evidence, adducing a maxim for
one opinion.
The maxim “necessities render illicit things lawful (al-ḍarūrāt tubīḥ al-
maḥẓūrāt)” is significant in terms of the development of its structure of endur-
ing expression and other maxims that are linked to it. Since many rulings
in legal works are based on necessity, jurists discuss in detail many subjects
related to necessity. For instance, the permission (rukhṣa) given to legal per-
sons in Islamic law consists of liberties that are granted to them when there
is a necessity. Although this maxim is firmly based on scriptural statements
that say that hardship is removed and that one will not be made responsible
for what one is incapable of doing, it came to be expressed as “necessities ren-
der illicit things lawful” in later periods.66 There are many examples in which
jurists use this principle in works of the early period. One can even find in
some sources uses that are close to the maxim’s established form of expression.

65 Sarakhsī, al-Mabsūṭ, 2: 127. Cf. Kāsānī, Badāˀiˁ al-ṣanāˀiˁ, 3: 103; Majalla, cl. 22.
66 Cf. Ibn Nujaym, al-Ashbāh, 94; Khādimī, Majāmiˁ al-haqāˀiq, fl. 36b; Majalla, cl. 21.
The Function of the Maxim 253

For instance, while discussing whether someone who steals due to hunger will
be punished, al-Sarakhsī quotes some narrations, explaining these with the
principle “necessity makes eating from someone else’s property as much as one
needs permissible.”67 al-Sarakhsī’s usage here is compared in terms of its mean-
ing with the form of expression of the same maxim in the legal maxim genre.
It matches to a large extent the later form of the maxim. The qualification “as
much as one needs” that al-Sarakhsī adds at the end of the maxim has the same
meaning that is expressed in later maxim works as “necessities are estimated
according to their extent.”68
Al-Ikhtiyār li-taˁlīl al-mukhtār, the commentary Mawṣilī (d. 683/1284) wrote
on his own compendium al-Mukhtār which was a text in which Ḥanafī jurists
of the later period took interest, is a text that is very rich in terms of maxims.
While discussing the differences of opinion among the leading authorities of
the school, Mawṣilī strives to append maxims along with other types of evi-
dence to the opinion that he selects for fatwā. Additionally, the work, which
mainly quotes opinions on which preferred fatāwā of the school are based,
adduces maxims while discussing the legal causes of rulings. If one of the
founding jurists adopts an opinion that is contrary to that on which the fatwā
is based, Mawṣilī tries to explain the justification for the dominant opinion
by referring to legal maxims. For example, while discussing an issue related to
oath Mawṣilī quotes Zufar’s opinion which is not the basis for fatwā, referring
to a maxim to show that the opinion cannot be accepted.69 As he discusses the
differences of opinion of the founders of the school, Mawṣilī also mentions
maxims on which their opinions are based. While explaining the difference
of opinion between Abū Ḥanīfa and his disciples, Abū Yūsuf and Shaybānī,
on a manufacturing contract (istiṣnāˁ) turning into a prior payment for a later
delivery contract (salam), Mawṣilī sets out Abū Ḥanīfa’s opinion together with
the supporting maxim. According to Abū Ḥanīfa, if someone who concludes a
manufacturing contract designates a time for the delivery of the item, the con-
tract ceases to be a manufacturing contract and turns into a salam contract.
Abū Yūsuf and Shaybānī are of the opinion that in reality the contract remains
a manufacturing contract, stating that just as if there is no designated time in a
salam contract it does not turn into a manufacturing contract, the designation
of time in a manufacturing contract does not turn it into a salam contract. Abū
Ḥanīfa is of the opinion that even if the contract is called manufacturing, when

67 “Al-ḍarūrah tubīḥ al-tanāwula min māl ah-ghayr bi qadr al-ḥājah.” See Sarakhsī, al-Mabsūṭ,
9: 140.
68 Cf. Ibn Nujaym, al-Ashbāh, 94; Majalla, cl. 22.
69 Mawṣilī, al-Ikhtiyār, 4: 324.
254 Chapter 11

the due date is designated the contract turns into salam. Mawṣilī explains the
justification for Abū Ḥanīfa’s opinion, which considers the meaning rather
than the name of the contract, by using the maxim “[in contracts] considera-
tion is given to meanings, not forms.”70
Jurists who benefit from maxims while interpreting the scriptures justify
the stance of their school mainly by referring to maxims when the divergence
of opinion between different schools is based upon the understanding of the
scriptures. For example, Zaylaˁī (d. 743/1342) while discussing the difference
of opinion between the Ḥanafī school and Shāfiˁī concerning the issue of the
menstruating woman entering a mosque, on the basis of a maxim criticizes
Shāfiˁī’s method of understanding the Qurˀānic verse. To be in a state of major
impurity and menstruation prohibits one from entering a mosque or circum-
ambulating the Kaˁba. Shāfiˁī, who adduces the verse stating that one who is in
a state of major impurity or intoxicated should not perform the ritual prayer (Q
4:43), thinks that it is permissible for someone who is in a state of major impu-
rity to enter a mosque if he crosses without stopping. According to him, the
expression in the verse “do not come close to ritual prayer” refers to the place of
the ritual prayer. Crossing a path (ˁābir al-sabīl) does not happen in the ritual
prayer itself, but in the mosque in which it is performed. Starting from the
fact that both menstruation and major impurity are states of impurity, Ḥanafī
jurists adduce the ḥadīth indicating that the mosque is prohibited to those
who are in a major state of impurity and menstruation. Just as remaining in
the mosque is not permissible for these two categories by consensus, entering
the mosque is also impermissible. Zaylaˁī states that Shāfiˁī’s understanding of
the expression “do not come close to ritual prayer” is figurative and that there
is no evidence that justifies this figurative interpretation. Zaylaˁī adduces this
opinion with the maxim “the original condition of speech is that of being the
literal meaning (al-aṣl fī l-kalām al-ḥaqīqa).”71
While discussing intra- and inter-madhhab controversies, legal books men-
tion the evidence on which the difference of opinion is based. In this frame-
work, they also mention maxims that are the bases for the divergence of opin-
ion. Additionally, authors sometimes identify points where one of the sides
can be criticized and provide evidence for the preferred opinions against these
counter-arguments. Jurists also use legal maxims in this regard. For example,
while explaining an opinion of Burhān al-Sharīˁa, the author of al-Wiqāya,

70 Mawṣilī, al-Ikhtiyār, 2: 287–288. Cf. Mawṣilī, ibid., 3: 18. Cf. the maxim in the Majalla,
“Effect is given to intents and meaning in contracts, not words and forms.” Majalla, cl. 3.
71 Zaylaˁī, Tabyīn al-haqāˀiq, 1: 56. Majalla states this maxim in the form, “the original condi-
tion of speech is that of being the real meaning.” Majalla, cl. 12.
The Function of the Maxim 255

concerning the option in the case of a latent defect (khiyār al-ˁayb), Ṣadr al-
Sharīˁa (d. 747/1346), follows this method. If a buyer sells the item he buys
immediately to someone else, and the second buyer proves that the item has a
defect by testimony of witnesses, the refusal of the first buyer to take an oath
or the first buyer’s confession, then the first buyer, who is the second seller,
can demand to return the item to the first seller due to the option in the case
of a defect. After presenting the issue in this way, Ṣadr al-Sharīˁa considers a
possible objection. The primary argument of the objection is that a ruling that
is based on confession cannot be transferred to someone else. Ṣadr al-Sharīˁa
presents this objection by supporting it with two maxims. One of these is “what
is established by testimony is proven like what is established through being an
eyewitness.” He mentions this while stating that one who confesses something
and then denies the confession and proves this with eyewitness testimony is
considered to have made the confession next to the judge. Although the con-
fession one makes is valid only for oneself, something that is established by
eyewitness testimony is transitive, having legal consequences for others. He
adduces this with the maxim “confession is binding proof only on the confes-
sor (al-iqrār ḥujjatun qāṣirah).” After setting out this objection, Ṣadr al-Sharīˁa
states that in the opinion he defends he accepts not that admission is transi-
tive, but that it is a limited proof as stated in the objection. Additionally, he
states that the fact that the second buyer returns the item to the first buyer
does not mean that the first buyer will return it to the first seller; rather the
situation allows the second buyer to begin legal action by reason of the right
to return the defective item. Just as the second purchaser demands the option
in the case of a latent defect by proving that the defect was present when the
item was in the possession of the person from whom he bought it, if the first
buyer proves through eyewitness testimony that the defect was present when
he first bought the item, he will also have the option to return the defective
product. Otherwise, the second buyer returning the product does not transfer
this right to the first buyer.72 As can be seen in this example, in a divergence
of legal opinion although the two sides have different views, they accept the
same maxim. However, they follow different methods in the interpretation and
application of that maxim.
In the continuation of the discussion on the option in the case of a latent
defect, Ṣadr al-Sharīˁa mentions an issue in which Shāfiˁī and the Ḥanafīs dif-
fer and states that the reason for the divergence of opinion is the difference
in the maxims/sub-maxims the two sides adopt. If someone makes a contract

72 Ṣadr al-Sharīˁa, Sharḥ al-Wiqāya, 4: 23–24.

256 Chapter 11

in which he states that he will not be responsible for any defects, according
to the Ḥanafī jurists the contract is valid, while according to Shāfiˁī it is not.
Ṣadr al-Sharīˁa states that Shāfiˁī adopts the maxim “absence of obligation for
unknown rights is not valid”, whereas the Ḥanafīs accept the maxim “absence of
obligation for unknown rights is valid.” Ṣadr al-Sharīˁa states that since this will
not cause controversy, such a contract will be valid.73
In al-Wiqāya, Ṣadr al-Sharīˁa explains particular rulings, generalizing his
explanations with universal and abstract expressions. This method, in which
legal maxims are obtained from works of substantive law, enables legal schol-
ars to find the common points of many rulings and to express them in a more
comprehensive way in the format of maxims. At the same time, the method
also allows jurists to identify the theoretical foundations of substantive issues.
For instance, the author explains the opinion that the sale of things that are
not assets, such as blood, carrion and a human being, and the sale of things
that have no value, such as swine and wine, are null and void as follows: “The
sale of anything that is not an asset is void whether it is what is sold or paid. The
sale of anything that is an asset but has no value is void even if it sold for money.”74
As was stated previously, Qudūrī’s al-Mukhtaṣar, which contains the opin-
ions of the legal scholars of the circle of Abū Ḥanīfa as well as later jurists
who contributed to the literature of the Ḥanafī school by conducting stud-
ies on these early opinions, is a work that is also rich in maxims. Because
of these features, there are many commentaries on Qudūrī’s al-Mukhtaṣar.
Commentators have analysed some of the issues in al-Mukhtaṣar in terms of
maxims, which led to important contributions to the literature on maxims. For
example, Zabīdī (d. 800/1397) while discussing Qudūrī’s opinion that an asset
that is shared cannot be pawned investigates several related issues. Although
the leading authorities of the school found it impermissible to pawn a shared
asset, jurists have discussed various possible outcomes if this is done anyway.
Although Karkhī considers such a pawn contract invalid, he states that if the
asset is destroyed in the possession of the receiver of the pawn, it will have
the ruling of a trust. Shaybānī is of the opinion that regardless of whether the
asset becomes shared before or after the destruction, there is no liability where
a pawned item in an invalid contract is destroyed. In contrast, Abū Yūsuf is
of the opinion that if the asset becomes shared later, that will not affect the
contract. After discussing these opinions, Zabīdī explains Abū Yūsuf’s ration-
ale with the maxim “because the ruling for status quo is easier than the ruling

73 Ibid, 4: 29.
74 Sadr al-Sharīˁa, Sharḥ al-Wiqāya, 4: 30. Similarly, while discussing stipulations within a
contract, Ṣadr al-Sharīˁa provides many examples. See ibid, 4: 38.
The Function of the Maxim 257

for beginning (al-baqāˀ ashal min al-ibtidāˀ).”75 Although al-Mukhtaṣar briefly

mentions the discussions of the founders of the school on this issue, Zabīdī
looks at the evidence for each of the opinions of the founders, explaining one
of the approaches with a maxim.
Qudūrī explained that the statement of someone who says that he eman-
cipates a portion of his slaves has different legal consequences according to
Abū Ḥanīfa, Abū Yūsuf and Shaybānī. Abū Ḥanīfa, who is of the opinion that
emancipation can be divided in terms of different portions of the body, delib-
erates that if it is said that a portion of the slaves is emancipated, the master
can make the slave work to pay for the emancipation of the remaining portion.
Abū Yūsuf and Shaybānī contend that since emancipation cannot be divided,
if a portion of the slave is emancipated, the entire slave is emancipated. Zabīdī
explains their opinion with the maxim, “if a ruling for part of something that
cannot be divided is established, it is established for all of it.”76
The commentaries on compendia explain the wording of the texts in dif-
ferent ways. Sometimes they carry out a grammatical analysis of the wording,
sometimes they indicate the statements of the Qurˀān and the Sunnah on
which rulings are based, and sometimes they explain legal causes. Of the com-
mentaries that use these different approaches, the ones which analyse the legal
causes of the opinions that are briefly mentioned in the compendia provide
rich material for illustrating the rationale of the school’s legal approach. In such
analyses, jurists frequently use legal maxims and sub-maxims. For instance,
Ḥanafī jurists have written many commentaries on Kanz al-daqāˀiq, one of the
important compendia of the school, and each of the authors of these commen-
taries has used a different approach. ˁAynī (d. 855/1451), the author of Ramz al-
ḥaqāˀiq, which is one of those commentaries, mostly analyses the grammatical
structure of the expressions. Nevertheless, sometimes the author also sets out
a maxim or sub-maxim that constitutes the basis for an issue that Nasafī briefly
mentions in his compendium, Kanz al-daqāˀiq. For example, after passing on
Nasafī’s expression that payment for a sale can be immediate or postponed,
ˁAynī stated that as long as there are no restrictions the price agreed upon will
be paid in the currency that is predominant in that region, explaining this with
a maxim. ˁAynī justifies this opinion with the maxim “what is known by virtue
of custom exists as if it is known through an explicit statement.”77
Molla Khusraw’s (d. 885/1481) Durar al-ḥukkām, which gained particular
authority in the Ottoman Empire and was the work of reference in the judiciary,

75 Zabīdī, al-Jawhara al-nayyira, 1: 520–521. Majalla, cl. 56.

76 Zabīdī, al-Jawhara al-nayyira, 2: 288–289. Cf. Majalla, cl. 63.
77 ˁAynī, Ramz al-haqāˀiq, 2: 4.
258 Chapter 11

education and the fatwā system with around 20 commentaries and glosses, is
a commentary that is rich in maxims. Besides these features, because it con-
tained maxims and sub-maxims, Durar al-ḥukkām was one of the chief sources
of the Majalla commission. In adducing evidence for the subjects he discusses,
Molla Khusraw frequently uses legal maxims in addition to various other types
of evidence. For example, in the section in which he discusses situations that
break the state of ablution, he states that sleep is one of these; however, he
restricts this to sleep in which one loses consciousness. While explaining this,
he states that sleeping on one’s side or resting on a single hip or sleeping on
one’s stomach are all examples of states of sleep in which one loses conscious-
ness. He stated that someone who sleeps in one of these states will not usually
be aware of what comes out of his body, illustrating this with the maxim “what
is established by habit is like what is certain.”78 There are several maxims that
were used by Molla Khusraw and articulated in a concise form in the Majalla
such as “writing is like addressing” with the expression “writing and sending a
letter is like addressing.”79
The implementation of legal maxims in law manuals is important in terms
of reflecting the continuation of the systematic production of a school of law
on the one hand and the refining and abstraction of the accumulated knowl-
edge of the school on the other. For instance, in Kanz al-daqāˀiq, which is
considered to be one of the four primary legal texts in the Ḥanafī scholarship,
Nasafī sets out the maxim Qudūrī mentioned in al-Mukhtaṣar in the form “it
is permissible for everything that is a price in a sale contract to be a payment in a
rent contract” as “something that is valid as a price is valid as a payment.”80 Later
jurists have developed this expression, analysing its basis in the commentar-
ies on Kanz al-daqāˀiq. In their commentaries, legal scholars have striven to
explain this principle, which Nasafī and Qudūrī expressed differently, by quot-
ing the way it is formulated in Qudūrī’s al-Mukhtaṣar, thus highlighting the
link between the two sources. Ibn Nujaym explains Nasafī’s expression as fol-
lows: “That is to say it is permissible for everything that is a price [thaman] in a
sale contract to be a payment [ujrah] in a rent contract, because payment is the
price of a benefit. Because of this, payment is expressed in analogy to the price of
what is sold.”81 After quoting Nasafī’s opinion, Ibn Nujaym sets down the very
expression Qudūrī uses, explaining the issue through it. This demonstrates
both the explanatory function of maxims and sub-maxims as well as the fact

78 Molla Khusraw, Durar al-ḥukkām, 1: 15.

79 Molla Khusraw, Durar al-ḥukkām, 2: 144; Majalla, cl. 69.
80 Qudūrī, op. cit., 101. Nasafī, Kanz al-daqāˀiq, 104.
81 Ibn Nujaym, al-Baḥr al-rāˀiq, 7: 508.
The Function of the Maxim 259

that legal scholars preserved maxims that were written down five centuries
ago, referring to them as need be. The Majalla mentions the same sub-maxim
in the form “just as something that is suitable as a price in a sale is suitable as
a rent payment, things that are not suitable as price can be rent payments.”82
It is not just Ḥanafī jurists but also those of other schools who refer to this
sub-maxim in legal issues. Therefore, Ibn al-Humām adduces this sub-maxim
in a discussion of how making exceptions to a contract affects the contract’s
validity and the exception. He answers criticisms other schools direct at the
Ḥanafīs, defending the opinion of the school based on this maxim.83
Al-Nuqāya is Ṣadr al-Sharīˁa al-Thānī’s (d. 747/1346) abridgement of Wiqāyat
al-riwāya, which was authored by Burhān al-Sharīˁa Maḥmūd, Ṣadr al-Sharīˁa’s
maternal grandfather. Although al-Wiqāya is one of the four primary legal
texts of the Ḥanafī school, in time its abridgment became more famous and
widespread in the madrasa curricula.84 ˁAlī al-Qārī’s (d. 1014/1606) Fatḥ bāb
al-ˁināya, one of the many commentaries on the abridgment, is distinctive
because it features the opinions of other schools in detail and, using many
maxims, discusses divergences of opinions within the school together with
the evidence and axioms on which they are based. For example, the author
stated, as in the example of price (thaman) mentioned above, that the price
agreed upon is in the predominant currency of the region unless there is a
specific qualification. He justifies this using the following reasoning and
maxim: “because the currency with which sales are made is customarily known;
what is known by virtue of custom is as a known by virtue of text (al-maˁlūm ˁur-
fan ka al-maˁlūm naṣṣan).”85
Ṣadr al-Sharīˁa, a celebrated scholar of Ḥanafī-Māturīdī schools, in al-
Nuqāya briefly mentions legal issues without any detail; ˁAlī al-Qārī relates the
maxim on which the author’s opinion is based. For example, while explain-
ing an issue concerning the option of sight (khiyār al-ruˀya), i.e. the option to
return an item one buys without seeing after one sees it, ˁAlī al-Qārī justifies
the opinion with a maxim. Someone who buys something that he has seen
some time ago can use the option of sight if there has been a change in the
item. If there is no change, he will not have this right since the item is the same
as when he saw it. However, if the item one sees changes, one is considered not

82 Majalla, cl. 463.

83 Ibn al-Humām, Fatḥ al-qadīr, 6: 450.
84 Cf. Özen, “Sadrüşşerīa,” DİA, 35: 429.
85 ˁAlī al-Qārī, Fatḥ bāb al-ˁināya, 2: 303. For other examples of custom in the text see ibid,
2: 425, 427. For detailed discussion of custom in Islamic law see Shabana, Custom in
Islamic Law and Legal Theory.
260 Chapter 11

to have seen it and can use the option of sight. If the two sides disagree on this
issue, the judge will take into consideration the statement of the seller under
oath that the item had not changed and the statement of the buyer under oath
that he did not see the item. While explaining the opinion that consideration
will be given to the statement of the seller that the item had not changed, ˁAlī
al-Qārī writes that if the time that has passed is so short that a change cannot
have taken place, the judge cannot consider the buyer’s claim to be valid. By
way of justification he adduced the maxim “because the fundamental principle
is that the status quo is upheld (li anna al-aṣla baqāˀ mā kāna ˁalā mā kāna).”86
Ḥanafī Jurists who discuss the divergent inter-madhhab opinions set out
the evidence on which the varying approaches are based and sometimes eval-
uate them. In this framework they quote maxims on which the opinions of
the differing sides are based. For example, while dealing with issues regard-
ing exclusive hire (al-ajīr al-khāṣṣ), ˁAlī al-Qārī discusses at length Ṣadr al-
Sharīˁa’s opinion that someone who employs a slave cannot make the slave
travel unless he stipulates this in the contract. ˁAlī al-Qārī analyses some issues
related to this subject in comparison with other schools. He observes that due
to the facts that travel can be demanding and general service does not include
travel, an employee cannot be made to travel unless this is stipulated in the
contract. Therefore, if the employee is made to travel, this is a situation that
would invalidate the employment contract. If someone makes a slave whom
he employs travel without stating this in the contract and then the slave dies,
the employer takes on the status of a extorter and becomes liable to pay the
value of the slave. However, according to the Ḥanafī jurists who disagree with
Mālik, Shāfiˁī and Aḥmad b. Ḥanbal, if the employer returns the slave to the
owner unharmed, he is not liable. ˁAlī al-Qārī explained the opinion of the
school by saying “because according to us wage and responsibility cannot come
together (al-ajr wa-ḍ-ḍamān lā yajtamiˁān).”87
Shayhīzāda (d. 1078/1667), who is also known as Damad Efendī and who
wrote a commentary on İbrahim Halebī’s (d. 956/1549) al-Multaqā, refers to
legal maxims and sub-maxims to explain not only the divergence of opinion
of the founding jurists but also the legal causes of rulings. For example, while
discussing the differences among Ḥanafī mujtahids on whether hearing the
declaration of the two sides in a marriage contract is a condition for the valid-
ity of the contract, Shayhīzāda explains this by analogy with another issue,
setting out the legal cause of Abū Yūsuf’s opinion with a maxim. Accordingly,

86 Ibid, 2: 319. For a different use of the same maxim see ibid, 3: 103.
87 Ibid, 2: 442.
The Function of the Maxim 261

one of the conditions of the validity of a marriage contract is that the proposal
of one of the sides must be heard by the other, in reality or de jure. According
to Abū Yūsuf, if a man writes the proposal in front of witnesses and sends it
to a woman and she reads and accepts it in front of the same witnesses, the
marriage is actualized. Shayhīzāda demonstrated Abū Yūsuf’s opinion with the
maxim “a written document is like an expression (al-kitābah ka-l-khiṭābah).”88
Commentators on the compendia both facilitate the understating of these texts
through the explanation of expressions and discuss the different approaches
within the school by quoting various opinions. However, commentators do not
always follow the expressions in the text and at times present their opinions by
expressing restrictive qualifications. For example, when Shayhīzāda disagrees
with Ḥalabī, he adduces legal maxims to support his opinion.89
It was stated previously that legal maxims are among arguments used to
explain the opinions of founding jurists on issues on which they differed. Since
compendia indicate only the differences of opinion; identifying their causes
can sometimes be difficult. Hence differences of opinion within and between
schools are generally explained in commentaries which set out legal maxims
in this context. For example, after Ibrāhīm al-Ḥalabī stated that it is not per-
missible for a shared property to be given as a pawn, he related that if the prop-
erty becomes shared after it is pawned, according to Abū Ḥanīfa and Shaybānī
the contract becomes invalid, whereas according to Abū Yūsuf this is not the
case. Shayhīzāda extensively analysed this differences of opinion between the
founding fathers of the school, mentioning the maxim that is the basis of Abū
Yūsuf’s opinion that if the property becomes shared after it is pawned, the con-
tract will not become invalid. Although Shayhīzāda disagrees with Abū Yūsuf,
he states that Abū Yūsuf’s opinion is based on the maxim “the ruling for status
quo is easier than the ruling for beginning (al-baqāˀ ashal min al-ibtidāˀ).”90
Quhistānī (d. 962/1555), the commentator on al-Nuqāya, does not use legal
maxims in the section on acts of worship; instead, in the section on transac-
tions he uses maxims and sub-maxims to explain the issues therein. Because
he rarely mentions opinions from different schools and mainly discusses dif-
ferences of opinion within the Ḥanafī school without adducing evidence, he
does not often use legal maxims.91 But at times he explains the justification for

88 Shaykhīzāde, Majmaˁ al-anhur, 1: 472. For some other maxims related to testimony and
necessity and their implementation see ibid, 3: 131.
89 See Shaykhīzāde, Majmaˁ al-anhur, 4: 27.
90 Shaykhīzāde, Majmaˁ al-anhur, 4: 279. Cf. Majalla, cl. 56.
91 Molla Miskīn (d. 954/1547), who lived in the same period as Quhistānī, does not often use
legal maxims in the commentary he wrote on Kanz al-daqāˀiq. Cf. Molla Miskīn, Sharḥ
Mollā Miskīn.
262 Chapter 11

the opinions he analyses, using legal maxims in this context. For example, if
the conditional option (khiyār al-sharṭ) of returning the item is in the contract,
he relates that although the sold item (mabīˁ) is no longer in the possession
of the seller, the payment (thaman) is still in the possession of the buyer. He
explains this with a principle that governs the option to return an item: “The
rule in this subject is this: The payment that will be made by the side which has the
right of option does not leave his possession.”92
Ibn ˁĀbidīn (d. 1252/1836) in his work discusses an issue that is met fre-
quently in his region that causes hardship, explaining the subject by putting
forward the evidence of both the Shāfiˁīs and the Ḥanafīs. Ibn ˁĀbidīn relates
that in his region people put animal manure in the water pipes that go into
houses to fill cracks. The animal manure settles in the bottom allowing water
to flow. He continues:

If we say that this is impure, this will cause great hardship, which has
been removed by the statement of revelation. The muftī of Damascus, the
great scholar Shaykh ˁAbd al-Raḥmān al-ˁImādī discusses this issue in his
work Hadiyyat Ibn al-ˁImād, presenting some examples from substantive
law and the well-known maxim “hardship begets facility (al-mashaqqa
tajlib at-taysīr)” with issues derived from this maxim in al-Ashbāh as
introduction to this issue.93

Ibn ˁĀbidīn explains by means of some examples and reference to prior

sources that this situation has come about out of necessity and is inescapable.
He states that Ḥanafī jurists have given permission in similar cases based on
the maxim “hardship begets facility”. Probably to convince Shāfiˁīs who face
the same situation, he refers to the maxim “when a matter becomes difficult, its
rule becomes expanded (idhā ḍāqa al-amru ittasaˁa)”, stating that the expres-
sion belongs to Shāfiˁī, and tries to show that this practice is also permissible
according to them. Ibn ˁĀbidīn observes that the same is true for such material
that gathers at the bottom of water pools which people who live far away from
water wells construct to meet their water needs. If people were prohibited
from using this water because of the stuff at the bottom, this would cause great
hardship. Ibn ˁĀbidīn justifies this as follows: “It is said in Sharḥ al-Munya: In
case of necessity and when there is a general need, such as wells in places like

92 Quhistānī, Jāmiˁ al-rumūz, 2: 8. Quhistānī similarly uses a sub-maxim while explaining

the case in which there is a contradiction between verbal designation and physical indi-
cation in a sale contract. Ibid, 2: 22. For some other examples see ibid, 2: 38.
93 Ibn ˁĀbidīn, al-Ḥāshiya, 1: 189.
The Function of the Maxim 263

open lands, it is among the maxims of our founding jurists to facilitate the prac-
tice.” At the end of the section, Ibn ˁĀbidīn sets out both the maxim hardship
begets facility and the maxim when a matter becomes difficult, its rule becomes
expanded, saying that there is no solution other than to treat the matter based
on these maxims.94
The way Ibn ˁĀbidīn analyses an issue that is met in everyday life within
the framework of necessity, basing his ruling on legal maxims, and how he
resolves this issue that seems to contradict statements of revelation with max-
ims relating to alleviation and necessity that are also derived from statements
of revelation is significant in showing his approach to the function of legal
maxims. This approach of Ibn ˁĀbidīn in his Ḥāshiya is not one that is met in
classical works, which raises the question whether maxims are independent
sources. This issue is addressed in the Minutes of the Majalla (Esbāb-ı Mūcibe
Mazbatası) in the form “judges of the Sharīˁa cannot rule with these maxims if
there is no explicit expression in the sources of the school.”95 Although the state-
ment concerns the judiciary, it indicates that legal maxims cannot be used as
independent evidence in issuing rulings. It is important to mention here Ali
Haydar Efendi’s opinion that if there is no opinion expressed about an issue in
the established sources of the school, one cannot issue a ruling based on legal
maxims.96
Considering these approaches, the fact that Ibn ˁĀbidīn issues a ruling
based on maxims by treating the issue within the framework of hardship and
necessity demonstrates that maxims constitute a legal source of reference
even if this is rare. When there are inescapable situations as people try to meet
their basic needs, Muslim jurists produce solutions to these societal problems
by using the mechanisms of Islamic law. If the jurist cannot find a solution
to the problem he encounters in the established sources of the school, he
carries out ijtihād to find a way out. Since it is necessary for the solution to
be based upon the sources of the Sharīˁa and to remain within the bounds
of the Sharīˁa, it is necessary for the jurist to somehow link the solution to
statements of revelation. In this case Ibn ˁĀbidīn tries to justify the solution
he proposes that is based upon legal maxims that are in accordance with the
content of the sources of the Sharīˁa. Although he consults previous sources
because he cannot directly find a ruling, he attempts to arrive at a solution on

94 Ibn ˁĀbidīn, al-Ḥāshiya, 1: 189–190. For Ibn ˁĀbidīn’s opinion that when there is hard-
ship and difficulty providing relief is necessary and related examples, Cf. ibid, 2: 226–227;
4: 556; 6: 26.
95 Majalla, Esbāb-ı Mūcibe Mazbatası, 12.
96 Ali Haydar Efendi, Durar al-ḥukkām, 1: 23.
264 Chapter 11

the basis of the principles indicated in those sources, quoting the statement
in Sharḥ al-Munya that in case of necessity and when there is a general need
alleviating the situation is among the maxims of the founding Ḥanafī jurists.
Consequently, the general approach that a ruling cannot be issued based on
maxims has been interpreted differently in exceptional cases.
Authors of commentaries extensively explain the legal opinions presented
in compendia which, because of their structure, do not always discuss the legal
causes of the issues they take up. The same is true for maxims the compendia
mention. Even if the jurists who compose compendia discuss issues that per-
tain to the maxims they mention, they almost never discuss how the maxim
is linked with the issues. This is usually done by commentators who discuss
the relationship between substantive issues and the maxims and sub-maxims
on which they are based. For instance, Maydānī (d. 1298/1881) treats the rela-
tionship between the sub-maxim “it is permissible for one to appoint a proxy
for every contract one can conclude on one’s own,” which governs the section
on proxy in Qudūrī’s al-Mukhtaṣar, with the fact that proxy is permissible in
contracts such as currency exchange (ṣarf) and prior payment for later delivery
(salam).97 Maydānī explains Qudūrī’s statement “it is permissible to appoint
a proxy for the contracts of ṣarf and salam” by stating “because this is a con-
tract one can conclude on one’s own. Hence, as stated previously one can deputize
someone else.”98
Commentaries not only explain with examples the principles in compendia
and link them with related issues, but also discuss the maxims on which the
issues in these sources are based. This is because legal rulings in compendia are
sometimes quoted without the maxim that is their basis. The commentator on
the compendium justifies the ruling by mentioning the maxim that validates
it. This effort allows one to witness the principles on which the school is based
and the legal doctrine that develops from them. For instance, Qudūrī said:

When a mouse or something similar is found in a well and it is not known

when it fell, if it is not bloated or decomposed, those who perform ablu-
tion with water from the well must repeat the ritual prayer of one day and
night and wash everything that comes into contact with that water. If the
animal is bloated or decomposed, according to Abū Ḥanīfa one has to
repeat the ritual prayer of three days and nights. According to Abū Yūsuf

97 “Kull ˁaqd jāza an yaˁqidahu l-insān bi-nafsihi jāza an yuwakkila bihi ghayrahu.” Qudūrī,
al-Mukhtaṣar, 115.
98 Maydānī, al-Lubāb, 2: 69.
The Function of the Maxim 265

and Muḥammad [Shaybānī] one does not repeat the ritual prayer before
it is determined when it fell.99

Maydānī then explained the opinion of Abū Yūsuf and Shaybānī by the maxim
“certainty is not overruled by doubt.”100 The method Maydānī adopts here is sig-
nificant in that it shows that scholars of the schools identify the principles on
which the issues they discuss are based. Additionally, the presentation of evi-
dence concerning issues in which legal scholars differ, the mentioning of legal
causes and the identification of the principles on which the opinions are based
enable legal doctrine to have a dynamic structure.
Since compendia do not supply information concerning the legal causes
and bases of the differences of opinion between Ḥanafī jurists, these are usu-
ally mentioned in commentaries. A difference of opinion like the one men-
tioned above takes place regarding the issue of interdiction (ḥajr) in the finan-
cial transactions of the spendthrift (safīh). Abū Ḥanīfa is of the opinion that
if the spendthrift is free, sane and has reached adulthood, his transactions
cannot be restricted, while Abū Yūsuf and Shaybānī are of the opinion that
they can be blocked. If he sells something, the contract is not executed; how-
ever, if the contract is beneficial for him, the judge can authorize it. However,
if he were to emancipate a slave, this contract would be executed.101 Although
the difference in outcome between the emancipation of the slave and the sale
contract makes it seem as if Abū Yūsuf and Shaybānī are inconsistent in their
approach, commentaries explain this by discussing the evidence for their
opinion. Maydānī, like previous jurists, stated that their opinion is based on
a principle: “the axiom concerning this subject is the following: In every transac-
tion in which joke has a legal effect, interdiction of financial transactions also has
effect; where joke has no effect, the interdiction has no effect.”102 Whereas Abū
Ḥanīfa is of the opinion that the spendthrift is legally competent and therefore
his transactions cannot be interdicted, Abū Yūsuf and Shaybānī compare the
interdiction of transactions with the legal consequence of not being serious in
contracts, approving the limiting of transactions on the basis of a general rule.
99 Qudūrī, al-Mukhtaṣar, 14.
100 Maydānī, al-Lubāb, 1: 50.
101 Qudūrī, al-Mukhtaṣar, 95.
102 Maydānī, al-Lubāb, 2: 14–15.
 chapter 12

Legal Maxims in the Literature of Fatwā, Nawāzil

and Uṣūl al-Fiqh

1 The Fatwā Literature

Fatwā (legal responsa) books are significant sources that exhibit how legal
rulings are applied to daily issues. However, due to the style of fatwā collec-
tions, which consist of question and short answer, the evidence for the fatāwā
issued in these works has not been analysed in depth. Hence one rarely meets
in fatwā works discussions on the legal causes of rulings or the justification
of fatāwā with maxims. Nevertheless, some fatwā collections do discuss the
evidence and, in this framework, offer legal maxims as the bases of the rulings.
Foremost among such works is al-Nutaf fī l-fatāwā of Sughdī (d. 461/1068), who
was among the Ḥanafī jurists of Samarqand in the 5/11th century. Among the
chief features of al-Nutaf that distinguish it from other fatwā collections are
that the author puts forward legal rulings in an abstract manner and that he
mentions legal issues as concise law clauses under general rules. Because of
the importance of the work within the school, both fatwā and substantive law
works written in later centuries frequently refer to it.1 The approach Sughdī
follows in the section concerning whether water from which animals drink
can be used for ablution illustrates his method of abstraction and use of legal
maxims. Sughdī discusses the issue as follows:

As for water left over from animals: According to jurists there are
five cases.
The first is that it is pure, and its use is permissible.
The second is that it is impure, and its use is not permissible.
The third is that it is ambiguous, and one needs to act with caution.
The fourth is that depending upon the case it is legally reprehensible.
The fifth is that it is legally reprehensible in any case.
As for the pure water the use of which is permissible, it is the lefto-
ver water of animals the meat of which can be eaten.2 Horse, camel, ox,

1 al-Nāhī, “Suğdī,” DİA, 37: 475.

2 In the printed text the expression urine is mistakenly used.
Legal Maxims in the Literature 267

sheep, all wild animals that can be eaten and birds are examples of this.
As for what is prohibited and cannot be used, this consists of predators
other than the cat. For the cat there is a ḥadīth from the Prophet (may
peace and blessings be upon him). The Prophet (may peace and bless-
ings be upon him) has said, “the cat is from the household.” If the left-
over water of the cat were to be prohibited, people would suffer from
hardship. It has been said that when a matter becomes difficult, its rule
becomes expanded (idhā ḍāqa al-amru ittasaˁa).3

Continuing, Sughdī discusses the other possibilities in detail. As the quoted

section demonstrates, the author stated the cases as clauses and explained
them. In one of these, he related an exception to the general ruling which he
justified with a maxim.4 Considering how the maxim is used, it is presented as
an argument that supports the opinion. Given that legal sources convey this
maxim without using terms such as the axiom or the maxim and without indi-
cating that it is a principle that the school has espoused, by this time it has
become widely used because jurists frequently refer to it in legal issues and put
it forward as a stable maxim in legal manuals.
Sughdī treats issues similarly elsewhere in the work. While conveying
a divergence of opinions among Ḥanafī jurists, he adduces a widely known
maxim for the opinion of one group. After stating that major ritual ablution
consists of three types: obligatory, Sunna and supererogatory, Sughdī first
discusses the situations that necessitate the obligatory major ritual ablution.
Ḥanafī jurists disagree regarding the situation of a male who finds moisture
on his clothes after waking up without having dreamed and does not know
whether the moisture is due to ejaculation or pre-ejaculatory fluid. Abū Ḥanīfa
and Shaybānī are of the opinion that that person must perform major ritual
ablution out of caution. In contrast, Abū Yūsuf and Abū ˁAbd Allāh (d. 175/791)
are of the opinion that this is not necessary. Sughdī tries to justify the opinion
of the second group by saying “because the Sharīˁa is based upon certainty, not
doubt.”5 Sughdī uses the maxim here to explain the opinion of one group. While
the first group argues for the necessity of performing the major ritual ablution
within the framework of caution, which is a principle of the Sharīˁa, scholars
of the second group base their approach that the major ritual ablution is not

3 Sughdī, al-Nutaf, 1: 10–11.

4 Although Sughdī’s expression does not reveal who coined this maxim, it has been said that it
is an Arab proverb. Cf. ˁAbdarī, Timthāl al-amthāl, 1: 155; Yaˁqūb, Mawsūˁat amthāl al-ˁArab,
2: 256.
5 Sughdī, al-Nutaf, 1: 30.
268 Chapter 12

necessary on the maxim that issues of the Sharīˁa are not construed through
doubt but rather rely upon certainty. Because of this, Sughdī mentions this
obvious maxim to justify the ruling at issue.
Walwālijī’s (d. after 540/1146) al-Fatāwā al-Walwālijiyya is an important work
for the genres of fatwā and substantive law because it contains issues that are
not found in the early sources of the Ḥanafī school as well as rich material con-
cerning maxims. There are many examples that show that maxims that attain
their systematic and enduring form of expression in the maxim literature are
used in different forms in various sources. One example of this is the maxim
“certainty is not overruled by doubt” which expresses that a state that is certain
will not end with doubt. Although the way Walwālijī uses the maxim in the
chapter on water regarding an issue in which founding jurists of the school
differed is not concise, in terms of meaning and function it is no different from
the established form of the maxim. If a person notices that there is a mouse in
a well from the water of which he regularly performs ablution, he will repeat
the ritual prayer of one day and night if the mouse is not decomposed, accord-
ing to Abū Ḥanīfa. Abū Yūsuf and Shaybānī are of the opinion that if there is no
concrete information on when the mouse fell in, the person will not repeat any
ritual prayer. Walwālijī explained the justification for their opinion with the
following: “Because the original condition is purity and that is not removed with
doubt.”6 As in many works of substantive law, after setting out an issue in which
there is a difference of opinion among legal scholars, Walwālijī explained the
justification for their opinions. While doing this he showed that these opinions
were based on certain principles. In this example, the fact that purity is the
original condition denotes that it is certain. Since the time at which the mouse
fell into the well is uncertain, the purity that is certain is not removed by this
uncertain situation.
In issues relating to different areas of Islamic law, Ḥanafī jurists consider
that the majority is like the whole, basing many rulings on this.7 This approach,
which is valid for different subjects, is expressed in works of substantive law in
the concise form “the ruling of the whole is applied on the majority (li l-akthar
ḥukm al-kull).”8 The maxim that is used in different forms is usually presented
in the framework of caution. For instance, on the issue of whether water that
flows over the body of carrion is impure, Walwālijī uses this maxim to support

6 Walwālijī, al-Fatāwā al-Walwālijiyya, 1: fol. 3b.

7 Kāsānī expresses this by saying, “in the Sharīˁa the ruling of the whole is applied on the major-
ity.” See Kāsānī, Badāˀiˁ al-ṣanāˀiˁ, 6: 271.
8 e.g. Sarakhsī, al-Mabsūṭ, 2: 54; Marghīnānī, al-Hidāya, 1: 180; Kāsānī, Badāˀiˁ al-ṣanāˀiˁ, 7: 288;
Zaylaˁī, Tabyīn al-ḥaqāˀiq, 6: 172.
Legal Maxims in the Literature 269

the view that it is necessary to act with caution. If a small amount of the water
passes over the carrion the ruling is that the water is pure, whereas if most of
the water passes over the carrion then the ruling is that the water is impure.
This is because “when caution is due, the majority is considered to be the whole.”9
Walwālijī’s contemporary, al-Ṣadr al-Shahīd (d. 536/1141), also discusses the
same issue, stating “the majority is put in the place of the whole” without the
qualification of caution.10 The fact that two contemporary authors use this
maxim in their discussion of the same subject illustrates both that legal issues
are based on the same maxims and that the two authors used common sources
of the school.
Although it is generally accepted that the sweat of a donkey or a mule will not
make worship impermissible if it gets on clothes, Ḥanafī sources state that if this
sweat drops into water, it will remove the purifying quality of the water. Walwālijī
makes a subtle distinction in this regard and likens the sweat of animals to their
saliva, stating that although these types of water are pure, their purifying qual-
ity is ambiguous. Therefore, when their saliva drops into water, they also make
the state of the water doubtful such that a state of impurity that is established
with certainty will not be removed with something doubtful.11 The fact that Walwālijī
explains the conclusion he reaches with the maxim certainty is not overruled by
doubt is significant in terms of presenting the legal basis of the ruling.
The principle that what is certain is not abandoned to doubt refers to the
certainty of rulings and provides people with inner peace in their actions.
However, the issues one meets are not always certain and clear. In such sit-
uations, the fact that one must act with caution is included with different
statements and the sources mention many maxims concerning this. Foremost
among these is the maxim “if permission and prohibition are together, the pro-
hibition prevails over the permission.” Regardless of whether this maxim is
inspired by a ḥadīth or whether it is the statement of a Companion, the mean-
ing it has is important for Islamic law.12 Ibn Nujaym words this as follows: “It

9 Walwālijī, al-Fatāwā al-Walwālijiyya, 1: fol. 3b. The author also in this regard uses the
maxim “in the Sharīˁa, consideration is given only to a prevailing.” Ibid, 1: fol. 7a.
10 al-Ṣadr al-Shahīd, Kitāb al-Wāqiˁāt, fol. 3a.
11 Walwālijī, al-Fatāwā al-Walwālijiyya, 1: fol. 4b. In Kitāb al-Wāqiˁāt, al-Ṣadr al-Shahīd treats
the issue in a similar manner. al-Ṣadr al-Shahīd, Kitāb al-Wāqiˁāt, fol. 2b.
12 The prevailing opinion is that this is a ḥadīth. For example, Sarakhsī puts forward the
maxim by directly attributing it to the Prophet, may peace and blessings be upon him.
Sarakhsī, al-Mabsūṭ, 1: 77. In contrast, Ibn Nujaym states that there are doubts concerning
the soundness of the ḥadīth and that the ḥadīth is narrated using a chain of transmitters
that ends with Ibn Masˁūd (d. 32/652). Ibn Nujaym, al-Ashbāh, 121. Kāsānī conveys the
maxim directly as a statement of Ibn Masˁūd. Kāsānī, Badāˀiˁ al-ṣanāˀiˁ, 5: 58.
270 Chapter 12

is permissible to abandon what is permissible, while it is obligatory to abandon

what is prohibited; therefore it is prudent to abandon what is prohibited.”13 In the
sources there are many examples of this maxim, the theoretical framework
of which is meticulously presented. Walwālijī mentions this maxim while dis-
cussing the situation of someone who wants to buy meat from a slaughter-
house which handles both meat slaughtered according to Islamic law and the
meat of animals that have died before being slaughtered and meat that has
been slaughtered by Zoroastrians. If the meats get mixed up and one does not
know which type of meat constitutes the majority, if there is necessity one
makes the effort to find what is appropriate (taḥarrī i.e. investigation) and buys
any meat. This is because when there is necessity it is permissible to eat meat
that is not slaughtered according to Islamic law. However, if there is no neces-
sity, if most of the meat has been slaughtered according to Islamic law, the
meat can be taken; if the other type of meat constitutes the majority or if they
are equal, then one cannot take any meat. This is because “if the permissible
and the prohibited are together, the prohibition becomes predominant.”14 After
discussing the issue at length within the framework of caution and necessity,
Walwālijī supports the conclusion he reaches with a maxim.
Qaḍī Khān (d. 592/1196), who composed a fatwā collection based on previ-
ous books of substantive law and fatwā, does not go into the evidences for the
issues he treats. However, in some places he explains the issues he discusses
with principles by putting forward legal maxims and sub-maxims. Qaḍī Khān
also mentions the maxim the “majority has the ruling of the whole” in an issue
in the chapter on dry ablution. If the condition of a person who has wounds
on a large part of his body would get worse if he performed major ablution or
his recovery would slow down, he needs to wash the areas that can be washed
and wipe the areas that are wounded. If most of the body is healthy and there
is a head wound, he washes the healthy parts and wipes the head. Qaḍī Khān
mentions the maxim “the ruling of the majority is applied to the whole” as the
legal cause of this conclusion, showing that the issue is based on this.15
al-Fatāwā al-Tātārkhāniyya, a fatwā collection from the 8/14th century
that discusses subjects according to the order of chapters in substantive law
works, presents many maxims like other fatwā works. The author of the book,
ˁĀlim b. al-ˁAlā (d. 786/1384), who refers to maxims especially while passing
on the opinions of the jurists of the Ḥanafī school, explains justification for

13 Ibn Nujaym, al-Baḥr al-rāˀiq, 8: 413.

14 Walwālijī, al-Fatāwā al-Walwālijiyya, 1: fl. 225b.
15 Qāḍī Khān, al-Fatāwā, 1: 48. For cases in which Qāḍī Khān does not mention maxims but
bases the ruling on the meaning indicated by the maxims see ibid, 2: 97, 104, 113, 116, 123.
Legal Maxims in the Literature 271

legal opinions using maxims. For example, Mūsā b. Yūnus al-Baqqālī was asked
what should be done in the case of a person who has impurity on his body but
cannot wash and clean it without revealing a part of the body that should be
covered. He replied that such a person would perform the ritual prayer with
the impurity, without revealing and washing the part of the body that needs to
be covered, because uncovering the private part is prohibited while washing
is commanded. After setting out this opinion, ˁĀlim b. al-ˁAlā justified it as
follows: “When command and prohibition are both present, prohibition has prec-
edence.”16 The author explained a substantive issue by adopting the principle
that in a situation in which there is both a command and a prohibition, it is
unacceptable for the prohibition to be violated. The method used here to show
legal ratiocination is like the approach of substantive legal sources.
Just as in works of substantive law, in fatwā literature there are many rul-
ings that are based on necessity. For example, al-Fatāwā al-Tātārkhāniyya sets
out the maxim necessities are confined to their limits during the discussion of
a difference of opinion among the jurists of the Ḥanafī school concerning
the blood involved in abnormal vaginal bleeding (istiḥādā). Although there
is agreement that a female who has abnormal bleeding has to perform ablu-
tion for each obligatory ritual prayer, it is debated whether the ablution ends
with the ending of the time allotted for the obligatory ritual prayer or with
the beginning of the time allotted for the next ritual prayer. In this debate, the
divergent opinions have been explained using various examples. According to
one, if a female who has abnormal bleeding performs the ablution before noon
and then the time for the noon ritual prayer starts, according to Abū Yūsuf the
previous ablution will end because there is a need to perform ablution for the
noon ritual prayer. ˁĀlim b. al-ˁAlā explains this opinion by stating that this
ablution is necessary to perform the ritual prayer and necessities are confined
to their limits.17
Since fatwā works deal with daily life issues and answer the problems peo-
ple face, necessity is an important criterion that is taken into consideration in
issuing rulings in the fatwā genre. However, because necessities can change it
is necessary to determine their limits. The Majalla states this using the expres-
sion “necessities are estimated according to their extent (al-ḍarūrāt tuqaddar
bi qadarihā).”18 There are several examples that prove that fatāwā were given
with this maxim in mind in Bazzāzī’s fatwā collection, which is widely known
as al-Fatāwā al-Kardārī, but the original name of which is al-Jāmiˁ al-wajīz. For

16 ˁĀlim b. al-ˁAlāˀ, al-Fatāwā al-Tātārkhāniyya, 1: 106.

17 ˁĀlim b. al-ˁAlāˀ, al-Fatāwā al-Tātārkhāniyya, 1: 116–117.
18 Majalla, cl. 22.
272 Chapter 12

instance, someone who has to cover a wound on his body with a bandage may
wipe over the bandage if lifting it and washing underneath would harm him.
If there is no harm, then the person lifts the bandage, wiping the wound and
washing around it. If harm would be caused not by lifting the bandage but by
wiping the wound, he removes the bandage, washes around the wound and
wipes the cloth over the wound. Since wiping in this situation is permissible by
reason of necessity, it is estimated according to the necessity.”19 In this exam-
ple, the author explains a situation in which permission is given on grounds of
necessity together with its rationale and states that since the permission is due
to necessity it is confined to what is necessary.
Al-Fatāwā al-Hindiyya, which was written in the 11/17th century and is also
known as al-Fatāwā al-Ālamgīriyya, was prepared on the basis of the opinions
in Ẓāhir al-riwāya and many other reliable sources. In contrast to the everyday
issues which classical fatwā collections discuss, al-Fatāwā al-Hindiyya, which
uses Nādir al-riwāya if there is no pertinent information in Ẓāhir al-riwāya,
includes general legal rulings. The work does not go into detail and rarely pre-
sents proofs for the issues discussed. al-Fatāwā al-Hindiyya, which, because of
these features, shares many aspects with legal compendia, uses maxims and
sub-maxims to explain the legal causes of the issues and to provide a founda-
tion for them. Although it is rare, the work at times begins a section by quoting
a maxim or sub-maxim. For example, the sub-maxim “everything that can be
given as mahr can be payment for khulˁ,”20 that is mentioned in Mukhtaṣar al-
Qudūrī and al-Hidāya, is put forward using the same expression in al-Fatāwā
al-Hindiyya.21 What can be a legitimate payment for khulˁ is a subject that
is debated between legal schools and is discussed at length in legal corpora.
Ḥanafīs who are of the opinion that valuable assets can be used as payment
in khulˁ concisely express this understanding with the principle mentioned
above. The fact that this sub-maxim is presented at the beginning of the
section that discusses what can be used as payment in khulˁ is significant in
showing that the subject is based on this principle. In fact, all the examples
discussed in the section are analysed within the framework of this principle.
Additionally, the fact that all three works quote the sub-maxim in the discus-
sion of this issue and base their opinions on it indicates the continuation of
the legal thought and reasoning within the school. This connection between

19 Bazzāzī, al- Fatāwā al-Bazzāziyya, fol. 6a.

20 Khulˁ is the divorce with renunciation. It is the payment a wife can offer to her spouse
who does not want to get divorced in order to get divorced.
21 Qudūrī, al-Mukhtaṣar, 163. Marghīnānī, al-Hidāya, 2: 599; Shaykh Niẓām, al-Fatāwā al-
Hindiyya, 1: 494.
Legal Maxims in the Literature 273

Qudūrī’s al-Mukhtaṣar written in the 5/11th century, al-Hidāya composed in

the 6/12th century and al-Fatāwā al-Hindiyya written in the 11/17th century is
paramount as regards the development of the school. That these three works
which are the products of different geographies and periods discuss khulˁ on
the basis of the same principle sheds light on the role of the legal doctrine of
the school in Islamic legal history. Although different times and regions paved
the way for differences in rulings and approaches, as can be seen in this exam-
ple that there is no difference in terms of the principles since the maxims and
sub-maxims that are the bases of the rulings are the same. This also explains
how legal scholars of the same school can reach varying conclusions from the
same principles.
Some maxims to which scholars refer in works of substantive law to explain
divergent opinions between jurists are also used in fatwā collections. Although
such maxims, which authors use to support one of the opinions on issues on
which jurists of the school differ, are mostly sub-maxims, and at times they are
general in nature. Such maxims are also present in al-Fatāwā al-Hindiyya. For
example, there is a difference of opinion among jurists of the Ḥanafī school
on whether one can perform the ritual prayer with impurity on one’s clothes
and, if one can, the limit the impurity cannot exceed. Some Ḥanafī jurists are
of the opinion that if drops of water into which animal impurity has fallen
come onto the body, this will not prevent the performance of the ritual prayer.
It does not matter whether the water is stagnant or flowing. In contrast, a
group led by Abū Bakr Muḥammad b. al-Faḍl (d. 381/991) argues that such a
situation prevents the performance of the ritual prayer. Reporting this debate,
al-Fatāwā al-Hindiyya states that the first opinion is preferable and adduces a
maxim to support it. The explanation is as follows. “Based upon the established
maxim certainty is not overruled by doubt the sound opinion is the first.”22 The
expression “established maxim” (al-qāˁida al-muṭṭarida) that is used in the
text shows that the maxim is well-known and that it has achieved an endur-
ing structure of expression. Moreover, the justification of a preferred opinion
in a debated issue within the school illustrates how maxims are used in the
sources. Especially when there is no obvious proof there is need for evidence
in cases in which there are two opinions in the school that seem equally strong.
However, it is not always possible to find a clear basis that makes one opinion
preferable to another. Hence, justifying a preferred opinion with a maxim is
deemed as the soundest approach.

22 Shaykh Niẓām, al-Fatāwā al-Hindiyya, 1: 47.

274 Chapter 12

2 The Literature of Nawāzil

As a specific type of fatwā literature, the nawāzil/wāqiˁāt genre refers to works

that deal with issues that the jurists of the early periods did not discuss or ones
that emerged later.23 While discussing such issues, jurists employ legal maxims
as needed. In providing solutions to cases where there are no transmissions
from the founding jurists, scholars try to produce legal knowledge through der-
ivation (takhrīj) from the rulings of the founding jurists on similar issues. This
approach, which is a striking common characteristic of the nawāzil literature
and reasoning based on takhrīj, becomes possible by identifying maxims on
which the rulings of the founding jurists of the school on different subjects
are based. Consequently, when substantive issues are mentioned in nawāzil
works, one can see the effort to use universal forms of expression. For exam-
ple, al-Ṣadr al-Shahīd (d. 536/1141) discusses an issue related to water for purity
with this approach. If an impurity falls into a pool of fruit juice, the fruit juice
is considered in analogy to water. If conditions that make normal water impure
are found, the pool is considered impure; if these are not found, the pool will
be considered pure. al-Ṣadr al-Shahīd expressed this universally in the form
“whatever makes water impure, makes other liquids also impure.”24 Likewise if a
woman performing ritual prayer wears a necklace that contains dog, lion or fox
bone, her ritual prayer is valid, since the hide of these animals can be tanned.
Based on this, the author reaches a general conclusion: “No bone of an animal
that can be purified by tanning the hide is impure.”25 Although al-Ṣadr al-Shahīd
takes this issue from ‘Uyūn al-masāˀil of Abū l-Layth al-Samarqandī (d. 373/
983), the generalization is his.26 Hence, al-Ṣadr al-Shahīd was trying to wrest
some propositions of a universal nature from substantive issues.
Al-Ṣadr al-Shahīd’s Kitāb al-wāqiˁāt contains important examples that
evince that jurists were studying within the framework of maxims the knowl-
edge of the school that was inherited, beginning with the first generation of

23 See al-Tamīmī, al-Ṭabaqāt al-sanīyah, 44–45; Al-Azem, Rule-Formulation and Binding

Precedent in the Madhhab-Law Tradition, 64.
24 al-Ṣadr al-Shahīd, Kitāb al-Wāqiˁāt, fol. 6a.
25 al-Ṣadr al-Shahīd, Kitāb al-Wāqiˁāt, fol. 7b.
26 Cf. Abū l-Layth al-Samarqandī, Uyūn al-masāˀil, 17. al-Ṣadr al-Shahīd stated in the intro-
duction to his book that he composed his work from issues that he selected from five works,
which he represents by different letters. These books are Abū l-Layth al-Samarqandī’s al-
Nawāzil (letter nūn) and al-ˁUyūn (with the same letter), Nāṭifī’s Wāqiˁāt (letter wāw),
Abū Bakr Muḥammad b. al-Faḍl’s al-Fatāwā (letter bāˀ), Fatāwā ahl al- Samarqand (letter
sīn). Additionally, he states that he followed the order of Ḥākim al-Shahīd’s al-Kāfī. al-
Ṣadr al-Shahīd, Kitāb al-Wāqiˁāt, fol. 1b.
Legal Maxims in the Literature 275

the school. An example of this is in the section that deals with found property
(luqaṭa). Abū l-Layth al-Samarqandī mentions Shaybānī’s opinion, which al-
Ṣadr al-Shahīd passes on, adducing a maxim as the basis of the issue. The issue
in ˁUyūn al-masāˀil is as follows:

Concerning a group which finds a slaughtered camel on a road outside

populated areas, Imam Muḥammad [Shaybānī] states the following: If
the place where they found it is not near water, this shows that the owner
of the animal did this for the benefit of the people. In this case, there is
no problem with taking and eating it.27

Kitāb al-wāqiˁāt discusses the issue as follows:

If a group finds a slaughtered camel on a road outside populated areas, if

the place where they found it is not near water, this shows that the owner
of the animal did this for the benefit of the people. In this case, there is no
problem with taking and eating it, because “what is established through
indication is like what is established through an explicit statement.”28

This example is significant in showing that legal maxims are obtained through
the study of the tradition of the school. As legal doctrine develops, each gen-
eration reads the accumulated knowledge from previous periods in various
ways and some jurists identify the principles on which the legal heritage of the
school is based. This demonstrates that the knowledge of the madhhab in legal
corpora is one of the main sources of maxims.
Marghīnānī’s (d. 593/1197) Mukhtārāt al-nawāzil, like the author’s al-Hidāya,
is an important source for the application of jurisprudential and substantive
maxims. In Mukhtārāt al-nawāzil, Marghīnānī uses maxims to substantiate
the opinions he discusses and to support the opinion he prefers in issues in
which there is a divergence of opinions within the school. For instance, at the
beginning of the chapter on the missing person (mafqūd), Marghīnānī refers to
both jurisprudential and substantive maxims to discuss differences from other
schools and within the Ḥanafī school. Since the missing person is considered to
be alive as regards to his prior rights, his property is not distributed to his heirs

27 Abū l-Layth al-Samarqandī, ˁUyūn al-masāˀil, 178.

28 al-Ṣadr al-Shahīd, Kitāb al-Wāqiˁāt, fol. 116b. Ibn ˁĀbidīn explains the qualification of not
being near water as referring to the possibility that the owner slaughtered the animal after
taking it out of water thinking that it was alive, but then understood that it had drowned,
making the meat useless. Ibn ˁĀbidīn, al-Ḥāshiya, 6: 476.
276 Chapter 12

and his spouse is not divorced. However, since he is considered dead as regards
obtaining new rights, he cannot inherit after he goes missing. Marghīnānī sub-
stantiated the opinion of the Ḥanafī school with istiṣhāb al-ḥāl (assuming the
continuity of a prior state unless there is evidence to the contrary), illustrat-
ing this with the jurisprudential maxim “istiṣhāb al-ḥāl is for forfending, not for
proving or establishing a right.” Thus, he reveals the rationale for why Ḥanafī
jurists advocate an opinion that is contrary to that of Shāfiˁī. Later, Marghīnānī
discusses the differing of opinions concerning the time required before one
can rule a missing person as deceased, stating that the most appropriate opin-
ion is 90 years. He tries to show through some narrations that although the bur-
den the missing person’s spouse carries by reason of the length of this period
is difficult, this must be regarded as a test. He then indicates that this issue has
to be discussed within the framework of marriage, explaining the subject with
a principle: “The marriage is established with certainty; in contrast, death during
the period in which one is missing is possible. In this situation, the marriage that
is certain will not be removed with doubt.”29 Although the period for which the
missing person’s spouse must wait is long, Marghīnānī states that marriage,
which is certain, cannot cease with the possibility of death, substantiating his
opinion with the maxim “certainty is not overruled by doubt”.
In legal sources there are detailed rulings concerning hunting. Likewise,
in nawāzil works jurists try to find solutions to various issues people encoun-
ter when hunting. In Mukhtārāt al-nawāzil, Marghīnānī substantiates a case
he discusses with a maxim. The meat of animals whose meat can be eaten
becomes consumable by reason of having had its throat cut. However, since
this is not always possible when hunting, the requirement of slaughtering has
been removed from necessity. Therefore, if a hunter catches the animal alive,
the original ruling is that he should slaughter it (voluntary slaughter); how-
ever, if he cannot catch it alive, the substitute takes the place of the original
slaughtering (involuntary slaughter). If a person does not slaughter an animal
he shoots and finds alive or which a hound brings back alive and then the ani-
mal dies, the meat is inedible. Marghīnānī substantiates this with the principle
“if the original becomes possible before the aim is accomplished with a substitute,
the ruling for the substitute becomes invalid.”30

29 Marghīnānī, Mukhtārāt al-nawāzil, fol. 90b. For another example of the maxim certainty
is not overruled by doubt, see ibid, fol. 100a.
30 Marghīnānī, Mukhtārāt al-nawāzil, fol. 115a. For the same maxim cf. Sarakhsī, al-Mabsūṭ,
13: 148; Kāsānī, Badāˀiˁ al-ṣanāˀiˁ, 3: 200; Zaylaˁī, Tabyīn al-haqāˀiq, 2: 267; Ibn Nujaym, al-
Baḥr al-rāˀiq, 4: 73.
Legal Maxims in the Literature 277

As in works of substantive law, in nawāzil works the author sometimes men-

tions examples and then states that those examples are based on a maxim or a
sub-maxim. For example, after setting out various examples in the chapter on
hunting, Marghīnānī identifies the principle which is the common feature of
those issues. If someone strikes the prey with something like a stone and then
the animal falls on a sharp object such as a standing spear, the meat becomes
inedible because of the possibility of death from some other causes. Likewise,
if an animal falls on a stone that slits its stomach, the animal becomes inedible.
If the animal is killed by the throwing of a heavy stone, even if part of the stone
is sharp, the meat becomes inedible due to the possibility that the animal died
because of the weight of the stone. However, if the stone is light and sharp, the
meat is edible due to the high probability that the animal died of the wound
from the stone. If an animal dies due to something like a stick being thrown at
it, the meat is not edible because of the probability that it died not because of a
wound but because of the weight of the object thrown. If the stick is sharp, the
meat is edible due to the probability that it died of the wound from the stick.
After setting out all these examples, Marghīnānī put forward the principle on
which all these cases are based: “In these issues, the rule is as follows: If the death
is due to a wound, it is permissible to eat the meat. If death is due to the impact
of the weight, it is not permissible to eat the meat.”31 The mention of a maxim or
sub-maxim after the setting out of such issues reveals the effort to find the rule
on which different issues are based.32

3 The Literature of Uṣūl al-fiqh

Although works of jurisprudence mainly use jurisprudential maxims, they also

feature legal maxims. Jurisprudents refer to legal maxims to elucidate issues
they discuss and to justify opinions. While the areas in which works of jurispru-
dence and substantive law employ legal maxims are different, there are simi-
larities in terms of constructing legal ratiocination and the function of max-
ims. Jurisprudential works in the main mention maxims that are used in works
of substantive law to explain a substantive issue in the discussion of jurispru-
dential issues. For instance, Sarakhsī mentions a legal maxim while discussing
the significance of the information that is established by the solitary report
(khabar al-wāḥid). The report of an individual can establish creedal rulings,

31 Marghīnānī, Mukhtārāt al-nawāzil, fol. 116b.

32 For some other examples in nawāzil and wāqiˁāt literature see Kadrī Efendi, Wāqiˁāt
al-muftīn, 48.
278 Chapter 12

such as the punishment of the grave, interrogation by the angels Munkar and
Nakīr, and seeing Allah in paradise. These examples show that solitary reports
do provide knowledge. However, after stating that there is a difference between
certain and satisfactory knowledge (ˁilm al-yaqīn and tumˀanīnat al-qalb) and
that there is always the possibility that a person who is not infallible can lie,
Sarakhsī justifies this with the maxim that what is certain cannot be established
by what is doubtful or possible.33 As can be seen here, Sarakhsī points to another
aspect of the maxim certainty is not overruled by doubt, to which works of sub-
stantive law frequently refer, in a jurisprudential discussion to illustrate that in
jurisprudential subjects certain knowledge cannot be established by the use of
what is open to doubt.
Similarly, Sarakhsī explains a jurisprudential debate using the same maxim,
supporting it with many examples from substantive legal rules. According to
the opinion he adopts, after there is agreement or consensus on a certain issue,
if there is a change in the state of the agreed-upon issue, the former consensus
is no longer proof. In contrast, some scholars argue that the former consensus
remains a legal proof and must be acted upon until there is consensus to the
contrary. Sarakhsī explains the opinion he adopts with the use of some exam-
ples from substantive law. These include the consensus that a certain body of
water is pure, which ends when something impure falls into it. Likewise, the
consensus that the ritual prayer of someone who has performed dry ablution
is valid is no longer a proof after he sees water during the ritual prayer, which
invalidates his ritual prayer. This is because seeing water while performing
ritual prayer is something that cancels the previous ruling. After providing
such examples, Sarakhsī states that in issues of the Sharīˁa what is primary is
certainty, while doubt will not be taken into consideration. He writes, “since
this is also the case in rulings, we say that certainty is not overruled by doubt.” He
then supports this with examples from subjects such as divorce and confession
(iqrār) that show that a ruling that is certain is not removed because of doubt.
Sarakhsī repeats the maxim “certainty is not overruled by doubt” and states that
this is also the case in issues regarding the certainty of knowledge.34
Bazdawī (d. 482/1089) states that knowledge is of two types, the first of
which is knowledge of the oneness of Allah and His attributes (ˁilm al-tawḥīd
wa l-ṣifāt) and the second is knowledge of the law and rulings (ˁilm al-Sharīˁa
wa l-aḥkām). After explaining the knowledge of the oneness and attributes
which deals with issues of creed, Bazdawī moves on to the second type, stating

33 Sarakhsī, al-Uṣūl, 1: 329.

34 Sarakhsī, al-Uṣūl, 2: 116–117.
Legal Maxims in the Literature 279

that this is knowledge of fiqh. He stated that knowledge of fiqh is divided into
three, extensively explaining each one. Bazdawī describes the second of these
divisions, which is having knowledge of revealed rulings, as “having firm knowl-
edge of it (iṭqān al-maˁrifati bih),” explaining that this is knowing statements
of revelation with their meanings and knowing the sources of fiqh together
with what is derived from them. ˁAbd al-ˁAzīz al-Bukhārī (d. 730/1330) in his
commentary on Bazdawī’s al-Uṣūl explained this by using some examples.
According to ˁAbd al-ˁAzīz Bukhārī, knowing the sources with their deriva-
tions denotes knowing the literal meanings of the statements of revelation as
well as their legal causes. As an example of an axiom and the ruling derived
from it, he mentions the maxim “doubt cannot oppose certainty”. He then states,
“someone who is sure that his state of ablution has ended but is unsure if he per-
formed an ablution needs to perform an ablution; if the opposite is the case, then
he does not need to”.35 As can be seen in this example, jurisprudential works
refer to legal maxim in explaining certain subjects.
35 ˁAbd al-ˁAzīz al-Bukhārī, Kashf al-asrār, 1: 15, 23–24.
Conclusion

The legal knowledge that jurists built upon certain principles beginning with
the formative period of Islamic law gradually resulted in various genres. The
maxim literature which is foremost among these is a genre that came about
through the study of the Islamic legal heritage within the framework of axi-
oms and represents the dimension of law that is based upon principles. Legal
maxim, which is a universal proposition that encompasses issues from differ-
ent areas of law, can be divided into the two categories of maxim (qāˁida) and
sub-maxim (ḍābiṭ) in terms of their scope. Whereas a maxim is an extensive
axiom or principle that encompasses more than one area of law, the sub-
maxim is a narrower principle that covers issues of only one legal subject.
Although the fact that maxims are more abstract and encompassing makes
the subjects to which they relate more extensive, this also lessens the possi-
bility of their application. Therefore, it has been stated that a ruling cannot
be based on a very general maxim. In contrast, sub-maxims have the function
of directly regulating the issues to which they are related. Just as maxims and
sub-maxims differ in terms of their scope, they are also different as regards
their features. A considerable proportion of maxims echo the general features
of Islamic law and are therefore axioms commonly accepted by different legal
schools. In contrast, sub-maxims, which the legal doctrine of each school pro-
duces, reflect the general features of the school in which they were generated.
Therefore, while classical sources build rulings on sub-maxims that are the
products of the legal doctrine of the school, they do not attribute such mean-
ing to general maxims.
Although authors of works of legal maxims in the modern period try to pres-
ent the source of each maxim and sub-maxim in the Qurˀān and the Sunna,
the authors of maxim works in the classical period did not partake in this
endeavor. Although the Qurˀān and the Sunna constitute the foundation for
all information produced by the Muslim community, attempting to find direct
evidence for each maxim from the scriptures implies overlooking the effort put
into legal doctrine. Legal maxims were obtained through an inductive study of
not only the statements of the Qurˀān and the Sunna but also the legal mate-
rial whose spectrum includes both the legal accumulation generated begin-
ning with the formative period as well as cultural elements that support this
heritage.
Maxims, which are obtained through the inductive study of Islamic legal
thought and epistemological analyses of the knowledge of legal schools, have
the form of universal propositions. Jurists who studied the legal heritage of
Conclusion 281

the founding period of Islamic law to find legal principles referred to maxims
for derivation (takhrīj), determining preponderance (tarjīḥ), and ratiocination
(taˁlīl), using them to justify the conclusions they reached. Since legal maxims
are the products of such an intellectual effort that focuses on the legal accumu-
lation of a particular school of law, they echo the characteristics of the school.
Nevertheless, the fact that different legal schools use general legal maxims in
a common way shows that these maxims have a structure that is beyond any
one school.
Different legal genres such as commentaries, glosses, compendia and fatwā
collections have influenced the development of the legal thought on maxims
on the basis of their individual features. This is because the sub-genres that
gradually developed within Islamic law present legal maxims in different forms
and functions. The language of the compendia and the fact that they concisely
summarize the extensive knowledge of the schools of law have significantly
influenced the structure of expression of legal maxims. Commentaries that
use legal maxims in a functional manner have also played an instrumental role
in the legal thought on maxims. The focus on ratiocination in the discussion
of substantive rulings has in time led some of these causes to be formulated
as maxims. The first examples of maxims in foundational legal sources are
articulated through the method of identifying legal ratiocination. However,
especially towards the middle of the 4/10th century, Ḥanafī jurists in particu-
lar have followed the method of mentioning maxims and sub-maxims at the
beginning of legal chapters, explaining related issues under this umbrella. This
method, which differs from that of identifying legal ratiocination, has been
called taˀṣīl (establishing axioms). Specifically, commentaries on Shaybānī’s
al-Jāmiˁ al-kabīr represent the earliest and most important examples of this
approach. This method of writing, which is found in the commentaries on
Shaybānī’s works, gradually became a method that can be applied to all legal
areas in other sources, leading to the birth of the literature on maxims. This
method, which in al-Karkhī’s al-Risāla is presented within the framework of
the differences of opinion of the founding jurists of the school, was applied in
subsequent works on maxims according to the order of chapters in works of
substantive law.
This approach, which developed within the framework of the works of
Shaybānī, who was one of the founders of the Ḥanafī school and read the legal
doctrine in the light of legal principles, generated compilations of independ-
ent works on maxims led by jurists centred in Baghdad. Jurists such as Abū
Ṭāhir al-Dabbās and Karkhī, who expressed the legal heritage of the school
in a theoretical manner, lived in this period, which corresponds to the 4/10th
century. This also meant expressing the intellectual parameters of the school
282 Conclusion

in legal language in an abstract way. However, their endeavour took a different

form as the impact of the Ḥanafī school in Baghdad weakened and the school
shifted to Transoxiana. This is because the Ḥanafī jurists of Transoxiana had
other concerns, which were different from the issues on which the scholars of
Baghdad focused. As a result, the activity of Dabbās and Karkhī in studying the
legal accumulation of the school within the framework of maxims gave way to
other discussions and genres.
The method of basing the legal heritage of the school on maxims, which the
Ḥanafī jurists of Baghdad pioneered in the 4/10th century, was not confined
to Ḥanafīs but also influenced other legal schools with which they interacted.
One can mention within this framework Ibn al-Qāṣṣ, who was a leading figure
among the Shāfiˁīs of Baghdad and to whom Shāfiˁī maxim works frequently
refer, and the Mālikī jurist, Khushanī. However, the efforts of these authors,
who use maxims to a great extent in works of substantive law, did not produce
independent studies on maxims. The fact that from this period until the 7/
13th century legal scholars who conducted studies on maxims were linked to
Baghdad in various ways shows that this region was the centre that paved the
way for the emergence of the concept of maxim.
In parallel to the fall of the Abbasid caliphate in Baghdad in the 7/13th century
and the transfer of the caliphate’s centre of power to Egypt, Cairo and Damascus
became the centre of writings on maxims. However, the writing style here was
a product of the legal-theoretical thought that focuses on objectives of law
(maqāṣid). The efforts of ˁIzz b. ˁAbd al-Salām, who was one of the most venerable
scholars of the maxim literature, influenced subsequent works to a great extent
and played a role in ensuring the rotation of the legal thought on maxims around
the axis of legal aims. With ˁIzz b. ˁAbd al-Salām, Shāfiˁī jurists began to play a
leading role in maxim literature in terms both of quality and quantity. This con-
tinued until Ibn Nujaym. With Ibn Nujaym’s al-Ashbāh, Ḥanafī jurists achieved
considerable richness in their studies on maxims. However, a large portion of new
Ḥanafī compositions were commentaries or glosses on Ibn Nujaym’s al-Ashbāh.
Maxim works in the first period adopted a framework based on legal differ-
ences of opinion. However, beginning with the 8/14th century this approach
gave way to the tendency to analyse the principles on which the opinions of
the school were based. Since this period, the effort to present the axioms of a
systematic school and to prove the principles that are the bases of substan-
tive issues has dominated. Thus, maxim works achieved stability in terms of
their language and style only in the 10/16th century. These works analyse the
differences of opinion between schools or between jurists of the same school,
aiming to present the maxims on which each school or legal scholar based
their opinions.
Conclusion 283

Maxim works after the 8/14th century were called al-Ashbāh wa l-naẓāˀir
because they provided many examples under the maxims they discussed
that were similar in terms of form and ruling in an effort to demonstrate
how these were related to the maxims. Hence, the presentation of many
examples that can be called ashbāh and naẓāˀir under each maxim influ-
enced the use of this title. al-Ashbāh wa l-naẓāˀir, in which in addition to
maxims other subjects were also discussed, can nevertheless be considered
maxim works. This is because in these works legal scholars either directly
show the link between subjects that are discussed under different titles to
the axioms on which they are based or indirectly present examples that
illustrate this link.
As Ibn Nujaym states in al-Ashbāh wa l-naẓāˀir, Ḥanafīs for a long period did
not produce maxim works because they turned to other genres such as com-
mentaries, glosses and compendia and effectively used maxims in these fields.
The Central Asian Ḥanafīs, who were influential in the doctrinal development
of the school, focused on writing works of jurisprudence and substantive law,
which represent the two main veins of Islamic law, showing less interest in
other sub-genres such as qawāˁid, takhrīj al-furūˁ ˁalā l-uṣūl and furūq. In fact,
considering the factors that generated Ibn Nujaym’s al-Ashbāh wa l-naẓāˀir,
which is one of the foundational maxim works in the Ḥanafī school, one can
see that it was significantly influenced by the Shāfiˁī maxim tradition in Egypt
and Damascus. In this framework, he analysed the sources of the school to
collect maxims.
The studies of Ḥanafī jurists who compiled maxim works after Ibn Nujaym
were shaped by Ibn Nujaym’s al-Ashbāh wa l-naẓāˀir. This situation continued
until the Majalla, with which the legal thought on maxims entered a different
stage that also influenced other schools. The Majalla, which, considering the
conditions of its time, was quite successful in many respects, was a result of the
codification process. Although the Majalla was based on Islamic law, it cannot
be considered either a work of fiqh or a legal maxim work in the classical sense.
In this respect, unlike the goal of maxim works that are composed for doctrinal
reasons, the Majalla has the feature of being composed for practical purposes.
The fact that although it has been more than a century since the preparation
of the Majalla it still generates new studies is an important indication of its
impact.
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Index

ʿAbbādī 128 al-aḥkām al-sulṭāniyya state law 65

ʿAbd al-ʿAzīz al-Bukhārī 279 Aḥmad b. ˁAbd Allāh b. Maḥmūd 87
ʿAbd al-ʿAzīz al-Dahlawī 231 Aḥmad b. Ḥanbal 260
ʿAbd Allāh b. Sulaymān al-Jarhazī 143 Aḥmad b. Naṣr Allāh b. ˁUmar
ʿAbd al-Ghanī b. Ismāˁīl al-Nāblusī 151 al-Makhzūmī 130, 134
Abd ar-Rahman al-Maqdisī 134, 151 Aḥmad Ḥajjī al-Kurdī 188
ʿAbd al-Raḥmān al-ʿImādī; 262 Ahmet Cevdet Pāshā 176–177
ʿAbd al-Razzāq al-Ḥanbalī; 129 ˁAlāˀī 8, 18, 31, 40, 58–59, 84, 95, 111, 114–129,
ʿAbd al-Sattār al-Atāsī 181 132–135, 138, 142, 153, 156
ʿAbd al-Qādir b. Barakāt al-Ghazzī 182 ˁAlāˀ al-Dīn al-Samarqandī 103
ʿAbd al-Sattār al-Atāsī 182 Aleppo 112, 126, 132–133
ˁAbd al-Wahhāb al-Bāḥusayn 20–21, 25, ʿAli (Hz.) 219
192–193 ˁAlī Aḥmad al-Nadwī 20, 42
Abū ˁAlī al-Shāshī 89 Aḥmad Ibn ˁAlī Manjūr 17, 144
Abū Bakr b. Abī al-Qāsim b. al-Ahdal 143 al-Ashbāh wa l-naẓāˀir 8, 31, 33, 34, 55, 77,
Abū Bakr al-Iskāf 91 80–81, 108–111, 118–119, 125, 127, 132, 139,
Abū Bakr al-Khālidī 109 142–143, 148–152, 154–158, 160, 186, 188,
Abū Bakr Muḥammad b. al-Faḍl 273 190, 192, 283
Abū l-Baqāˀ al-Kafawī 16, 47 al-Ashbāh wa l-naẓāˀir fī al-naḥw 142
Abū Ḥamīd al-Isfarāyīnī 114, 125 al-Aṣl 7, 13, 28–31, 35, 41, 55, 90, 92, 95, 100,
Abū Ḥāmid al-Jājarmī 104 191, 205, 212, 222, 235
Abū Ḥanīfa 29, 52–56, 66, 68, 72, 76, 87, 98– aṣl of Abū Ḥanīfa 29, 205, 232
101, 125, 148–149, 153, 161–163, 205, 207, aṣl of Abū Ḥanīfa and Abū Yūsuf’ 29
216–217, 221–224, 231, 234, 237, 246, 242, aṣl of Abū Ḥanīfa and Muḥammad 29
251–254, 257, 261, 264, 268, 270–274 aṣl of Abū Yūsuf 205
Abū l-Ḥasan al-Mahāmilī 114, 125 aṣl of Muḥammad 205
Abū Ḥayyān al-Andalusī 112, 118 aṣl of the two shaykhs 29
Abū l-Layth al-Samarqandī 274–275 al-aṣl al-maˁhūd (the familiar aṣl) 28,
Abū Mūsā al-Ashˁarī 138 207, 208
Abū Saˁīd al-Bardāˁī 86, 89, 98 al-aṣl al-maḥfūz (the preserved aṣl) 28
Abū Sufyān 219 Asnā l-maqāṣid fī taḥrīr al-qawāˁid 134
Abū Sulaymān al-Juzjānī 162 ˁAlī b. ˁUthmān al-Ghazzī 131–133
Abū Ṭāhir al-Dabbās 8, 86, 138, 154, 281 ˁAlī al-Anṣārī 164
Abū ˁUthmān al-Khālidī 109 ˁAlī al-Qārī 259–260
Abū Yūsuf 29, 56–57, 69, 76, 98–99, 100, 103, Ali Haydar Efendi 16, 24, 182, 186, 194,
200, 205, 207, 209, 216, 221–222, 224, 203, 263
232, 234, 236, 245, 251, 252, 257, 259, ˁĀlim b. al-ˁAlā 270
260, 261, 264–268, 271 al-Alghāẓ 153, 161
Abū l-Yusr al-Bazdawī 91 ˁAmal man ṭabba li-man ḥabba 46, 113
Abū l-Qāsim al-Ṣaffār 91 Aminiyya Madrasa 124
Abū al-Qāsim Manṣūr al-Numayrī 59 amr (command) 27
Abū Zayd al-Marwazī 59–60 amwāl fiscal law 65
adab al-qāḍī legal procedure for judges 65 al-Aqmār al-muḍiyya 143
al-adilla al-sharˁiyya 47 Awzāˁī 100
Ahizāde Abdülhalim Efendi 151 ʿAynī 263
Index 307

Badr al-Dīn Muḥammad al-Bakrī 81 fatwā (p. fatāwā legal responsa) 5, 10–11, 62,
Baghdad 6, 9, 69, 83–86, 89, 91–97, 103, 67, 141, 144, 149–150, 152, 154–155, 159–
104, 281 161, 163, 166, 178–180, 184, 226, 253, 258,
al-Baḥr al-rāˀiq 148, 178 266–268, 270–272, 274, 281
al-Bāḥir fī ikhtiṣār al-ashbāh wa al-Fatāwā al-Ālamgīriyya 272
l-naẓāˀir 143 al-Fatāwā al-Hindiyya 178, 235, 272–273
Baghāwī 60 al-Fatāwā al-Kardārī 271
Bannānī 35, 171 al-Fatāwā al-Khāniyya 76
Bāqillānī 79 al-Fatāwā al-Tātārkhāniyya 178, 271
Bazzāziyya 152, 178 al-Fatāwā al-zayniyya 148
Bukhara 96–97 Fatḥ bāb al-ˁināya 259
Burhān al-Sharīˁa 215, 239, 254, 259 Fatḥ al-Ghaffār 148
Buwayṭī 103 Fatimid 103
Fayyūmī 15
Çivīzāde Mehmed Efendi 151 al-Fawāˀid 34, 152
Cairo 8, 103–104, 116–118, 126, 129, 130, 132, al-Fawāˀid fī ikhtiṣār al-maqāṣid 105
148–149, 156, 282 Fawāˀid al-husām ˁalā qawāˁid Ibn ˁAbd
Caliph ˁUmar 209 al-Salām 105
codification 9, 175–176, 178–179, 187 al-Fawāˀid al-janiyya 143
conceptualization 1, 50 al-Fawāˀid al-Makkiyya 143
al-Fawāˀid al-zayniyya 148–152, 154–155, 159
ḍābiṭ 7, 15–19, 26, 29, 31–36, 38–39, 43–46, furūʿ substantive law 65
48, 54, 120–121, 280 furūˁ al-fiqh 4, 17, 55
Dabūsī 96–101, 232 furūq legal distinctions 3, 6, 9–10, 32, 55, 64,
dafˁ al-mafāsid 104, 195 70, 77–81, 83, 103–107, 112–114, 141, 153,
dalīl al-khiṭāb 40 165, 203, 283
darˀ al-mafāsid 115, 122 al-Fuṣūl 191
ḍarūriyyāt necessities 204
Damascus 8, 110, 112–114, 118, 126, 129, Ghamz ˁuyūn al-baṣāˀir 163, 172
132–135, 147, 262, 282–283 Ghazālī 47, 121, 198, 218
Ḍiyāˀ al-Dīn ˁAbd al-Hādī b. Ibrāhīm Ghurar al-aḥkām 238
al-Ahdal 143 Güzelhisārī 16, 33, 171–172, 203.
Durar al-ḥukkām 182, 257
ḥājiyyāt needs 23, 43, 204
Ebül’ulā Mardin 178 Ḥajwī 145
Egypt 83, 103–105, 110–112, 137, 147–149, Ḥamawī 18, 151, 163, 172–173, 203, 216–217
282–283 ḥamliyya 27, 201
Esad Efendi 166–171 Ḥanafī school of law 4–6, 10, 52–53, 70,
Esbāb-ı Mūcibe Mazbatası 21, 166, 178, 85–89, 91, 96–97, 147–150, 152–156, 159,
184–186, 263 164, 167–168, 172, 174, 184–185, 205, 208,
214–215, 219, 222, 231–232, 234–240, 243,
al-Fādānī 143 247, 250, 254, 256, 259, 261, 268–269,
fāˀida 76, 112, 117, 123, 160 271, 273, 275–276, 281–283
Fārābī 14 Ḥanbalī 6, 73, 75, 78, 85, 109, 110, 114,
farāˀiḍ (inheritance) 65 119, 129–130, 134, 136, 146–147, 149,
al-Farāˀid al-bahiyya 188 164–165, 171
faṣl 112, 122–123 Ḥanbalīsm 97
Fetavā-i Ankaravī 178 Hārūn al-Rashīd 59
308 Index

Ḥasan b. Ziyād 52, 100, 222–223 Ibn Shubruma 218

ḥāshiya glosses 4, 8–10, 65, 67, 241, 263 Ibn Surayj 1
Ḥāshiyat al-Ashbāh wa l-naẓāˀir 143 Ibn al-Subkī 8, 18, 33–34, 57, 84, 95, 114,
Ḥayrat al-fuqahāˀ 161 116–156, 166, 202
Hadiyyat al-ˁārifīn 10 Ibn Taymiyya 40, 131
Harāt 87–88 Ibn al-Wakīl 9, 31, 35, 110–112, 114, 118–119,
Ḥījāz 112, 129, 131, 134 121, 125, 127, 132, 138, 142
al-Hidāya 34, 91, 152, 159, 178, 180, 239, Ibn al-Zaghūnī 134
272–273, 275, 282 Ibrāhīm al-Ḥalabī 239–240, 261
Ḥiṣnī 131–132 Īḍāḥ al-masālik ilā qawāˁid 145
Ḥiyal legal devices 65, 153, 161 Īḍāḥ al-qawāˁid al-fiqhiyya 143
ḥukm thabata ˁalā khilāf al-qiyās 57 ikhbārī (declarative) 27
al-Khulafāˀ al-Rāshidūn 226 Ikhtilāf al-fuqahā 29, 69
Ikhtilāf Abī Ḥanīfa wa Ibn Abī Laylā 69
Ibhāj 123 al-Ikhtiyār 152, 178, 223, 253
Ibn ˁAbd al-Barr 45 illah (ratio legis) 198, 208
Ibn ˁĀbidīn 57, 262–263 ilm al-khilāf (Islamic comparative
Ibn Abī Laylā 69, 100, 211, 218 law) 69, 96
Ibn Jamāˁa al-Kinānī 105, 133 (inshāˀī (performative) 27
Ibn al-ˁImād 142 inter-madhhab 3, 10, 29, 67, 76, 111, 231, 240,
Ibn Daqīq al-ˁĪd 213–214 254, 260
Ibn Dūst 102 intra-madhhab 3–4, 67, 76, 111, 231
Ibn al-Firkāḥ 111, 114 Iraq 8, 86–91, 96, 147–148.
Ibn Ghāzī 46 İslam Hukuku Nazariyatı Hakkında Bir
Ibn Ḥajar 57 Etüd 171
Ibn Ḥazm 28 Isnawī 71, 73–77, 117, 131, 134, 139
Ibn al-Humām 259 Istanbul 168–170
Ibn Kamāl Pāshā 79 istiṣhāb al-ḥāl (assuming the continuity of a
Ibn Kathīr 126, 134 prior state unless there is evidence to
Ibn Khaldūn 73, 113, 233 the contrary) 276
Ibn Khaṭīb al-Dahsha 16, 133 istiḥsān (juristic preference) 38, 123,
Ibn al-Laḥḥām 42–43, 68, 71, 75, 77, 129 208–212, 215–217, 227
Ibn Māza 87 istinbāṭ (juridical extraction of rules from the
Ibn al-Mibrad 146–147, 164, 171 scriptures) 51
Ibn al-Mulaqqin 131–132, 135, 139 istiqrā (induction) 198
Ibn al-Najjār 16 al-istiqrāˀ al-ḥaqīqī 199
Ibn Nujaym 18, 34, 41, 50, 52, 76, 84, 87, 98, al-istiqrāˀ al-mustawī 199
110, 125–126, 136, 143, 147–186, 216–217, Izz b. ˁAbd al-Salām 8, 30, 58, 103–108,
258, 269, 282–283 111–115, 118–119, 121, 125, 127, 132–134, 136,
Ibn Qāḍī al-Jabal 129 138–139, 146, 149
Ibn Qāḍī Shuhba 131 İzmirli İsmail Hakkı 16, 88, 96
Ibn al-Qāṣṣ 8, 45, 94–95, 114, 125, 233, 282
Ibn Qayyim al-Jawziyya 112, 129 jadal (disputation) 69
Ibn Qudāma 37, 213 Jalāl al-Dīn al-Maḥallī 137
Ibn Rajab 9, 34, 42, 75, 126, 129–130, 134–135, jalb al-maṣāliḥ 115, 122, 195
136, 146–147, 164 Jamˁ al-jawāmiˁ 123, 171
Ibn Rushd 47, 96 al-Jamˁ wa l-farq 78, 81
Ibn Shalabī 148 al-Jāmiˁ al-kabīr 89, 91, 95, 205–206, 230,
Ibn Shāt 107 234, 243–244, 248, 250–251
Index
al-Jāmiˁ al-ṣaghīr 87, 91, 152
al-Jāmiˁ al-wajīz 271
Jaṣṣāṣ 85, 89–91, 95, 97, 206, 210–211,
217–219, 232, 236, 243–248
jawāmiˁ al-kalim (forceful and meaningful
concise utterances) 50
Jerusalem 112, 114, 129, 132–133
jihat al-waḥda al-dhātiyya 19
Joseph Schacht 22
al-Jurjānī, Sayyid Sharīf 47
Juwaynī 30, 46, 78, 81, 120, 213
juzˀī (particular) 15, 198
al-juzˀī al-ḥaqīqī (real particular) 15
al-juzˀī al-iḍāfī (relative particular) 16
Kafawī 16, 47
Kanz al-daqāˀiq 33, 69, 148–149, 152, 159,
180, 239, 257–258
Karābīsī 81, 162
Kāsānī 195, 207–208, 211–212, 222–223, 225
Kashf al-ẓunūn 66
Kātip Çelebi 66, 102, 105, 131
Kamāl al-Dīn al-Zamlakānī 114
kānūnnāme 175
Karaçelebīzāde 151
Karkhī 1, 6, 8, 85–90, 92–99, 154, 158, 232,
236, 244, 256, 281–282
al-Kawkab al-durrī 74, 76–77, 131, 139
Kazabadī Ahmed Efendi 170
khabar al-wāḥid 17, 38, 41–42, 73,
213–215, 277
Khādimī 150, 165, 168, 170–174, 178, 186
kharāj (land tax) 65
Khaṭṭābī 57
Khayr al-Dīn al-Ramlī 151
khilāf (juristic differences) 2, 8, 31
khilāfiyyāt 69
Khorasan 89
Kirmānī 248–251
Kitāb al-wāqiˁāt 274
Kınalızāde Ali Efendi 151
Konya 170–171
kullī (universal) 16
kulliyyāt 37, 43–44, 46
al-Kulliyyāt 46
Land Statute 176
legal code 176, 178–180
Lisān al-Dīn Ibn al-Khaṭīb 73, 113
309
al-maˁānī 17
al-mabādī al-ˁashara (ten elements) 66
al-Mabsūṭ 152, 178, 234, 251
madhhab 1, 6, 8–10, 30–31, 81, 83, 275.
al-madrak 34, 120–121
Madrasa of Karatay 170
al- mafhūm al- kullī (universal concepts) 27
maḥmūl (attribute) 41, 193, 201
maḥsūra (quantified) 27
Majalla 6, 9, 24, 98, 151, 164, 166, 175–188,
194–195, 200, 202, 235, 238–239,
258–259, 263, 271, 283
Majāmiˁ al-haqāˀiq 168, 170–172
Majmaˁ al-anhur 178, 239
al-Majmūˁ al-mudhhab 31, 111, 116, 117, 126, 133.
Majmaˁ al-baḥrayn 152, 239
makhārij 161
Makkah 86
Makkī 106, 203
Mālik 95, 145–148
al-Malik al-Muˁaẓẓam 53–54, 206
Mamluk Sultanate 3
Mamluk 73, 103
Manāfiˁ al-daqāˀiq 172
manāqib (merits) 152, 163
Manāqib by al-Kardarī 163
Manār al-anwār 156
al-Manhaj al-muntakhab 136, 143–144
al-Manjūr 17, 144
al-Manthūr 47, 126–129, 138, 142, 155, 170–171
al-Manẓūma 240
maqāṣid (onjesctives) 103–05, 282
maqāṣid al-sharīˁa (objectives of law) 32, 115
al-Maqāṣid al-saniyya fī l-qawāˁid
al-fiqhiyya 128
Maqqarī 8, 17–18, 33, 46, 105, 112–113, 117, 132,
145–146, 147.
Marghīnānī 91, 158, 239, 275–277
masˀala (issue) 48, 72–76, 117, 123, 222–223
maṣlaḥa (benefit)23
al-maṣlaḥa al-mursala 41
maslak al-taˀṣīl 89, 229.
maslak al-taˁlīl 229
Maṭāliˁ al-daqāˀiq 131
al-Mawāhib al-saniyya 143
al-Mawāhib al-ˁilliyya 143
mawḍūˁ 41, 193, 201
Mawṣilī 223–224, 239, 253–254
al-Minhāj 118
310 Index

Minhāj al-ṭālibīn 69 Muqātil b. Sulaymān 108

Minutes of the Majalla 175, 178, 187, 194, muhmala 27
202, 263 Multaqāˀ 178, 239
Mirˀāt al-uṣūl 171 munāẓara (dialectics) 69
Mir’at-ı Mecelle. 181–183 mursal ḥadīth 40
al-Mizzī 118 Musa Jārullah Bigiyaf 188
Molla Khusraw 171, 238–239, 257–258 al-Mustaṣfā 47
Morocco 112, 144 Muwāfaqāt 104
al-Mudhhab fī ḍabṭ qawāˁid Muwaṭṭa 230
al-madhhab 130 Muzanī 61, 103
al-Mughnī 37
Muḥammad Abū al-Fatḥ 152 Nablus 129
Muḥammad Abū l-Suˁūd b. ˁAlī Nāblusī 151
al-Ḥusaynī 152 Nādir al-riwāya 272
Muḥammad Abū Zahra 41 nahy (prohibition) 27
Muḥammad b. ˁAbd Allāh b. Rāshid Najm al-Dīn al-Ṭūfī 16, 39, 130.
al-Bakrī 130 Nasafī 90–94, 97, 156, 158, 238–240, 257–258
Muḥammad b. Aḥmad al-Maqdisī 129 naṣṣ, pl. nuṣūṣ (authoritative / scriptual
Muḥammad al-Shaykh Muḥammad texts) 13
al-Amīn 17 Nāṭifī 207–208
Muḥammad al-Amīn b. Aḥmad Zaydān Nawawī 117
al-Shanqītī 145 nawāzil (unprecedented cases) 4, 9–10, 65,
Muḥammad Anīs ˁUbāda 140 266, 274–275, 280, 283.
Muḥammad Ḥamīdullāh 96 naẓāˀir 110, 127, 137–138
Muḥammad b. Ibrāhīm al-Bakkūrī 106 Nāzirzāde 165–170, 175, 178–179
Muḥammad Mahdī al-Wahhāb 182 Naẓm al-zahāˀir fī l-ashbāh wa l-naẓāˀir 134
Muḥammad b. Muḥammad al-Khudrī al- Nizāmiye Courts 175–177
Zubayrī al-Ayzarī 134 Nukat al-Jāmiˁ al-kabīr 248, 250
Muḥammad al-Mukhtār 145 al-Nuqāya 259, 261
Muḥammad b. Sulaymān al-Sarhadī 117, 133 al-Nūr al-muktabas 146
Muḥammad b. Khālid al-Anṣārī 152 al-Nutaf fī l-fatāwā 227, 266
Muḥammad b. ˁUmar b. ˁĀbidīn 151 Nuzhat al-nawāzir 151
Muḥammad b. ˁUmar al-Kafīrī 151 North Africa 112, 145, 149
Muḥammad Ṭāhir b. Khālid al-Atāsī 181
Muḥammad Yāsīn b. ˁĪsā al-Fādānī 143 Ömer Nasuhi Bilmen 140, 203
Muḥibb al-Dīn Aḥmad b. Naṣr Allāh Ottoman 9, 170–175, 177–178, 239
al-Ḥanbalī 147 Ottoman Empire 3, 176–180, 184, 257
mughnī dhawī al-afhām 171
Mukhaḍram 109 Pīrizāde 151
al-Mukhtār 239, 253. post-Majalla period 6
Mukhtaṣar (compendia) 4, 8–10, 16, 65, 68, Prophet Muhammad 14, 38, 56
83, 89, 233–234, 236, 239–240, 256–258,
264, 272–273, 278–279. Qāḍī Abū Ḥāzim 86
Mukhtaṣar al-Khiraqī 68 Qāḍī Abū Ḥusayn al-Marwarrūzī 87–88, 115
Mukhtaṣar al-Muzanī 68 Qāḍī Ḥusayn 115, 121, 125
Mukhtārāt al-nawāzil 275 Qāḍī ˁIyāḍ 102
Mukhtaṣar al-Qudūrī 152, 272 Qaḍī Khān 270
Mukhtaṣar qawāˁid Ibn Rajab 130 Qaffāl 58–59
Index
al-qāˁida al-muṭṭarida 273
Qarāfī 8, 39, 80–81, 103–108, 110–114, 125–127,
130–132, 142, 145–146
Qawāˁid al-aḥkām fī maṣāliḥ
al-anām 104–105
al-qawāˁid al-ˁāmma 34, 122, 205
Qawāˁid al-fıqhiyya 2, 21, 55, 128
qawāˁid al-hawdaj 14
al-qawāˁid al-khamsa 205
al-qawāˁid al-khāṣṣa 205
al-Qawāˁid al-kubrā 104, 139
al-Qawāˁid al-sughrā 139
al-Qawāˁid fī l-furūˁ 131
al-Qawāˁid fī furūˁ al-Shāfiˁīyya 104
al-qawāˁid al-naḥwiyya 18
Qawāˁid al-nūrānīyya al-fiqhiyya 131
al-qawāˁid al-uṣūliyya 18
al-Qawāˁid wa l-fawāˀid 42
qawl 209
qiyās (analogy) 208
qiyās al-aṣl (analogy of the axiom) 210–213
qiyās al-uṣūl (analogy of the
axioms) 210–215, 220
al-qiyās al-uṣūlī (jurisprudential
analogy) 221
qiyās al-uṣūl al-maˁlūma (analogy of known
principles) 214–215
al-qiyās al-burhānī 199, 209, 213
al-qiyās al-muqassim 199
qiyās al-shabah (simple similarity) 40
Qudūrī 152, 232, 236–240, 241–243, 256–258,
264, 272–273, 278
Quhistānī 261
Quṭb al-Dīn al-Sunbātī 127, 138
Rabīˁ b. Sulaymān 103
Rafˁ al-ḥājib 123
Rafˁ al-ishtibāh 151
Ramz al-ḥaqāˀiq 257
rawnaq 114, 125
Risāla (Karkhī) 30, 58, 84, 86–92, 103, 108,
195, 281
sad al-dharāˀiˁ (closing off the means that
can lead to evil) 52
al-Ṣadr al-Shahīd 269, 274–275
Ṣadr al-Sharīˁa 215–216, 255–256, 259–260
Sakkākī 199
311
sāliba 27
Samarqand 266
al-Samarqandī 207, 227, 280–281
Sarakhsī 52, 79, 195, 211– 212, 219, 222, 227,
232, 240, 257–258, 277–278
Sāmarrī 78
Sava Pāshā 171
Sayyid Sharīf al-Jurjānī 16, 47
Shāfiˁī 6, 8, 31, 56–61, 69–75, 82, 87–88, 94–
95, 99–105, 108, 110–119, 121–129, 131–134,
136–140, 142, 147–150, 152–156, 158, 160,
164–165, 214, 219, 233, 254–256, 260–262
Shams al-Dīn Muḥammad b. ˁUthmān b.
Ḥusayn al-Jazīrī 130
Sharaf al-Dīn al-Bulqīnī 148
sharḥ (commentary) 4, 9–13, 62, 64, 246
Sharḥ al-ashbāh wa l-naẓāˀir 151
Sharḥ majallat al-aḥkām al-ˁadliyya 182
Sharḥ majāmiˁ al-Khādimī 172
Sharḥ al-manhaj al-muntakhab 144
Sharḥ al-Munya 262, 264
Sharḥ al-Sunna 60
Sharḥ al-takmīl al-manhaj 145
Sharḥ al-qawāˁid al-kulliyya 182
Sharīˁa courts 183
sharṭiyya 27, 201
Shāṭibī 23, 43, 73, 104, 111, 204
Shawārid al-fawāˀid fī l-ḍawābiṭ wa
l-qawāˁid 84
Shaybanī, Muḥammad 96, 222, 275, 281
Shayhīzāda 260–261
Shihāb al-Dīn al-Adhraˁī 126
Shirāzī 57
shurūṭ legal records 65
Sībawayh 142
Sijilmāsī 165
Sirāj al-Dīn al-ˁAbbādī 128
Sirāj al-Dīn ibn al-Mulaqqin 131
Sirāj al-Dīn b. Nujaym 148
Sirāj al-Dīn ˁUmar b. Raslan al-Bulkīnī 105
Sufyan al-Thawrī 100
Sughdī 227, 266–268
Suyūṭī 8, 17, 34, 51, 57, 78, 83, 104, 109, 114, 116,
127–129, 136–143, 152–155, 159, 161, 165
Syria 57, 61, 83, 86, 112, 149
Ṭabaqāt ˁAbd al-Qādir 163
Ṭabarī 59, 86
312 Index

at-tābiˁ tābiˁ 61 Uhud 14, 207

at-tābiˁ tābiˁun 198 ˁUmar b. al-Khaṭṭāb 138
Taftāzānī 16, 172 Umar al-Nasafī 90, 94, 103, 240
Tahānawī 16, 34, 48 ˁUmar al-ˁUqaylī 91
Ṭaḥāwī 86, 89, 232, 234–237, 243 al-ˁUmda 161
Taḥrīr 76 Umdat dhawī al-baṣāˀir 151
Taḥrīr al-qawāˁid al-ˁAlāˀiyya 118 Usrūshanī 97
taḥsīniyyāt (refinements) 204 Uṣūl al-futyā 45, 95, 233
tahzīb 146 al-uṣūl al-maˁlūma 213
takhrīj (derivation) 4, 6, 10, 40, 52, 65, 69, the ulama of Transoxiana 138
90, 96, 154, 220–221, 225–226, 230–231, Uyūn al-masāˀil 274–275
274, 281
takhrīj al-furūˁ ˁalā l-furūˁ (To obtain wajh (aspect) 10, 205, 217–219
substantive rulings from substantive wajh al-masˀala (the aspect of the
law) 70, 75–77, 97–98, 221, 283 subject) 217–218
takhrīj al-furūˁ ˁalā l-uṣūl (To obtain wajh al-masˀalatayn (the aspects of the two
substantive rulings from maxims) 5, issues) 217
8, 40, 62, 65, 70–72, 74–75, 131, 221 Walwāliji 268–270
takhrīj al-uṣūl min al-furūˁ (Obtaining Walwālijiyya 152, 268
maxims from substantive law) 221 Wansharīsī 35, 46, 84, 105, 107, 130, 145–146
taˁliq (notes) 65, 67, 111, 114 Wāqiˁāt 274
taˁliqa 116 al-Wiqāya 152, 178, 254–256
Taˁliqāt ˁalā l-ashbāh wa l-naẓāˀir 151 Wiqāyat al-riwāya 239, 259
taˁlīl (legal ratiocination) 3 wujūd al- dhihnī 41
al-Talkhīṣ 45, 95, 114, 125, 233 wujūd al- wāqiˁī 41
Taqī al-Dīn al-Subkī 73, 118–119, 134. al-Wujūh wa l-naẓāˀir 108
taqlīd (imitation) 2–3, 38 al-Wuṣūl ilā qawāˁid al-uṣūl 75–76
Taqrīr ˁalā l-ashbāh wa l-naẓāˀir 151 al-Yawāqīt al-thamīna 164–165
Taqrīr al-qawāˁid 126, 129, 146
Taˀsīs al-naẓar 8, 53, 71–73, 76, 84–85, 87, 92, Yusuf Ağa library 170
96–101, 108, 150, 222 Yūsuf b. ˁAbd al-Raḥmān al-Ḥanbalī 130
al-Tamhīd fī takhrīj al-furūˁ 74–76, 117, Yūsuf b. ˁAbd al-Raḥmān al-Mizzī 118
131, 139. Yūsuf b. Muḥammad al-Battāh al-Ahdal 143
Tanwīr al-abṣār 75
Tanzimat 175–177, 184 Zabīdī 256
al-Taˁrīfāt 47 Ẓāhir 28, 30, 38
tarjīḥ (determining preponderance) 3, 10, Ẓāhir al-riwāya 91, 272
38, 69, 220, 224–226, 281 al-Zakhāˀir al-ashrafiyya fī l-alghāz 161
tartīb (rearrangements) 146 Zanjānī 71–76, 99, 214
Tartīb al-laˀālī fī silk al-amālī 165–167, ẓannī (probable) 42
170, 175 Zaqqāq 136–137, 143–144, 164–165
Tilimsānī 71, 73, 77 Zarkashī 8, 47, 60, 73, 77, 114, 126–129, 131–
Timurtāshī 68, 73–74, 149, 151. 132, 138–139, 142, 167, 170, 172
Transoxiana 71, 75–77, 148, 150–151 Zaylaˁī 52, 254
al-tuham 51 Zayn al-Dīn b. al-Wakīl 111
twelve issues 222 Zufar 99–100, 253