FIQH 402 - Notes Modules 1-30

Fiqh 402 Legal Fiqh Maxims MODULE 1
The Study of Islamic Legal Maxims - Al-Qawa’id Al-Fiqhiyyah
Course Objectives
 Understand the major maxims of Fiqh

 Understand their relevance, application, examples, evidences, subsidiaries and exceptions
 Serve as tools to remember Fiqh rulings
 Serve as tools in Ijtihad for the new issues we face on a daily basis
 Assist us in understanding differences of opinion in Fiqh issues
Ilm al-Qawa’id al-Fiqhiyyah (the science of Islamic legal maxims) is a distinctive genre of Fiqh (law) literature. It is
concerned with legal maxims and fundamental juristic principles.
Definition of Qawa'id
 Linguistic: Comes from the root verb ‫ َق ـَع َد‬- Rule, foundation, formula, maxim, basis
 Shar’ee: General Fiqh formulas which are presented in a simple format, consisting of general rulings with
broad application
Significance of Qawa'id
1. Categorises Fiqh rulings according to broad principles

2. Facilitates Ijtihad for new and contemporary issues
3. Embodies the principles of values of the Shariah
4. Help understand and apply the maqasid as-shariah (intentions and goals of the shari’ah)
5. Embodies the ethical values of the Shariah
Ijtihad requires competent jurists; possessing qualifications to achieve intended goals.
Scholars have laid down two main requirements that a jurist must possess in order to practice ijtihad in the proper
way and be a mujahid (person qualified to make ijtihad) :
 The jurist should be upright and religious

 They should have mastery of Arabic & adequate knowledge of usool al-fiqh (legal methodology),
maqaasid as-shari’ah & qawa’id al-fiqhiyyah
Division of Qawaa’id
Al-Qawaa’id are divided according to three ranges, each with multiple categories:
1. According to scope of usage (3 categories)

2. According to level of agreement (3 categories)
3. According to independence (2 categories)
Notes from Ismail Kamdar’s powerpoints with additions from the text
Scope of Usage
1. Al-Qawaa’id Al-Kubra – The Big Five/Six – These apply across all areas of Fiqh
2. Al-Qawaa’id Al-Aama / Al-Qawaa’id Al-Kulliya – Comprehensive Maxims – These apply across multiple
areas of Fiqh
3. Dawaabit (Controllers) – These apply to one specific area of Fiqh, eg: controllers of the Fiqh of business
Level of Agreement
1. Those Qawaa’id which are agreed upon like the Qawaa’id Kubra
2. Those Qawaa'id which some math’habs accept and others do not
3. Those Qawaa'id which are disagreed upon, even within a math’hab
Level of Independence
1. Those Qawaa’id that are independent and function on their own ‫الَقـواِع ُد اْلُمـْس َت ـِقَّلُة‬
2. Those Qawaa’id that are expressions/subsidiary of other Qawaa’id ُ‫الَقـواِع ُد اْلُم ـْن َد ِر َج ـة‬
3. Those Qawaa’id which are exceptions, conditions or provisions to other Qawaa’id
Independent maxims: This refers to the essential maxims, each of which has been coined to reflect a major
legal idea. The six major Qawa’id are again examples of independent maxims
Sources of Qawaa’id nassiyyah (textual)

1. Verbatim Textual Qawaa’id – Word for word out of the Quran or Sunnah nassiyyah (textual)
2. Indirect Textual Qawaa’id – Derived from the Qur’an and Sunnah
3. Rational Non-Textual Qawaa’id (ghayr nassiyyah) – derived from the principles of Fiqh like Ijmaa, Qiyas,
Istihsaan, Istishaab or Urf.
The Big Six Qawa’id Al-Kubra
The whole Fiqh is based on these Qawa’id
1. Al-umuru bi-maqasidiha - Matters are judged by their intentions

2. Al-yaqinu la yazulu bil-shakk - Certainty is not overruled by doubt
3. Al-Dararu yuzal - Harm must be eliminated
4. Al-mashaqqatu tajlibu al-taysir - Difficulty facilitates ease
5. Al-‘adaatu muhakkamah - Local culture is the basis of judgment Urf – custom/culture
6. I’malul Kalam Awla min Ihmalihi - Giving weight to a statement is better than ignoring it
Disciplines of Fiqh thought
There are many disciplines that comprise the study of Fiqh

 Usool Al-Fiqh – Principles for deriving Fiqh rulings
 Fiqh (Al-Furoo) – The detailed laws of Islam
 Maqaasid As-Shariah – Objectives of Islamic Law
 Qawa’id Al-Usooliya – The Maxims of Usool Al-Fiqh
 Al-Ashbaa Wal Naza’ir – Cases similar to each other
 Al-Furuq Al-Fiqhiya – Fiqh cases which appear similar but have different rulings
 Al-Dhabit Al-Fiqhee – Controllers of Fiqh rulings - subcategory of Qawa'id
 Al-Nazariya Al-Fiqhiya – Contemporary Theories of Fiqh
Relationship between Al-Qawa’id Al-Fiqhiyyah (Fiqh legal maxims) and Al-Qawa’id Al-Usuliyyah (Maxims of Usool
Al-Fiqh)
 Usool Al-Fiqh (the sources or the origins of Fiqh) represents the root, whereas Fiqh is the branch.
 Usool Al-Fiqh is the science that is concerned with the methodology, e.g. Ijma, Qiyas, Ijtihad etc.
 Fiqh is considered to be the law itself
 Both categories of Qawa’id have similarities and differences
 Every Qa’idah in each group encompasses many Juz’iyyat (particulars) that share its general idea and subject.
Examples of Al-Qawa’id Al-Usuliyyah:
1. Al-amru lil-Wujoob (a command is indicative of an obligation)”. The Qur’an says “and perform prayers”. This
indicates that performing prayer is compulsory.
2. Al-amru ba’da al-hazri yadullu ‘ala al-ibahah (a command which comes after a prohibition in the same
context indicates mere permissibility). For example, in Surah al-Jumah, for example, the Qur’an says:
“O you who believe! When the call is proclaimed for the Friday Prayer, come to the remembrance of Allah
and leave off business. That is better for you if you did but know. Then when the prayer is ended, disperse
through the land and seek the bounty of Allah…”
The commands: “disperse through the land and seek the bounty of Allah” comes after prohibition of the
involvement in any business during Friday prayer. This indicates that dispersing through the land after
performing the prayer is only mubah (permissible) and not wajib (obligatory). Therefore, one can instead go
to his house, relax, play, read or do any other activities.
3. Al-nahyu Yadullu ‘Ala Al-Tahrim (If the instruction is connected with a decisive command of refraining from
an action then the action is prohibited). Therefore, the verse which says: “And come not near to adultery”
indicates that adultery, and whatever leads to it, is forbidden.
The differences between Al-Qawa’id Al-Fiqhiyyah and Al-Qawa’id Al-Usuliyyah:
1. Usool maxims do not include legal rulings within their contents. Fiqh maxims contain comprehensive legal
rulings
2. Usool maxims focus on words and their implications relative to legal rulings while Fiqh maxims are related to
the rulings themselves.
3. Usool maxims were established to fix the methods of deduction and proving for the Mujtahid and clarify for
the jurist the methodologies of research for the extraction of maxims from the general evidences. Fiqh
maxims are sought in order to firmly link a variety of issues under a single unified ruling.
4. General rules are built on Usool maxims and through them the jurist deduces ruling for individual/particular
issues from the specific evidences. Fiqh maxims are used to explain the rulings for similar incidents.
5. Usool maxims when agreed upon have no exceptions while Fiqh maxims generally have exceptions.
The first actual compilation of Al-Qawa’id Al-Usuliyyah in written form was Al-Risalah of Imam Al-Shafi’ee.
The chronological order is as follows:

1. Qawa’id Al-Usool
2. Fiqh
3. Qawa’id Al-Fiqh
Al-Ashbah Wal-Naza’ir’s relationship with Qawa’id al-Fiqhiyyah
Al-Ashbah wal-Naza’ir is devoted to the Furu’ (particulars).
There is no agreement among the scholars in determining the exact meaning of this phrase.
The term, originates from the letter of Caliph Umar ibn al-Khattab to the judge of al-Basrah, Abu Musa al-Ash’ari:
 Umar instructed the judge, when making legal judgment for cases that have no clear legal determinations in
the Qur’an or the Sunnah, to ascertain their Amthal and Ashbah (similitudes and resemblances) and make
Qiyas (analogy) to make the best judgment.
Since Al-Qawa’id Al-Fiqhiyyah are comprehensive principles each of which includes many particulars, they are,
accordingly, a part of Al-Ashbah Wal-Naza’ir.
Al-Furuq al-Fiqhiyyah’s relationship with Qawa’id al-Fiqhiyyah
 Ilm al-Furuq contributes to the construction of a coherent and contradiction-free system of Furu’
(particulars) of Fiqh.
o means by which jurists distinguish between the cases in the law whose appearances resemble each
other, but their legal statuses are different.
 Furuq are considered also as one of Al-Qawa’id Al-‘Illah in Qiyas, that is the factors that affect the effective
cause of the Asl (the original case) to be applied to the far’ (the new case), and consequently ban the process
of Qiyas from being practiced on these cases.
 Furuq, are the crucial elements of the cases (which share certain common respects) that lead these cases to
be treated distinctly and given different legal rulings.
Examples:
1. Prayer and fasting are forbidden during the menstruation period, but women have to make up for the fast
but not for prayer. They differ in this case, because if making up for the prayer is made compulsory upon
women, it would be a burden on them, due to frequent performance of prayers throughout the year.
Making up for fasting, in contrast, is not a burden upon women, because it is required only once a year.
2. People are instructed to hold and protect free-roaming sheep until their owners take them back, while this is
not the case with respect to free roaming camels. The difference is that sheep if they are not caught and
kept are likely to fall prey to wild animals, such as wolves, whereas camels are likely to resist such animals.
Besides, camels can stay without drinking or eating for several days, which is not the case for sheep.
 Furuq are also the cases, where because of certain reasons, they are exempted from the general ruling of
Qawa’id. Each Qa’idah contains a general Hukm, which is applicable to many similar particulars. Yet, for
some reasons, one or more of these particulars is exempted from the general Hukm. For example, the
silence of a virgin girl regarding her marriage is one of the particulars exempted from the Qa’idah which says:
La yunsabu li-sakitin qawlun (No statement is imputed to a person who keeps silence). Shyness is usually
what prevents such a girl expressing her approval verbally. It is, thus, what makes this particular to be
excluded from the general Hukm of the Qa’idah.
Al-Dabit al-Fiqhi relationship with Qawa’id al-Fiqhiyyah
The idea of Al-Qawa’id Al-Fiqhiyyah is that it spans different types of Fiqh, e.g. in Salah and Business and Hajj -- the
same principle goes across many different topics.
Dabit Fiqhi (Controller of Fiqh) is a principle like Qawa'id, but it is restricted to one particular field for example in
case of Taharah.
If you have a principle related to Tahaarah, such as the famous statement of Imam Malik, if something does not
make your clothing impure then it will not make the water impure. This is a Dabit Fiqhiyyah (the singular). This is not
a Qa’idah Fiqhiyyah since it is relegated just to wudhu and hence you cannot apply it to Zakah or Hajj or some other
field.
Al-Nazariyyah al-Fiqhiyyah relationship with Qawa’id al-Fiqhiyyah
 Al-Nazariyyah Al-Fiqhiyyah (the general theories of Fiqh) appear in the modern writings of Fiqh, whose
authors have been exposed to Western legal literature.
 The Nazariyyah is an attempt to embrace a wider scope in Fiqh
 a single comprehensive legal idea are brought together in one place.
 one can get a general and comprehensive picture of the nature of ‘Aqd when one comes across the chapters
of sale, marriage, hire, Waqf (endowment), mortgage, etc., Many of Al-Qawa’id Al-Fiqh were coined
essentially to regulate and control the making of any kind of ‘Aqd.
Benefits of Maxims
1. Makes Fiqh easy to learn and memorise

2. Facilitates Ijtihad
3. Helps apply and understand the Maqaasid
4. They embody many principles, values and ethics of the Shariah
5. Help us to practice and preserve the Shariah in different situations
Functions and benefits of al-Qawa’id al-Fiqhiyyah
Functions of Qawa’id are numerous, and they are actively present in a number of areas.
1. Categorizing Fiqh Cases in General Principles: enabled the jurists to have adequate knowledge of the different
chapters of Fiqh without the need to memorise all of the particulars. Served as general guidelines.
2. A Means to Ijtihad: enabled jurists to be capable of extracting rulings for unwritten and novel questions through
their analogical nature.
3. Help to Have Knowledge about Maqasid al-Shariah: help jurists hold considered knowledge of Maqasid Al-Shariah
(the intentions and goals of the Shariah).
4. Embody Many Principles and Values of the Shariah: embody within their sphere many of the Shariah principles
and values. One of the maxims (custom can be the basis of judgments), is based on ‘Urf (custom); thus a judge is
authorised to base their verdict on custom in issues, which are not regulated by a Nass (clear text from the Qur’an or
the Sunnah). Likewise, the theory of Istishab has been under the remit of the second universal Qa’idah which says:
certainty is not overruled by doubt. Istishab means the continuation of the situation of a matter, whose existence or
non-existence had been proven in the past, and which are presumed to remain so for lack of evidence to establish
any change.
5. Embody Ethical Values: the main ideas of the five universal Qawa’id; namely: intention, certainty, removal of
hardship, elimination of harm and custom) are mainly ethical and they are integral to the general Islamic concept of
maslahah,. In this respect, Shariah is seen to be based on a system of morality.
6. Preserve Shariah in the Society: Many Qawa’id – especially those which embody ethical connotations – have, in
different wordings, a noticeable presence in the speech of individuals, and seemingly play the role of proverbs, in
terms of encouraging people to do pleasant things or acquire good manners. Individuals often say: “al-din yusr”
(literally means: religion is easy), which is a mere paraphrasing of the universal Qa’idah which says: almashaqqah
tajlib al-taysir (hardship begets facility).
Role of al-Qawa’id al-Fiqhiyyah in Ijtihad And its Historical Development
 Ijtihad is the process of extracting or deriving legal rules from the sources of Islamic Law
 linguistically, derived from the root word ‘juhd’, which means ‘expending of maximum effort in the
performance of an act'.
 others defined the term as: “the exertion of mental energy in the search for a legal opinion to the extent
that the faculties of the jurist become incapable of further effort”.
 Ijtihad aims at finding feasible solutions to new issues, which have not been specifically addressed by the
existing law.
 dynamic force in legal studies.
Al-Qawa’id al-Fiqhiyyah as a tool of Ijtihad:
The three main fields of study which a jurist must have adequate knowledge to be qualified as a mujtahid are:
1. Usool Al-Fiqh (the sources or the origins of Fiqh)
2. Maqaasid Ash-Shariah
3. Qawaaid Al-Fiqhiyyah
Knowledge of Qawaaid makes Ijtihad easier and removes some of the complexity
Usool al-Fiqh: concerned with the methodology to be followed for deducing legal rulings from sources of the law,
i.e. the Qur’an, the Sunnah, Ijma’, Qiyas, etc. It provides jurists with guidelines and criteria that they should follow
Knowledge of Maqasid al-Shariah: capable of inferring legal provisions based on his understanding of Maqasid
Qawa’id: reduce the effort of mujtahids in extracting legal rulings for new issues, which have not occurred in the
past. Some scholars considered knowledge of Qawa’id amongst the requirements for Ijtihad.
Role of al-Qawa’id al-Fiqhiyyah in contemporary Ijtihad:
Fiqh al-Nawazil is a term that refers to the intellectual process of finding out legal rulings, from the different sources
of Fiqh, for the novel events and issues that have no precedent.
 The modern world faces many new challenges

 Modern-day scholars have found Usool Al-Fiqh, especially the way it is taught in most parts of the world, as
inadequate to deal with contemporary Fiqh issues. Usool is now studied mainly as an academic discipline.
 As a result, there has been an upsurge in interest in Qawaaid and Maqaasid as tools of Ijtihad
 Jurists in different ages utilised Qawa’id to extract legal rulings for the nawazil in their times.
 Multiple modern day fatwas are based exclusively on the Qawaaid to justify their ikhtiyarat Fiqhiyyah
(preferred legal rulings)
For example, when discussing the contract of ta’min (insurance), jurists who deemed such a contract as valid
referred to the Qawa’id of darurah (necessity) and of ‘Adaat (custom).
A mujtahid can make use of the Qa’idah, which says: “Al-kitab kal Khitab” (Written communication is equal to oral
communication) to conclude the validity of a sale contract or a divorce, which is sent via an email, an SMS or other
sorts of modern electronic means of communication.
Historical development of al-Qawa’id al-Fiqhiyyah:
 Every Islamic Science has a history of its evolution

 Tracing back to the individual who first uttered a specific Qaaidah is not possible
 Generally, Qawaaid evolved over three stages
1. Emerging and Foundation Stage
2. Development and Recording Stage
3. Arrangement and Establishment Stage
Final wordings of Qawa’id have appeared after huge processes of refinement, editing and modification in later
centuries by scholars of different schools.
Al-Bahusayn, divided their history into three major stages; the pre-compiling stage, the compiling stage, and the
modern stage.
Qawa’id during the Lifetime of the Prophet (pbuh):
 Many Qaadiah can be found verbatim in the Quran and Sunnah

 The prophet and his companions did not call them Qawaaid or categorise them
 They did exist and were used as the basis for several rulings
 Qawaaid was not a field of study but did exist in a basic form as principles of the Shariah
 Several Qur’anic verses and Prophetic traditions, have a comprehensive legal nature.
For example: Allah burdens not a person beyond his scope
- according to some, a legal principle that encompasses many particulars in the area of removing hardship.
The Qa’idah, which says, “al-kharaju bil-Damn” (usage and responsibility go together), and the other, which
says “al-bayyinatu ‘ala almudda’I wal-yaminu ‘ala man ankar (the burden of proof is on the one who alleges,
and oath is on the one who denies); both are from the category of al-Qawa’id al-kulliyyah, and are also
Prophetic traditions.
 contemporary researchers held the view that one of the main functions of Qawa’id is to regulate the
extensive amount of Fiqh particulars through grouping them into more general principles
 only possible only when the particulars already existed, so that the scholars can find a common legal ruling
Qawa’id in the Era of the Companions and the Followers:
 Qawaaid still were not discussed, written down or categorised

 They did exist independently and were used by the Caliphs and scholars as principles of Fiqh
 Many Qawaaid can be traced back to the Sahabah as principles they used in deducing Fiqh rulings
Aishah, the Prophet’s wife, Umar ibn al-Khattab, Abd Allah ibn ‘Abbas, Ali ibn Abi Talib and Mu’adh ibn Jabal
were amongst the sahabah known for their expertise in Fiqh and in producing fatwa (legal opinion).
 spread of Islam outside the Arabian Peninsula - Muslims interacting with other nations. Many new issues
emerged, which had not been treated by the Prophet (pbuh) and needed legal rulings.
 The sahabah were required to find solutions to such new questions. During this period, new sources of Fiqh
emerged, i.e. ijma and Qiyas.
 Fiqh particulars started to increase, which required the formulation of general rules to control them and to
be able to cover future similar issues
 some researchers claim that this was the real initiation of Qawa’id literature, as many inclusive legal
principles were formulated during this time
 Many inclusive legal principles were also attributed to some of the Tabi’un (followers of the companions),
many of whom were accomplished scholars of Fiqh and fatwa.
Example: case was brought before Umar ibn al-Khattab, where a man married a woman who made it a condition that
she stay in her own house and not to move her husband’s, to which the husband agreed. The man after some time
wanted the wife to move to his house, but she refused, adhering to the condition. Umar’s rule was in her favour, and
replied to the complaint of the husband saying, “maqati’u al-huquqi ‘inda al-shurut”, which means that the
enjoyment of the basic rights can be suspended if there was a condition.
Qawa’id During the Early Stage of Compiling Fiqh (Second and Third Centuries):
 Fiqh became a separate field of study from other disciplines

 First books of Fiqh and Usool Al-Fiqh were written by the likes of Abu Yusuf, Ash-Shafi’ee and Imam Malik
 Qawaaid could be found in the teachings of Abu Hanifa and Ash-Shafi’ee, although they were not
categorised as such and taught independently from Usool Al-Fiqh
Some consider Kitab al-Majmu by Zayd ibn ‘Ali to be the first Fiqh work, while others thought that al-Kharaj of Abu
Yusuf, the student of Abu Hanifah, was the first exclusive Fiqh book.
Different schools of law were established, each of which adopted, in deducing the law from its sources, specific
methods and principles, which resulted in disagreement on furu’ (Fiqh particulars).
Two main trends emerged:

1. Ahl al-Hadith (partisans of traditions)
2. Ahl al-Ray (partisans of opinion).
Although the 2nd and 3rd Hijri centuries were the law-making era, the collection of al-Qawa’id al-Fiqhiyyah in
separate written works only began in the 4th fourth century.
 Legal conceptions of Qawa’id were known to the leading figures of the madhahib (schools of law) and their
students
 Books of the early Fuqaha - al-Kharaj of Abu Yusuf, al-Asl of al-Shaybani and al-Umm of al-Shafi’i
 These scholars mainly used them to justify their ikhtiyarat Fiqhiyyah (preferred legal rulings) or for the
purpose of Ijtihad.
Reasons for delay in development:
 Scholars of the earlier generation were still laying the foundations of Fiqh which required much time and
effort from the leading scholars to defend their preferences, and respond to objections of others
 Fiqh and Usool Al-Fiqh themselves were still developing as fields of study with subcategories
 Scholars at this time were preoccupied with dealing with the new and pressing issues facing their
communities and to verify adillah (evidences)
 Because of the spread of Islam outside Arabia, and the interaction of Muslims with other nations, significant
new issues emerged – great efforts to find out the appropriate legal rulings for them to suit different
environmental and social conditions.
 The effort of scholars in deducing rulings for new issues resulted in many Qawa’id Fiqhiyyah
 Scholars turned to Ijtihad in its variety of forms (such as Qiyas, istihsan, istishab and maslahah) to present
solutions to constant issues in light of the general rules of the Shariah. This required much effort and time
 Involvement in these activities distracted them from collecting these Qawa’id into separate books
Qawa’id in the 4th Century:
 Qawa’id al-Fiqh started to gain popularity and began to be compiled separately around the middle of the
century.
 By the beginning of the 4th century, the norm of Taqlid (blind following) flourished
 Taqlid had positives - doctrine of takhrij al-masail, i.e. the deduction of rulings for new issues from the
sources adopted by the mujtahids and leading figures of the madhahib.
 Through takhrij the scope of Fiqh expanded and developed. Furthermore, jurists started to produce Fiqh in
different styles depending on similarities and differences between issues and questions.
 Genres, such as Qawa’id, Furuq, etc., gained popularity since then.
 The negative result of taqlid was inability to deal with new emerging issues which required Ijtihad
 The idea of qafl bab al-Ijtihad (the closure of the gate of Ijtihad) started to gain ground late in the third
century and developed gradually within the next few decades.
 With the passage of time, the requirements of Ijtihad become easier. In later stages, books of traditions
were expanded, and encyclopedias of traditions' narrators were available – authenticity
 Earliest written collection of Qawa’id is the al-Usool by al-Karkhi, which is a collection of 38 maxims.
 Qawa’id were still in their early stage – very wordy
Al-Usool by al-Karkhi
It is a booklet of around 750 words, containing 38 legal principles relate to the Hanafi School. Most of the principles
in the booklet are Qawa’id Fiqhiyyah, it also contains a number of Qawa’id Usuliyyah.
Usool al-Fitya by al-Khushani
Considered the pioneering Qawa’id work in the Maliki school. It contains collections of legal rulings for certain
categories of people in separate chapters.
Ta’sis al-Nazair by al-Samarqandi
Contains many Qawa’id and Dawabit: 74 Usool, discussed in 8 chapters. However, the main purpose of the book is
to show the differences in view around each Asl within the Hanafi School and between it and other schools.
Qawa’id in the 5th and 6th Centuries:
 Very few books on Qawaaid were compiled during this era - Ta’sis al-Nazar by Abu Zayd al-Dabbasi
 Scholars focused more on Fiqh and Usool Al-Fiqh
 Qawaaid continued to be refined and developed in the books of Fiqh and Usool Al-Fiqh written during this
era
 There is a possibility that Qawaaid books written during this era were lost over time
Lessons from these developments
 Each generation focused on what was important to them and their communities
 Every generation were able to contribute something new to the sciences of Islamic Law and even produce
new sciences unknown to earlier generations
 Emerging sciences and new terminology do not constitute bidah
 No other religion exists with such an intellectual approach to their laws, balancing revelation with human
understanding and application
Qawa’id in the 7th Hijri Century
 By the beginning of the 7th century, Qawa’id al-Fiqh started to become a distinct science
 Again, not many books were compiled in the 7th century
 The 8th century saw a rise in original works dedicated to Qawa’id

 The books during this period were mostly written by Shafi’ee scholars, then Malikis
 There is no record of books written by Hanafi scholars on this topic during this era
 the discipline in this era developed steadily
 al-ashbah wal-naza’ir emerged as a catch-all for Qawa’id and other related subjects, and was used widely as
such in the titles of many books.
 the term (al-Qawa’id) was also prevalent, and used in the titles of many other books, such as al-Qawa’id of
al-Maqqari al-Maliki (d. 758 /1357)
 The 8th century was the golden age of the development of ‘ilm al-Qawa’id al-Fiqhiyyah
 compilation of many works upon which most of the books which were compiled later
 after this point that al-Qawa’id al-Fiqhiyyah started to be distinguished from other types of Qawa’id, such as
al-Qawa’id al-Usuliyyah
 Three main approaches in presenting the Qawa’id in these books:
1. Arranging the Qawa’id and Dawabit in the same order of topics as found in Fiqh works
2. Arranging them according to their comprehensiveness and scope of application
3. Arranging them alphabetically
 The 9th Century witnessed mostly commentaries and summaries of early works
 There was a lack of original works in this field
 Absence of books by Hanafis continued
 Shafi’ee scholars continued to write the most on this topic
 Rise in interest in this field again - mature stage in the science of al-Qawa’id al-Fiqhiyyah
 First Hanafi Qawa’id books in centuries were written during this period
 Shafi’ee scholars continued to publish original works in this field
 Hanbalis works disappeared, as no work by any Hanbali scholar has been reported to be compiled in this
century.
 While the Shafi’ees had written more books than the other schools in the previous times, the Malikis appear
more active in this century, and their works varied between normal books and diversified treatises.
 distinction between al-Qawa’id al-Fiqhiyyah and al-Qawa’id al-Usuliyyah is notably clear in these books
Qawa’id in the 11th to the Mid-13th Hijri Century
 Interest in this field went down again

 Huge number of books was written in this period of time -mostly commentaries and summaries
 Lack of original works
 the mature stage of ‘ilm al-Qawa’id al-Fiqhiyyah
 The Hanafi scholars were more active in this phase and introduced tens of books, surpassing the other
schools both in the number of works and in the quality of a number of these works.
 The Malikis and the Shafi’ees had also produced some books. In contrast, the Hanbalis were almost absent
for about three centuries
 The large number of the books of Qawa’id written relate in one way or another to three books
o al-Ashbah wal-Nazair of al-Suyuti,
o al-Ashbah wal-Nazair of ibn Nujaym
o al-Manhaj al-Muntakhab by al-Zaqqaq al-Maliki.
Modern Studies on Al-Qawa’id Al-Fiqhiyyah
 Interest in the field grew

 Many original works published
 Modern and systematic approach was adopted
 Focus on using Qawaaid for modern Ijtihad issues
 Possible reasons behind this development and progress:
o Development of academic life in the Muslim improved authorship in various fields
o Exposure to different Western academic institutions - writing methodologies and ways of
presentation.
o academic orientation towards editing the legacy of Islamic scholarship- contribution of postgraduate
students
 Majallat al-Ahkam al-‘Adliyyah was the starting point for modern studies on Qawa’id.
o The Majalla is the first codification of Islamic commercial law, which includes 1851 articles
o product of Tanzimat (the Ottoman reform movement, which started in 1839).
o based upon the Hanafi School of law, so it did not introduce new principles of law
o It codified the Islamic principles, which had served as the civil law of the Ottoman Empire.
o simple language; so that even the persons without a deep background in classical Fiqh texts could
understand it.
o The Majalla was written in Turkish in the year 1286/1869 and remained the civil code of the
Ottoman Caliphate for about fifty years
o continued to be the commercial law of many Arab countries, such as Syria, Iraq, Kuwait, and Jordan
Al-Qawa’id Works in recent times
Six different approaches used for modern studies on Qawa’id:
1. Editing traditional Qawa’id works

2. Extracting Qawa’id from the traditional Fiqh books.
3. Collecting and arranging Qawa’id in comprehensive encyclopedias
4. Studying specific Qawa’id
5. Studying the theoretical and historical aspects of the discipline
6. Studying Qawa’id based on their legal theme.
The Big Six

1. ‫“ األمور بمقاصدها‬Acts are judged according to their intended goals”.
2. ‫“ اليقين ال يزول بالشك‬Certainty is not overruled by doubt”.
3. ‫“ المشقة تجلب التيسير‬Difficulty brings ease” or “Hardship begets facility”.
4. ‫“ ال ضرر وال ضرار‬Neither harm yourself nor harm others” or ‫( الضرر يزال‬harm must be eliminated) .
5. ‫“ العادة محكمة‬Custom is a basis of judgment” or “Local culture is the deciding factor”.
6. ‫“ إعمال الكالم أولى من إهماله‬Giving a statement value is more appropriate than ignoring it”.
 The sixth Maxim which was not considered among the big five by early scholars
 The six universal Qawa’id are the most important aspect in the whole discipline
 The whole of Fiqh is based on them and the essence of the Shariah as a whole is grasped between
them.
 They are useful in depicting a general picture of the nature, goals and objectives of the Shariah.
Maqaasid Ash-Shariah
 The attainment of Maslahah (benefits) and prevention of Mafsadah (harms)

 Maslahah, as defined by al-Ghazali, is the preservation of religion, life, intellect, descendants and
property
 what assures the preservation of these principles is maslahah, and whatever fails to preserve them is
mafsadah (evil).
There are three grades of maslahah:

1. Daruriyyat (necessities/essentials) - preservation of religion, life, intellect, family and wealth
2. Hajiyyat (needs) - things needed to remove Mafasdah (harms) from people’s lives
3. Tahsiniyyat (luxuries) - things which are not necessary but make life easier and are permissible or
beneficial
Maqasid al-Shariah relates to the protection of the human basic elements, while maslahah is the level of
protection of these elements.
Conditions for Maslahah:

For something to be considered a Maslahah, it must:
1. Be beneficial to the public
2. Benefits outweigh the harms
3. A necessity
4. Acceptable to the righteous
5. In agreement with the Shariah
Warding off harm and removal of hardship are essential in achieving maslahah. As for warding off harm, it is
portrayed as one of the major principles of Shariah to which all legal determinations can be traced back.
The First Maxim: Actions are based on their intentions
 The entire Shariah revolves around intentions

 Fiqh rulings regarding intentions in every subject be it purification, prayer, fasting, sales, divorce, etc.
 Intentions play a double role: Moral and Legal
 Moral Role – Maintain sincerity
 Legal Role – Importance of sanity and choice when doing an action.
Niyyah, lexically, is derived from the root (na-wa-ya) which appears once in the Qur’an in the word “nawa” in
Surat al-An’am (6:96), meaning fruit or date pits.
 The root apparently conveys the connotation of seed, core or central element.
 In legal terms it simply means to declare mentally to do an action.
 In the Qur’an the word “Niyyah” (intention) did not come. But there are in it some expressions and
words which give the meaning of the niyyah and its importance in Shariah.
“Anyone who emigrates for the sake of Allah will find on earth many [Alternative] places of
refuge, and abundance. And whoever leaves his home, as an emigrant to Allah and His
Messenger, and then death overtakes him, his reward has become incumbent upon Allah.
Allah is ever Forgiving, Most Merciful.”
“Whoever desires the reward of this world – then with Allah is the reward of this world and
the Hereafter. And ever is Allah Hearing and seeing.”
“And whatever you give for interest to increase within the wealth of people will not increase
with Allah. But what you give in zakah, desiring the countenance of Allah – those are the
multipliers.”
 Evidences from the Sunnah

“Deeds are judged by their intentions,”
“You will be rewarded for everything you spend/give seeking Allah’s pleasure, including a morsel of food
which you put in your wife’s mouth.”
There is no Hijrah (emigration) after the conquest of Makkah but there remains jihad and intention.”
“… Perhaps one killed between the battle lines” Allah knows best his intention.”
“… The people will be resurrected according to their intentions.”
All of these hadiths clearly indicate that the measure of a deed is the intention and goal behind it.
Imam ash-Shafi’ee, Ahmad ibn Hanbal, ibn Mahdi, ibn al-Madini, Abu Dawud, al-Daraqutni and others
agreed that it is one-third of knowledge, and some of them said that it is one-quarter thereof. Imam
Shafi’ee said that this Hadiths used in over 70 Fiqh chapters.
The First Major Maxim (al-Qa’idah al-Kubra al-Ula): Cont.
Niyyah – Intention
As this Qa’idah is originated from the hadith “Innamal a’malu binniyyat” (Deeds depend upon intentions), so its
status is similar to the high status of the hadith itself.
 Niyyah is the secret and spirit of ‘ubudiyah (being slave of Allah)
 Rulings are mostly based on Niyyah
 Niyyah is the foundation of actions, on which the authenticity and acceptance of deeds depends.
 When the Niyyah is pure, the action is considered as authentic and when the Niyyah is corrupted, the action
is corrupted as well.
Definition of Niyyah:
 Niyyah is an Arabic word which is derived from Nawa/Yanwi, means intending something by heart which is
accordable with the goal of doing good or bad.
 Niyyah as an Islamic term means to intend obedience of Allah and draw closer to Him by creating an act or
refraining from it
 Lughwee Definition: Intending something, doing something with a purpose or goal
 Shar'ee Definition: Ikhlaas is intending to get close to Allah by doing or staying away from an action
 The place of the intention is the heart
 A good deed without Ikhlaas is worthless
Some more examples:

“He is the Ever-living, la ilaha illah Hua (None has the right to be worshipped but He), so invoke Him making your
worship pure for Him alone.”
“Indeed, We have sent down to you the book in truth. So worship Allah, being sincere to Him in religion.”
“So, I am commanded to worship Allah alone by obeying Him and doing religious deeds sincerely for His sake only.”
Rasulullah (peace be upon him) said,
“Beware! There is a piece of flesh in the body if it becomes good (reformed) the whole body becomes good but if it
gets spoilt the whole body gets spoilt and that is the heart.”
“Verily, Allah does not look at your bodies, nor your appearances, rather he looks at your hearts.”
Conditions of Actions:
There are two conditions for actions of a Muslim to be accepted to Allah.
1. Niyyah salehah sadeqah (Honest and sincere intention).
2. Actions should be done according to Shariah and not in a bidah (innovative) way.
As intentions are in the heart, pronouncing an intention with the tongue is an innovation in most deeds.
Only at the time of Niyyah in Hajj there is a pronouncement by saying “Labbaik Allahumma Hajjan”.
Intention serves dual functions: moral and legal - crucial for both
Moral Application of this Maxim
 Relates Niyyah to ikhlas (sincerity) - which leads to Allah’s pleasure

 Good deeds and words are validated based on their intentions - not on the basis of its outer appearance
 Bad deeds are bad regardless of the intentions. E.g. stealing is forbidden even if the intention was to give the
stolen object or money as charity
 Good deeds are invalidated by bad intentions - valueless when it is done with ill-intention e.g. man who goes
out to perform Jihad, just to be seen and described as brave
 Good intentions are rewarded, even if not acted upon - Al-Bukhari narrated that the Prophet said: "…If
somebody intends to do a good deed and he does not do it, then Allah will write for him a full good deed (in
his account with Him)…
Legal Application of this Maxim

 Intention distinguishes an ordinary action from an act of worship, eg: Ghusl & Bathing
 Intention distinguishes one act of worship from another, e.g: Dhuhr & Asr
 Before undertaking a contract (marital, business, etc), intention is key for determining its ruling (Makruh,
Haraam, Halal, etc)
 Difference of opinion regarding intention after a contract is completed
 There are many contracts regarding which intention does not matter, e.g: most business contracts
 Selling something to someone who intends to use it for evil is not permissible
 Explicitly worded divorces are valid, regardless of intention
 Ambigously worded divorces are valid or invalid depending on the intention
 Punishment for murder depends on the intention of the murderer (intentional, manslaughter, etc)
Niyyah is of a high consideration before the involvement in the contract. E.g. The legal ruling of nikah differs
according to the Niyyah of the person who intends to marry. If his Niyyah is to abstain from committing adultery, as
he knows he cannot control himself, nikah is then obligatory. If he intends to marry a woman just because of her
pedigree or because she is rich, it is then makruh (detestable). If his Niyyah is to harm the woman, nikah is then
forbidden.
More Examples
Murder:
 Intentional Murder - ‘amd - punishment is executing the murderer
 Quasi-intentional - shibh ‘amd - intention to strike but not to kill - requires kaffarah (expiation) and diyah
 Accidental - no intention- khata - requires kaffarah and diyah
Picking up a lost object:

 Stealing
 Finding the owner
Giving money to someone:

 Loan
 Trust
 Sadaqa
 Zakah
Subsidiary Maxims:
There is no reward without intentions
 Unless deeds are done with ikhlas (sincerity), no reward is gained for doing it
 A good deed is not rewarded unless it is done for the sake of Allah
 Abstaining from sin is not rewarded unless it is done for the sake of Allah
 Doing a good deed for worldly reasons deprives it of reward
 Acts of mubahat (a worldly permissible act) can become rewarding if it is done with good intentions
Second Minor Maxim

In contracts (Uqud), consideration (Al-Ibrah) and effect is given to intention (maqasid) and meaning (ma’ani )and not
words (Al-alfaz) and forms (mabani)
 Intended meanings are given precedence over wording

 When a contract is made, one should not look at the wording used by the two parties but at their actual
intent in their words expressed at the time of the contract.
 If the "intended meaning" is far-fetched, then the wording is considered instead (Major Maxim Six applies)
 E.g. “I’m giving you this gift for that or on condition that you give me that” The contract will be governed by
the rules of trade and sale according to Hanafis and Malikis because it has taken on the meaning of sale in
spite of one of the parties’ use of the word ‘gift’. All the other rules covering sales are applicable.
 If a person bought some goods from a merchant and told him, “take this sword as a trust/guarantee until I
bring the wealth.” The sword is considered a pawned object and will have the ruling of pawn and not a trust
because a trust may be taken back at any time that its owner wishes and the trustee must return it and this
case is not of that type
Third Minor Maxim

Intention will specify a general statement (Al-lafzul ‘aam) and make general a specific statement (Al-lafzul khas)
 Shafi'ee scholars only accept first half of maxim - that one’s intention can specify a general statement
 Malikis and Hambalis agree upon it
 Hanafi scholars do not accept this maxim
 Eg: "I will not speak to anybody" (general) - he meant Zaid. (specific)
 "I will not enter this house" (specific) - He intended a home owned by that person (general)
Fourth Minor Maxim

Oaths are based on intentions and objectives, not words
 This maxim is accepted by Maliki and Hambali scholars with condition that the intended meaning is not far-
fetched
 Hanafi and Shafi'ee scholars say that oaths are based on their wordings, unless that is not possible then
intended meanings are looked at
 Eg: An angry person says, "I will not buy anything from you for one Riyal" and then he bought something for
him by 100 riyaals, he would not have broken his oath according to the Shaafi’is and Hanafis.
Fifth Minor Maxim

Oaths are based on the customs of the one taking the oath if it is not possible to interpret it according to its legal
meaning
 This is an extension of the maxim before it, taking Urf into consideration
 Oaths are based on the Urf of the person taking the oath if it is not possible to use its legal meaning - Hanafi
and Hambali Maxim
 Imam Shafi'ee does not agree with this, he goes with the wording
 Eg: "I will not live in a house" then he lived in a tent, he has not broken his oath if he was a city resident.
Exceptions to the Maxims
Whoever hastens (ista’jala) to do something before its allotted time (Awaanihi) is punished by being deprived of it
 This maxim is agreed upon by all of the schools
 This maxim is considered an exception from the general maxim “Acts are judged according to their
intentions” whereby the doer is treated with the opposite of his intention.
 e.g. If an inheritor deliberately kills the person he is to inherit from to hasten the inheritance
 e. g: Praying Dhuhr before Zawwal - not accepted or rewarded
Favoring others over oneself in righteous deeds is disliked but in other things it is liked
 It is disliked to give up one's place in front row of the Masjid for someone else.
Favouring others over oneself in in worldly things, which is beloved and sought
 eg: giving others food and drink while needing it for oneself - highest level of favouring others and is
recommended in Islam.
The Second Maxim

Certainty is not invalidated/overruled by doubt
 Certainty (Al-Yaqin) is a major part of Islam. Certainty is stronger than doubt because certainty is a definite
ruling, which cannot be destroyed by doubt.
 This is one of the first Maxims to be coined
 Many Hadiths indicate this Maxim
 It is an expression of the principle of Fiqh known as Istishaab
 Istishaab: The principle of linking things back to its original state/ruling until a change is confirmed –
primarily used by Imam Shafi’ee
 It applies to almost every area of Fiqh, and has practical every day usages
In the law, legal rulings are either:

 qat’iyyah (definitive) - from the Qur’an or Sunnah
 zanniyyah (speculative) e.g. whether the 3 days to be fasted as expiation for breaking an oath should be
consecutive or separate days
Terminology
 Yaqeen - Conviction based on evidence; certainty/firmness of the heart
 Itiqaad - Conviction without evidence e.g. belief of the general masses.
 Dhann - Reasonable suspicion; possibility of two things – one of which is stronger than the other
 Shakk – suspicion; possibility of two things – neither of which is stronger than the other
 Wahm - unreasonable suspicion; possibility of two things – favouring the weaker
The proof for this Qa’idah was based on Qur’anic verses and Prophetic traditions. In Surah Yunus, for example, the
Qur’an says:
Most of them follow not but conjecture. Certainly, conjecture can by no means take the place of truth. Indeed Allah is
Knowing of What they do
Application of this Maxim
 One who is certain of their purity and doubts breaking it remains pure
 One who is certain of being impure and doubtful of purifying remains impure
 One who is doubtful whether in second or third Rakah should treat it as the second Rakah
 If one doubts whether the sun has set yet, he shouldn't break the fast
 If one doubts whether the dawn has come can continue with Suhoor until convinced
 If one doubts how many rounds of Tawaf one has made, go with the smaller number
 In divorce, if a husband doubted how many times he pronounced divorce, go with the smaller number
 If a person took a loan and doubted whether he is still in debt, he has to pay it
 Whatever is testified by evidence or the required number of witnesses is regarded as Yaqeen
 If someone knows that someone is in debt but doesn't know whether they paid or not, they must testify to
what they know
 Al-Nawawi said "Things are legally assumed to remain as they are unless and until it is established with
certainty that they are otherwise; and that extraneous doubts are of no consequence".
Strong suspicion (ghalabat al-zann)
Strong suspicion can take the place of yaqeen if yaqeen is not possible
 If a ship has sunk, we can presume the people on board have died and treat them accordingly
 A sick person may break his/her fast if there is a strong chance of it affecting his/her health
 A person who is lost may estimate the direction of the Kabah based on the direction he feels is strongest and
face that direction
 In all of these cases, Yaqeen is not possible so strong suspicion takes precedence over weaker doubts
Subsidiary Maxims for Certainty is not overruled by doubt
There are many subsidiary minor Qawa’id, which were derived from this universal principle
1. The general rule is that a thing shall remain as it originally was
 Most of the subsidiary maxims here are expressions of Istishaab (linking)

 The Qa’idah presumes the continued validity of anything until we know there is a change
 Someone who was last known to be alive will be considered alive until proven dead
 Someone who was known as a disbeliever will be treated as such until evidence is confirmed of their
conversion
 Things of this world are considered Halal until proven Haraam
 Water is considered pure until proven impure
 So, If a woman in ‘iddah claims that the ‘iddah has not ended she is to be believed and maintenance is due
to her, because the basic state is that her ‘iddah remains
Istis’hab (linking) – for jurists it means “sticking to a ruling whose confirmation and continuation is confirmed by the
law.”
Types Of al-Istis’hab
 Linking the past with the present e.g. The case of a lost person about which news has been cut off but
neither his death nor his life are known. He is ruled to be alive because when he disappeared, he was
actually alive. He is alive by decree so his heirs cannot divide up his wealth nor is his wife separated
from him
 Linking the present with the past e.g. a Christian dies and his Muslim wife claims that she accepted Islam
after his death and as such deserves to inherit his wealth. However, the other heirs claim that she
accepted Islam before his death and therefore has no right. Abu Haneefah, Abu Yousuf and Muhammad
al-Shaybani, all of them support the opinion of the heirs. It is explained that the reason for preventing
her from the inheritance is the current difference of religion and the past would be decreed based upon
the present.
Ruling of al-Istishab as an Evidence in Shariah
 Among Hanafees it is valid as evidence to deny rights - not to establish them

 According to the rest of the scholars (Malikis, Shafi’is, Hambalis), Istishaab is valid to both deny rights
as well as confirm them.
2. The general rule is that humans are free of responsibility to do anything
 This is an expression of the principle known as Baraa'atul Asliyya (original innocence)

 Taken from the following hadith: “Evidence is the responsibility of the claimant and the oath is for the
accused.”
 This maxim is known in modern society as "innocent until proven guilty"
 The accused are originally considered innocent until guilt can be established
 Doubt and suspicion benefit the accused & the hudood punishments must be avoided in cases of suspicion
 For example, if Adbur Rahim claims that Bashir owes him a sum of money, Bashir according to this qa’idah is
not responsible, until proven so, since his zimmah (legal responsibility) is not accountable unless it is proved
otherwise.
3. What is confirmed by certainty can only be invalidated by certainty
 This is emphasizing the main maxim

 Whoever doubts whether he has done something or not, the general rule is that he has not done it
 Whoever is certain about an act but doubts about whether he has done a little or a lot of it should assume a
little as that is certain
 Doubt about deficiency and increase is the same as certainty in each case
 For example, if someone doubts how many days of fasting he has to make up, he assumes the (maximum)
greatest amount as it is more certain.
 Doubt about leaving out an instructed part of salah requires sujood as-sahw (prostration of forgetfulness)
but doubt about doing something prohibited in salah does not require sujood as-sahw because the general
rule is that it was not done
4. The general rule regarding incidental characteristics or things is their non-existence
 Characteristics are of two types: original (exist from their beginning) and incidental (such as defects in a
product)
 Original characteristics are usually considered as yaqeen
 Incidental characteristics are considered Shakk until proven
 For example, if someone bought a car and sometime after receiving it he claims it has an old defect (i.e. prior
to purchase) but the seller claims it was free from defects, and neither side has proof for their claims, the
ruling will be in the seller’s favour along with his oath. This is because freedom from defects is among the
original characteristics of the car and the general rule is that the original characteristic is present in it.
5. The general rule is attributing an incident to the most recent time
 When there is a dispute about time, the most recent time is taken into consideration as it is yaqeen
 So for a woman, who claimed that her husband had divorced her in his mortal sickness just to ban her from
having a share of his heritage, while the other heirs claimed that the divorce took place when he was
healthy. The ruling will favour the wife because the incident whose time of occurrence is disputed is the
divorce which should be attributed to the closest time, which is his death-bed as claimed by the wife – as
long as the heirs don’t bring evidence of an earlier pronouncement during his period of health.
 Doubt regarding when semen got on one's clothes while sleeping, should make up Salah since last time he
slept
Subsidiary Maxims for Certainty is not overruled by doubt (cont.)
6. The general rule for things is permissibility
 Majority of scholars agree that things are permissible until proven Haraam
 A minority including Abu Hanifa believed things are Haraam until proven permissible
 A smaller minority believed that things are doubtful until proven Halal or Haraam
 The first opinion is strongest based on evidence
Evidence for this maxim
 From the Qur’an: Allah says “It is He Who created for you all of that which is on the earth.”
 “Say, Indeed, the things that my Lord has forbidden are al-fawahish (great evil sins) whether committed
openly or secretly, sins (of all kinds), unrighteous oppression, joining partners (in worship) with Allah for
which He has given no authority, and saying things about Allah of which you have no knowledge.”
Allah clearly identifies the forbidden things by listing them. Thereby He indicated the permissibility of all that
is beyond them.
 From the Sunnah: “What Allah has made permissible is permissible and what He made prohibited is
prohibited and what He has remained silent about is excused. So accept from Allah His concession. For Allah
does not forget anything,”
The Effect of this Difference of opinion of scholars:
In areas where there is no ruling in the Qur’an or Sunnah by specific or common evidence, like animals for which
there is no text (e.g. Elephant, giraffe) and plants not known to be harmful, you will find differences of opinion on
the permissibility of such things based on which maxim the scholar held.
7. The General Rule Regarding Sexual Relations is Their Prohibition
 Sexual relationships are prohibited except within a valid Nikah or with a slave girl
 In cases of doubt, sexual relations remain prohibited
 So, if a man divorced one of his wives three times, then forgot which one he divorced, he is not permitted to
have sexual relations with any of them, until he determines exactly which one he divorced.
8. Implication has no value in the context of a clear statement
 If someone states something, then this overrules any implications

 So, if a person entered someone else’s home with his permission and finds a glass prepared for drinking, he
would be permitted to drink by implication. If he picked up the glass to drink and it fell from his hand and
broke, he would not be required to replace it. However, if the house-owner forbade him from drinking from
it and he picked it up to drink from it and it fell and broke, he would be responsible for its value, because the
clearly stated prohibition cancelled the implied permission.
9. A statement/position should not be attributed to one who is silent; But silence where explanation is necessary is
an explanation
 The general rule is that silence has no meaning except in certain situations in which it is understood or
necessary
 In general a person's silence can't be accepted as approval or permission for anything
 The silence of a virgin daughter while being asked by wali (guardian) about the permission for marriage
before her marriage, will considered as permission (implication is that she is shy)
 When a thaiyib (previously married woman) was silent while being asked about the permission of second
marriage, then her silence will not be considered her Izn (permission).
 E.g: A woman needs to verbally agree to a marital proposal, unless she is a virgin. The silence of a virgin is
her acceptance.
10. Imaginary things have no value
 Doubts, imagination, what-ifs do not affect fiqh rulings, these are all regarded as Shakk
 If a person doesn't make Ijtihad when needed and just follows guesswork, this is invalid
 So, if a person is confused about the Qiblah and performs prayer without prior Ijtihad and endeavoring
efforts to know about qiblah, his prayer is not valid because he based on wahm/imagination.
11. A clearly wrong suspicious thought has no value
 If one's opinion is proven to be clearly wrong, it becomes invalid

 If a person taught that some water was pure, used it for wudhu then became aware that it was impure, he
needs to repeat his wudhu
12. What is normally unlikely is equivalent to what is really impossible
 Highly unlikely claims have no consideration without evidence

 If a man who was always poor becomes a millionaire overnight and claims people owed him the money and
paid him back, this won't be accepted and investigation will take place to see if he earned the wealth
unlawfully
13. Evidence is not acceptable along with a contrary possibility based on evidence
 If evidence contradicts a stronger evidence it won't be considered

 If a person claims in his death bed, that he is debited to some of his inheritors, his confession and claim will
not be accepted unless the rest of the inheritors would confirm this statement. Because his claim was made
to give priority in inheritance to others, this ihtimal (probability) was stronger because he was in a death
situation. So his confession and claim will not be accepted evidence.
The Third Major Maxim: Difficulty brings ease
 Removal of Hardship is one of the basic principles and goals of the Shariah - Raf’ al-haraj (removal of
hardship)
 Humans are not burdened with more than they can handle
 Islam has a list of concessions to deal with situations that would otherwise be burdensome upon people
 This principle is unique to our Shariah
 The evidences for this maxim are many
 Integral to the general Islamic concept of Maslahah
 The legal content of the Qa’idah was one of the major criteria of employing Istihsaan (juristic preference)
 We can pray anywhere that is clean, not just a Masjid

 We can shorten our prayers and delay fasting while traveling
 We can combine certain prayers in times of need
 We can sit and pray if standing is too difficult
 We can delay a fast if we are ill
 We can drink or eat something unlawful to save our lives
Evidences of the Maxim:
 Many from the Qur’an:“Allah intends for you ease and He does not want to make things difficult for you”
(Surah Baqara 2:185)
 “Allah burdens not a person beyond his scope.” (Surah Baqara 2:286)
 From the Sunnah, in this regard, the Prophet (pbuh) said: “Allah did not send me to be harsh, or cause harm,
but He has sent me to teach and make things easy”.
 Putting this into practice, ‘Aishah, the Prophet’s (pbuh) wife, reported that: “Whenever he, the Messenger of
Allah (pbuh), had a choice between two matters, one was easier than the other, he would choose the
easiest, unless it was a sinful act’’.
Types of difficulty
 Usual Difficulty: This does not affect the Fiqh and is unavoidable and bearable
 Unusual Difficulty: This type of difficulty is a break from regular life and causes additional burdens which
Shariah seeks to avoid.
 The Maxim "Difficulty causes Ease" deals with the second type of difficulty
 This is one of the earliest Maxims found in the Quran and Hadith directly
The Third Major Maxim: Difficulty brings ease (cont.)
 Islam is full of Rukhas (concessions) for the believers

 Scholars differ in the application of this maxim, regarding what specific level of difficulty causes ease
 Mashaqqah (hardship) is defined as unusual difficulty
 Shortening Zuhr, Asr and Isha, combining two prayers like Zuhr and Asr or Magrib and Isha during traveling,
and breaking the fasting of Ramadan due to illness are some examples for Rukhas.
 Permission of eating haram during times of darurah (duress) is another rukhsah (relief) of Shariah. Since the
Shariah intends the removal of hardship and difficulty by granting these rukhas so they are, in turn,
evidences for this maxim.
 Ijma was held on that there is no responsibility of doing something with unusual difficulty - as the goal of the
Shariah is not to impose hardship and difficulties on people, rather than to remove it
Mashaqqah
1. Usual hardship one may experience while performing the religious duties e.g. making wudu or ghusl in cold
weather. This hardship is within one’s strength and ability and leads to rewards in the afterlife
2. Unusual hardship - would warrant ease
Types of Difficulty
1. Severe difficulty: When fear of life or bodily harm is extremely serious, relief from difficulty becomes
necessary with a special concession to protect life and the body.
2. Slight difficulty: like pain in a finger, a mild headache or a mild change of mood is not considered for
concession. To gain the benefits of worshipping Allah is superior to submitting to these simple difficulties.
3. The severity or lightness of a difficulty is disputed.
Causes of Difficulty
1. Coercion
2. Travel
3. Disease
4. Forgetfulness
5. Ignorance
6. Umumul Balwa (common affliction) - circumstances which may cause general disturbance or difficulty
7. Naqsul Ahliyyah (lack of legal competence) - includes insanity, imprisonment and immaturity
Types of Facilitation
1. Isqat - omission, e.g.: women don't need to pray during her menstrual period
2. Tanqis - decrease, e.g.: shortening Salah when traveling
3. Ibdal - replacement, e.g.: Making Tayammum in place of Wudhu
4. Taqdim - advancing or bringing forward, e.g.: combining Asr with Dhuhr at Dhuhr time
5. Ta’khir - postponement, e.g.: delaying a fast while traveling during Ramadan
6. Idtirar - necessity, e.g.: drinking alcohol if fearing death from choking when no water is available
7. Taghyir - change, e.g.: the salat al-khawf (prayer of fear) which is a form of prayer different from the normal
prayer, that is to be performed during battle
The Third Major Maxim: Difficulty brings ease (cont.)
Many legal principles were derived from this Qa’idah, especially those, which relate to the concepts of Daroorah
(necessity) and Haajah (need).
Minor Maxims
1. If the case becomes narrow, it (the law) expands and if the case becomes expansive, it narrows
 If difficulty appears in an issue, concessions are given

 if the difficulty goes, the issue returns to its previous condition
 E.g: Testimony of women and children will be accepted where men cannot have access
 If someone is unable to pay off their debt, they are given leeway until they can afford to pay it
 Killing a violent thief is lawful, if it is perceived that a lesser threat or action is not likely to put a stop to his
evil
Evidences for this Maxim:
From the Quran:

Allah says about the method of performing prayer at the time of battle with disbelievers, which is called salatul
khawf (prayer of fear), Surah Nisaa 4:101-103
From the Sunnah:

Narrated By Nubayshah: The Prophet (PBUH) said: “We forbade you to eat their meat for more than three days in
order that you might have abundance; now Allah has produced abundance, so you may eat, store up and seek
reward. Beware; these days are days of eating, drinking and remembrance of Allah, Most High”.
This hadiths shows very clearly that due to the need of the people the Messenger of Allah (pbuh) prohibited to
preserve meat of sacrifices. But when Allah provided abundance, the Messenger (pbuh) withdrew his prohibition by
making the rule return to its previous condition.
2. Necessity makes permissible the prohibited things
 This is based on clear Quranic verses and Hadith

 If there is a necessity with no halal alternative, then there is concession to do certain haram acts if it doesn't
lead to a greater evil
 Such things are only permitted enough to remove the necessity
 E.g: one is allowed to eat the meat of a dead animal, pig and the like, if one is likely to perish from hunger
 Killing someone who attacks you
But certain conditions are to be met first, before applying this maxim. These include the following:
1) Necessity should be a present reality

2) The suffering person has found no lawful alternative
3) Acting on necessity should not lead to a danger equal to or greater than the averted danger
4) Acting on necessity should not exceed the limits of precluding the danger, so when danger is no longer
present, the relaxation comes to an end.
There are many verses in the Qur’an in favour of this maxim. Allah says,
“But if anyone is compelled, without desiring or exceeding, he commits no sin. Allah is Forgiving and Merciful”
“But if someone is compelled by necessity, without being deliberate or malicious, your Lord is Forgiving and
Merciful.”
“Already He has detailed for you what is prohibited for you, unless you are compelled by necessity?”
3. Necessities should be given their proper estimate
 This is a condition for the previous maxim

 One cannot do more than is necessary
 One needs to estimate what is necessary
 E.g: A male doctor can only see that part of a woman's body which he needs to treat
 A person who is dying and only has haram on him can only eat enough to stop himself from dying
 If one is allowed to drink wine to remove a blockage in one’s throat, he should not exceed the amount that
brings him relief.
In many verses of the Qur’an Allah says, “But if anyone is compelled, without desiring or exceeding…” This part of
the verse is evidence for this maxim, because it means that if he is exceeding the limit he commits sin.
4. What became permissible due to an excuse is invalidated if it goes
 Closely related to previous Maxim

 Previous maxim dealt with level of necessity, this deals with the removal of the necessity altogether
 E.g: if a person finds water, they can no longer make Tayammum
 If a dying person has access to halal food, he is no longer allowed to eat haram
 The male person who put on a garment made of hareer (silk) due to some disease. When he is cured from
that disease, he should remove the silk.
 The widow who is in her iddah and is compelled to go out for livelihood, if she had enough money, then she
will not be permitted to go out during time of iddah until it finishes
5. Need is considered according to the level of a necessity whether it is general or specific
 Needs are of different types which include general and specific

 Depending on the level of necessity, the facility would differ too
 E.g: If a person is dying, they can eat haraam, but if they are not dying but starving then they can't eat pork
or carrion but could still eat lesser forms of haraam like food bought with haraam money or stolen food
6. Necessity does not invalidate the rights of others
 Necessities are only allowed as long as they do not violate the rights of others
 E.g: If a starving person stole food, their hand will not be amputated but they will have to pay for the food
when they can afford it
 If someone is forced to kill someone else or die, it is not permissible to kill
 If they went ahead and killed, they will have to pay the blood money but won't be executed
7. If the original becomes impossible, a substitute shall be sought
 If a specific command of Islam is impossible to fulfill, then concessions (rukhsah) are made
 E.g: It is permissible for a chronically ill person to pay Fidyah, instead of fasting
 It is permissible to make Tayammum in the absense of water
 If there is a dispute regarding the Mahr amount, mahr Mithil is paid instead
The Fourth Major Maxim: Harm must be eliminated
 Removal of harm is one of the goals of the Shariah

 This maxim is taken directly from the Hadith, "Harm may neither be inflicted nor reciprocated" recorded in
the Muwatta of Imam Malik
 Many verses of the Qur'an confirm this principle …. wants ease and does not want hardship
 Prophet Muhammad (pbuh) said “Religion (Deen) is easy”.
 This maxim applies across all areas of Fiqh
 This is one of the earliest maxims to be coined
 Ijma: There is a consensus opinion of the scholars of this Ummah to work with the hadith of: and that all
harmful activities are haram.
 Darar is defined as “a detriment caused to the interests of oneself or of others”.
Classification of Darar (Harm)
 A harm which affects one or more of the five necessities (faith, life, intellect, property and lineage) - such
harm must be eliminated
 A harm which affects something lesser than one of the five necessities - priority is given to protecting the five
necessities
 Harm can also be divided into direct and indirect e.g. direct is when a person causes darar to others by
himself, and is the actual performer of the act, while the latter is when a person does something that
indirectly causes harm, such as digging a well in a public path, which then resulted in a person falling into it
 Harm can also be divided into material and moral e.g. victim is entitled to full compensation for the material
darar, the vast majority of scholars have not given him the right to any kind of compensation for hurt
feelings or for being insulted, dishonoured, or stigmatised. Instead, it is the duty of the judge to determine
 Harm can also be divided into intentional and mistaken
 Harm can also be divided into acceptable and unacceptable
 Most prohibited things are prohibited because they harm people or society
 Alcohol, drugs, gambling and smoking etc. prohibited on the basis of eliminating harm
 The Hadd punishments are in place to eliminate harm from society
 Polygamy is allowed as it removes various harms from the community
 Divorce is allowed to remove the harms caused by an unhappy marriage
 Jihad - it might lead to the loss of one’s life – but can result in protecting the faith and continuity of the
religion
 E.g. if a sick person is informed by a physician that water would prolong the period of illness or may put him
at risk of more severe sickness, using water will most probably bring him harm; thus he ought to do
tayammum instead.
 Therefore, opening a window in one’s house, which violates the privacy of his neighbour’s house is a harmful
act that needs to be removed. However, the injured neighbour should not reciprocate the harmful act of his
neighbour by opening a window in his own house that similarly violates the first neighbour’s privacy- such an
action is deemed to worsen the damage without providing any benefit in return. Instead - legal action/
remedial action/compensation
 E.g. if someone sold his tree, and the privacy of the neighbour will be violated when the purchaser comes to
cut the tree, at that time the purchaser must inform his neighbours before cutting the tree
Subsidiary Maxims to the Fourth Major Maxim: Harm must be eliminated
1. Harm should be repelled to the degree possible
“Prevention is better than cure"
If a harm can't be eliminated completely, it must be removed as much as possible
Examples in the field of public interest:
 Jihad (to prevent the harm of the enemies)

 Hudood (to suppress crime and ensure safety in the society)
Examples in the field of personal rights:
 Right of pre-emption has been given to prevent the probable harm from neighbours
 People who have lack of intelligence are prevented from owning and spending their own money according to
the Shariah in order to prevent harm which may be caused by them in their financial transactions
 Insolvent and bankrupt people are prevented from spending money- to remove harm to the creditors
 Permission has been given to an ultra-needy and compelled person to eat from another’s wealth to prevent
harm to him but he needs to compensate it afterwards (for two reasons: “Harm should be repelled to the
degree possible” and “Necessity does not invalidate the rights of others”)
2. Harm should not be removed by a similar harm
Harm must be eliminated either by good or by a lesser harm
It can't be eliminated by an equal or greater harm
Examples:
 We are not allowed to oppress criminals

 It is not permitted for one who is in a situation of darurah (necessity) to remove the harm of his hunger by
taking the food of others who are in the similar situation like him
3. A lesser harm is to be tolerated in order to eliminate a greater one
When there is no harmless option, the less harmful option must be chosen
Example:
 Abortion in case of risk of mother's life

 If the foetus is alive in the womb of dead pregnant woman, her abdomen is allowed to open. Here are also
two harms: The foetus will be buried with the dead and opening the abdomen of dead women. But the
second harm is lesser, so her abdomen will be open to save the life of the foetus.
 A person who is in a situation of severe hunger can eat from maytah (not slaughtered dead animal) to save
his life.
 If a wounded man, while performing his prayer prostrates and this prostration will open his wound then he
may perform his prayer sitting and using gestures because abandoning prostration makes his prayer easily
performed
4. A private harm is tolerated in order to prevent a public harm
Harm which affects one person will be tolerated if it prevents harm to the general public
The Qa’idah means that if a conflict arises between the interests of an individual or a group of individuals and
those of the whole community, prevalence should be given to the latter.
Examples:
 Throwing shells or arrows to the enemy of Muslims is allowed at the time of jihad although they use
Muslim prisoners as shield
 Imposing fixed prices on goods when they are sold at high rates, although it may cause harm to traders,
is meant to protect the whole community from their greediness
 Cutting the hand of the thief, although is a harm for the thief, but it will cause the safety of the wealth of
the whole community
5. Repelling corruption takes precedence over obtaining benefits
 This maxim denotes that when a corruption and a benefit conflict - removal of harm takes precedence over
the attainment of benefit
 Shariah gave more emphasis on removing corruptions and abandoning the prohibited than obtaining
benefits and doing the recommended
 When prohibiting evidence and demanding evidence contradict, preference shall be given to the prohibition,
except when the necessitated will be greater (committing corruptions and the prohibited is greater harm in
the eye of the Shariah)
 When the halal and haram coincide, the unlawful shall be dominant - it will be treated as harmful and haram
in most situations
 If your rights clash with violating someone else's rights then protecting their rights is given preference
Examples:
 When taking bath is obligatory on a woman and she gets no veil from men if she takes bath, then she
should delay her bath until she gets veil. Here taking bath is a maslah (benefit) and unveiling is a
mafsadah (corruption). So repelling corruption takes precedence over obtaining benefits.
 Trading with haram commodities like wine, heroin, pork, intoxicant etc. are prohibited, although in it
there are profits and benefits.
The Fifth Major Maxim: Local Culture is the deciding factor
 This maxim is an expression of the principle of urf

 Urf is a more specific term referring to the practice of a society. Defined as “the verbal or nonverbal habitual
practices of the majority of people within a community
 Aadaat (repetition or a recurrent practice) can refer to individual practices as well
 On issues which the Qur'an and Sunnah are silent, the local culture is given preference
 Culture plays a major role in keeping fiqh flexible and universal
 There are many issues which the shariah has left open to cultural interpretations
 These rules change from place to place and from time to time
 Culture predominatly affects the fiqh of family, business and court cases
 Urf is used to understand Quran and Sunnah, make independent rulings and understand words with multiple
usages
 practices of people, be they actions or sayings – general or specific, of a certain group of people, can have
authority in the absence of specific nusus (texts), or, in case of the presence of the nusus, it can specify a
general nass or restrict an unrestricted one.
 one of the means of the Shari’ah to solve the problems and find out the legal rulings of the new issues in the
different societies
Conditions for acceptance of Urf
1. It must not contradict the Quran, Sunnah or Ijmaa

2. It must be popular and commonly known
3. It must be acceptable to righteous Muslims
4. The harms of it must not outweigh its benefits
5. It must be the culture at the time of the issue
6. It can't contradict clearly documented conditions
Scholars referred to a number of Qur’anic verses and Prophetic traditions as the basis for sanctioning ‘urf. The
following are some of them.
 In Sura al-Maidah, the Qur’an, with reference to the types of expiation accepted when an oath is violated,
says:
“Allah will not punish you for what is unintentional in your oaths, but He will punish you for your deliberate
oaths; for its expiation feed ten poor persons on scale of the average of that with which you feed your own
families or clothe them or manumit a slave ...”.
The phrase: (on scale of the average of that with which you feed your own families) is an instruction to
consider the prevalent custom. Therefore, food which one is to feed the ten poor persons is to be the same
as what people usually eat, be it rice, barley, wheat, corn, etc.
In addition, custom intervenes also in determining the amount of food each of the poor is to be given. Both
the type and amount of food are not specified in the verse, taking into account the different situations of
people in order to facilitate the matter for them.
 From the Sunnah :

Al-Bukhari narrated in his al-Jami’ al-Sahih on the authority of ‘Aishah, wife of the Prophet (PBUH) that:
‘‘Hind, daughter of ‘Utbah (mother of Mu’awiyah), said, “O Allah’s Messenger, Abu Sufyan (her husband) is a
miser. He does not give me and my child what is sufficient, except what I take from him while he does not
know. (Am I allowed to take from his money secretly?)" The Prophet (PBUH) said to her, “You and your son
may take what is sufficient reasonably and fairly”.
The phrase ‘what is sufficient reasonably and fairly’ ‘bil-ma’ruf’ is a derivative of the term ‘urf’. Accordingly, a
wife whose husband is a miser can take from his money without his knowledge for the maintenance of
herself and their children in accordance to what people in her social class spend for their maintenance.
Imaam Nawawi stated in the sharh muslim while commenting on this hadith: Reliance is on custom in cases
where the shari'ah did not fix amounts.
History of the maxim :

 The theory of ‘urf was developed during the era of the formation of the four schools of law, when different
sources of the law were identified.
 ‘Urf occupied a significant position in the four schools, although the Hanafis and Malikis granted it more
prominence than the Shafi’is and Hanbalis.
 Abu Hanifah for example, was reported to have said that ‘urf is used to determine and interpret the
intended meanings of the legal terms commonly used in a given society.
 In Maliki school of law, ‘urf is widely recognised from the very outset. The concept of ‘amal ahl al-Madinah,
an exclusive Maliki source of law, referring mainly to the customary practice of the people of Madinah who
lived before the time of Malik up to the time of the Prophet (pbuh), can be considered to be sufficient proof
for the argument for the recognition of ‘urf and its position in the Maliki school of law.
Rulings and Applications of the Maxim:
‘Urf is generally of two types:

 qawli (verbal)
 fi’li (practical)
Qawli (verbal) refers to the agreement of people on the usage of a word or a group of words with a particular
meaning, which may be different from its original linguistic meaning. It may even be different from the meaning
intended in the Qur’an or the Sunnah.
 The word lahm (meat), for example, is used in the Qur’an to refer to all kinds of meat including fish, whereas
according to the customary usage of people, fish is not included.
 The literal meaning and the Qur’anic usage of the word walad is offspring, i.e. both sons and daughters; yet
people use it to refer to the male offspring exclusively.
‘Urf, be it verbal or practical, is also either ‘amm (universal) or khass (local).
 The universal ‘urf - prevalent in all Muslim regions and all people are in agreement over it. E.g. ‘aqd al-
salam. This kind of contract was widely practiced in Medina when the Prophet (pbuh) emigrated there, and
is still practiced in the present day in almost all Muslim communities.
 Local ‘urf - that which is common to a particular region or locality or is practiced amongst a particular
society, profession or group of people. For example, the ‘urf in some Muslim society is that the cost of the
celebratory feast after the birth of the first child should be borne by the maternal grandfather.
The Fifth Major Maxim: Local Culture is the deciding factor (Cont.)
1. Subsidiary Maxim: The people’s usage is an evidence which must be used
 Peoples’ customs will be evidence and proof, if they do not contradict with the rules of Shari’ah
 “The people’s usage is an evidence which must be used” or “Public usage is conclusive and must be
followed”
 Business clauses and conditions, usages of words and phrases are all based on Urf
 E.g. in many communities, the payment of the rent for a property occurs at the beginning of every solar
rather than lunar month
2. Subsidiary Maxim: Custom shall be deemed effective only when it is constant and predominant
 The custom which is considered is that which is predominant in a community

 Likewise, the custom which is practiced by few in a community is not considered Urf
 E.g. . If a tailor is hired, the needle and the thread are to be provided by him if that is the local custom.
3. Subsidiary Maxim: Consideration shall be given to the commonly preponderant, not to the rare
 When we have a case in which we have a predominant condition and a rare condition or exception, the rule
is based on the predominant
 reliance or credence is to be given to that is common, i.e., publically and generally operative, and not to
what is rare.
 Eg: Payment for Islamic Work - because in most of the cases people do not do it freely
 Fixing the age of maturity of a girl in the Middle East when she is nine - predominant case.
4. Subsidiary Maxim: Customary usage by which statements are understood, is only that which existed prior to
the law, and not what follows it
 If the Urf changes after the issue at hand, the original Urf will be considered
 No consideration for the custom which accidentally happened/created/innovated
 Eg: Words in the Qur'an must be understood according to their meaning at the time of revelation
5. Subsidiary Maxim: The reality/ literal meaning is left due to the implication of custom
 If a word or statement has a customary usage then that becomes the Haqeeqa, and the literal meaning is not
considered
 Eg: Salah is used to refer to the formal prayer, not to supplication
 E.g. When one were to say, 'By Allah, I will not step foot into my house', but he breaks his oath by entering
his house riding. This is so since the expression 'to step foot into' is not understood literally, rather it is taken
in custom to be synonymous with 'to enter'. So the original meaning will be left and the connotation of ‘urf
and custom will be understood.
6. Subsidiary Maxim: Oral communications are treated like written ones
 This also means that written communication is the same as oral

 This means whether something is said or written, either way it has weight and is considered in the Shariah
 E.g. When someone has written or asked a clerk to write an acknowledgement of debt which has been given
to another whether it is signed, thumb printed or sealed, if it is written in accordance with practice and
custom, it is then an acknowledgement in writing and shall be deemed verbal acknowledgement.
The Fifth Major Maxim: Local Culture is the deciding factor (Cont.)
7. Subsidiary Maxim: The Known signs of a person with learning difficulties are equivalent to spoken statements
 If someone can't speak, then the known sign language or body language substitutes for speech
 The judge is required to know the signs of the person with learning difficulties so that he can build on them
the legal consequences, whether the person is a plaintiff or defendant
8. Subsidiary Maxim: What’s known by custom is like a condition in what is made conditional
 If a certain condition is the local custom then it is considered, even if nobody mentioned it
 “A matter recognized by custom is regarded as if stipulated by agreement”
 What people have become accustomed to in their dealings, even though it’s not mentioned clearly, is
treated like a condition that is obligatory to fulfill. It also means what is known by convention is deemed as
conditional.
 If it is the local culture that the seller provides transport, then he has to do so, even if it wasn't mentioned in
the contract
 E.g. bathing in public baths, eating in restaurants, and sleeping in hotels…etc. which all prerequisite paying
the fee because convention requires so, even though it is not mentioned by contractors
9. Subsidiary Maxim: Specification by custom is like specification by text
 If something is known by custom, it does not need to be documented or mentioned

 Eg: If it is known that certain buildings are only used for residence and not for business, then business should
not be conducted there
 E.g. If someone paid a deposit and the custom is that the deposit remains intact, the person he paid it to
can’t use it for anything until is customarily acceptable
10. Subsidiary Maxim: What is known among traders is like a condition among them
 The common practices of traders must be considered, even if not stated

 Eg: The different prices for wholesalers and retailers are subject to Urf
 E.g. if someone purchases something from the market for a known price albeit not explicitly stated, and it is
conventional that the vendor receives every Friday or every month all the price or some of it, he shall do so,
needless of any explicit statement, as it is conventionally known amongst traders as if they had agreed upon
it.
11. Subsidiary Maxim: The change of rules should not be denied due to time change
 Shariah rules can never change

 However, Ijtihad based rules change from time to time and culture to culture
 Eg: Building schools and universities; and charging for Islamic knowledge
 E.g. Rasulullah (pbuh) prohibited to write his hadith but afterwards Ulama wrote his hadith by the order of
Umar Ibn Abdul Aziz, the Qur’an was not written in the paper or not printed, then Ulama permitted to write
on paper and to print it.
12. Subsidiary Maxim: A thing that is customary regarded impossible is considered impossible in fact
 If someone makes an outlandish claim which is considered impossible in that society then it will be regarded
as impossible in an Islamic court
 E.g. If a man known to be destitute claims that he has lent a wealthy man a large sum of money as one
payment, his claim shall not be heard because it is customarily impossible to believe it.
The Fifth Major Maxim: Giving words’ value is more appropriate than ignoring them
 This was not considered a major maxim by earlier scholars

 Most scholars list this under Usooli maxims as it applies to both Fiqh and Usool Al-Fiqh
 This maxim is based on the fact that people do not usually say or do anything without it having a meaning, so
every statement should be considered, unless it is impossible to do so
 every single word in the Qur’an and the Sunnah must have a meaning, although some might not yet be
perceived
 Awla means more appropriate/more prioritised.
 Hadith: Then I asked, "O prophet of Allah! Are we accountable for what we speak?" The Prophet said, “May
your mother be bereaved of you, Mu’adh! Shall people not be thrown on their faces or noses, but because
of their tongues?”
 In Usool Al-Fiqh, this maxim is used to indicate that every Qur'anic verse and Hadith must have some
meaning and shouldn't be ignored
 In Fiqh, if someone states something then it is given a meaning unless proven to be impossible
 Eg: If someone bequests money to his cousin and his house, the Wassiya will go to the cousin because that is
possible
 if someone acknowledged that he owed someone else a sum of money, he is then considered as such, so
much so he would be still indebted even if he retracted his acknowledgment, unless there was a strong piece
of evidence that he is no longer as such
 Eg. when a husband addressed his wife saying, ‘you are divorced, you are divorced’, it is considered to be
two times of divorce rather than to be a mere confirmation (substantiation) of one divorce.
 Eg. If a person endowed something for his children; but he has no direct children rather than grandchildren,
then his endowment will be implicated in them. Because if his statement cannot be taken directly in its real
meaning, it could refer to the indirect metaphorical meaning like grandchildren here, to protect his
statement from being ignored
1. Subsidiary Maxim: The original state of words is the Haqeeqah
 If a word has both a Haqeeqah (real) and Majaaz (metaphorical) meaning, preference is given to the
Haqeeqah unless evidence points to the Majaaz
 “Originally words should be taken according to their literal meaning”
 “The original state of words is the literal sense”- that it is presumed that what is said is true
 Eg., someone says “I entitle my house on my children then on poor people”, the entailment here goes to the
offspring children and it does not include grandchildren because his saying “my children” is literally referring
to the offspring children, so the word ‘my children’ goes for them only, and the grandchildren of the
entailing person are not included if they exist.
2. Subsidiary Maxim: When the Haqeeqah cannot be applied, the Majaaz may be used
 If the Haqeeqah is not possible or appropriate, the statement should be taken as Majaaz
 Eg: Using the word father to refer to grandfather or the word children to refer to grandchildren
 if one made his father the beneficiary of his bequest, yet the father was dead in the time when he made the
will, while the grandfather was still alive, the word father would be construed to mean grandfather
metaphorically, because it is impossible to apply the real literal meaning
 E.g. if one made an oath he will not eat from a particular amount of flour, he would violate the oath if he ate
from bread made from that flour. This is because flour per se is not usually an eatable food stuff, so the oath
should be directed to what is made from the flour- not the literal meaning
The Fifth Major Maxim: Giving words’ value is more appropriate than ignoring them
3. Subsidiary Maxim: If no meaning can be attached to a word it is disregarded altogether
 If a statement can't be taken as Haqeeqah or Majaaz then only will it be disregarded completely
 Eg: If a man makes a bequest for his parents, the bequest is invalid
4. Subsidiary Maxim: No utterance shall be attributed to a silent person, but silence in case of necessity is
pronouncement
 This maxim is included as a subsidiary maxim of this as well as "Conviction can't be removed by doubt" and
was covered in that module
 From an Usooli perspective, the silence of the Prophet is taken as his approval
 These silent approvals are called al-Sunnah al-Taqririyyah
 Likewise the silence of the scholars is taken as Ijmaa As-Sukooti (Silent consensus) according to many
scholars
 The Qa’idah means that it is not permitted to put into someone's mouth words that have never been uttered
by him/her, i.e., he/she has said this or that
 When someone sees someone else destroying the former's property, his silence shall not be deemed
permission
 silence must not be construed as speech, but silence is to be understood as speech when there is a need for
speech. In other words, no statement can be attributed to a person who remains silent, but to keep silent
where speech is required amounts to a spoken acknowledgement or admission.
 The silence of an impotent person's wife shall not be deemed consent even when she stays with him for
years.
 The traditional example for this exception is that the silence of a virgin girl is considered sufficient consent to
a marriage proposal
5. Subsidiary Maxim: A reference to a part of an indivisible thing is regarded as a reference to the whole
 If someone mentions a part of something which can't be divided, it is taken as a reference to the entire thing
 Eg: If a man divorces his wife's arm, he actually divorces her
 E.g. if the blood heir waives half of the retaliation (qasaas), the other half shall be waived because retaliation
is inseparable
6. Subsidiary Maxim: Description in the present is meaningless but of the absent is considerable
 If something is present and visible, then any description that does against the visible evidence is meaningless
 Eg: If a man wants to sell a white horse which is present at the place of the sale (on the spot) and he says, "I
sell this black horse" pointing at it and the vendee accepts the sale. The sale shall be valid (binding) and the
description of the horse as black shall have no effect. But if the vender sells a horse not present at the sale
place, saying it is white whereas in actuality is black, the sale shall be void. In this case the vendee has the
right of choice, either accept the horse or reject it.
7. Subsidiary Maxim: The question should be repeated in the answer
 When answering an importance question, the question should be restated to show that the answerer
understood it.
 Eg: If a man is asked if he divorced his wife, he should reply, "Yes, I divorced her,"
8. Subsidiary Maxim: Establishment is more appropriate than emphasis
 “Usage is better than repetition”

 If a person mentions a sentence twice, it would be taken as two separate sentences unless there is evidence
to indicate otherwise.
 Eg: If a man divorces his wife twice, it would be counted as two divorces according to Hanafi and Maliki
math'habs
 If a man tells his wife: “You are divorced, divorced, divorced,” she becomes 3 times divorced. If he says that
he only meant it as emphasis, he is to be believed religiously. However, it would be counted as 3 divorces
according to Hanafi and Maliki math'habs
9. Subsidiary Maxim: What is Mutlaq remains so, unless there is evidence to make it Muqayyad
 Mutlaq: a statement mentioned without conditions or stipulations

 Muqayyad: a statement which includes conditions or stipulations
 What is unspecified, remains as such as long as evidence of its limitation by text or implication is not found
 What is absolute (i.e. unrestricted) shall remain absolute unless there is a restricting proof by text or a
deduced argument
 If something is mentioned without stipulations, it should be considered Mutlaq, unless proven to be
Muqayyad
 This applied to both Fiqh and Usool Al-Fiqh
 A man who has authorized another to buy a car or a horse and he has bought it of a red or white colour but
the authoriser says, "I want it black", he should abide by what the authorised person has bought, because his
utterance, i.e. the car, is unrestricted by colour.
 Oh You who believe, whenever you intend to perform your prayer, wash your faces and your hands up to the
elbows and wipe (with wet hands) your heads and (wash) your feet up to the ankles.’ (Qur’an, 5:6). The
verse restricts the act of washing of the arms up to the elbows and the feet up to the ankles.
Al-Qawaaid Al-Aama The Comprehensive Maxims which are not major
Maxims governing the preclusive, the necessitated and haram
 The remaining maxims are not part of the big six but are not subsidiary either
 These maxims are either comprehensive (Aama) or controllers (Dawaabit)
1. If the preventer is removed, the prevented shall return
 If something is prevented by something else, then when the thing preventing it is removed, it returns to
normal
 Eg: Giving out inheritance is prohibited as long as the deceased has debts. Once his debts are paid, the
inheritance can be distributed
2. What is permitted for an excuse, is no longer permitted once the excuse goes away
 The maxim signifies a thing permitted on account of a reason or excuse (Uzr) becomes unlawful once such a
reason or excuse no longer exists.
 E.g. Tayammum is no longer permitted, once the reason for it goes away
 If one is sitting and praying and feels better, one must stand.
3. When prevention (preclusive) and commandment clash, preference is given to the prevention
 When the preventer and the necessitated conflict, preference shall be given to the preventer
 Whenever there is a clash between something being both good and bad, it should be regarded as bad
 when there is conflict between deterrent to certain action and the necessity for such action, the deterrent
will be given preference
 This is based on the Prophetic hadith which is related by Muslim, that the Prophet (pbuh) said: “Whatever I
have forbidden you from committing avert it, and whatever I enjoined you to do, do it as far as possible”
4. What is prohibited to give, is prohibited to take
 Prohibition is not just in giving but in receiving as well

 It is haraam to give or take a bribe or interest or any other prohibited thing
 What is haram to take is haram to give
 And do not eat up one another's property unjustly (illegally, e.g. stealing, robbing, deceiving, etc.) nor try to
bribe the rulers (or judges before presenting your cases) that you may knowingly eat up a part of the property
of others sinfully (Qur’an, 2:188).
 Prophetic hadith: Allah curses the one who gives a bribe, who takes it and the mediator.
 It is part of Islamic Law that as it is not permitted to do haram, so as to help an act of haram is also not
permitted, for Allah said, And help one another based on righteousness and piety; but do not help one
another in sin and transgression
5. What is prohibited to use, is prohibited to keep
 We are not allowed to keep Haraam things in our homes as this will lead to temptation
 Using gold and silver plated utensils, keeping untrained dogs, pigs, wine, using silk and ornaments for men,
these are all prohibited in the Shariah, so to keep them at home is also haram; as their existence at home
can cause one to use them. So as to block the means, this kind of collection is also haram.
6. What is prohibited to use, is prohibited to ask for
 You are not allowed to let someone to do something haraam on your behalf, it is still regarded as you doing
the haraam yourself
 What is prohibited and haraam to do shall be prohibited to request and demand.
 Eg. Fraudulence, cheating, deception or infringements on others properties and rights are unlawful in Islam;
hence it is not permissible to ask others to commit any of these acts on one’s behalf
The Comprehensive Maxims which are not major (Cont.)
Maxims of Tawaabi’ (followers/attachments of the ruling)
1. The attachment will be attached
 A taabi refers to something which is subsidiary, secondary or attached to the primary object (follower)
 A taabi is automatically considered in the contract of the original object without having to be specifically
mentioned
 whatever belongs to a certain thing would follow it in its ruling. That which follows something in reality
follows it in its ruling
 Prophetic hadith: The slaughtering of the animal embryo is slaughtering its mother
 Eg. When a pregnant animal is sold its embryo is sold as well.
 Eg: If you purchase a house, you will also own its attachments which includes the keys, doors, windows,
gardens and trees
2. The attachment will not be treated separate
 A taabi cannot be treated as a separate object or sold separately.

 This maxim is closely related to the previous one and can be rephrased as: “Judgment cannot be given
separately for a thing that follows another”, or simply a thing which belongs to another thing cannot be dealt
with separately from the thing to which it belongs.
 Eg: A key can't be sold separately from its lock
 The embryo of an animal cannot be sold separately.
 Appurtenant - belonging; pertinent to the building (fixed)
3. Whoever owns something, owns anything necessary for it
 If something is a necessary component of what one purchases, you become the owner of it by default
 This maxim means that if anybody takes anything in his ownership by purchasing or hiba (donation) etc. he
takes its necessary components also, without giving any conditions; because the necessary components are
Tabi’u and they are included.
 Eg: Whoever buys a cow owns the milk of its udders.
4. The attachment of a thing can be absolved, though the thing itself shall not
 The attachment of a thing shall be absolved, though the thing itself shall not
 Conditions need to exist in the main product, not the attachment
 The rules for attachments are lighter than main products
 Eg: Movable things can't be made Waqf, but if it is attached to an immovable Waqf, it will be included
 A thing which is not lawful within itself, may be lawful if it is consequential. It means that the conditions of
the contract should exist in the original part of the contract (al-Asl), not in what follows it.
 Eg. The endowed thing should be land or fixed asset (mal thabit). So movable things (manqulat) would not
be deemed as waqf i.e. books, chairs etc. But if the whole village has been given as waqf then the belongings
which are not fixed and movable, would be included in the waqf.
 The animal embryo can be eaten without slaughtering when its mother is slaughtered, because the
slaughtering of the animal embryo is slaughtering its mother. But if the embryo is born alive, then it would
not be allowed to be eaten without slaughtering.
 If someone swears that he will not buy wool, and then he bought a goat which has wool in its body, he will
not have broken his oath, because wool is here an attachment of the goat.
5. The follower cannot precede the original thing
 If something is taabi, it can't be done before the original thing

 Eg: Inheritance can't be given before death or paying off the debts of the deceased
 The follower of the Imam (Ma’mum or Muqtadi) in prayer should not go ahead of the Imam in any position
of the prayer i.e. takbir, qiyam, sujud, ruku’, salaam etc.
6. If the original thing becomes void, the attachment becomes void
 The tabee follows the main product in all its rules

 when the original thing becomes non-existent or void, that which follows it will no longer exist, rather it will
also become non-existent or void.
 If the sale of the main product becomes void, the tabee follows as well
 Eg: When a nikah is invalid, anything the nikah makes halal becomes invalid
 When the sale of a car becomes invalid, this includes by default the car-key and other tabi'ees
 When Iman is present, actions following it will be acceptable. But when Iman is void, all other actions are
also void.
 When the responsible person is freed from his financial liabilities, his sponsor or guarantor will be freed also.
The Comprehensive Maxims which are not major (Cont.)
Al-Qawaaid Al-Asl Wal Fa'ra Maxims of Root and Derivative
 Asl - original thing

 Fa'ra - part of it or derivative of it
1. When the origin is invalid, the derivative shall be invalid too

 Saqata: to be void, invalid.
 When a deal is invalid, anything subsidiary to it is also invalid
 the derivative means that whatever does not exist independently is dependent on another thing. The latter
shall be deemed the root for it, and if the root is invalid, the derivative shall be invalid too.
 Eg: If a debt is canceled, the guarantor is also waived
 If the client dies or becomes incurably insane, the power of attorney shall be invalid unless it concerns
someone else’s right.
2. When something is void, what is within it shall be void
 Batala: to be void.
 If a contract is void, anything which is part of that contract also becomes void
 Eg: an invalid condition makes the sale itself invalid
3. What is waived cannot be restored, as if it did not exist
 Once a right is waived, you cannot claim it back

 a right which has been lost does not return
 Eg: If you waive a debt, you can never ask for it again
 if someone has the right of passage in someone else’s land, and he has waived his right or has permitted the
landowner to build something on the passage land, the rite of passage shall be waived and his lawsuit shall
not be heard.
4. The derivative may be valid though the original is invalid
 This is an exception to the main maxim

 Eg: If a husband claims monetary repudiation (rejection) on his wife and the latter denies it, repudiation for
monetary compensation shall be valid even though money has not been confirmed as a return of khula
repudiation, which is the root for it. So albeit the root has not been proven, the derivative has, i.e., divorce
occurs between them.
5. When the original becomes void, a substitute shall be sought
 Batala: becomes void.

 If the original is lost, a substitute is required
 when the giving of the original thing is not possible, its price is given.
 Eg: If someone stole someone else's item and lost it, he must pay the value of it
 If it is conditional that the rent payment is for one single month and some days of the month have elapsed,
the month is deemed 30 days, because if it is impossible to pay the monthly rate depending on the crescent
which is the origin, it shall be resorted to counting 30 days.
The Comprehensive Maxims which are not major (cont.)
Maxims of Daman (liability and compensation)
 Islam places high emphasis on protecting the five essentials (religion, life, intellect, lineage and property)
 As a result, the maxims of liability have been drafted – especially to protect life and wealth
 These are mainly controllers of the Fiqh of financial and criminal Law
1. Gain accompanies liability for loss
 Kharaj literally means ‘land-tax’ or ‘duty’; yet we prefer to render it as ‘yield’ meaning return benefit or the
amount produced.
 Daman here means liability for loss.
 Any benefit must be accompanied by the potential for loss
 If you borrow or rent anything, you are responsible for it while you are using or benefitting from it
 If there was a defect in an animal so the buyer returned it, the seller cannot take the fee of hire for the
amount of time that the buyer used it, as the fault negates this option.
2. Loss accompanies Gain
 Profit can only be gained if there is a potential of loss

 Eg: partners in a company shall bear the loss and gain in proportion to their shares in the company.
 Riba is prohibited as it involves gain without any potential of loss
3. A good turn is in proportion to a bad turn, and a bad turn is in proportion to a good turn
 This means that actions must be decided proportionately

 Eg: partners in a company must proportionately share it repairing the company property
 When an illegitimate or abandoned child is in need of alimony or someone who has killed another that
entails blood money, the alimony and the blood money shall be paid by the public treasury because when he
dies his property shall be given to the public treasury.
4. Payment of hire and liability for compensation can't be gathered
 This maxim means that payment for the use of a thing cannot be combined with compensation for the thing
itself - tackles the concept of compensation
 If you hire something and damage it, then you pay for the damage, not the rental fee - this is a Hanafi
maxim, other math'habs disagree
5. Shar'ee Permission negates liability
 You are not liable to pay for something that you had Shar'ee permission to do
 what is allowed by the law cannot be made the subject of a claim to compensation or be a cause for liability -
simply because the permission of the law is incompatible with liability, since the law does not permit
something and at the same time, forbid what might result from it
 Eg: A doctor can't be held responsible for the death of a patient if he did whatever he could to save him
6. The basic principle governing liability is to compensate with the same thing or its value
 if a thing is not found, then the basic rule is to compensate with another of the same thing; and if like thing is
non-existent and value/price can be fixed, then the compensation would be with the value/ price.
 Eg: If you lose someone's book, you need to buy the same book for them or pay its value
7. A person, who performs an act, even though not intentionally, is liable for any loss caused thereby
 the perpetrator is legally responsible even in absence of pre-mediation. In other words, a person, who does
an act, even if he does not act intentionally, is responsible.
 Eg: If a hunter mistakenly killed a man, he will have to pay the blood-money
8. If someone directly performed an act, and someone assisted him, the direct performer is responsible
 determining criminal responsibility

 in case the injury was a direct or indirect result of the aggression, the Daman or liability is on the one, who
directly carried out the destruction.
 Eg: The main crime is on the thief, not his informer
9. The assistant is not responsible, unless he acted intentionally
 the person who caused the loss or damage does not have to compensate if he does not do it intentionally.
But if he performed this cause intentionally, then he will be liable for compensation.
 Eg: The thief's informer is responsible if he intentionally helped him
10. Damage caused by animals has no liability, unless it is due to neglect
 The Prophet (pbuh) said, Damages of animals cause no liability (the falling in) a well causes no liability and
(injury caused while being in) a mine causes no liability...
 Eg: A bull killing someone does not make the owner responsible, unless he did not make precautions to
secure the bull
5 Maxims of ownership and usage
1. No one may dispose of the property of another without the latter's permission
 It is not allowed for anybody to use or dispose of the property of another without his permission
 The property of another in Islamic Shariah is considered sacred - impermissible to infringe on his property by
expanding it without permission.
 Not permissible for a joint owner of a company to make any disposition with respect to the share of another
until permission is granted.
 Permission may be given expressly or by indication
o A person appoints another as an agent to sell his house
o a shepherd who takes the decision to slaughter a sheep which is on the verge of dying (the
impending death is tantamount to a grant of permission).
 If a person expands the property of another without permission, the transaction is legally void.
 the lessor who makes a contract of a lease must be the absolute owner of the property, or the agent of the
owner, or his natural or legal wali - without prior permission of the owner of the property nobody can make
contract from owner side.
2. Telling someone to dispose of the property of others is not valid

 Requesting someone to dispose of the property of someone else is invalid
 As you cannot do anything with someone else's property, you cannot ask others to do so either
 If anybody instructs others to take the property of another and throw it in the sea or to burn it or to
slaughter his goat without prior permission - his orders will not be taken into account
o the perpetrator will be liable for compensation, except when he has been compelled to do that.
o At that time, the person who compelled him will be liable.
3. No one is allowed to take the property of any persons without any legal reasons
 The Shariah does not permit any person to make disposition of another’s property nor to instruct to do so.
 Eg of a Shar'ee reason: Police confiscating illegal items
 If a person takes electronic goods which belong to others and does not care to take any legal permission
from the owner, he will not be allowed to do so.
4. Whoever possesses any permissible things first, will own that thing
• The first person to possess a Halal thing is its owner
• If a person hunted an animal, it becomes his as soon as he possesses it.
• The possession of such permissible things depends on two conditions:
i) He must intend the ownership of that permissible thing. If he does not intend ownership, then the scope
will be open for others.
ii) Nobody will own that permissible thing before him. So if anybody collects rainy water in a vessel, nobody
is allowed to own that water, because it has already been owned.
5. A change in the cause of ownership of a thing entails a change of that thing

 If the cause of anything changes, that thing is deemed definitely changed, even if it does not change in
reality.
 If someone received money as Riba, they are not allowed to use it.
o But if they gave that Riba away in charity, it is permissible for the next person to use it as it has
changed from Riba to Sadaqah
 The root of this maxim is the hadith: “A woman called Barira gave the Prophet some meat which had been
given to her as a charity; the Prophet said, This meat is a charity for her and a gift for us
Maxims of Conditions and Stipulations
Shart: A condition or stipulation
1. What is dependent on a condition must be fulfilled once that condition is fulfilled
• If something is dependent on a condition, it becomes compulsory to fulfill it once the condition is fulfilled
• Eg: Zaid said he will pay off Yusuf's debt if he becomes bankrupt. Once Yusuf becomes bankrupt, it becomes
compulsory for Zaid to pay off his debt
• if someone says to another: “I guarantee your property if so-and-so steals it, and when the condition is
fulfilled, i.e., the theft occurs, what is dependent on it, i.e., the guarantee shall be fulfilled.
2. Conformity to a condition shall be binding as far as possible
• The maxim simply means that a condition must be observed as far as possible.
• There are three types of conditions:
i) Beneficial and Halal - conditions which are permissible in the Shariah and which are beneficial. This type
is to be observed and fulfilled.
ii) Harmful and Haraam - conditions which are prohibited in Shariah and they are called fasid Shart (void
condition) and must not be fulfilled.
iii) Not beneficial or harmful - conditions which are not prohibited but they are not beneficial so they will
also be void
• So the summary is that conditions which don’t contradict the agreement or supportive for the demands of
the agreement, are called ‫ الشرط المالئم‬appropriate or proper conditions which are to be observed according
to Shariah.
• Example for permissible conditions:
o If a person sells on the condition that he will take the sold item with him till the price would be paid,
here the condition is to be fulfilled.
o If a person rents his house on the condition that the money would be paid in advance at the
beginning of the month, the condition is to be implemented.
o If a person endowed a piece of land on the condition that he will take benefit for one year, it is okay
and the condition should be fulfilled.
3. Promises in the shape of conditions are obligatory
• Promises in the form of conditions are obligatory

• If someone made a promise and worded it like a condition, then according to Hanafi math'ahb, fulfilling it is
obligatory. Other math'habs disagree and regard it as Mustahab
• The Fuqaha agreed upon that fulfilling the promise is mustahab and recommended in Shariah and deemed
among virtuous deeds - but they did not agree that the person who promised would be obliged to keep
his/her wa’dah (promise).
• Example: If a person said to another, “sell this item to this person, and if the buyer will not give you the
price I shall give it to you”. Then he sold and the buyer did not give the price - the Kafil (sponsor who
guaranteed) should give the price according to the Hanafi math’hab.
4. When a thing is of great importance it is handled seriously by imposing many conditions
• If something is serious, many conditions are imposed for fulfilling it

• Eg: There are many conditions needed in other for a Nikah to be valid (like Sadaq (dowry), Shahadah
(witness), Wilayah (consent of bride’s guardian), as Nikah is a serious issue
• Likewise gold and silver, both are deemed principle money and price for consumed things. Shariah gave
utmost importance in it and for this purpose put conditions of equity etc. in it, which was not imposed in
other transactions.
5. What is established by Shariah is given priority over what is established by “Shart” (condition)
• What is established by Shariah is given precedence over what is established by a condition

• If there is a clash between a condition and the Shariah, the Shariah is given precedence
• Vows regarding obligatory deeds i.e. to pray Zuhr or fast Ramadan etc. are void. Because these obligatory
deeds are established by Shariah before making vows, so what is established by Shariah will get priority on
vows.
• E.g. if the husband says to his wife, “I divorced you by payment of 1000 dollars on the condition that taking
you in return will be my right”. Here paying 1000 dollars will be void and divorce (Raj’i talaq) will be effective.
Because payment of 1000 dollars was established by giving Shart (condition) and divorce was established by
Shariah, so talaq will get priority and the Shart (condition) will be void.
6. Every condition which is contrary to the ruling of Shariah is void
• Any condition which contradicts the Shariah is invalid

• This is an explanation of the previous maxim and more specific
• The Qa’idah has an evidence from hadith. The Messenger of Allah (pbuh) said, “Every condition which is not
in the book of Allah would be void, even if they are hundreds. The book of Allah is all-true and the condition
of Allah is all-reliable.”
• Eg: If a person gets married on the condition that they will not get intimate, such a condition is invalid
• if a person buys something on the condition that he will be prevented from the benefit of the sold item, the
agreement will be void because of the invalidity of the condition.
General Maxims
1. The easy thing shall not be waived because of the difficult thing
 What is easy should not be waived because of what is difficult Al-Maisur: Easy thing
 Eg: If standing and praying is difficult, one should still sit and pray, the prayer does not become excused
 Allah does not burden any soul except what it is capable of (Qur’an, 1:286)
 Hadiths:
o When I order you to perform something, you shall perform only what you are capable of
o Perform such deeds which you are capable of
o Whoever sees anything evil or wrong, let him change it with his hand; if he is unable to do so, then
with his tongue; and if he is still unable to do so, then in his heart and that is the weakest of faith
2. Who/what is preoccupied with a job cannot be busy with another
 Whoever/whatever is occupied with something, can't be occupied with something else

 Eg: A marriage proposal can't be made on top of someone else's, likewise with a business deal
 A person can't do another job while assigned to one
 If a person sold a house to another and then he sold the same house to third one, his second dealing will be
void.
 If one fixed a rahn/mortgage against a credit and then he fixed the same thing as a rahn/mortgage against
another credit, his second rahn will be void.
3. Continuance is easier than commencement
 Continuing is easier than starting

 Eg: If something is stolen then sold, it is still considered stolen
 If Ahmed has granted Ali a house, afterwards he has taken back half of it, thus the house becomes jointly
owned by them - joint ownership shall not prevent the continuation of the gift.
 If someone has two houses on both sides of the road and he wants to construct a bridge connecting them,
he shall be initially prevented. But once the bridge is constructed it shall not be demolished unless the
existence of the bridge poses some harm for the passers-by.
4. Things can be absolved in continuance that can’t be absolved at the time of commencement
 anything that is not permitted in the beginning may be permitted in its continuance -what has been done,
can remain
 Eg: Splitting a gift between yourself and recipient isn't valid; but after gifting it, if he gives you a share, it is
valid
5. Prevention is easier than lifting/abrogation/abolition/cancellation

 Prevention is easier than cure/cancelling
 Eg: Shariah takes many steps to prevent Shirk, Zina and other many sins
 This Qa’idah means that some acts can be prevented from the beginning, because it is easier but if it has
already been done or started, then stopping it is not easy. So it will get permission for continuation.
 Building a Masjid over a grave is not permitted, but if it is already built, prayer in it is valid
 If a person who has two houses on the both sides of the road wants to build a pool between them, he will be
prevented to do that, because it would create problems for masses. But if he had already made it before this
prohibition, then it can continue if it does not make any problem for people.
Other Maxims (Cont.)
1. Disposition of people’s property is dependent upon interest
 Disposition by an authority is dependent on public interest

 power in respect of the people’s property must be exercised for the public benefit (Maslaha)
 Hadith: Any servant, upon whom Allah has bestowed authority of ruling over people and does not deal with
them in an honest manner, will never smell the aroma of Paradise
 When the ruler distributes the property among the deservers, he should do it with equal sense of
distribution without giving priority to one over another, because it is his duty to ensure public interest
without any biasness.
 Not allowed for the ruler to give priority to the rich over the poor or to the relative over a non-relative or to
the solvent over the needy.
 Not permitted for anyone to consume wealth from public treasury or other’s property - the consumer and
even the ruler or the judge or the administrator himself would be liable for compensation.
 Not allowed for the ruler to appoint a bad and transgressor man as Imam for prayers at the mosques.
 Not allowed for the guardian of the girl who has no wali of her own to arrange her marriage without kufu
(equality), because this is the right of Muslim girls. So he cannot void it as he is her responsible person.
 Umar Ibn Al-Khattab said, “I made myself in the position of the caretaker of the orphan in taking from the
property of Allah. If I need I take from it but if I am in solvency I return it. So when I am rich I take no wages.”
2. What is established by a proof is as that established by seeing
 What is established by evidence is equal to what is established by sight; “seeing is believing”

 bil burhan: by a proof.
 And get two witnesses out of your own men. And if there are not two men (available), then a man and two
women, such as you agree for witness” (surah Al-Baqarah 2:282)
 Eg: Evidence is the deciding factor in court cases
 For instance, the defendant confessed he has a debt to be given to Amr. But they disputed in the amount. If
Amr can prove with evidence that the amount is 1000 dollar. The evidence would be accepted and the
defendant is obliged to obey the order of the judge.
3. A person is bound by his admission/confession/ The confession of a person against himself is accepted
 A person is bound by his confession. Iqrar - admission/confession

 Eg: Once a person confesses to a crime in court, he can't take it back
 If you confess to owing someone money, you can't take it back
 When someone dies and leaves behind him a son, if the son acknowledges that his father made a bequest
for a poor man, this acknowledgement is effective.
4. Evidence is an adequate proof and confession is an inadequate proof (against others)

 Evidence is a stronger proof than confession
 This basically means that confession is only valid as a proof against oneself, while evidence is valid against
others too
 Eg. In a case of debt, there were more than one defendant, some of whom admitted the debt, while others
denied; admission would bind only those who admitted, so that they will be considered as indebted to the
plaintiff and should, accordingly, give him back his money. Other defendants will be exempted from being as
such, unless the plaintiff presented strong evidence, which proves that all were indebted to him.
5. Contradiction nullifies an evidence, but this does not invalidate a judgment which has already been passed
 There is no proof when a contradiction exists, unless the judge has already ruled
 If the court-case faces contradiction then the evidence becomes invalid
 Eg. in a case of debt, if one of the witnesses said that the debt was a thousand Egyptian pounds, and
another said it was a thousand Pounds Sterling, their testimony will not be valid.
6. The unknown in al-Shariah (the Islamic law) is treated like the non-existent and the impossible to know
 What is not recognised by the Shariah is like that which is impossible or non-existent - if we are incapable of
recognising something or realising its existence it shall be deemed non-existent.
 Do not ask about matters which, if they were to be made plain to you, may cause you hardship; for, if you
should ask about them while Qur'an is being revealed, they will be made plain to you. Allah has absolved (you
from any obligation) in this respect (Qur’an, 5:6)
 Eg: If some wealth doesn't have any owner, it will go to the public treasury
7. Action is to be attributed to the doer, not to the person who commanded him unless he was forced
 Actions are attributed to the doer, not the one who told him to do it, unless he was forced
 We are responsible for anything we do out of our own free will, even if someone else told us to do it - that
person’s command is not an excuse in the Shariah, unless it reaches the level of duress
 Eg: If someone tells someone else to break something, the one who breaks it is responsible
 If a person orders another to dig a well on another’s land, the responsibility will go to the digger not to the
person who ordered it
Other Maxims (Cont.)
1. No Donation is complete until received
 Donation in Arabic means tamleek: possessing or owning something freely

 Transfer of ownership is not complete without reception
 No transaction is complete until the physical exchange takes place i.e., a gift is not complete unless the
receiver takes possession of the gift
2. The unjust planter has no right
 An unjust planter has no right

 “zulm” injustice will not earn right for unjust person
 Eg: If someone plants a seed on your land without permission, he has no right to what grows from it
3. What is close to the original will be given its rulings
 What is close to something will share its ruling

 Eg: If a land doesn't have a currency, the currency of the nearest country applies
4. Anything that is needed to fulfill an obligation is an obligation
 This maxim is deemed both jurisprudential (Fiqhi) and fundamental (Usuli).

 Anything needed to fulfill an obligation is itself obligatory
 Eg: Wudhu or Ghusl become compulsory at Salah time if they are needed
 Qabz (receiving the object) is obligatory for the completion of the sale, because without qabz the sale is
incomplete.
5. There is no room for ijtihad where there is a (decisive) text
 There is no room for Ijtihad in the face of a clear text

 Follow what has been sent down to you from your Lord and do not follow protectors and helpers (who order
you to associate partners in worship with Allah) beside Him
 Eg: To try and change Shariah Law based on logic is invalid
 If the judge gave the ruling that without the consent of the wife, the husband cannot take her back, this
judgment will be void, because it contradicts with the Ayah : And their husbands have more right to take
them back (Surah Baqarah 2:228).
6. Ijtihad cannot be invalidated by another Ijtihad
 An Ijtihad ruling cannot invalidate another Ijtihad

 Eg: If a scholar makes a judgment based on a specific Ijtihad ruling, then he changes his opinion years later,
his earlier judgments are still effective
 If a person spent his ijtihad in a cloth or a jug of water which was mixed with impurity (najasah), then he
prayed with that cloth or made wudu from that water. After that, his ijtihad has been changed; here his new
ijtihad will not invalidate his previous ijtihad. Hence he is not to make qada for Salah he prayed or his wudu
he made.
Fiqh 402 Legal Fiqh Maxims Summary
The Big Six
1. Actions are based on their intentions

2. Certainty is not overruled by doubt
3. Harm must be eliminated
4. Difficulty facilitates ease
5. Local customs are the basis of judgment
6. Giving weight to a statement is better than ignoring it
Maqaasid Ash-Shariah (intentions and goals of the shari’ah)
 The Shariah revolves around the attainment of Maslaha (benefits) and prevention of Mafsada (harms)
 Maslaha includes Dhurooriyaat (five essentials: life, religion, intellect, family and wealth), Haajaat (needs)
and Tahsiniyaat (luxuries)
 All of the Qawaaid revolve around attaining the Maqaasid
General Maxims
 Maxims governing prohibitions which include those things which are allowed for excuses, become prohibited
once the excuse is over
 Anything prohibited to use, we are prohibited to keep, ask for, sell or give someone
 Attachments (Tabee) and derivatives (Fara) must be included with the main products and the maxims
governing these
 Daman (liability) is an important part of Islamic Law and people are responsible for how they deal with the
property of others
 Nobody is allowed to use the property of others without their permission, and will be held responsible if
they do so
 Islam respects people’s rights to private ownership
 Shuroot (conditions) must be valid and beneficial, and if so then they are binding and obligatory
 What is easy will not be waived because of what is difficult
 The laws of the Shariah are strict to prevent harm, but more flexible when the harm has already occurred, in
order to find a solution to the problem
 Maxims governing evidences include witnesses, confessions and contradictions
 General principles governing exchange of ownership, plantation, obligatory conditions and Ijtihad
Final Advice
 We are not Mujtahids and should leave the complex issues of Fiqh to those qualified to do so
 We can use these maxims in dealing with daily issues and cultural problems
 This field is very vast and this is just an introduction to the topic
 It is advised to study this field deeper in order to find solutions to contemporary problems
May Allah (swt) accept this course from us, help us understand and implement its teachings and guide
us to the right opinion in all our Fiqh efforts

FIQH 402 - Notes Modules 1-30

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Fiqh 402 Legal Fiqh Maxims MODULE 1

The Study of Islamic Legal Maxims - Al-Qawa’id Al-Fiqhiyyah

 Understand the major maxims of Fiqh

1. Categorises Fiqh rulings according to broad principles

Ijtihad requires competent jurists; possessing qualifications to achieve intended goals.

 The jurist should be upright and religious

1. According to scope of usage (3 categories)

Sources of Qawaa’id nassiyyah (textual)

The Big Six Qawa’id Al-Kubra

The whole Fiqh is based on these Qawa’id

1. Al-umuru bi-maqasidiha - Matters are judged by their intentions

Disciplines of Fiqh thought

There are many disciplines that comprise the study of Fiqh

Examples of Al-Qawa’id Al-Usuliyyah:

The differences between Al-Qawa’id Al-Fiqhiyyah and Al-Qawa’id Al-Usuliyyah:

The chronological order is as follows:

Al-Ashbah Wal-Naza’ir’s relationship with Qawa’id al-Fiqhiyyah

Al-Ashbah wal-Naza’ir is devoted to the Furu’ (particulars).

Al-Furuq al-Fiqhiyyah’s relationship with Qawa’id al-Fiqhiyyah

Al-Dabit al-Fiqhi relationship with Qawa’id al-Fiqhiyyah

Al-Nazariyyah al-Fiqhiyyah relationship with Qawa’id al-Fiqhiyyah

1. Makes Fiqh easy to learn and memorise

Functions and benefits of al-Qawa’id al-Fiqhiyyah

Role of al-Qawa’id al-Fiqhiyyah in Ijtihad And its Historical Development

Al-Qawa’id al-Fiqhiyyah as a tool of Ijtihad:

Role of al-Qawa’id al-Fiqhiyyah in contemporary Ijtihad:

 The modern world faces many new challenges

Historical development of al-Qawa’id al-Fiqhiyyah:

 Every Islamic Science has a history of its evolution

Qawa’id during the Lifetime of the Prophet (pbuh):

 Many Qaadiah can be found verbatim in the Quran and Sunnah

Qawa’id in the Era of the Companions and the Followers:

 Qawaaid still were not discussed, written down or categorised

 Fiqh became a separate field of study from other disciplines

Two main trends emerged:

Reasons for delay in development:

Qawa’id in the 4th Century:

Usool al-Fitya by al-Khushani

Ta’sis al-Nazair by al-Samarqandi

Qawa’id in the 5th and 6th Centuries:

Lessons from these developments

Qawa’id in the 7th Hijri Century

Qawa’id in the 8th Hijri Century

 The 8th century saw a rise in original works dedicated to Qawa’id

Qawa’id in the 9th Hijri Century

Qawa’id in the 10th Hijri Century

Qawa’id in the 11th to the Mid-13th Hijri Century

 Interest in this field went down again

Modern Studies on Al-Qawa’id Al-Fiqhiyyah

 Interest in the field grew

Al-Qawa’id Works in recent times

Six different approaches used for modern studies on Qawa’id:

1. Editing traditional Qawa’id works

The Big Six

 The attainment of Maslahah (benefits) and prevention of Mafsadah (harms)

There are three grades of maslahah:

Conditions for Maslahah:

The First Maxim: Actions are based on their intentions

 The entire Shariah revolves around intentions

 Evidences from the Sunnah

“… The people will be resurrected according to their intentions.”

The First Major Maxim (al-Qa’idah al-Kubra al-Ula): Cont.

Some more examples: