Development of the science of

qawaid fiqh
ContentS

In this chapter we will learn about:

1) History of documentation Q.F

2) Primary scholars of Q.F
3) School of thought of Q.F
4) Divisions of Q.F
5) Status of Q.F as evidence of Syariah

QF: qawaid fiqh

Introduction
Qawaid kulli found in fiqh Islami does not occur at the same
time as the common laws. It is extracted from the al quraan or
sunah at the time of the development fiqh in the 3rd century
and the 4th century.

Therefore, the law of the jurists (schoolar) has peel from:

1) the general texts (al quraan) (‫)منجما‬.
2) sunah rasullah (alhadis).
3) from schoolar texts such as imam hanafi
4) Qiyas, from Illah hukm.
 Cont..

Starting phase:
- It begin when all of the texs (al-quraan) came to prophet
Muhammad directly (jibrail as a medium) approximately 23
years. (10 years mekkah & 13 years Madinah)

- Mekkah : The discusstion more on Tawheed

- Madinah : The discusstion of Laws, Jihad, Munafiq etc.
Cont…

The Prophet has elobrate the kalamullah by using hadis al-nabawiyyah,

with this all the Kulli Hukm. Being ‘istinbat’ by hadis al-syarif. For
instance:
‫ليس لألمام يخرج شيأ من يد أحد اال بحق ثابت معروف‬
 History of documentation of qawaid fiqh
Introduction:
Mostly the Q.F been made by:
1) Discusstion
2) Exchange of views from schoolars
3) Trial by jurists
It’s more like fiqh Ijtihadi by using Qiyas as a largest source
in formulate this Qawaid efforts.
Ahmad zarqa said:
Hanafi Schoolar is a pioneer in formulated general
principles of Islamic jurisprudence. From here there great
jurists will cite the best practice methods to be used for their
schoolar.
History of documentation of qawaid fiqh

The QF has become independent science and contains its

own history.

This science has gone through several phases in its

development:

i. Starting phase
ii. Documentation and developing phase
iii. Well established.
iv. Revival and Intellectual discourse
1. Starting phase/the beginning of q.f

From the time of Prophet until the fourth century of hijrah. *

i. There are many verses and the traditions of Prophet have

been chosen as ‘legal maxim’.

ii. Scholars have written various legal maxims in their books,

e.g.

1. Imam Malik (d179H):‫ال ي رثأحد أحداً ب ا لشك‬

Meaning that:
‘ Some one shall no bequeath to other who is not really his/ her.
 Cont…

2. Abu Yusof Ya’qub bin Ibrahim (d182):

‫ليس لإلمام أن يخرج شيئا من يد أحد إال بحق ثابت معروف‬

Meaning: It is not permissible for the Imam (leader) to take his

citizen wealth unless by the virtue of the actual right
(revelation) *

3. Imam Muhammad al-Shaibani (d189):

‫كل أرض غلب عليها المسلمون فهي أرض خراج‬

Meaning: All lands which were occupied by Muslims are fallen

under kharaj land.
2. Documentation and developing phase

From 4th hijri century until 9th Hijri Century. The first imam that
manage to collect all of the Q.F is Imam Abu Tahir al-
Dabbas, he had collected 17 Qaidah from the Imam Abu
Hanafi.*

After that, Abu Said al-Harari (al-Syafie) studied with al-

Dabbas, and manage to use several principle from him.

With this knowledge, Qadi Abu Ali al-Husayn have divided

this principal into 5 qaidah, named qawaid fiqhiyyah:
al-umur bimaqasidiha, al yaqin laa yuzal bil syakki, al-
musyaqqah tajlibu al-taysir, al-dhararu yuzal, al- ‘a dah
muhakkamah.
Cont..
Imam hanafi:

 Usul al-Karakhi by Abu Hasan al-Karakhi (d340H), manage to

collect 37 qaidah.

 Usul al-Fataya by Muhammad bin Harith al-Khushni (d361H).

He was Malikis. Lot of Qawaid and kuliyah Fiqhiyyah.

 ِTa`sis al-Nazr by Abu Zaid Abdullah al-Dabusi (d430H). In

5th century H, add few qaidah based on al-karakhi.

 Idhahu al-qawaid by Ala aldin muhammad al-Samarqandi. In

6th century H,
Cont..

al-Qawaid fi Furuq al-Syafie by al-Alamah muhamad

ibrahim al-Jajarmiyi al-shalaki. 7th Century of H.

 Qawaid al-Ahkam fi Masalih al-Anam, and

Mukhtasar al-Fawaid fi Ahkam al-Maqasid by Al-
Shaykh Izzuddin Abdul Salam (d660H). Also in 7th
century h.
Cont..
Imam al-Maliki:

Al-Muzahaba fi dhabti qawaid al-mazhab by Al-alamah muhamd

abdullah rasyid al-kubra al-qafsiyu. 7th C H. (the first kitab
qawaid fiqhiyah by maliki).

In 8th CH. This qawaid fiqhiyah has been broad, there are many
writter in this 8th Ch such as:
1. Ibn al-wakil al syafiee (716 h)
2. al-Muqarri al-Maliki (758 h)
3. al-’alaa al-syafiee (761 h)
4. Taj al-din al-Syubki (771h)
Cont…

5. jamal al-din al-Isnawi (772 h)

6. Badru al-din al-Zarqasyi (794 h)
7. Ibn Rajab al-Hanbali (795 h)
8. Ali Usman al-Ghazzi (799 h)

In 9 C H:
1. al- ‘Alamah ibn al-Mulaqqan (804 h )
2. Muhammad ibn muhammad al-Zubayri (804 h)
3. Ibn al-Haim al-Maqdisi (815 h)
4. Taqi al-din al-Hisni (829 H)
3. Well established

 Al-Ashbah wa al-Nazair by Imam Jalaluddin al-Sayuti

(d911H). the book contains:

i. Explanation the five primary legal maxims.

ii. Explanation on 40 maxims of qawaid kulliyyah.
iii. 20 maxims of the maxims where scholars were disputed on
them.
iv. The rules which scholars must be equipped with.
v. The similarities of the topics (nazair al-abwab).
Cont..

 Al-Qawaid al-Kulliyyah wa al-Dawabid

alfiqhiyyah by Yusuf bin Hasan Abdul Hadi
(d909H).

 Manzumah al-Manhaj al-Muntakhab by Ali bin

Qasim al-Zaqqaq al-Tanjibi al-Maliki (d912H).

 Idhah al-Masalik Ila Qawaid al-Imam Malik by

Ahmad Yahya al-Wansharisi al-Maliki (d914H)

 Al-Ashbah wa al-Nazair by Zainuddin bin Ibrahim

(Ibn Nujaim al-Hanafi) (d970H).
4. Revival and Intellectual Discourse

 From 13th. Hijri century until now.

 The existence of Majallah al-Ahkam al-Adliyyah (1293 H) During the Sultan

al-ghari (sultan abd. aziz khan al-Othmani) 13th century Hijri.

 According to the history, it is a combination of ashbah wa Nazair (Ibn Nujaym)

with mujammak al-haqaiq (khadami). The book contains 99 maxims.
 Cont..

 The revival (increase) of this science was due to the following

developments:

i. Codification of Islamic legal maxim

ii. Scientific analysis on the Islamic legal maxim books.
iii. Deductions of Islamic legal maxims from Islamic jurisprudence books.
iv. Collecting and calculating those maxims.
v. In depth study on part of those maxims by recent students and scholars.
vi. In depth studies on implementing those legal maxims in various fields of live.
1. Codification of Islamic legal maxim

The book was fallen under many scholars interests as they

have detailed the book by producing other book as
interpreter to its contents such as:

i. al-Quraimi d1304) in Sharh Qawaid al-Majallah.

ii. Salim Rustum Baz (d1328H) in Sharh al-Majallah.
iii. Ali Hayder in Durar al-Hukkam Sharh Majallah al-Ahkam.
iv. Muhammad Said Abdul Ghani al-Rawi (1354H) in Sharh
al-Majallah.
v. Shaykh Khalid al-Atasi (1326H) in Sharh al-Majallah.
 2. Scientific analysis on the Islamic legal maxim
books to analyse the books:
Among the efforts

 Tahqiq Jalaluddin Abdul Rahman (1988) for and

Mukhtasar al-Fawaid fi Ahkam al-Maqasid by Al-Shaykh
Izzuddin Abdul Salam (d660H).
 Tahqiq by Ahmad Muhammad al Anqari and Adil al-
Shuwaibih (1993) for Al-Ashbah wa an-Nazair by
Muhammad bin Umar dikenali sbg Ibn al-Wakil (d716H)
 Tahqiq Adil Muhammad Abdul al-Maujud for and Ali
Muhammad al Mu’awwadh (1991) for Al-Ashbah wa al-
Nazair by Abdul Wahhab bin Ali al-Subki (d771H)
 Tahqiq Taysir Faiq (1982) for Al-Manthur fi al-Qawaid by
Mohammad Bahadir al-Zarkashi (d794H).
 Tahqiq Mashhur Hasan al-Salman (1999) for Taqrir al-
Qawaid by Ibn Rejab al-Hanbali (d795H).
 3. Deductions of Islamic legal maxims from Islamic
jurisprudence books.
 Many efforts have been done by contemporary and recent
scholars to deduce the legal maxims from jurisprudence
books (kutub al-fiqh) as follows:

i. Mahmood Hamzah al-Husaini (d1305H) wrote al-Faraid al-

Bahiah fi al-qawaid wa al-fawaid al-fiqhiyyah to collect
many Islamic legal maxims from Hanafis books.
ii. Shaykh Abdul Rahman al-Sa’di (d1376H) wrote Tariq al-
Wusul Ila al-’Ilm al-Ma’mul bi ma’rifat alqawaid wa al-
Dawabit wa al-Usul where he collected more than1000
maxims and dabits from Ibn Taymiyah and Ibn Qayyim
books.
iii. Dr Ali Ahmad Al-Nadwi wrote a book to collect the maxims
from al-Tahrir by Imam al-Husairi (d636H).
4. Monitoring, compiling, calculating and arranging
those maxims.

As mentioned, Islamic jurisprudence books (fiqh books) contain

huge number of maxims. Hence, scholars could find a lot of
benefits from the maxims of those books. Hence, the work to
compile the maxims needs huge efforts. Group efforts may
help to fulfill this noble objective.

1. Shaykh Muhammad Amim al-Mujaddidi al-Barakati al-

Bangladeshi wrote Qawaid al-fiqh. Compilation of qawaid
from Usul al-Karakhi, Ta`sis al-Nazr by al-Dabbusi, Adab
al-Mufti, al-Ta’rifat al-fiqhiyyah and al-qawaid al-fiqhiyyah.
Contains 426 maxims.
2. Dr Muhammad Sidqi al-Burnu wrote Mausi’at al-qawaid al-
fiqhiyyah contains 1029 maxims.
5. In depth study on numbers of those maxims by recent students
and scholars.

 Some discusstion, such as:

 Intention (niat) and the rulings related to it.

 Taysir (simplicity) in Islamic law.
 Darurat Shar’iyyat
 Customs
 Absolute belief and matters related to it.
 Al-ghunm bi al-ghurm
 Compiling maxims which related to one particular topic.
Divisions of Qawaid al-Fiqhiyyah

There are 4 major Q.F divisons, such as:

1. Divisions of QF as accordance to its comprehensiveness and broaden scope.

2. Divisions of QF as accordance to its sources.
3. Divisions of QF as accordance to its independency and dependency.
4. Divisions of QF by dividing to agreement and dispute among scholars.
Divisions of Qawaid al-fiqhIYYAH

 Divisions of QF as accordance to its comprehensiveness and

broaden scope:

i. Qawaid kubra: many matters of various fiqhi topics refer to this

kind of QF.
ii. Qawaid sughra: many matters refer to these kinds of QF but the
scope is smaller than qawaid kubra.

 Divisions of QF as accordance to its sources:

i. Derived from al-Quran and sunnah

ii. Scholars derive the QF from their observations and investigation
of the many various issues of fiqh rulings.
Cont…
 Divisions of QF as accordance to its independency and
dependency:

i. Independent QF is a maxims which stands on itself and not a

branch of any maxim.
ii. Dependent QF is a maxim which existed by the existence of
independent maxim.

 Divisions of QF by dividing to agreement and dispute

among scholars:

i. The QF which are agreed by ala scholars or almost all scholars.

ii. The QF which are fallen under non consensus agreeable
maxims by the mazahib
The importants of Q.F

Some importants of Q.F:

 To protect and capture various scattered juristic matters
 To develop juristic ability
 To protect general framework of the fiqh and to avoid any
contradicting to the framework.
 To develop general worldview on fiqh
 The consequence of QF to the disagreement of the scholars.
The status of Q.F as an evidence in Islamic law

 First view:

 The view of al-Juwaini, Ibn Daqiq al-Id and Ibn

Nujaym. Q.F is not an evidence (dalil) in Shariah.

 i. QF is not absolutely comprehensive, it contains

exceptions.

 Most of QF are not derived from the sources but

derived from the views of scholars.
 QF are fruits of the various juristic matters and acts
as ropes to tie those matters together. Hence, it is
unacceptable to use fruits and ropes as evidences in
Islamic law.
Second view:

 The view of Imam Ghazali, al-Qurafi, Shatibi:

 It is permissible to use QF as a dalil (evidence) as

long as it does not contradict with the perpetual
elements of Shariah because of the following
reasons:

i. QF have comprehensive elements. The exceptions

from the maxim do not belittle their comprehensive
status.

ii. QF derived from scattered juristic matters. Those

matters were derived from specific evidences. Hence,
QF were derived from specific evidences of many
matters and absolutely can be used as evidence.
Third view:

 The view of committee of writing Majallah al-ahkam al-Adliyyah:

Basically, it is not permissible to use Q.F as dalil to derive the hukm

in a matter which does not have clear evidence from al-Quran and
sunnah, as most of these maxims contains various exception.
Preferable view

 The 3rd. View is a preferable view which prohibits using QF as dalil

unless:

i. The QF were derived directly from the sources

ii. The QF were not contradicted with other permanent elements of al-
Quran and sunnah.

We as the followers must taqleed the four schoolar

‫مع التوفيق‪ .....‬وهللا أعلم‬