Note: Qawaid al Fiqh (Maxims of (Islamic) Law) are part of Maqasid al Shariah (Objectives of Islamic Law), the Maqasid of Shariah were used by the founding fathers of America in the Declaration of Independence, there are five objectives to Islamic Shariah, they are to preserve a persons religion, life, intellect, procreation (family) and property, some scholars such as imam al Ghazali included the pursuit of Happiness. This is were the founding fathers of America get their inalienable human rights from stated in the declaration, the protection of life, liberty and the pursuit of Happiness, the fathers of Europes enlightenment similarly took much from Islam’s Maqasid. A discussion on this is presented in the second issue of The Islamic Journal, which can be downloaded from the books section, and a more complete historical narrative is presented in the book The Syrian Uprising and Signs Of The Hour (2nd Ed), under Research Notes and Related Material, notes 15 and 16.
Sheikh Sa’id al-Lahji begins his work Idhah al-Qawa’id al-Fiqhiyyah with the famous verses of al-Sabban that contain the ten fundamentals which every student must know before delving into a particular subject:
Indeed the fundamentals of every science are ten:
The definition, the subject, and the fruits,
Its merit, relationship and founder,
The name, basis, and ruling of the lawgiver,
And the legal cases. Though some is sufficient
The one who obtains it all gains nobility.
Qawa’id al-Fiqhiyyah deals with the principles through which the rulings of new occurrences are identified in the absence of a clear statement in the Qur’an, Sunnah, or ijma’. The subject matter of the science is the methodology of deducing fiqh rulings from the established legal maxims. The issues that one studies in the field constitutes the examination of the conditions and states of furu’, and determining the compatibility of the principles with the furu’.
Qawa’id al-Fiqhiyyah allows one to know the ruling of new occurrences when there is no clear nass from the lawgiver, and it allows one to understand a large amount of furu’ in a relatively short period of time. Being a branch of fiqh, the study of legal maxims naturally shares the merit that fiqh enjoys: the best field after theology.
The field, sometimes referred to as ‘ilm al-qawa’id al-fiqhiyyah or ashbah wa al-nada’ir, was founded by the masters of furu’, such as Abu Tahir and Qadi Husayn, who developed the field of study and transmitted the science to others. Later, Sultan al-‘Ulama ‘Izz Abd al-Salam came an authored an extensive work in the field.
The science is rooted in the Qur’an, Sunnah, and statements of the companions and mujtahid imams. It is communally obligatory to learn the science of qawa’id al-fiqhiyyah, and personally obligatory whenever a qadi appoints one to learn the science (6-7).
The Five Normative Legal Maxims
al-Qadi Husayn mentioned that the Shafi’i school revolves around four main legal maxims:
- al-Yaqin la yuzalu bish-shakk: certainty is not overruled by doubt. The basis of this axiom is the words of the Prophet (may Allah bless him and give him peace): ” Verily, the devil comes while you are in prayer and says to you, “you nullified your ritual purity, you nullified your ritual purity.” Such a person should continue praying unless a sound is heard or a smell is found (indicating that one’s ritual purity is nullified).”
- al-Mashaqqat tujlab al-taysir: hardship begets facility. The basis of this axiom is in the words of Allah: ” And no hardship has been placed upon you in the religion,” and the statement of the Prophet (may Allah bless him and give him peace): ” I have been sent with an easy, accommodating religion.”
- al-Darar muzal: harm must be eliminated. The basis for this maxim is the hadith of the Prophet (may Allah bless him and give him peace): “Harm may neither be inflicted nor reciprocated in Islam.”
- Tahkim al-‘Adat wa al-ruju’ ilayha: custom is the basis of judgement. This axiom is derived from the verse of Surat al-Nur: ” O you who have believed, let those whom your right hands possess and those who have not [yet] reached puberty among you ask permission of you [before entering] at three times…,” and the statement the Prophet (may Allah bless him and give) made to Hamnah bint Jahsh: ” Observe your menses for six or seven days, Allah alone knows which it should be, just as other women, and purify just as other women purify at the time of their menstruation and purification.”
- Al-Umur bi-maqasidiha: acts are judged by the intention behind them. This axiom is based on the hadith: ” Acts are valued in accordance with their underlying intention.” This is a fine addition to the existing four normative legal maxims, for al-Shafi’i said: ” This hadith constitutes a third of all knowledge.”
Finally, Sultan al-‘Ulama, ‘Izz al-din bin ‘Abd al-Salam, held that all matters of fiqh return to one single legal maxim: the attraction of benefit and the prevention of evil; however, other scholars felt that all matters of fiqh return to the acquisition of benefit alone ( al-Fawa’id al-Janiyyah 1/139-43).
In his didacitic poem al-Fara’id al-Bahiyyah, Sayyid Abu Bakr al-Ahdal states: “ Fiqh is built upon five legal maxims, they are: acts are judged by the intention behind them, certainty is not overruled by doubt, hardship begets facility, harm must be eliminated, and custom is the basis of judgment.”
Legal Maxim 1
Acts are judged by the intention behind them
In Idah al-Qawa’id al-Fiqhiyyah, al-Lahji explains that the meaning of this axiom is that all matters are connected to the intentions behind them. The basis for this axiom is versified by al-Ahdal: “ This legal maxim is derived from the hadith: “Acts are only judged in accordance with the intention behind them.” Commentators differ over the intended meaning of this hadith. The scholars who consider formulating an intention obligatory hold that the intended meaning of this hadith is that acts are only valid when an intention is made, but those who believe the the intention is not a condition for validity hold that the meaning is that acts are incomplete, or unrewarded, without an intention (Tarh al-Tathrib 7/2).
In the literal sense, the word intention means purpose or objective; in the legal usage it refers to strong determination in the heart. This is the definition provided by Ibn al-Salah and al-Nawawi. According to al-Shafi’i, this hadith enters into seventy chapters of fiqh. Imam al-Suyuti enumerates these chapters in his Ashbah wa al-Nada’ir. Sheikh al-Jarhazi confines himself to only a few instances within the discussion of purification: wudhu, ghusl, khuffayn in the issue of wearing khuff-upon-khuff, tayammum and the removal of filth according to one view (al-Fawai’d al-Janiyyah 1/180).
The fuqaha approach the intention on seven levels. These levels are versified in the following poem:
The meaning, ruling and time
The method, condition, and good objective.
1. The Intention’s Objective
” The objective of the intention is to distinguish worship from habit (al-Jarhazi: and what is done naturally) ” al-Ahdal states.The intention distinguishes acts that may be seen as habitual, natural, and completely unrelated to worship, such as taking a bath to cold down or to clean one’s body, from an act that is worship, such as the obligatory or optional purificatory bath. Similarly, the intention distinguishes an act such as sitting in the mosque for rest from an act of worship like spiritual retreat (ar: i’tikaf). In both scenarios, the act of washing and sitting can be construed as something totally unrelated to worship, but the intention has been legislated to distinguish worship from habit, as al-Fadani explains in his commentary.
The intention also has a second objective: to distinguish certain acts of worship from other types of worship. An example of this objective is ablution, purificatory bath, prayer, and fasting. All of these acts of worship can be obligatory, such as fulfilling a vow, or wholly supererogatory. In light of this, the intention has also been prescribe in order to differentiate obligatory acts of worship from recommended acts. The authors of qawa’id al-fiqhiyyah spent a great deal explaining this issue in their scholarly-writings. The following discussion takes place in al-Mawahib al-Saniyyah and Idah al-Qawa’id al-Fiqhiyyah.
Here is a summary from both works:
The intention is not a conditions in acts of worship that do not resemble habit, such as faith, fear, hope, Qur’an recitation, and remembrance. Each of these acts are distinguished from habit by their outward and inward form. Similar to this is the act of abandoning sin, such as avoiding adultery or the consumption of wine, or the removal of impurity. However, some scholars maintain that an intention is necessary for the removal of filth since it wavers between performance and abandonment; therefore, it is recommended to make an intention thereby avoiding differences of opinion. al-Lahji and others maintain that one must formulate an intention when abandoning sin in order to earn a reward.
It is necessary to specify in the intention of any act that is ambiguous, such as the obligatory prayer. The ruling is based on the words of the hadith:“ and a person will have only what he intended.” Since duhr and ‘asr possess similarities, the only distinguishing factor is specification when formulation the intention. Furthermore, it is necessary to specify in certain optional prayers, such as the rawatib before and after the obligatory prayers. It is not necessary to specify in unambiguous acts such as tahiyyat al-masjid, salat al-awwabin, and the like. Regarding the ‘eid prayers, ‘Izz al-Din bin ‘Abd al-Salam felt that it is not necessary to specify when making the intention, however, this is not the relied-upon view. Sheikh Ibn Hajar relied upon the view that salat al-tasbih does not require specification, but this is not the preponderant view.
The general rule is that every circumstance that requires one to intend the obligatory also requires one to specify, except for dry ablution.There are certain optional additions that one may add to one’s intention, such as specifying the place or time of prayer. Whenever one makes a mistake, such as a slip of the tongue, when intending an optional addition, it is of no consequence to the intention’s validity. An example of this is to specify whether the prayer is a current performance or a make-up. If one makes a mistake in this annexation, one’s intention is sound.
Any act that requires a worshiper to specify, like the obligatory prayers, mistakes in such specification invalidate the intention, such as intending ‘asr while formulating the intention for duhr prayer. This is based on the general rule that states that whenever a mistake is made in any of the key-elements of the intention, the intention is invalid, and whenever a mistake is made in an optional addition, no harm is caused to the intention. Based on this rule, if a person with ritual impurity brought about through sleep intends to lift impurity from a nullifying act that did not occur, such as touching the private parts, the intention remains valid. In certain acts, it is necessary to bring to mind the obligatory nature of the act, this includes the purificatory bath, prayer, and zakat; it is not obligatory to bring this to mind in ablution, fasting, or hajj and ‘umrah.
Including multiple intention in one single intention (ar: tashrik)
Tashrik has various rulings: In an act of worship, it is invalid to include intentions unrelated to worship. When performing the ‘eid slaughter, it is not valid to include intentions which are not associated to worship, like intending to slaughter for the sake of Allah and for the sake of an idol, annexing the word idol immediately nullifies the intention. At times, tashrik of this type will not render the intention invalid, such as intending the ablution and cooling one’s body.
If one intends to perform an optional act along side an obligatory act there are different rulings. At times it is valid and both acts are accomplished, such as praying the obligatory prayer with the intention of the obligatory prayer and greeting the mosque. Other times it is invalid and only the obligatory act is achieved, such as intending a supererogatory hajj with the intention of the obligatory hajj, or the reverse, such as giving five dirhams as zakat with the intention of zakat and optional charity. In this instance, optional charity is given consideration; not zakat. Finally, tashrik can invalidate the act altogether, like when a later comer makes the opening takbir while the imam bowing and intends both takbirat al-ihram and going into ruku.
When one intends an obligatory act within another obligatory act, it is invalid, according to al-Subki, except in hajj and ‘umrah. However, al-Suyuti held that ablution and the purificatory bath is another scenario in which tashrik of this type is valid. If one intends a supererogatory act along with another supererogatory act, both are achieved, such as when one intends the fast of ‘arafah and the fast of Monday.
2-4. The Intention’s Meaning, Ruling, and Locus
The intention has been defined in different ways, as noted above, Imam al-Nawawi defined the intention as a firm determination in the heart, but al-Mawardi offered a different interpretation. According to Imam al-Mawardi, the intention means that one’s determination coincides with the performance of the intended act. In most instances, the intention is an obligatory condition or integral. The locus of the intention is the heart, and it is insufficient to utter the intention when the intention is absent in the heart. The intention in the heart is given absolute consideration. This means that if a person utters the intention to pray ‘asr but the intention in the heart is duhr, then duhr prayer is considered. In most cases, it is not obligatory to to utter the intention. For example, if a person wants to give a portion of land for a mosque as an endowment, the land is an endowment solely through the intention of the one giving the land. However, there are some instances that necessitate the utterance of the intention, such as divorce or swearing an oath.
5. The Intention’s Time
al-Lahji and others mention that the intention coincides with beginning of an act. In ablution, the intention must coincide with washing the face, and in prayer with the hamza of the opening takbir. There are some instances where the intention does not have to coincide with the beginning of an act, such as fasting, zakat, or joining prayers during travel. The general rule here is that every act that one voluntarily enters into requires that the intention be made at the beginning of the act, as al-Jarhazi explained.
6-7. The Intention’s Formula and Conditions
The process of formulating an intention differs according to the various acts of worship. In ablution, for example, one intends to remove something that made prayer and the like unlawful.
al-Ahdal and others maintain that the intention has the following conditions:
- Knowing what one is intending
- Nothing exists which negates the intention, such as apostasy
al-Lahji mentions five exceptions to the second condition:
- A disbeliever who purifies from her menses so that her Muslim husband can have intercourse with her.
- Zakat. An example of this is when an apostate distributes zakat wealth while in a state of apostasy.
- When a disbeliever intends a journey that allow the shortening of prayers and he accepts Islam along the way.
- When a disbeliever enters Islam at dawn. Although the obligatory fast is not valid, an optional fast is sound and valid for such person.
Expounding on the Ahdal’s fourth condition, al-Lahji adds that at times the intention to cease performing an act has no consequences, while in some circumstances such intention affects the validity. The acts that are affected include:
a) when one intends to end one’s faith (may Allah save us), one immediately becomes an apostate.
b) when one intends to end one’s prayer, one’s prayer is invalidated.
c) when one intends to end one’s recitation of al-fatiha.
d) when a traveler intends to pray a full prayer, shortening becomes prohibited
The acts that are not affected by this intention:
a) when one intends to end one’s purification during ablution or the purificatory bath, however, it is necessary to renew the intention for the remainder of purification.
b) when one intends to end one’s fast or i’tikaf.
c) when one intends to eat while fasting.
The discussion under this axiom is lengthy, for more details refer to al-Suyuti’s Ashbah wa al-Nada’ir.
Legal Maxim 2
اليقين لايزال بالشك
Certainty is not overruled by doubt
al-Lahji mentions that the meaning of this axiom is that the ruling of certainty is not removed by doubt, be it 50/50 or 70/30. According to al-Fadani, certainty refers to a repose in the heart over the reality of a thing Doubt, according to the fuqaha, literally means to waver as al-Nawawi explained in his Daqa’iq when he said that ”Doubt here and in most chapters of fiqh means wavering, be it 50/50 or 70/30.” The legal basis for this maxim is derived from the hadith: ”Whenever one doubts and does not know whether one prayed three or four rak’ats, such person should act on certainty and ignore the doubts.” This proof is mentioned by al-Jarhazi in al-Mawahib, al-Lahji, however, provides further evidence in al-Idah.
Al-Lahji mentions that this axiom enters into every chapter of fiqh, and the masa’il extracted from it consumes more than three-quarters of fiqh. This is because the maxim has various subdivisions, such as:
–The norm is that the status quo remains as it was before. A common example of this principle is the certainty of purity in the face of doubt. When one has conviction of purity but then doubts about having nullified ritual purity, such doubt is ignored. Likewise, if one is certain of ritual impurity but then doubts about having perform ablution, one is still considered to be in a state of impurity.
–The norm is non-liability (with regards to others rights). An example of this maxim is when a person rents a piece of property and the property is destroyed while in the tenants possession, the norm is that the word of the tenant is considered regarding the amount to the damage.
Based on this legal maxim, Whenever a person doubts about the performance of an act, the norm (ar: asl) is that the act is unperformed. An example of this is when one doubts about pronouncing divorce, the asl is that no pronouncement of divorce was made. If one doubts about the amount of something, it being a lesser a greater in number, one considers it to be the lesser amount. An example of this is when one doubts about the number of rak’ats performed. In this instance one bases one’s certainty on the lesser amount. Finally, the norm regarding rights is that rights are not due. Such as when someone working on a loan based venture tells the judge that no profit was made, the worker’s word is taken over the lender.
The details of this legal maxim are many, and one who wishes to look further should read Idah al-Qawa’id al-Fiqhiyyah or another work in the field.
Legal Maxim 3
المشقة تجلب التيسير
Hardship begets facility
The meaning of this axiom is that necessity brings about dispensations from Allah Most High, as al-Jarhazi explained in his Mawahib. The basis for this axiom is derived from the verse: “ No hardship has been made for you in the religion,” and: “Allah desires ease for you and not hardship.” This maxim is also based on the hadith: ” I have been sent with an easy, accommodating religion.”
Al-Lahji mentioned that the scholars view all dispensations in the sacred law as a derivation from this legal maxim. The reasons for ease in the sacred law are seven:
- Being ignorant of a ruling
According to Imam al-Suyuti, the criterion for hardship to beget facility is of two types:
- That which has no effect on easing the ruling, usually found in worship, such as the difficulty of using cold in ablution or the difficulty of fasting in severe heat.
- That which has an effect, not usually found in worship. This type has various levels: 1. A very severe difficulty, such as fearing for one’s own life. This is a cause for ease and dispensation.2. Minimal difficulty, such as a mild headache. This is not a cause for ease.
3. An average hardship. A hardship that is closer to a level one hardship necessitates dispensation, while hardships in close proximity to level two do not.
Facility of six types:
- Takhfif isqat: such as Friday prayer when excuses are present.
- Takhfif tanqis: such as shortening prayers due to travel.
- Takhfif ibdal: such as dry ablution replacing a regular ablution.
- Takhfif taqdim: such as jam’ taqdim in travel.
- Takhfif ta’khir: such as jam’ ta’khir in travel.
- Takhfif tarkhis: This type includes difficult matters that the Lawgiver has made easy, such as using impure medicine.
Dispensations are of various types:
- Obligatory– an example of this is eating unslaughtered dead when one believes that death is imminent if one does not consume the unslaughtered meat.
- Recommended–an example of this is shortening prayers when the journey is three marhala.
- That which is better to leave, such a wiping over leather socks.
- That which is disliked to do, such as shortening on a journey less than three marhala.
Legal Maxim 4
Harm must be eliminated
The basis for this axiom is the hadith: “Harm may neither be inflicted nor reciprocated in Islam.” The scholars differ over what is meant by the words inflicted and reciprocated. Some scholars stated that inflicted harm is harm caused by one individual, while reciprocated harm refers to two individuals causing harm to each other. Another view is that inflicted harm entails that the person inflicting the harm is benefiting in some way, and reciprocated harm entails that the person inflicting harm is not benefiting from the harm caused (Kitab al-Qawa’id).
Like the previous legal maxim, this axioms, upon which many rulings are based, enters into numerous sections of fiqh. Furthermore, this legal maxim has various sub-divisions:
- Necessity makes the unlawful lawful, such as eating unslaughtered dead.
- Necessity is measured in accordance with its true proportions, such as only eating from unslaughtered dead the amount needed to keep oneself alive.
- Harm must be eliminated but not by means of another harm, such as when a person eats the food of another to satiate his own hunger.
- A greater harm is eliminated by means of a lesser harm. This axiom is derived from the incident of the desert Arab who urinated in the mosque, and the Prophet (may Allah bless him and give him peace) ordered the companions to leave the desert Arab as he was in order to eliminated a greater harm.
- Prevention of evil takes priority over the attraction of benefit, such as leaving the group prayer or Friday prayer due to illness.
The various levels in this axioms are:
- Necessity: al-Zarkashi defines this as reaching a point where one would die, or come close to death, if an unlawful thing is not taken advantage of.
- Need: where one will not perish if an unlawful is not taken advantage of, however, one will fall into hardship. Need in this sense does not permit the unlawful.
- Benefit: something that one desires.
- Adornment: a thing of amusement.
- Surplus: consuming more than one needs or utilizing doubtful things.
Legal Maxim 5
Custom is the basis of judgement
The basis for this axiom is derived from the verse: “And those who follow a way other than the path of the believers.”al-Fadani explains that what is meant by path in the verse is the path that the believers approved, and that Allah warned those who follow a different path with punishment. This indicates that it is obligatory to follow the customs of the believers. In short, the custom of the believers is the basis for judgement in the sacred law. Custom is continuously applied in fiqh. Some of the most important issues, such as determining the duration of menstruation and post-natal bleeding, return to custom. Similarly, in issues where one doubts about a small or large amount, the norm is to consider what is customarily considered large or small.
A number of discussions fall under this legal maxim:
When is custom established, it can be established through one occurrence alone, such as abnormal uterine bleeding, or it is established by three occurrences, or through repeated occurrences, until it is most likely that a custom is established, such as the case of training an animal to hunt.
Custom is only considered when it is continuous and uninterrupted. A practical example of this is when a certain type of currency has become the standard currency in transactions, the default is that one must transact with the currency customarily used. The default for limits, measurements, and definitions is custom whenever the Lawgiver mentions such things without stipulating.
And Allah knows best
al-Fadani, Muhammad Yasin. al-Fawa’id al-Janiyyah Hashiyat al-Mawahib al-Saniyyah. Lebanon; Dar– al-Basha’ir al-Islamiyyah, 1996. Print.
al-Hisni, Taqi al-Din. Kitab al-Qawa’id. Riyadh, Saudi Arabia; Maktabat al-Rushd, 1997. Print.