Identifying and understanding where the Scholars have extracted the rules they use to formulate a fiqh ruling helps us conceptualise the essence of the madhhabs, there role in Islam and history itself as well as their importance in the Ummah. Once it became clear to the early scholars of the need to identify the Aims of the Shariah or it’s purpose for man it became clear that the principles currently outlined in the science of usul al Fiqh and qawaid al Fiqh needed to be identified in order to guide the scholar and give him bearing and objective.
Maqaasid Shari’ah (aims or purpose of shariah) is like someone who is driving somewhere and the destination is the maqaasid shari’ah. The path you are going along is qawaa’id fiqhiyyah (legal maxim,saying or proverb). The vehicle you are driving is fiqh. On the way, there are some regulations, and those are usool al fiqh (Legal Methodology, procedure or style).
It is extremely important to understand that legal maxims are inductively derived from existing rulings (rulling clear in the Quran and Sunnah) that have been explicitly derived from the primary sources (Quran and hadith) if not stated by them literally. This means that if all applicable maxims (not just one or two) are taken into consideration, then the existing rulings can be extended to new circumstances. This process was undertaken by the scholars of the madhhabs to deal with situations not even imagined in the time of the prophet, companions or even tabiin. This process of investigation and discovery continued for hundreds of years after the time of the prophet to deal with a new situation in a manner in line with the aims and intentions (maqasid) of the Quran and Sunnah (shariah).
Qawaid is a plural of qaa’ada, which means “The base and foundation of a structure.”
Allah (subhanahu wata’ala) says: “And remember Ibrahim and Isma’il raised the foundations of the House…” [Al Baqara 2:127]
Qaa’ida is a general rule of fiqh (jurisprudence) which applies to all of its related particulars (branches). General rule means that it gives a general meaning but not an exclusive meaning or inclusive meaning. There will always be some exceptions to a general rule.
Status of Qawaa’id in Islamic Law
1. Significance of qawaa’id
– Qawaa’id fiqhiyyah are considered supplementary proofs of fiqh, not primary proofs, and therefore can only be used as persuasive evidences.
– Major normative qawaa’id (Qawaid which are thought to apply to all aspects of fiqh) are used as legal proofs to establish a rule of fiqh when a clear legal evidence becomes absent.
– Supplementary qawaa’id (Qawaid that apply to many branches of fiqh, yet they are not as comprehensive as the major Qwaid) cannot be used as independent proofs to establish a new rule of fiqh.
2. The value of qawaa’id in Islamic law
– Qawaa’id are considered broad guidelines for the jurists to go by
– Qawaa’id are designed to facilitate a better understanding of the Shari’ah
– A legal maxim is reflective of a consolidated reading of the fiqh
– It brings together different rules of fiqh of different themes of Islamic law under one unifying maxim in an organized method.
– It helps the faqih (jurist) to connect the different areas of Islamic law for the purpose of memorizing and studying.
– It sharpens the skills of inference for the faqih or the student of fiqh.
Types Of Al-qawaid Al-fiqhiyyah
With respect to the scope of application, qawaid can be classified into three categories as follows:
1. Qawaid which are thought to apply to all aspects of fiqh without specification. There are five major qawaid under this category known as al-qawaid al-khams al-kubra (the five major universal maxims). It is said that the whole fiqh is based on these qawaid, and the essence of the Shariah as a whole is grasped between them, and the rest of the qawaid are simply an elaboration of them.
These qawaid are as follows:
1. Acts are judged by the intention behind them.
2. Harm must be eliminated.
3. Certainty is not overruled by doubt.
4. Hardship begets facility.
5. Custom can be the basis of judgment.
2. Qawaid that apply to many chapters of fiqh, yet they are not as comprehensive in their application as the five major maxims. Al-Subki called this type: al-qawaid al-ammah (the general maxims), whereas al-Suyti and ibn Nujaym called them: kulliyyat (comprehensive) that apply to limitless particulars. Al-Subki mentioned twenty-six qawaid under this category, while al-Suyuti raised the number to forty. Ibn Nujaym, apparently considering the Hanafi school of law only, counted only nineteen. Examples of these are:
1. a word should be construed as having some meaning, rather than passed over in silence.
2. gain accompanies liability for loss.
3. when it is forbidden to perform an act it is also forbidden to request its performance.
4. an accessory which is attached to an object in reality is also attached to it in law.
3. Qawaid which are abstractions of the rules of fiqh on specific themes and chapters, such as the chapters of prayer, fasting, marriage, etc. This kind of qawaid is called dawabit (controllers). Examples of dawabit are:
1. all the dead animals are impure except fish and locusts.
2. every living thing is pure.
3. a person is bound by his own admission.
4. the punishments of hudud will not be imposed when there is a doubt.
The Textual Qawaid.
Many Quranic verses and Prophetic traditions carry myriad meanings in a few words. Some come in the form of common juristic principles, which express legal ideas identical to those of some qawaid and meet the required criteria of the formation of qawaid. Jurists, while coining particular qawaid, found that the words of such nusus (By nusus it is meant those Quranic texts which are absolutely clear, being of a single meaning, about which there is no ambiguity whatsoever) are accurate statements, which express exclusively and exactly the legal idea of these qawaid; so they preferred them over their (the jurists’) own words. Other nusus, on the other hand, contain general legal rulings applicable to many particulars (many issues), but because they may not meet the criteria of qawaid formation in one way or another; jurists deduce qawaid from them, which embody their legal idea in different wordings.
Qawaid Which are Verbatim Quranic Verses or Prophetic Traditions.
These refer, as stated earlier, to the texts which come in the form of common juristic principles. They are from the Quran and the Sunnah, as follows.
From the Quran
1. [Surat al-Najm, 38] And that man can have nothing but what he does: good or bad. This comprehensive principle relates to God’s Reward or Punishment of every single person in this world and in the hereafter, according to their deeds: good or bad.
2. [Surat al-Maidah, 1] O you who believe! Fulfill (your) obligations. This relates to fulfilling the contracts and commitments, which the whole society or individual persons are bound to, being in trade, marriage or international relations.
3. [Surat al-Baqarah, 228] And they (women) have rights (over their husbands) similar (to those of their husbands) over them to what is reasonable. This regulates the relationships between spouses and, therefore, relates to chapters of family law, or what is called personal status.
From the Sunnah
1. revenue goes with liability. That is to say that a person who obtains the benefit of a thing, takes upon himself also the loss from it. It is used as a controller in chapters, which relate to sale and trade.[ Narrated by al-Shafii, Ahmad, Abu Dawud and al-Tirmidhi]
2. one should not cause harm, nor should he reciprocate harm with harm. This is a comprehensive principle applicable to most chapters of fiqh. It is the other version of one of the five universal qawaid, i.e. (harm must be eliminated). [Narrated by Ibn Majah]
3. The burden of proof is on him who alleges; the oath is on him who denies. This relates to the judiciary issues and evidences. [Narrated by al-Bukhari and Muslim]
Qawaid Derived from the Quran or the Sunnah in Different Wordings
The following are some examples of this group.
1.Matters are judged according to their objectives; one of the five grand qawaid. This is extracted from the famous tradition narrated by al-Bukhari and Muslim and other scholars of Sunnah; that is: “indeed, actions are judged by the intentions”.
2.Certainty is not lifted by doubt. This is taken from the Quranic verse that says: “And most of them (the disbelievers) follow nothing but conjecture. Certainly, conjecture can be of no avail against the truth”[ Surat Yunus, 36]. It is also derived from the prophetic tradition, narrated by al-Bukhari , in which the Prophet rejected entertaining doubts in the face of valid wudu (ablution). That is: “a man asked Allah’s Messenger about a person who imagined to have passed wind during the prayer. Allah’s Messenger replied: “He should not leave his prayers unless he hears sound or smells something”.
3. hardship begets facility. This has been extracted from many nusus from the Quran. For example:
1. “Allah intends for you ease, and He does not want to make things difficult for you”.[Surat al-Baqarah, 185].
2. “Allah wishes to lighten (the burden) for you”[ Surat al-Nisa, 28].
3. “and (He) has not laid upon you in religion any hardship”[ Surat al-hajj, 78].
4. punishments are to be warded off if doubts persist. This is mentioned almost verbatim in the tradition narrated by al-Tirmidhi and others, which says: “Prevent the application of hadd punishment (as much as you can) whenever any doubts persists”.[Hadd means prohabition/deterrent, and is what a judge imposes to prevent the criminal from reverting to what he did)
These refer to qawaid, which were deduced based on rulings whose sources were ijma (consensus of scholars), or have been extracted through the different methods of ijtihad (independant leagel reasoning), such as qiyas (analogy), istis’hab (continuity of the state of matters), maslahah (public interest), etc. Most of qawaid belong to this category. The following are some examples of qawaid belonging to this category.
Qawaid based on Ijma
Ijma is defined as the unanimous agreement of the scholars (who reached the level of ijtihad) of the Muslim community on any matter, in any period following the demise of the Prophet Muhammad. Although ijma on particular issues, especially on those that are open to, is difficult to prove, due to some factors mentioned in books of usul al-fiqh, some qawaid have been formulated based on it.95 The examples given for this group are the following two qawaid.
1. “where there is a text (from the Quran or the Sunnah) there is no room for ijtihad”. The subject of this qaidah is unanimously agreed upon by the different schools of law. To determine legal rulings for new issues, consideration has always been given to nusus from the Quran or the Sunnah; hence, jurists do not practice ijtihad in the presence of rulings in one of them (i.e. Quran or the Sunnah). In this regard, the existence of the various and different views on determining the legal status of many issues in the presence of nusus was not, in most of the cases, a matter of favouring ijtihad over them; rather, it was mainly due to either that the nass [clear stipulation of the Qur’an and the Sunnah] is not crucial for the issue under examination (i.e. it is open to different interpretations) or, in the case of the Prophetic traditions, its authenticity is a controversial matter.
2. “one legal interpretation or ijtihad (on a single issue) is not reversed by its equivalent (on the same issue)”. This qaidah is said to have been attributed to a statement of the Caliph Umar ibn al-Khatab and is also supported by the consensus of the companions of the Prophet (PBUH).
It means that when a judge makes great effort in determining the legal ruling of an issue, which has no specific basis from the Quran or the Sunnah, following the required methods to achieve that, their judgment, in the end, is deemed to be the legal ruling of that particular issue. Based on this, it is not allowed for the mujtahid (pl. mujtahids: a qualified jurist who practices ijtihad) himself to reverse what his understanding leads him to, nor to any other mujtahid to reverse the judgment of the first on that particular issue. This is simply because if an ijtihad is to be reversed by another, then the latter must be equally subjected to reversal, which would lead to uncertainty and loss of credibility in the ahkam. On the contrary, the mujtahid himself or another one can hold different judgment based on ijtihad on another similar issue. It is narrated, in this regard, that Umar ibn al-Khataab, in the presence of the Companions, had made different judgments over similar issues in different times, each of which was based on a separate ijtihad. [ It is reported that Umar bin. al-Khataab adjudicated a case, known as Hajariyyah, in which the deceased, a woman, was survived by her husband, mother, two consanguine and two uterine brothers. Umar entitled all the brothers to a share in one-third of the estate. He was told by one of the parties that the previous year, he (Umar) had not entitled all the consanguine brothers to share the portion of one-third. To this the caliph replied: “That was my decision then, but today I have decided it differently”.]
However, the idea of the qaidah is not confined to judges or muftis exclusively. A normal person can also make use of it in different situations.For example, facing the qiblah (Mecca) is a condition for a valid prayer. Suppose that there was a person travelling in a remote place where he lost directions and time of duhr – for instance – is due. He made efforts to determine the exact direction to qiblah, and based on his ijtihad, he performed the prayer facing, say, the southeast. His prayer is valid even if he arrived after some time to a conclusion that the direction was wrong, although he should face the new direction when performing the next prayers.
Qawaid Extracted by Qiyas
Qiyas is the extension of a Shariah value from an original case, or asl, to a new case, because the latter has the same effective cause as the former. The original case is regulated by a given text, and qiyas seeks to extend the same textual ruling to the new case. In other words the definition of Qiyaas is to convert an original (asal) ruling into a subsidiary (Furu) ruling, based upon a causative (operating as a cause or agent) factor (Ilat) between the Asal and the Furu.
Formulating qawaid al-fiqh, in general, is an analogical process in the first place, because it seeks to link the issues and questions that share common illah (cause) of the ruling. The following are examples of qawaid, which have been extracted through qiyas, with comments on the first two.
1. when it is forbidden to make use of a thing, it is also forbidden to possess it. Several nusus forbid the consumption of particular things, such as wine and pork and the usage of other things, such as eating in plates made from gold or silver. Jurists, via qiyas, concluded that the acquisition of these things and the like is also forbidden. The illah is that in each of the consumption or usage and acquisition there is utilization of a harmful thing. The new legal ruling, which is acquired via qiyas, is true with regard to the cases individually. Thus, it can be a common legal ruling which would be applicable to all of these cases. The mentioned qaidah was formulated to express this common legal ruling. To apply this qaidah, let us examine the following example.
The legal ruling on the consumption of wine is that it is forbidden, which has been known via nusus. The illah of forbidding wine is that it causes intoxication, which is also found in beers, which makes the consumption of beer also forbidden. The acquisition of wine is forbidden, which was concluded through qiyas; thus the acquisition of beers should also be forbidden analogically.
2. what is of predominant occurrence is equal legally to what occurs invariably. In many cases, what is of predominant occurrence has been given, through qiyas, the same legal ruling of what occurs permanently, because both share the same illah, which is the assured possibility of occurrence. For example, if a husband said to his wife: “you are divorced if you menstruate”, divorce occurs immediately, and is not to be delayed until she really starts the next period, because menstruation is of predominant occurrence for women. It is given the same ruling as to connect divorce to one of women’s essential characteristics, such as being female. Because of the existence of several cases which are similar to this case, whose legal rulings have been reached through qiyas, jurists formulated this qaidah to encompass these cases and the like.
3. Continuation of doing something is legally equal to starting it.
4. When it is forbidden to take a thing it is also forbidden to give it.
5. A thing that is customary to regard as impossible is considered to be impossible in fact.
6. A thing established by proof is equivalent to a thing established by visual inspection.
Qawaid Extracted Through Istis’hab
Istis’hab 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.in Usul al Fiqh it means the presumption of existence or nonexistence of facts and can be used in the absence of other proofs (dalil). For example, once a contract of marriage is concluded, it is presumed to remain in force until there is a change. Therefore, the marital status of the spouses is presumed to continue until dissolution of marriage can be established by evidence, and a mere possibility that the marriage might have been dissolved is not enough to rebut the presumption of istis’hab.
Some scholars divided istishab into two categories:
1. Presumption of innocence. It is the continuance of inviolability until there is evidence which establishes a right, like the state of the one who denies a claim. His state is that of presumption of innocence. Ibn al-Qayyim mentions the dispute of the fuqaha’ in it, saying that the Hanafis apply it to denial rather than affirmation. Malik, ash-Shafi’i and Ibn Hanbal accept it as absolute proof.
2. The continuity of the attribute. A judgement continues until its opposite is affirmed. Ibn al-Qayyim said that it is a proof about which the fuqaha’ do not argue, but we disagree with Ibn al-Qayyim. The Hanafis said that the continuity of the attribute is a negative rather than affirmative proof of denial, i.e. that the attribute affirms the continuity of the condition, but it does not affirm a new right by it.
To formulate qawaid using istis’hab means to create legal principles, which gather under their remit cases whose legal rulings have been conducted through istis’hab in a way that expresses their common legal idea. Let us now give this example. If A claimed that he lent B a sum of money, presenting no evidence to support their claim, but B denied. The situation of the latter will be upheld because the normal state is the absence of any loan, which can only be rebutted by presenting evidence. The reverse of this example is also true. If it is known that A has lent B a sum of money, yet the latter, without presenting any piece of evidence, claims that he brought back the money to the former who denied. Accordingly, B is still indebted to A, because this is the real situation in the absence of evidence, which proves otherwise. Jurists have coined a number of qawaid to include these cases and others similar to them. Among these qawaid are the following:
1. Freedom from liability is a fundamental principle.
2. It is a fundamental principle that a thing shall remain as it was originally.
3. Non-existence is a fundamental presumption attached to intervening (transitory) attributes).
Over 200 legal maxims have been collected and compiled in works known as al-ashbah wa al-naza’ir; [Two well known works both bearing the title Al-Ashbah wa al-Naza’ir are authored by Jalal al-Din al-Suyuti and Ibn Nujaym al-Hanafi respectively.] one hundred of these, have been adopted in the introductory section (i.e. the first 100 articles) of the Ottoman Majallah which is a codification of Hanafi commercial law, I have listed these below.
The Maxims Of Islamic Jurisprudence mentioned in the Majjalla.
Regarding the translation (of the Majalla), it was done by a Christian man and was first published in Karachi around 100 years ago, I believe. Unlike the original, the language is dense and confusing. I am not entirely convinced that the translator had a clear understanding of the original. One doesn’t find references to the many (available) commentaries on the Majalla, and I noticed several clear mistakes while browsing through it.
It is worth looking at, but you cannot make it your Reliance.
Shaykh Faraz Rabbani. (end Quote)
I have also used the translation by Dr. Yusuf Ziya KAVAKCI in his work FIQH, ISLAMIC LAW & USUL AL – FIQH to clarify the meanings of the maxims.
2. Acts are due to their purposes.All actions and transactions get their appraisal and values based on what is meant in them.
3. Contracts are due to purposes and meanings not to the words and structures. Consequently, a contract for sale subject to a right of redemption has the force of a pledge.
4. Surety and conviction may not be eliminated by doubt.
5. It is a fundamental principle that a thing shall remain as it was originally.
6. Things which have been in existence from time immemorial shall be left as they were.
7. Injury cannot exist from time immemorial.
8. Freedom from liability is a fundamental principle. Therefore, if one person destroys the property of another, and a dispute arises as to the amount thereof, the statement of the person causing such destruction shall be heard, and the onus of the proof as to any amount in excess thereof is upon the owner of such property.
9. Qualifications which came into being later and are transitory are basically nonexistent. Example:- In a case of partnership of capital and labour, a dispute arises as to whether profit has been made or not. The statement of the person supplying the labour is heard, and the owner of the capital must prove that profit has in fact been made, since the fundamental principle is the non-existence of the profit.
10. Any thing established once is counted as unchanged unless otherwise proved. Consequently, if it is proved at any particular time that a particular thing is owned by a particular person in absolute ownership, the ownership thereof shall be held to be valid unless circumstances arise which invalidate such ownership.
11. It is a fundamental principle that any new occurrence shall be regarded as happening at the time nearest to the present. That is to say, if a dispute arises regarding the cause of some new event and the time at which it occurred, such event shall be considered with reference to the time nearest to the present, unless it is proved that it relates to some remoter period.
12. It is a fundamental principle that words shall be construed literally.
13. If the sentence is clear,there is no way to contextual and allegorical meaning.
14. Where the text is clear, there is no room for interpretation. Ijtihad ( personal interpretation and ruling ) can not be used against against a Nass text ( text of Qur’an and Sunnah that is clear and unambiguous).
15. A matter which has been proved contrary to legal analogy cannot be cited by way of analogy in respect to any other matter.
16. One legal interpretation does not destroy another. Ijtihad won’t be annulled by another ijtihad.
17. Difficulty begets facility; that is to say, difficulty is the cause of facility and in time of hardship consideration must be shown. Very many subjects of Islamic jurisprudence, such as loans, transfer of debts and interdiction are derived from this principle, and the latitude and indulgence shown by Islamic jurists in their rulings are all based upon this rule.
18. Latitude should be afforded in the case of difficulty, that is to say, upon the appearance of hardship in any particular matter, latitude and indulgence must be shown.
19. Injury may not be met by injury. No legality can be given to one sided damage and contre-damage ( mutual damage ).
20. Injury is removed.
21. Necessity renders prohibited things permissible.
22. Necessity is estimated by the extent thereof. Necessities are to be allowed up to their level of necessity.
23. A thing which is permissible by reason of the existence of some excuse thereof, ceases to be permissible with the disappearance of that excuse.
24. When a prohibition is removed, the thing to which such prohibition attaches reverts to its former status of legality.
25. An injury cannot be removed by the commission of a similar injury.
26. A private injury is tolerated in order to ward off a public injury. The prohibition from practice of an incompetent physician is derived from this principle.
27. Severe injury is removed by lesser injury.
28. In the presence of two evils, the greater is avoided by the commission of the lesser.
29. The lesser of the two evils is preferred.
30. Repelling an evil is preferable to securing a benefit.Eliminating bad and damage comes first ,then comes benefiting from good.
31. Injury is removed as far as possible. Damage will be eliminated as much as possible.
32. Any want, whether of a public or private nature, is so dealt with as to meet the exigencies of the case. Need,be it general or special,is to be counted as necessity.The validity of sale subject to a right of redemption is of this nature. The inhabitants of Bokhara having fallen badly into debt, this procedure was put into operation in order to meet the exigencies of the case.
33. Necessity does not invalidate the right of another. Being under force majeur doesn’t annul the right of third person. Consequently, if a hungry person eats bread belonging to another, such person must later pay the value thereof.
34. A thing which may not be taken may also not be given. Any thing which is forbidden to be received,is also forbidden to be given to others.
35. It is forbidden to request the performance of a prohibited act. If some thing is forbidden to act upon or to operate,it is automatically forbidden to be asked for.
36. Custom is an arbitrator; that is to say, custom, whether public or private, may be invoked to justify the giving of judgement.
37. Public usage is conclusive evidence and action must be taken in accordance therewith.
38. A thing which it is customary to regard as impossible is considered to be impossible in fact. Any thing impossible traditionally is also impossible really.
39. It is an accepted fact that the terms of law vary with the change in the times.
40. In the presence of custom no regard is paid to the literal meaning of a thing. Literal meaning of a word is neglected if tradition shows other ways.
41. Effect is only given to custom where it is of regular occurrence or when universally prevailing.
42. Effect is given to what is of common occurrence; not to what happens infrequently.
43. A matter recognised by custom is regarded as though it were a contractual obligation.
44. A matter recognised by merchants is regarded as being a contractual obligation between them.Any thing known among business people is to be counted as declared condition.
45. A matter established by custom is like a matter established by law. Any thing established by usage (custom) is exactly like some thing established by the text ( Qur’an and Sunnah ).
46. When prohibition and necessity conflict, preference is given to the prohibition. Consequently, a person may not sell to another a thing which he has given to his creditor as security for debt.
47. An accessory which is attached to an object in fact, is also attached to it in law. Consequently, when a pregnant animal is sold, the young in its womb is sold with it.
48. An accessory to an object cannot be dealt with separately.A Example: The young in an animal’s womb cannot be sold separately.
49. The owner of a thing held in absolute ownership is also the owner of the things indispensable to the enjoyment of such thing. A Example: A person who buys a house is also owner of the road leading to it.
50. If the principle fails, the accessory also fails.
51. A thing which fails is not restored; that is to say, that which goes does not return.
52. When a thing becomes void, the thing contained in it also becomes void.
53. When the original undertaking cannot be carried out, the equivalent thereof is carried out.
54. A thing which is not permissible in itself, may be permissible as an accessory. Example:- It is not permissible for purchaser to make the vendor his agent to receive the thing sold; but it he gives a sack to the vendor to measure and put therein the provisions which he has brought and the vendor puts the provisions into the sack, the purchaser thereby receives them impliedly and as an accessory.
55. A thing which is not permissible at the outset may become permissible at some later period. Example:- The disposal of a share of undivided jointly owned property by way of gift is invalid, but if a person entitled to a share of undivided jointly owned property which has been bestowed by way of gift appears and takes possession thereof, the gift does not become the property of the recipient of the gift.
56. Continuance is easier than commencement.
57. A gift becomes absolute only when delivery thereof is taken. Example:- A person bestows a thing upon another person by way of gift. Such gift is not binding until delivery thereof has been taken.
58. The exercise of control over subjects is dependent upon the public welfare.
59. Private guardianship is more effective than public guardianship.Authority in particular is stronger than authority in general. Example:- The guardianship exercised by the trustee of a pious foundation is more effective than the guardianship of the court.
60. A word should be construed as having some meaning, rather than passed over in silence. That is to say, if any particular meaning can be attributed to a word, it may not be passed over as devoid of meaning.
61. When the literal meaning cannot be applied, the metaphorical sense may be used.
62. If no meaning can be attached to a word it is disregarded altogether. That is to say, if a word cannot be construed in either a literal or metaphorical sense it is passed over in silence as being devoid of meaning.
63. A reference to part of an indivisible thing is regarded as a reference to the whole.
64. The absolute is construed in its absolute sense, provided that there is no proof of a restricted meaning either in the text of the law or by implication.
65. A description with reference to a thing present is of no effect, but the contrary is the case if such thing is not present. Example:- When a vendor who is about to sell a grey horse, such grey horse being present at the meeting where the sale took place, states that he is selling a brown horse for so many thousand piastres, his offer is held to be good and the word brown is of no effect. But if he sells a grey horse which is not present and he describes it as brown, the description is held to be good but the sale is not concluded.
66. A question is considered to have been repeated in the answer. That is to say, in the event of a question being answered in the affirmative, the person answering the question is considered to have repeated the question.
67. No statement is imputed to a man who keeps silence, but silence is tantamount to a statement where there is an absolute necessity for speech. That is to say, it may not be said that a person who keeps silence has made such and such a statement, but if he keeps silence where he ought to have made a statement, such silence is regarded as an admission and statement.
68. In obscure matters the proof of a thing stands in the place of such thing. Any kind of evidence to some thing in their private hidden matters, takes its place and represents it.That is to say, obscure matters concerning which it is hard to discover the truth are judged according to the obvious proof concerning them.
69. Correspondence takes the place of an exchange of conversation. Communication in writing equals to addressing.
70. The sign of a dumb person which are generally recognised take the place of a statement by word of mouth. The understandable signs of a deaf person are as statements by tongue.
71. The word of an interpreter is accepted in every respect.
72. No validity is attached to conjecture which is obviously tainted by error.
73. Probability, even though based upon evidence, is not proof. Example:- If a person admits while suffering from mortal sickness that he owes a certain sum of money to one of his heirs, such admission is not a proof unless confirmed by the other heirs, since the probability of such person defrauding the other heirs of their property is based upon the mortal sickness . If the statement, however, is made while in a state of good health, such admission is considered to be valid. The probability is that case is mere supposition and consequently there is no objection to the validity of the admission.
74. No weight is attached to mere supposition. No basing on a doubtful guess.
75. A thing established by proof is equivalent to a thing established by ocular inspection.
76. Evidence is for him who affirms; the oath for him who denies. To prove is the burden of plaintiff,and to take oath is the responsibility of one who denies.
77. The object of evidence is to prove what is contrary to appearance; the object of the oath is to ensure the continuance of the original state.
78. Evidence is proof affecting third person; admission is proof affecting the person making such admission only.
79. A person is bound by his own admission.
80. Contradiction and proof are incompatible; but this does not invalidate a judgement given against the person contradicting. Example:- Witnesses contradict themselves by going back upon the evidence they have given. Such evidence is not proof; but if the court has already given judgement based upon the original evidence, such judgement may not be set aside, but the witnesses must pay the value of the subject matter of the judgement to the persons against whom judgement has been given.
81. Failure to establish the principle claim does not imply failure to establish a claim subsidiary thereto. Example:- A person states that A owes a sum of money to B and that he has the surety of A. Such person will be obliged to pay the sum in question if A repudiates the debt and B demands payment.
82. If the validity of a condition is established, the validity of anything dependent thereon must also be established.
83. A condition must be observed as far as possible.
84. Any promise dependent upon a condition is irrevocable upon such condition being fulfilled. Example:- A person tells A to sell a certain thing to B and informs A he will pay him in the event of B failing to do so, and B does in fact fail so to do. The person making the promise is obliged to pay the money.
85. The enjoyment of a thing is the compensating factor for any liability attaching thereto; that is to say, in the event of a thing being destroyed, the person to whom such thing belongs must suffer the loss and conversely may enjoy any advantages attaching thereto. Example:- An animal is returned by reason of an option for defect. The vendor may not charge any fee on account of the use of the animal, because if it had been fallen upon the purchaser.
86. Remuneration and liability to make good loss do not run together. Salary and compensation never meet at the same case.
87. Disadvantage is an obligation accompanying enjoyment. Damage is against the benefit.That is to say, a person who enjoys a thing must submit to the disadvantages attaching thereto.
88. The burden is in proportion to the benefit and the benefit to the burden.
89. The responsibility for an act falls upon the author thereof; it does not fall upon the person ordering such act to be performed, provided that such person does not compel the commission thereof.
90. If a person performs any act personally and is implicated therein with the person who is the cause thereof, the person performing such act is responsible thereof. Example:- A, digs a well in the public highway and B causes C’s animal to fall therein and to be destroyed. B is responsible thereof and no liability rests with the person who dug the well.
91. An act allowed by law cannot be made the subject of a claim to compensation. Example:- An animal belonging to A falls into a well which B has dug on his own property held in absolute ownership and such animal is destroyed . No compensation can be claimed.
92. A person who performs an act, even though not intentionally, is liable to make good any loss caused thereby.
93. A person who is the cause of an act being performed is not liable to make good any loss caused by such act unless he has acted intentionally.
94. No liability attaches in connection with offences of or damage caused by animals of their own accord. No responsibility for any body if an animal damages and harms by itself.
95. Any order given for dealing with the property of any other person held in absolute ownership is void.
96. No person may deal with the property of another held in absolute ownership without such person’s permission.
97. No person may take another person’s property without some legal reason.
98. Any change is the cause of the ownership of a thing held in absolute ownership is equivalent to a change in that thing itself.
99. Any person who hastens the accomplishment of a thing before its due time, is punished by being deprived thereof.
100. If any person seeks to disavow any act performed by himself, such attempt is entirely disregarded.
– Major extracts from – Islamic Legal Maxims: Concept, Functions, History, Classifications and Application to Contemporary Medical Issues. Submitted by Fawzy Shaban Elgariani to the University of Exeter as a thesis for the degree of Doctor of Philosophy in Arab and Islamic Studies, In February 2012.
– The Fundamental Principles of Imam Malik’s Fiqh By Muhammad Abu Zahrah
– Al Qawa’id Al-Fiqhiyyah By Shaykh Yaser Birjas
– Difference Between Usul al-Fiqh and al Qawaid Fiqhiyya By Shaykh Hamza Karamali
– the Majalla a codification of Hanafi commercial law.Authored by a council of major Hanafi faqihs headed by Allama Jawdat Basha, and included Ibn Abidin’s son, Allama Ala’ al-Din Abidin, and Allama Amin al-Jundi.
– FIQH, ISLAMIC LAW & USUL AL – FIQH Dr. Yusuf Ziya KAVAKCI LLB,BD,Ph.D. ( Istanbul ), Ex-Professor ( Islamic Law ) and Ex-Dean of, College of The Islamic Studies,Erzurum,Turkey, Director of The Islamic Center,Richardson,Dallas,Texas.
– Principles of Islamic Jurisprudence By M.Kamali