ISF 2102

5 Major Legal Maxims

Dr. Marhanum Che Mohd Salleh
marhanum@iium.edu.my
 Scholars identified 5 phases in the formation of
intention:
a) Hajis: initial occurrence of an idea in the Matters are
heart/mind determined by
b) Khatir: when the idea runs through the mind
intentions
c) Hadith al-nafs: the internal assessing of pros
(good) and cons (bad) but still undecided ‫األمور بمــقاصدها‬
d) Hamm: when intention to commit becomes
EXPLANATION
dominant over refraining from it
 Umur p. Amr : incident, situation and
e) ‘Azm: when intention becomes the determination matter
act  Maqasid p. maqsad : intention,
 Phase 1 occurs involuntarily~ beyond control, thus purpose, aim, resolution and end

Allah will not hold one accountable for it  A matter judged by intention

 In fact, not even on any of the 5 phases~ as long  Applicable widely ~ worship,
commercial transactions, family law,
as not acted upon such intentions. criminal laws etc.
 The Prophet: “Allah has excused my Ummah for
what they say to themselves internally, as long as
they do not act (upon it) or speak (it aloud),”
1
Ibn Qayyim:
“Intention is the essence of every matter, its pillars and the foundation
on which it is based. It is the soul and the leader of action; action
follows it and are based upon it. Motive, intention & belief can make
any matter legal/illegal, valid/invalid, obedience/sin”.
Key function of intention from Shariah perspective:
 Differentiate acts of worship (ibadah) and customary acts (‘adat)
 Entitlement to rewards from Allah Almighty
 Customary acts with proper intention lead to act of worship
 Act of worship without proper intention will not receive reward
from Allah
 Examples; I’tikaf, fasting
Intention in act of Worship:
1. Not contravene the objective of Shari’ah (good and in proper
manner)
2. Clear & unambiguous (specific to the act that intended to do;
eg.prayer)
3. 1 act = 1 intention (always in obligatory acts; solat, fasting, hajj)
Uttering the intention out and loud
 Not required – all jurists, as it is from heart
 Pronouncing the intention is recommended as it supports the heart’s
intent - Shafi’ie school
 Not recommended – Hanbali
 Permitted and not recommended Maliki
 In sum, if it distracts other’s concentration, better not practice
 If it reinforces a person’s intention, then it is recommended

Intention in Mu’amalah is judged according to the manifested evidence:

 Disclosure
 Indicators/circumstances
 Deduced from the context
 Motives of transaction
 Hadith narrated by ‘Umar al-Khattab:
“Actions are only (accurately assessed in light of intentions, and every
person will earn what he intended. Therefore, he whose migration
was for Allah and His Messenger, his migration is for Allah and His
Messenger, and he whose migration was to achieve some worldly
Matters are
gain or to take a woman in marriage, then his migration is for what
he migrated for.”
determined by
 Al-Quran: intentions
o Al-Tawbah: 97-98
“97. The bedouins are the worst in disbelief and hypocrisy, and more likely to be in
‫األمور بمــقاصدها‬
ignorance of the limits (Allâh's Commandments and His Legal Laws, etc.) which Allâh has
revealed to His Messenger. And Allâh is All-Knower, All-Wise.

98. And of the bedouins there are some who look upon what they spend (in Allâh's Cause)
as a fine and watch for calamities for you, on them be the calamity of evil. And Allâh is All-
AUTHORITY
Hearer, All-Knower. “

o Al-Rum: 39
And that which you give in gift[] (to others), in order that it may increase (your wealth by
expecting to get a better one in return) from other people's property, has no increase with
Allâh, but that which you give in Zakât seeking Allâh's Countenance then those, they shall
have manifold increase.

 Hadith by Anas:
“There is no deed for one who has no intention.” 1
 FIQH ISLAMIC FINANCE
1. murder 1. Intention of Shareholders/investor
 Intentional ~ qisas; – zakatable or not
 Unintentional ~ diyat

2. Buying a property;
2. ‘Inah sale
 Intention to buyback~ invalid
Matters are
 As home ~ not zakatable  No intention to buyback~valid determined
 Investment ~ zakatable
3. Waqf by intentions
3. Break fasting (Ramadhan) • How waqf property is been
 Intentionally – great sin managed is based on legitimate ‫األمور بمــقاصدها‬
-Ali bin Abi Thalib gives punishment to the intention –proof
person who breaks in the month of
Ramadhan ie Atha 'bin Abi Maryam from 5. Islamic foreign-exchange forward APPLICATION
his father that An-Najasyi was sent to Ali (fixing a rate on the date of the contract for a
bin Abi Thalib because he drank khamr in transaction that will take place in the future)
• Is allowable based on customer’s
Ramdhan. Ali beat him 80 times, then
intention which should be use for
tomorrow 20 times more. Ali said: We beat
hedging purposes, not
20 times because of your striving to Allah.
speculation
"(Ibn Hazm's story in al-Muhalan: 184)
 Unintentionally – Forgiven and need
to replace the fasting 1
THANK YOU