LAW 3348 – Qawa`id Fiqhiyyah (Islamic Legal Maxim)

Introduction Characteristic of the maxims Differences

 Qawa`id Fiqhiyyah can be  Legal maxims are:

i. Precise in their form Qaqa`id Fiqhiyyah Usul al Fiqh
translated as legal maxims -theoretical
(wording), normally in two  The legal maxims are based  Is concerned with the
of fiqh or Islamic Legal abstractions,
or three words; on the fiqh itself. methodology of legal
Maxim. -in the form of short
ii. Generality in their  A legal maxim is reflective reasoning & the rules of
 Qawa`id is the plural of epithetical statements,
meaning; of a consolidated reading of interpretation, the meaning
qa`idah. -often in a few words,
 Literally iii. Widely applied to many the fiqh. & implication of commands
it means -that are expressive of the
branches of fiqh;  A maxim is defined as a & prohibitions.
foundation of the house goals and objectives of the
 Surah al-Baqarah 2:127 iv. Hardly apply in an general rule which applies  Based on the study of
Shariah.
exclusive sense and often to all of its related sources, principles &
“Wa idh yarfa`u ibrahima -Represent the apex of
admit exceptions and particulars. related issues.
al-qawa`id min al-bait wa cumulative progress
particularization;  Refers to the knowledge of
Isma`il”. -abstract statements of
v. Actual wordings are principles to be applied in
[And remember Abraham principles
occasionally taken from deriving rules of the
and Ismail raised the -Generally, applicable to
the Quran and Ahadith; Shariah from their detail
foundations of the house almost all cases having
vi. Works of the leading jurist sources.
(with this prayer)] similar rulings.
 Surah al-Nahl 16:26 -Gradually refined by and mujtahids, later
refined by other scholars.
“fa ata Allahu later scholars.
bunyanahum min al-  They are statements of
qawa`id” principles derived from the
[then Allah brought down detailed reading of the rules Dawabit Legal Maxims
their buildings from their of fiqh on various themes.
foundations…]  Ahmad al-Zarqa’ –
 To the grammarians qawa`id fiqhiyyah refer to  Qawa`id differs from ad-dabitah (a  Legal maxims vary concerning the level of
qawa`id means controller the general principles of controller) which is limited in scope and abstraction & the scope that they cover.
(dabit) which means the fiqh presented in precise controls the particulars of a single theme or  Some are general application
rules applicable to all texts which comprise of chapter of fiqh.  Some might apply to a particular area of fiqh,
relevant parts, such as general rulings of Shariah  Dabitah is confined to individual topics, such such as:
when they say: “al-fa`il on issues covered by them. as: -`ibadah (worship)
marfu’ or maf`ul bih is  Fuqaha, qawa`id means a -Cleaniliness (taharah) -Mu`amalah (transactions)
mansub.” general rule which applies -Maintenance (nafqah) -Contracts,
to most of its relevant cases. -Paternity and fosterage (arridaa’) -Litigation and
 Fiqh literally means Such as: and does not apply to other subjects. -court proceedings.
understanding, -“al-umur bi  Examples of dawabit:  Al-qawa`id al-fiqhiyyah al-asliyyah
comprehending etc; maqasidiha”, or -Marriage does not carry suspension; (normative legal maxims) is the most
 Technically it refers to the -“Al-asl baqau ma kana -When the water reaches two feet, it does comprehensive and apply to the entire range
rulings of the Shariah `ala ma kana.” not carry dirt; of fiqh without any specification.
relating to the acts of the -When skin has been tanned, it becomes
mukallaf that are derived clean;
from their detailed -All kaffarah because of ma’siyat must be 1
evidences. settled as soon as possible.
 LAW 3348 – al-Qawaid al-Fiqhiyyah

Dawabit Usul-AlFiqh Al-Ashbah wan Nazair

 Ad-Dâ bit literally means a block, which prevents Usul al-Fiqh Al-Qawaid al-Fiqhiyyah Al-Ashbâh Wan-Nazâ’ir
things or matters from coming through or a  Is concerned with the  Maxims are based on the Definition of the similar matters and the
controller that preserves and control strictly. Methodology of legal fiqh itself. counterparts
 In the context of Islamic law, Ad-Dâ bit is defined reasoning.  “Al-Ashbâh” is the plural of “Shebh” or
as the total rule which controls a set of branches “Shabah” which literally means similitude and
(Fû rû ) that belong to one chapter of Fiqh.  Method which been  Principle of the law resemblance.
 The main two distinctions between Al-Qâ‘idah applied in deducing law.  Imam An-Nasafiy said, “If an incident or a
Al-Fiqhiyyah and Ad-Dâ bit Al-Fiqhiy are: case, has no solution or an answer, we resort
1. Al-Qâ‘idah Al-Fiqhiyyah is more general and  External part of fiqh.  Internal part of fiqh. to its Shabah (a similar) incident and case
comprehensive than Ad-Dâ bit Al-Fiqhiy since which already have a solution or an answer.”
the former includes several chapters of Fiqh,  Derive legal rulings from  A maxim is defined as “a  “Al-Nazâir on the other hand, is the plural of
whereas the latter contains only one. primary sources of general rule which applies “Al-Nazîr” which linguistically means an equal
2. Al-Qâ‘idah Al-Fiqhiyyah has more exceptions Shariah. to all of its related or a counterpart.
than Ad-Dâ bit Al-Fiqhiy which controls one particulars”  The studying of Al-Ashbâ h Wan-Nazâ’ir helps
chapter of Fiqh, so there is not much room for scholars develop the ability to distinguish the
exceptions. exact meaning of words that could have the
same meaning if they were used alone in one
 Dabitah is confined to individual topics, such as: context, and different meanings when they are
• Cleaniliness (taharah) used in the same paragraph or context.
• Maintenance (nafqah) Following are some examples of that:
• Paternity and fosterage (arridaa’) and does not 1. Faqîr ( the poor person who does not beg)
apply to other subjects. and Miskîn (the poor person who begs).
2. Kafîr (disbeliever) and Mushrik (polytheist).
 Examples of dawabit: 3. Imâ n( Faith and trust in Allâ h ) and Islâ m.
1. Marriage does not carry suspension; 4. Mutlaq Al-Mâ’ is not similar to Al-Mâ’ Al-
2. When the water reaches two feet, it does not Mutlaq.The former means water in general
carry dirt; (pure/impure), but the latter means specific
3. When skin has been tanned, it becomes clean; water (pure water).
4. All kaffarah because of ma’siyat must be settled 5. Opinions, in Usû l Al-Fiqh, are varied in the
as soon as possible. meaning of An-Naskh (Abrogation) i.e. is it
Raf‘ (Termination) or Al-Bayâ n (disclosure
or revelation).

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 LAW 3348 – Qawa`id Fiqhiyyah (Islamic Legal Maxim)

Legal Maxims Five Major Maxims Benefit of Maxims The position of Qawa`id
Fiqhiyyah in Shariah

 Legal maxims vary  The ulama have singled out  It is stated in the Mejelle
i. The ulama consider legal
concerning the level of five maxims are essence to that legal maxims are maxims as having high
abstraction & the scope that the Shariah. designed to facilitate a position in fiqh.
they cover.  Others are simply an better understanding of the - eg: the principle of
 Some are general elaboration of these. Shariah & the judge may not moderation, rukshah.
application  5 essential legal maxims: base his judgement on them - Have to practice according
 Some might apply to a i. Harm must be eliminated unless the maxim in to its ability and must be
particular area of fiqh, such (ad-dararu yuzal) question is derived from the sincere, eg: prayer, if
as: ii. Acts are judged by the Quran or Ahadith or
-`ibadah (worship) healthy must fully observe
intention behind them supported by other accordingly, if sick can be
-Mu`amalah (al-umuru bi evidence. sit or laydown while
(transactions) maqasidiha)  Shihab al-Din al-Qarafi
-Contracts, praying.
iii. Certainty is not overruled held the view that a judicial
-Litigation and by doubt (al-yaqinu la decision is reversible if it
-court proceedings. ii. They reflect clearly
yazulu bish-shakk) violates a generally principles and general rules of
 Al-qawa`id al-fiqhiyyah al- iv. Hardship begets facility accepted maxim. fiqh.
asliyyah (normative legal (al-mashaqqatu tazjlibu  as persuasive evidence
maxims) is the most at-taysir) iii. They can be related to the
comprehensive and apply to v. Custom is the basis of objectives of the Shariah.
the entire range of fiqh judgement (al-`adatu
without any specification. muhakkamatun) iv. They manifest the apex of
legal rules and their
approaches.

 The controller of the rules

relating to cases of fiqh on
the mukallaf’s acts.
 All these cases are bound
together by the maxims.
 Without theses maxims, all
cases of fiqh will remain
scattered and diverse –
apparently conflicting with
each other without any
binding principles that
could be used by scholars.

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 Legal maxims were
developed gradually and
the history of their
development in a general
sense is parallel with that of
the fiqh itself.
 These were developed
mainly during the era of
imitation (taqlid), as they
are in the nature of
extraction (takhrij) of
guidelines from the detailed
literature of fiqh that were
contributed during the first
three centuries of Islamic
scholarship, known as the
era of ijtihad.
 Some of the most important
of the maxims are basically
a reiteration of either the
Quran or the Ahadith.
 The actual wording of the
maxims are occasionally
taken from the Quran or
Hadith but are more often
the works of the leading
jurists and mujtahids that
have subsequently been
refined by other writers
throughout the ages.
LAW 3348 – Qawa`id Fiqhiyyah (Islamic Legal Maxim)
Origins & Development of Legal Maxims
The Origin…(in the Quran)
 al-Baqarah 2:220 – “Allah
distinguishes the plunderer
from the improver.”
 Al-Maidah 5:3 – “Anyone
who is obliged to do so
while (he is) starving, yet
without deliberately sinning
(will find) Allah is forgiving
and merciful.”
 Al-Baqarah 2:188 – “And
do not eat up your property
among yourself for
vanities...”
 Al-Hajj 22:78 – “he has
chosen you, and has
imposed no difficulties on
you in religion.”
 Al-Maidah 5:6 – “Allah does
not wish to place you in a
difficulty”
 Al-Maidah 5:1 – “O you
who believe! Fulfill all
obligations.”(in muamalat)
 Al-Muddaththir 74:38 –
“Every soul will be held in
pledge for its deeds.”
 Al-Shura 42:38 – “Who
conduct their affairs by
mutual consultation”
 Al-Nisa 4:128 - “And if a
woman fears cruelty or
desertion on her
husband’s part, there is no
blame on them if they
arrange an amicable
settlement between
themselves - and such
settlement is best…”
 “Hardship begets facility”
is a rewording of the
Quranic verses:
-Al-Baqarah 2:185 -
“God intends for you
ease and He does not to
put you in hardship” and
-Al-Maidah 5:6 – “God
does not intend to inflict
hardship on you.”
The Hadith
 Al-ajma’ jarhuha jubar –
There is no compensation
for one killed or wounded
by an animal.
 Matlu al-ghaniyyi zulm –
the delay to pay the debt by
a rich person is unjust.
 Al-walad li al-firash – the
child belongs to the
marriage bed.
 Al-Kharaj bid-daman - the
maxim “Profit follows
responsibility” is direct
rendering of a hadith in
identical words.
 Al-ijtihadu la yunqadu bi
mithlih – “a ruling of ijtihad
is not reversed by its
equivalent” has been
attributed to a statement of
the Caliph Umar ibn al-
Khattab which is also
upheld by the consensus of
the Companions.
 La darara wa la dirara fil-
Islam – “harm may
neither be inflicted nor
reciprocated in Islam.”
 The maxim “Acts are
judged by the intention
behind them” is also
rephrasing from the Hadith
that Innama al-a’maalu
bin-niyyah – “Acts are
valued in accordance with
their underlying
intention”
 The maxim “Custom is the
basis of Judgement” is
based on a statement of the
Companion, Abdullah ibn
Mas`ud that “what the
Muslim deem to be good is
good in the eyes of God”
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 The Hanafi Jurists were the
first to formulate the legal
maxims.
 Sufyan ibn Tahir ad-
dabbas (Iraqi jurist) –
collected the first 17
maxims.
 Abul Hassan al-Karjhi
(d.340) incrased the legal
maxims to 39 maxims.
 Some of the early maxims
that were compiled include
the following:
-“The norm is that the
affairs of the Muslims are
presumed to be upright
and good unless the
opposite emerges to be the
case”.
-“Question and answer
proceed on that which is
widespread and common
and not on what is
unfamiliar and rare”
-Dar’ al-masalihi awla
min jalb al-manaafi’ -
Prevention of evil takes
priority over the attraction
of benefit.
 The earliest collections of
maxims also included the
five leading maxims.
 Many scholars from various
schools added to these over
time and the total number
of qawa`id and dawabit
eventually exceeded twelve
hundred.
LAW 3348 – Qawa`id Fiqhiyyah (Islamic Legal Maxim)
Historical Development of Legal Maxims
Recent Development
 After the Hanafis, the  As-Suyuti : al-wilayah al-  Ibn Nujaym divided the  The recent by Muhammad al-
Shafi`is, then the Hanbalis, khassah aqwa min al- legal maxims into two Husayn Kashif al-Ghita bearing
and following them the wilayah al-`ammah, normative categories: the title Tahrir – al Mujalla is
Malikis. “Private authority is i. Leading maxims, and an abridgement and
 Malikis - as al-Zarqa has stronger than public ii. Subsidiary maxims commentary of the first 99
noted they had added their authority”.  The sixth leading maxims articles of the Ottoman Mejelle.
contributions to the -For example, the that he added to the
literature on legal maxims. authority of the parent and familiar five states la  The Majallah has been
 Shafiis scholar, `Izz ad-Din guardian over the child is thawaba illa bi al-niyyah compiled as a guide in the are of
`Abd as –Salam (d.660H), stronger than the ruler mean “No spiritual contracts.
Qawa`id al-Ahkam fi and the judge. reward accrues without  Many gulf countries have
Masalih al-Anam is noted as intention” incorporated provisions in the
one of the salient  La yunsabu li al-sakiti  That is why the ritual Majallah to their civil law acts.
contributions to this field. qawl – “No speech is prayer and most other acts  Shaikh Ahmad b Muhammad
 Hanbalis - `Abd ar-Rahman attributed to one who has of devotion are preceded al-Zarqa’ has written a
ibn Rajab al-Hanbali’s remained silent”, and at- by a statement of intention commentary of the legal maxims
(d.795) work Al-Qawa`id. tabi’u taabli’ – “the (niyyah). all of which are legal maxims
 The Mejelle collection attachment follows the incorporated by the Majallah.
written in the 1870s, principal”, which means:  Jurist and scholars are not  His book “Sharh al-Qawa`id al-
represents the most -For example, contracts unanimous on all of the Fiqhiyyah” becomes a standard
advanced stage in the and transactions that maxims. reference in legal maxims and
compilation of legal things that belong to one  However, the differences most of the examples are
maxims. another may not be are not very wide. relating to transactions.
 The twelfth century, Abu separated.  The Jafari School of the
Sa`id al-Khadimi compiled -Thus one should not sell Shi`ah have their own
Current Development
154 maxims in his work a yet-to-be-born animal collections of legal maxims,
entitled Majma’ al-Haqa`iq. separately from it’s but apart from some
mother, or living room differences in style, the  Development in Islamic banking
separate from the house. thematic arrangement in and finance has created new
their collections closely interest in the study of Islamic
resembles those of Sunni Legal Maxims.
counterparts.  A number of PhD research have
 The first Shi`i work on been carried out on legal
maxims was that of maxims relating to mu`amalat
`Allamah al-Hilli (d.726H) and other related subjects.
entitled al-Qawa`id.
 Followed by ash-Shahid al-
Awwal Jamal al-Din al-
`Amili’s (D.786) – al-
Qawa`id wal Fawa`id that
contained over 300 5
maxims.

Al-Qawâ‘id Al-Kubrâ
 Most of the scholar agree on
five maxims as Al-Qawâ’id
Al-Fiqhiyyah.
 Have the highest degree of
inclusiveness (of related
branches of Fiqh).
 These five maxims or
(Qawâ’id) are considered
the pillars of Islamic Fiqh.
 Imâ m As-Seyû tî mentioned
that judge Hussein Ibn
Muhammad Ibn Ahmad Al-
Marû dhî (d.462/1070)
summarized the entire
Shafi‘iy Madhhab in four
maxims or (Qawâ’id):
1. Qâ‘idah:
‫اليقن ال يزول بالّش ّك‬
Al-yaqîn lâ yazûl de ash-
shakk” (Certainty is not
overruled by doubt)”
2. Qâ‘idah:
‫المشّقة تجلب التيسير‬
Al-mashaqqah tajleb at-
tiysîr” (Hardship begets
ease)”
3. Qâ‘idah:
‫ال ضرر و ال الضرار‬
Lâ darar wa lâ dirâr ”
(There is to be no harm, and
no reciprocating harm)”
and
LAW 3348 – Qawa`id Fiqhiyyah (Islamic Legal Maxim)
4. Qâ‘idah:
‫العادة محّك مة‬
Al-’âdah muhakkamah”
(Custom is the basis of
judgement)”.
 Yet, many other scholars
add
5. Qâ‘idah:
‫االمور بمقاصدها‬
“al-umûr be maqâsidihâ”
(Acts are judged by the
intention behind them or
take the will for the deed)”.
Al-Qawâ‘id Al-Sughrâ
 At-Tufi from Maliki school  Ma‘â lim As-Sunan, written
 Restricted in term
 Can cover certain area, but
by Imâ m Suleimâ n Ahmad
Ibn Muhammad Al-Khattâ bî
also excluded in certain Al-Bustiy (d.388/998), is
area. one of many books that
 at-tabi’u taabli’ - “the explained the Sunnah and
attachment follows the contained many of the legal
principal”; for example, maxims. An example would
when slaughter a cow and be:
found that the cow was
pregnant, the cow inside
‫الشمك ال يزاحم اليقن‬
(Ash-shakk lâ yazham al-
the womb can be eaten and
yaqîn) Doubt does not
no need to slaughter again
refute certainty.”
because it comes with the
 The author deducted it from
mother’s cow.
the Hadîth:
 “when haram mixed
 Narrated ‘Alî that Suf yâ n
together with halal, it
that Az-Zuhrî that Sa‘îd ibn
becomes haram” – for
example,
al-Musiyb that ‘Abbâ d Ibn
-investment which did not Tamîm's cousin that the
Prophet had advised a
fully Islamic and Shariah
person who would
compliance, the Shariah
continuously imagine
Security Council rule that
something happening to
if it is not directly involved
in haram activities, then
him in his Salâ h. “Should an
individual imagine
it’s consider Shariah
something happening to
compliance.
-MAS is not Shariah him in his Salâ h, he should
not leave his Salâ h unless he
compliance because
hears sound or smells
served liquor in the
something”.
airplane.
 The result of ijtihad
cannot abrogated another
ijtihad.
-Umar make decision
which was different from
earlier decision made by
him on the similar case.
6