An Overview of Islamic Legal Maxims

Qawa’id al-Fiqhiyyah are a set of universally applied principles to Islamic Law. They especially come in handy when dealing with unprecedented matters.

History of the Maxims

These Islamic legal maxims were not formulated at once. The conceptual underpinnings of these maxims and their definitions developed gradually when jurisprudence blossomed at the hands of leading jurists from the rank of derivative opinion-making (takhrīj) and rule-determination (tarjīḥ) as deduced from the indications of general legislative scriptural texts, the fundamentals of legal theory, the ratio legis of laws, and established rational premises.

Not every legal maxim was given a specific form by classical jurists except for those that were based on prophetic ḥadīths, e.g. lā ḍarar wa lā ḍirār (no harm shall be inflicted or reciprocated), or statements related from scholars of the legal schools and their senior acolytes that later functioned as legal maxims, e.g. the statement of Abū Yūsuf in al-Kharāj, “The ruler is not entitled to remove ownership of a thing from an individual unless it is due to an established, recognized right.” The majority of legal maxims, however, have taken their final form through scholarly usage, refinement, and modification in the areas of explication (taʿlīl) and deduction (istidlāl). The explication of ijtihād-based legal injunctions and the modes of analogical deduction have served as major resources in shaping these maxims after the establishment of the major schools of law and the efforts of their leading partisans in refining and organising their principles and evidence.

The high-ranking jurists of the Ḥanafī legal school­—the earliest of the four legal schools—seem to have paved the way in shaping these universal juristic concepts in the form of legal maxims and adducing them as proofs while the partisans of other schools followed suit. These maxims were called uṣūl, as mentioned by al-Qarāfī. Those who wrote books on maxims and legal commentators state while explicating laws, “Such and such is from the uṣūl of Abū Ḥanīfah” citing some of these maxims, as can be found in al-Dabūsī’s Taʾsīs al-Naẓar and al-Karkhī’s Qawāʿid.

The following account related by Ibn Nujaym in the prolegomena of al-Ashbāh wa al-Naẓāʾir is possibly the earliest collection of these maxims in the Ḥanafī legal tradition. Abū Ṭāhir al-Dabbās, a blind scholar who lived in the 3rd and 4th centuries AH, summarized the most important principles of the Ḥanafī legal school in seven universal maxims. Ibn Nujaym writes that the Shāfiʿī jurist Abū Saʿīd al-Harawī related some of these maxims from Abū Ṭāhir, among which were the five major maxims, regarded as the origin of maxims and the foundation of legal rulings based on scripture and ijtihād. These are:

  1. al-umūr bi maqāṣidihā (actions are judged by their intentions;
  2. al-ḍarar yuzāl (harm should not persist);
  3. al-ʿādah muḥakkamah (custom is given authoritative status);
  4. al-yaqīn la yazūl bi al-shakk (certainty is not overruled by doubt);
  5. al-mashaqqah tajlib al-taysīr (hardship begets ease).

Imām Abū al-Ḥasan al-Karkhī’s Qawāʿid is the earliest extant treatise on these maxims. Imām Abū Ḥafṣ ʿUmar al-Nasafī al-Ḥanafī (d. 537 AH) commentated and elucidated the treatise with examples. Al-Karkhī clearly worked on, and added to, the maxims Abū Ṭāhir collected; al-Karkhī provided 37 maxims while al-Dabbās only formulated seven. The reader of al-Karkhī’s Qawāʿid will notice that some of them are not maxims in the sense we have defined. They are merely instructive thoughts for the partisans of the legal school vis-à-vis the explication of laws, such as, “Every verse of the Qurʾān that conflicts with the opinion of our scholars will be harmonized based on abrogation, preference, or interpretation.”

We learn from the above that the formulation and compilation of these maxims began at the close of the 3rd century AH. The juristic understanding of these maxims was well-known by the mujtahid imāms, seen as academic principles utilized for analogy, derivation, and explication even though they were not compiled or given their final form at the time. These maxims are different from Uṣūl al-Fiqh (legal theory), that is, the science that provides a methodology for the hermeneutics, deduction, and comprehension of scripture.

Thereafter, Imām Abū Zayd al-Dabūsī al-Ḥanafī authored Taʿsīs al-Naẓar in which he incorporated a substantial number of maxims on specific subjects as well as universal maxims alongside derived rulings. Then the erudite Egyptian scholar, Zayn al-ʿĀbidīn Ibrāhīm ibn Nujaym (d. 970 AH), in the first section of al-Ashbāh wa al-Naẓāʾir, presented 25 maxims which he divided into two categories. First, fundamental maxims like pillars in the legal schools. These are six maxims: the five mentioned earlier and lā thawāb illā bi al-niyyah (reward requires intention). Second, 19 less expansive maxims in various subjects from which certain peripheral maxims and many legal injunctions were derived. Ibn Nujaym has explained extensively the peripheral laws that were derived from these maxims.

In the mid-12th century AH, the Turkish Ḥanafī jurist Muḥammad Abū Saʿīd al-Khādimī, who wrote the marginalia on al-Durar Sharḥ al-Ghurar, wrote a primer on legal theory entitled Majāmiʿ al-Ḥaqāʾiq which he concluded with a large selection of universal legal maxims. He presented them without commentary and organized them alphabetically;154 maxim in total. Some of these maxims were instructive thoughts—as in the case al-Karkhī’s Qawāʿid—others interchangeable terms, and the rest were legal maxims that comprise constitutional laws. Al-Khadīmī took most of these from Ibn Nujaym and then expounded upon them.

Next came the opening of Majallat al-Aḥkām al-ʿAdliyyah, which comprised 99 maxims—after an article on the definition and typology of jurisprudence—selected from the collection of Ibn Nujaym and al-Khādimī with additions.

In al-Farāʾid al-Bahiyyah fi al-Qawāʿid al-Fiqhiyyah, Shaykh Maḥmūd Ḥamzah, the Muftī of Damascus during the reign of Sulṭān ʿAbd al-Ḥamīd, carried out an exhaustive collection of maxims and principles related to the major juristic subjects outside the maxims of the Majallah by providing examples and organizing them per the conventional juristic chapter sequence. However, there were few legal maxims per the definition we provided earlier—as in the case of the Majallah. Under the heading of maxims, the book mainly consisted of peripheral guidelines and foundational laws on specific subjects. The author also has a specific treatise on the maxims of Waqf (endowments).

This was a brief overview of the formulation and collection of legal maxims in the Ḥanafī legal school. A study of authorship on legal maxims reveals that the Shafiʿī jurists then the Ḥanbalī jurists then the Mālikī jurists followed the Ḥanafīs; it then moved on to the Shīʿī scholars. The 8th century AH was the most prolific century for these works as is clear to anyone who examines the catalogs of the prominent libraries. It should be noted that many of the works known as al-Ashbāh wa al-Naẓāʾir, such as those of the two Shāfiʿīs al-Tāj al-Subkī and al-Jalāl al-Suyūṭī, comprise many of these maxims. In the introduction of his Ashbāh, even Ibn Nujaym explained that he used al-Subkī’s book as a template.

The most prominent printed works on the study of maxims or those that bear that title from the three legal schools besides the Ḥanafī school are the following: 1) Qawāʿid al-Aḥkām fī Maṣāliḥ al-Anām by the Shāfiʿī jurist ʿIzz al-Dīn ʿAbd al-ʿAzīz ibn ʿAbd al-Salām (d. 660 AH); 2) al-Furūq by the Mālikī jurist Shihāb al-Dīn al-Qarāfī (d. 684 AH), a student of al-ʿIzz ibn ʿAbd al-Salām; 3) al-Qawāʿid by the Ḥanbalī jurist ʿAbd al-Raḥmān ibn Rajab (d. 795 AH). Despite their invaluable status, these works do not consist of maxims per the definition we provided earlier, i.e. jurisprudential and constitutional dicta illustrative of universal laws in a few comprehensive words. These books, however, comprise typologies and foundational guidelines on broad jurisprudential subjects.

The five Legal Maxims

Here is a summary of the Five Maxims.

Legal Maxim 1 – الأموربمقاصدها – Acts are judged by the intention behind them

The meaning of this axiom is that all matters are connected to the intentions behind them. The basis for this is in the hadith “Acts are judged in accordance with the intention behind them.” Some scholars like the Shafi’s say formulating an intention is obligatory for the act to be valid like making an intention for wudu, but others like the Hanafis, say, the intention is not a condition for validity, but make them incomplete or unrewarded.

Secondary principles derived from this maxim:

  1. Contractual stipulations are to be understood by their intended meaning, not strictly by their wording or formulation.
  2. Intention generalizes the specific, and specifies the general.
  3. The intention of the oath-taker determines.

Legal Maxim 2 – اليقين لايزال بالشك – Certainty is not overruled by doubt

The meaning of this is, when one is unsure, then he should act on what he is sure about. 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.”

Secondary principles derived from this maxim:

  1. The presumption that a thing remains as it was originally (unless definitely altered)
  2. The presumption of innocence
  3. The presumption that what is established with certainty is not altered except with certainty
  4. The presumption to regard qualities and things depending on whether they are accidental or essential
  5. The presumption to attribute an incident to the nearest occasion
  6. That the general presumption in matters for the general populace is permissibility
  7. That the general presumption in economic transactions is impermissibility
  8. Give no weight to evidence in the face of explicit testimony
  9. Do not attribute speech to the silent
  10. Give no weight to speculation
  11. Give no weight to suspicions in offenses
  12. A habitual prohibition is like a definite prohibition
  13. Do not dispute the consequences of a proof

Legal Maxim 3 – المشقة تجلب التيسير – Hardship must be alleviated

This means the scholars must seek to make matters easy for the people. 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 mentions some dispensations in the sacred law:

  1. Travel
  2. Illness
  3. Coercion
  4. Forgetfulness
  5. Being ignorant of a ruling
  6. Difficulty
  7. Decrease

Secondary principles derived from this maxim:

  1. If a matter is difficulty, ease it.
  2. If a matter is easy, straiten it.
  3. Necessity renders the prohibited permissible.
  4. What necessity makes permissible is permitted only to the extent of the necessity.
  5. What is permitted with due cause is again prohibited without it.
  6. A universal need is a necessity.
  7. Necessity does not trump the rights of another.
  8. If the principle cannot be satisfied, it falls to its equivalent.

Legal Maxim 4 – الضرر يزال – Harm must be eliminated

This means one must eliminate harm. Evidence for this lies in the Prophetic hadith, “There is no inflicting harm (darar) or returning harm (dirar) [in Islam].” The former is done without cause, while the latter is performed with cause. For example, one whose possessions injure a neighbour has a responsibility to remove the source of the injury or hardship.

Choosing between various action to remove Harm must be applied according to the scale of priorities under the Maqasid Shariah a) Religion b) Life c) Mind d) Lineage or e) Property

Secondary principles derived from this maxim:

  1. Rrepel harm to the extent possible
  2. Remove harm
  3. An greater harm is removed with a lesser harm.
  4. A particular harm can repel a general harm.
  5. Averting what corrupts is more important than generating what benefits.

Legal Maxim 5 – العادة محكمة – Custom is the basis of judgement

This is something widely known by individuals or society either by: a) Word b) Action or c) Abstinence, in the absence of text. Or practices which are acceptable by people of sound nature, with general or universal acceptance by a country or particular generation. It must not contradict the established law.

This can be understood with reference to the Prophetic hadith, may peace and blessings be upon him, “What Muslims hold to be excellent is deemed excellent by God.” Al-Suyuti held, in his al-Ashbah wal-naza’ir, that every transmitted but unrestricted legal injunction that cannot be specified with reference to another authority or linguistic analysis should accede to communal custom. Certain other scholars commented: the entirety of the law is based on a single principle, namely, convening what benefits and repelling what corrupts.

Secondary principles derived from this maxim:

  1. What is in practice ought to be followed
  2. Something becomes custom when it is generally adopted and becomes predominant
  3. Weight is given what is predominant and common, not what is rare
  4. Writing is considered like an oral expression.
  5. A conventional gesture is considered like verbal speech.
  6. Custom has the force of a contractual stipulation.
  7. Something identified by custom has the force of something identified by a text.
  8. The established practice of a community is considered like a stipulation between them.

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