REVIEW OF ISLAMIC LEGAL MAXIMSOF MAHMASSANI’S FALSAFAT AL-TASHRI FI AL-ISLAM

WITH A SPECIAL REFERENCE TO AL-NADWI’S AL-QAWACID AL-FIQHIYYAH

Masyhudi MuqorobinUniversitas Muhammadiyah Yogyakarta, Indonesia

(masmubin@yahoo.com)

Books for review:Sobhi Mahmassani, 1980, Falsafah al-Tashric fi al-Islam, English translation by Farhat J. Ziadeh, Shah Alam, Malaysia, Penerbitan Hizbi, 1987. The original Arabic, Beirut, Dar al-cilm li al-Malayin.

 Special reference:

Ali Ahmad al-Nadwi, 1412H/1991M, Al-qawacid al-fiqhiyyah: Mafhumuha, Nash-atuha, Tatawwuruha, Dirasatu Mu-allafatiha, Adallatuha, Muhimmatuha, Tatbiqatuha, Dar al-Qalam, Damascus,.

NEED FOR THE QACIDAH The presence of Islamic legal maxim (al-qacidah al-fiqhiyyah) is

prerequisite for understanding the objectives (maqasid) of the Sharicah. In the eyes of both the usuliyyun and the fuqaha’, it is absolutely required aimed at performing their ijtihad to provide more applicable rules, derived from the original text. The maqasid of the Sharicah revealed to mankind to facilitate the ease of human being fall under three categories as follows:

1. Protecting the Dharuriyyat (basic necessities) of human being, which includes five elements: religion, life, intellect, linkage and property.

2. Fulfilling the Hajjiyyat (needs) of mankind for facilitating easiness of their life.

3. Achieving the Tahsiniyyat (amelioration) for public interest.Using these maxims, they can provide guidelines for solutions to the real

problems arising in different specific circumstances. Islam does encourage intellectual exercise along the line of the Sharicah. As widely known, this religion introduces distinguished ways of the exercise by making use of various methods of ijtihad, based on the Qur’an itself (Al-cAnkabut/29: 43), the main source of law and knowledge. There is popular tradition of the Prophet (pbuh) concerning the appointment of his companions, Mucadz Ibn Jabbal and Abu Musa al-Ashcari to be judges in Yemen and Egypt. Different perspectives between the Usuliyyun and the Fuqaha’ have generated two distinctive categories of maxims, al-qawacid al-usuliyyah, the maxims of usul, by the Usuliyyun, and al-qawacid al-fiqhiyyah, the maxims of fiqh by the fuqaha’.

DEFINITION AND MEANINGMahmassani defined the maxim(s) in a simple way, quoting al-Suyuti’s

definition, a general rule which applies to all particulars1, which is differentiated from dhabit. All of these are covered only in a five-line paragraph, which may lack of information. Difficulties in differentiating such 1 The Original Arabic is on page 297. See also note 8 of the section on definition above.

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terms may confront the readers with lack of understanding in Islamic jurisprudence. This necessitates the paper discussing it in a wider context with some other related terms in the following sections

In Milton Cowan’s (ed.) Dictionary of Modern Written Arabic, The word “qacidah” (or plural: “qawacid”) literally means: basis; foundation; groundwork; fundament; or base. It can also be translated as: precept; rule; maxim; formula; pattern; or method. This word is synonymous with the Arabic term “asas” or principle, on which, following al-Nadwi (1991), everything such as building; religion; and the like is established.

From the viewpoints of Islamic knowledge (sciences), al-Nadwi defined qacidah, in general as universal rule, which is applicable to all of its particulars. While clear-cut definition put forward by the fuqaha is not applicable to all, but to major, or majority of, cases. They define the qacidah as lots of particulars are applicable on it. Elaborating some views of the fuqaha of various Sunni schools, in comparison with the view point of the usuliyyun and of the nuhah (grammarian), al-Nadwi came to his own definition: “The Sharci (or legal) rule in the majority (legal) case from which it identifies the derived rules under its category”

He underlined the words “sharci”, to show its different from the “non-sharci” rule; and “aghlabiyyah” (majority; greater portion), which excludes the detail cases from the main part of the qacidah, and to differentiate itself from “kulliyyah” (totality; universal). The exclusion process in the latter part is equal to deriving methodology of qiyas (jalli) to select the proper rules in the usul fiqh. As a matter of deriving rules, Mahmassani argued, if detailed rules primarily elaborated in pioneering works of al-Ashbah wa al-Nazha-ir, stem from the same causes, it follows that they have common generally-applicable qacidah.

Al-‘Ashbah and Al-Nazha’irQacidah is a vital instrument in guiding the determination of particular

branches of Islamic Sharicah. Ash-Shiddieqie (1981) observed its importance in relation to deriving the rules, which also requires proofs and evidence. Therefore, some of the prominent fuqaha’ in the prior had compiled these qacidah into a set of sophisticated rules, namely al-Ashbah wa al-Nazha-ir.

These terms were originally used by the Caliph of cUmar ibn al-Khattab, when he sent Abu Musa al-‘Ashcari take the position of a judge in Basra, saying: “Know the semblances and the similitudes, and perform the qiyas on matters to their likes.” From this instruction, the fuqaha’ have agreed that the process of understanding those matters is equal to what the usuliyyun have derived the rules by means of qiyas.

Al-Nadwi said, as also amenable by Mahmassani¸ the writings on the qacidah al-fiqhiyyah under this title had started at the eighth century of Hijrah, by Ibn al-Wakil al-Shafici (716 H.); followed by Taj al-Din al-Subki (771 H.); Ibn al-Mulaqqin (804 H.); and then accomplished in the very genuine book which embodies most of the general maxims by Jalal al-Din al-Suyuti (911 H.) of the same school of thought (madzhab), al-Shafici. A Hanafi scholar, Ibn Nujaim (970 H.), who came later followed their counterpart from al-Shafici school, and made the writing confirm to his school.

AL-QACIDAH AL-FIQHIYYAH AND RELATED TERMSAl-Qacidah al-Fiqhiyyah, and Qacidah al-Usuliyyah,

The term al-qacidah al-fiqhiyyah, to many of those who are not familiar with Arabic, is likely to be confusing as associated with some related concepts such as al-qacidah al-usuliyyah; al-dhawabit al-fiqhiyyah; and al-nazhariyyah al-fiqhiyyah. Al-qacidah al-fiqhiyyah can be differed from the first, al-qacidah al-

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usuliyyah, in the sense that both are independent discipline of knowledge in Islam that have their own maxims. Al-Imam al-Qarafi al-Maliki was the first who distinguished these terms, in his Differences between the Maxims, quoted by al-Nadwi, he suggested that the Sharicah comprises usul (basic rules/principles) and furuc (branches). The former consists of two things:1. Al-qawacid al-usuliyyah: maxims of the rules resulting from the expression

of the Arabic terms, such as al-amru li al-wujub (the command is for obligations) and al-nahyu li al-tahrim (the ban for prohibitions) etc.

2. Al-qawacid al-fiqhiyyah : general maxims which comprise the inmost and secrecy of revelation and wisdom, from which the derived maxims are not found in the usul fiqh. The main feature of these maxims is that they are very large in number, in accordance with the leading fatwas and judgements.

Among the basic differences as expounded by al-Nadwi are:1. The former is a measure of, and a controlling device for, invention of the

correct rule from particular evidence; and its subject matters are permanent and lie between the proofs and the rules. While the latter is either a universal or a majority case, that the particulars of which are parts of legal problems; and its subject matters are also permanent

2. The former talks about universal or general maxim applicable to all of its particulars and its subject matters. Whereas the latter discusses majority in which the rule is applicable to most of its particulars, and it makes the rule be exceptional.

3. The former is a means of discovering/deriving the sharci rules and by this the latter can be distinguished.

4. The former comes into existence first as its existence is necessary, in accordance with the furuc, while latter comes up subsequently, talking about the furuc.

Al-Qacidah al-Fiqhiyyah, and al-Dhabit al-FiqhiTechnical meaning of the word “dhabit” is regulator; control; controlling

device. It can also be: general rule; canon; (moral) precept; or order. Al-Nadwi reviewed that its literal sense is, as observed by al-Nablusi, similar as qacidah, except in terminological meaning in the eyes of the fuqaha’, both are different in their scope and comprehensiveness. The qacidah classifies the particulars of various chapters, or comprises various legal aspects, Mahamassani added, while dhabit consists of only one chapter or legal aspect (of, even in, various details). Examples of both were also given by Al-cAllamah Taj al-Din al-Subki: Al-qacidah al-fiqhiyyah : Certainty is not dispelled by doubt” is unable to be

specified.Al-dhabit al-fiqhi : Every penance (kaffarah) caused by macsiyah

(disobedience) are penalized immediately. The word kaffarah, can be specified, as it is considered as dhabit, that includes dzihar (pre Islamic form of divorce); murder; sexual intercourse during (the day of) fasting time of Ramadhan; and the like.”

Al-Qacidah al-Fiqhiyyah, and al-Nazhariyyah al-FiqhiyyahAl-nazhariyyah means theory, from the word Nazhara (to see; to view; or

to perceive). It is a new terminology in (usul) fiqh. It appears only in discourses of modern Islamic jurisprudence. Al-Nadwi defined nazhariyyah al-cammah or general theory as “legal matters, or enactment that comprises legal problems or legal issues. Basic elements, conditions and the rules rise from any matter connected with legal aspect.” For example: theory of ownership, transaction

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theory, and theory of evidence. A theory requires more detail elements. Theory of evidence, for instance, needs real evidence/facts; testimony; conditions for testimony; procedures of testimony; withdrawal from testimony; responsibility of witness; confession or admission; complements/conditions; written evidence/proof; prior judgement; al-yamin (the oath); al-qusamah (the stronger oath under the name of Allah, using the words: Wa Allahi; Bi Allahi; and Ta Allahi) al-lican (sworn allegation, in case of adultery committed by either husband or wife).

General theory is differed from comprehensive maxim in Islamic fiqh, in the sense that the former is a “special maxim” categorized under the latter. Two main differences between these two were suggested by al-Nadwi:1. As discussed earlier, al-qacidah al-fiqhiyyah includes legal rules, under

which the number of furuc can be derived. For example, the maxim certainty is not dispelled by doubt contains legal rules in every aspect pertaining to the matter, where “certainty” and “doubt” are of mutual existence. Inversely, it is not the case for al-nazhariyyah al-fiqhiyyah to include any legal rule.

2. It is inevitable for al-nazhariyyah al-fiqhiyyah to take the detail elements and conditions into consideration, as never al-qacidah al-fiqhiyyah does.

To give a straightforward meaning of the differences, below are examples of developing theory of fiqh derived from a few numbers of Islamic legal maxims, as introduced by al-Nadwi, with some modification. Suppose the maxims on custom and usage

Art-36 Custom is authoritative Art-37 Public usage is conclusive and action must be taken accordance

therewithArt-38 A thing which is customary to regard as impossible is considered to be

impossible in fact.Art-39 It is undeniable that rules of law vary with change in time.Art-40 The original (real) meaning is to be regarded in favour of that

established by custom.Art-41 Effect is only given to custom where it is of regular occurrence or

when universally prevailingArt-42 Effect is given to what is of common occurrence, not to what happens

infrequentlyArt-43 A matter recognized by custom is regarded as if stipulated by

agreement.Art-44 A matter recognised customary amongst merchant is regarded as if

agreed upon between them.Art-45 A matter established by custom is like a matter established by a legal

text

From the collection of these maxims, a theory can be developed under the title “Theory of curf (Custom)”.

EVALUATION : GENERAL REMARKSAbout the Book and How It Was Translated

With regard to its English translation, Ziadeh in his note admitted the deletion of two minor parts: “A Historical Sketch of European Laws” for the reason of less importance; and the names of minor authors and works pertaining to Hanafi, Shafici and Hanbali. This is more ridiculous, since anything not necessary for him or for a certain purpose may be required by others, or for other purposes. Elimination of certain parts of a book to be translated may substantially reduce the meaning and origin of the book.

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In relation to the maxims, he in fact did not take into account the other minor parts, which are to him irrelevant -- for example in passages under subheading of the definition of maxims (Mahmassani, the Original Arabic Book: 297-300), as it includes several kinds of maxims. Nevertheless, the deletion in this part may, on the other hand, also be part of his affirmation pertaining to the second half.

As a matter of translation, readers’ perspective in discerning the author’s ideas of such a book are within the boundary of the view, perception, experience and other aspects of the translator, Farhat Ziadeh. However, he has attempted to do his best in this effort, as observed by Nabih Amin Faris of American University of Beirut in the preface of this work.

“The work has the good fortune of being Englished by one who has also practiced the legal profession both as an attorney and as a judge, and has been several years teaching the subject at Princeton University. Like the author, he combines an intimate knowledge of Western legal system and Moslem law alike.”

About the Book as in Its TranslationMahmassani’s book is considered a systematic effort in the field of usul

fiqh. However, the first point to be noted here is that it does not discuss any topic concerning philosophy, as regarded in the title of the book. The content of it is mostly dealing with usul fiqh, as a methodology of Islamic jurisprudence. Hence, the word “principles”2 or “methodology”3 may be more appropriate to be used instead of “philosophy”.

Having defined the meaning of Islamic jurisprudence (fiqh) and some related terms, the book advances historical background of the formation and development of Islamic schools of law, including both the Sunni and the Shici schools. While the second is not given enough space for elaboration in the book, the first school (Sunni) is spread over the chapters covering various branches in the schools including Hanafi, Maliki, Shafici, Hanafi and its other subdivisions. The most pages of this book are devoted to discuss the sources of Islamic law, which appear in two parts, Part III and Part IV. The rest, Part V, in which the hundred maxims from the Majallah al-Ahkam al-cAdliyyah of the Ottoman Civil Code observed through five sections, as mentioned earlier, are the emphasis of this review paper.

EVALUATION : ON THE MAXIMS4

The Content and StructureBasically, entire discussion of this part (Part V) is considered more than

a compilation of the Majallah’s maxims and added by the author’s commentary remarks. Fortunately, despite the weakness in defining the terms therein, using a thematic approach, he systematically groups the maxims according to certain related terms. This lets the readers grasp the clearer meaning of each maxim in such groups. On the basis of meaning and definition discussed in the prior sections, it is not an exaggeration to conclude that this lucid explanation is likely able to build a “general theory” under which, the readers can classify it into “theory of necessity”; “theory of intention”; and “theory of evidence”.

The distinction between ground and detailed maxims is not found in the reviewed book and in the Majallah as well. It is, otherwise, found in the texts of 2 Compare to Kamali’s Principles of Islamic Jurisprudence (1989) who observes the methodology of Islamic law in almost the entire book, without discussing the maxims. Nevertheless, he employ the word “principle” for such a book.3 Rahman (1965) prefers the word “methodology” to dicuss it.4 Regardless the omission in the translation, this section evaluates mainly Mahmassani’s Part V, “Maxims”, of the book as translated by Ziadeh, p. 146-207, unless otherwise noted.

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al-Ashbah wa al-Nadza’ir, to which the Majallah referred, in the writings of Taj al-Din al-Subki, al-Suyuti and Ibn Nujaim. Both the first two, the Shafici scholars, place the well-known five basic principle maxims into the first position, namely al-‘Asasiyah al-Khamsah, that are also found on the articles 2, 4, 17, 21 and 36 of the Majallah:

1. Art-2 Matters are determined according to intention2. Art-4 Certainty does not dispel caused by doubt. 3. Art-17Hardship begets facility.4. Art-21Necessity renders prohibited things permissible.5. Art-36Custom is authoritative.

The latter, Ibn Nujaim, preceded another principle maxim to the five, becoming his six “al-Qawacid al-‘Asasiyah”: “No merit or credit (arising from a pious deed) without intention therein”.

Article 15, “thing contrary to the qiyas, which is nullified of being used as a tool of establishing another qiyas,” disappears from the book reviewed (Ziadeh’s translation). The whole one hundred maxims as appear in the Majallah can be found in the Appendix 1 of this paper. The lacks found in this book may be due to fact that it is only an introduction to another book the author wishes to publish, concerning the general theory of contracts and obligations in Islamic law according to various schools. Appendix 2 provides summary of the treatises on maxims by Muslim jurists.

Theory of NecessityOnly two principle maxims, article 17 and article 21, obtain sufficient

elaboration by the author, and used as subheadings in this part of maxims. The most significance in this chapter is a methodological explanation by enumerating Islamic legal sources, like the Qur’an, the sunnah of the Prophet SAW, istihsan and also masalih al- mursalah.

In particular conjunction with such derived sources, the prior section of this paper treats necessities and needs, as usually discussed, in a special place of the discourses on the Maqasid al-Sharicah. Mahmassani also enumerated several opinions of distinguished Muslim jurists. Islam is actually a religion of “ease”, in the sense that Allah, “The Master”, hath not burdened human being beyond their capacity (Al-Baqarah/2: 286). Hence, in any special case of difficulty when emergency takes place, man is permissible to act something which is originally prohibited, article 21 says. Permissibility, however, is by no means of unlimited. Mahmassani enumerated three kinds of limitations under three categories: by the Texts; by extent; and by time.

In case of conflicting needs and other interests, some articles of the maxims are taken into consideration in this part. However, neither the reviewed book itself nor the Majallah provides answer to the conflict between prohibition and permissibility, except article 46, which may not be appropriate to completely answer it. The answer is available in the Ashbah: “In the presence of conflict between permissible and prohibited thing, prohibition is preferred to permissible.”

We have a case of bay al-dayn, which is permissible in Malaysia and otherwise in most Muslim countries, especially Middle East. This type of transaction is based on two traditions of the Prophet (pbuh), and nullified by some others. It is suggested, the prohibition of the transaction type is of preference; and thus conservative way of NOT having bay al-dayn is of importance, in reference to such a qa’idah.

On Intention

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The only principle maxim, article 2, “matters are determined according to intention” is incorporated here as the first subheading. This maxim is set on the basis of the tradition of the Prophet: “Deeds are judged by intentions and every person is judged according to his intention”. In Islam, the emphasis on intention is shown by giving preference to it over any expression of human being. It is supported by article 3.

As intention closely relates to wording, the meanings of words are, hence, also taken into account in every discussion on this topic, including the conflict between; real and metaphorical; explicit and implicit; and absolute versus restricted.

About the Theory of EvidenceIn a subsection concerning the difference of the maxim from the theory,

the discussion briefly expounded several elements of the theory of evidence. As also realized by the author, evidence or proof is one of supreme importance to administration of justice.

It is to note that the need for evidence, in term of al-bayyinah, is definitely introduced in the Qur’an (al-Hujurat/49 : 5). Allah hath reminded to the Muslims, that every aspect of report or news concerning any performance or act or even scandal of others in the community, particularly if emanating from persons who and whose attitude are not known, must be examined. This verse contains very general rule of producing evidence in every single reporting case, thus, not only applicable to penal cases but also any other cases including transaction, which is emphasized by the Majallah. Therefore, evidence must be established in order to reach the certainty in the judgement as “it must be given in respect to matter which has been proved at any particular time, unless the contrary is proved” (article 10); and avoiding from doubt, as “certainty is not dispelled by doubt” (article 4). Both are quoted in the reviewed book. Otherwise, it may cause to harm to either such accused persons (defendants) or reporters, as well as to the whole community.

In case of testimony, which is used for translation of the word shahadah or bayyinah al-shahsiyyah (personal evidence), the author seems to have carefully elaborated the Text and the opinions of the jurists, and to have drawn them in a systematic passages. In addition, he also gave several words with regard to conflicting testimony, in the last sections three and four and compared to the Lebanese Code of Civil Procedure, to which the author is relatively familiar. Despite many articles from the whole 1850 articles of the Majallah were quoted, only about three of hundred maxims are employed in these two sections, spread over approximately nineteen pages.

CONCLUSIONGenerally speaking, part V of the investigated Mahmassani’s Falsafat al-

Tashri fi al-Islam, consists of a compactly systematic and lucid explanation on maxims. In discerning such a book, particularly on that mentioned part, the paper needs to describe from its own point of view. However, to avoid from misleading and misunderstanding about fiqh’s terminology, another suggested book, al-Nadwi’s al-Qawacid al-Fiqhiyyah, is used as the main reference.

The need for the role of al-Qawacid al-Fiqhiyyah is considered in the effort of attaining the Maqasid al-Sharicah, in order to facilitate the society the ease of performing both worldly and religious duties. Al-Qawacid al-Fiqhiyyah, in this discussion based on the Majallah’s statements, are mostly found in the works of al-‘Ashbah wa al-Nadza’ir and some ather related works. The paper views that the contents of the reviewed part of the book are likely to form a general theory which comes under three chapters of such part: theory of need;

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theory of intention; and theory of evidence as also admitted by the author in his introduction.

REFERENCES

Kamali, Muhammad Hashim, 1989, Principles of Islamic Jurisprudence, Pelanduk Publication (M) Sdn Bhd., Petaling Jaya, Malaysia.

Rahman, Fazlur, 1965, Islamic Methodology in History, Islamic Research Institute, Karachi, Pakistan.

Shiddieqy, T.M. Hasbi, ash-, 1981, Pengantar Hukum Islam, Penerbit Bulan Bintang, Jakarta.

APPENDIX 1:

AL - MAJALLAH’SISLAMIC LEGAL MAXIMS

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Artic

le N

o. 1

INTRODUCTION TO LEGAL MAXIMS .... Muslim Jurists have grouped questions of jurisprudence under certain general rules each one of which embraces a large number of questions. These general rules are taken in the treatises on jurisprudence, as justification to prove these question. (This preliminary study of these rules facilitates the comprehension of the questions and serves to fix them on the mind.) Consequently the ninety-nine (99) rules of jurisprudence have been collected together ... Although a few of them, taken alone, admit of certain exceptions, their general application is in no way invalidated thereby, since they are closely interrelated.

- .... إن المحققين1المادة من الفقهاء قد أرجعوا

المسائل الفقهية إلى قواعد كليه، كل منها ضابط وجامع لمسائل كثيرة. ... فلذا جمع

قاعدة)99تسع وتسعون ( فقهية. ... وأن بعض هذه

القواعد، وان كانت بحيث إذا انفرد، يوجد من مشتمال ته

بعض المستثنيات، لكن ال تختل كليتها و عمومتها من

حيث المجموع، لما إن بعضها.يخصص ويقيد بعضا آخر

THE NINETY NINE LEGAL MAXIMS

2 Matters are determined according to intention بمقاصدها األمور

3In contracts effect is given to intention and meaning and not words and forms العبرة فى العقود للمقاصد

والمعاني ال لأللفاظ والمباني4

Certainty is not dispelled, (does not dispel caused), by doubt. بالشك يزال ال اليقين

بالشك يزول ال اليقين ) )5

It is a fundamental principle that a thing shall remain as it was originally األصل بقاء ما كان على ما

كان6 Things which have been existence from time

immemorial shall be left as they were. القديم يترك على قدمه7 Injury cannot exist from the time immemorial الضرر ال يكون قديما8 Freedom from liability is a fundamental

principle األصل براءة الذمة

9Non-existence is a fundamental presumption attached to intervening (transitory) attributes األصل فى الصفات العارضة

العدم10

Judgement shall be given in respect to any matter, which has been proof at any particular time, unless the contrary is proved

وما ثبت بزمان محكم ببقائهمالم يوجد دليل على خالفه

11It is a fundamental principle that any new event shall be regarded as happening at the time nearest to the present.

األصل إضافة الحادث إلىأقرب أوقاته

12 In principles, word shall be construed according their real meaning األصل فى الكالم الحقيقة

13No attention shall be paid to inferences (implication) in the face of an explicit statement

ال عبرة للداللة في مقابلةالتصريخ

14Where there is a text there is no room for interpretation المساغ لالجتهاد فى مورد

النص

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15A thing established contrary to the Qiyas can not be used as an analogy for other things ما ثبت على خالف القياس

فغيره ال يقاس عليه16 One legal interpretation does not destroy

another االجتهاد ال ينقض بمثله17 Hardship begets facility المشقة تجلب التيسير18 Latitude should be afforded in the case of

difficulty األمر إذا ضاق اتسع19 Injury may not be met by injury ال ضرر وال ضرار20 Injury is to be repaired. الضرر يزال21 Necessity renders prohibited things

permissible الضرورات تبيح المحظورات22 Necessity is determined by the extent thereof الضرورات تقدر بقدرها23

Whatever is permissible owing to some excuse ceases to be permissible with the disappearance of that excuse

ما جاز لعذر بطل بزواله

24When a prohibition is removed the thing to which such prohibition attaches reverts to its former status of legality

إذا زال المانع عاد الممنوع

25 An injury cannot be removed by a similar injury الضرر ال يزال بمثله

26A private injury is tolerated in order to ward off a public injury. يحتمل الضرر الخاص لمنع

الضرر العام27

Severe injury is removed by lesser injury. الضرر األشد يزال بالضرراألخف

28In the presence of two evils, the one whose injury is greater is avoided by the commission of the lesser

إذا تعارض مفسدتان روعي أعظمهما ضررا بارتكاب

أخفهما29 The lesser of evils is preferred يختار أهون الشرين30

Repelling an evil is preferable to securing benefit درء المفاسد أولى من جلب

المنافع31 Injury is removed as far as possible الضرر يدفع بقدر اإلمكان32 Need, whether a of a public or private nature,

is treated as necessity الحاجة تنزل منزلة الضرورة

33Necessity does not invalidate the right of another إن اإلضطرار ال يبطل حق

الغير34 When it is forbidden to take a thing it is also

forbidden to give it ما حرم أخذه حرم اعطاؤه35 When it is forbidden to perform an act it is

also forbidden to request to its performance ما حرم فعله حرم طلبه36 Custom is authoritative العادة محكمة37

Public usage is conclusive and action must be taken accordance therewith استعمال الناس حجة يجب

العمل بها38

A thing that is customary to regard as impossible is considered to be impossible in fact

الممتنع عادة كالممتنع حقيقة

39It is undeniable that rules of law vary with change in time. ال ينكر تغير األحكام بتغير

األزمان40 The original (real) meaning is to be regarded

in favour of that established by custom الحقيقة تترك بداللة العادة

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41Effect is only given to custom where it is of regular occurrence or when universally prevailing

إنما تعتبر العادة إذا اضطردتأو غلبت

42 Effect is given to what is of common occurrence, not to what happens infrequently العبرة للغالب الشائع ال للنادر

43A matter recognized by custom is regarded as if stipulated by agreement المعروف عرفا كالمشروط

شرطا44

A matter recognised customary amongst merchant is regarded as if agreed upon between them

المعروف بين التجاركالمشروط بينهم

45A matter established by custom is like a matter established by a legal text التعيين بالعرف كالتعيين

بالنص46

When prohibition and exigency conflict, preference is given to prohibition إذا تعارض المانع والمقتضى

يقدم المانع47 An accessory which is attached to an object

in fact is also attached to it in law التابع تابع48 An accessory to an object cannot be dealt

with separately التابع اليفرد بالحكم

49The owner of a thing held in the absolute ownership is also the owner of the things indispensable to the enjoyment of such thing

من ملك شيئا ملك ما هو منضروراته

50 If the principle fails, the accessory also fails إذا سقط األصل سقط الفرع51

A thing which has been discharged or annihilated cannot be restored الساقط ال يعود كما أن

المعدوم ال يعود52

When a thing becomes void, the thing contained in it also becomes void إذا بطل الشيء بطل ما فى

ضمنه53

When the original fails it is restored to its substitute إذا بطل األصل يصار الى

البدل54

A thing which is not permissible in itself, may be permissible as an accessory يغتفر التوابع ماال يغتفر فى

غيرها55

A thing which is not permissible by way of commencement, may be permissible by way of continuance

يغتفر فى البقاء ما ال يغتفرفى االبتداء

56 Continuance is easier than commencement البقاء أسهل من االبتداء57 A gift becomes complete by delivery ال يتم التبرع إال بقبض58

Management of citizen’s affairs is dependent upon public welfare التصرف على الرعية منوط

بالمصلحة59

Private trusteeship is more effective than public trusteeship الوالية الخاصة أقوى من

الوالية العامة60

A word should be construed as have some meaning, rather than disregarded إعمال الكالم أولى من

إهماله61

When the real meaning cannot be applied, the metaphorical sense may be used إذا تعذرت الحقيقة يصار إلى

المجاز62 If no meaning can be attached to a word it is

regarded altogether إذا تعذر إعمال الكالم يهمل63 A reference to a part of an indivisible thing is

regarded as a reference to the whole ذكر بعض ماال يتجزأ كذكر كله64 The absolute is construed in its absolute

sense, provided that there is no proof of a المطلق يجري على إطالقه ما

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restricted meaning either in the explicit text or by implication لم يقم دليل التقييد نصا أو

دالله

65A description with reference to a thing present is of no consequence, but the contrary is the case if such thing is not present

الوصف فى الحاضر لغو وفىالغائب معتبر

66 A question is considered to have been repeated in the answer. السؤال معاد فى الجواب

67No statement is imputed by to a man who keeps silence, but silence is tantamount to a statement where there is a necessity for speech

ال ينسب إلى ساكت قول، لكن السكوت فى معرض

الحاجة بيان68

In obscure matters the proof of a thing stands in the place of such a thing دليل الشيئ فى األمور

الباطنة يقوم مقامه69 Correspondence resembles conversation الكتاب كالخطاب70

The recognized signs of a dumb person take the place of a statement by word of mouth اإلشارات المعهودة لألخرس

كالبيان باللسان71 The word of an interpreter is accepted in

every respect يقبل قول المترجم مطلقا72 No validity is attached to conjecture which

obviously tainted by error ال عبرة للظن البين خطؤه

73No argument is admitted against supposition based upon evidence ال حجة مع االحتمال الناشئ

عن دليل74 No weight is attached to fancy ال عبرة للتوهم75

A thing established by proof is equivalent to a thing established by visual inspection الثابت بالبرهان كالثابت

بالعيان76

The burden of proof is on him who alleges; the oath on who denies. البينة على المدعي واليمين

على من أنكر77

The object of evidence is to proof what is the contrary to the apparent fact. البينة إلثبات خالف الظاهر

واليمين إلبقاء األصل

78Evidence is an absolute proof in that it affects third person; admission is relative proof in that it affects only the person making such admission

البينة حجة متعدية واإلقرارحجة قاصرة

79 A person is bound by his own admission المرء مؤاخذ بإقراره80

Contradiction and proof are incompatible, but this does not invalidate a judgment ال حجة مع التناقض والكن ال

يختل معه حكم الحاكم81

Failure to establish the principal claim does not imply failure to establish a claim subsidiary thereto

قد ثبت الفرع مع عدم ثبوتاألصل

82Anything dependent upon a condition precedent is established on the happening of the condition

المعلق بالشرط يجب ثبوتهعند ثبوت الشرط

83A condition must be fulfilled as far as possible. يلزم مراعة الشرط بقدر

اإلمكان84

Promises dependent upon a condition precedent are irrevocable المواعيد باكتساء صور

التعاليق تكون الزمة85 The enjoyment of a thing is the compensating

factor for any liability attaching thereto الخراج بالضمان

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86 Remuneration and liability do not run together األجر والضمان ال يجتمعان

87Liability is an obligation accompanying gain.(That is to say, a person who enjoys the benefits of a thing must submit to the disadvantage attaching thereto.)

الغرم بالغنم - ( يعني إن منينال نفع شيئ يحتمل ضرره )

88The burden is in proportion to the benefit and the benefit to the burden. النعمة بقدر النقمة والنقمة

بقدر النعمة

89

The responsibility for an act falls upon the author thereof; it does not fall upon the person ordering such act, provided that such person does not compel the commission thereof

يضاف الفعل الى الفاعل الاآلمر مالم يكن مجبرا

90In the presence of the direct author of an act and the person who is the cause thereof, the first alone is responsible therefore

إذا اجتمع المباشر والمتسببيضاف الحكم الى المباشر

91Legal permission is incompatible with liability الجواز الشرعي ينافي

الضمان92 Liability lies on the direct author of an act,

even though acting unintentionally المباشر ضامن وان لم يتعمد93 No liability lies on a person who is the cause

of an act unless he has acted intentionally اال بالتعمدءالمتسبب ال يضمن 94 No liability attaches in connection with injury

caused by animals of their own accord جناية العجماء جبار

95Any order given for dealing with the property of others is void األمر بالتصرف فى ملك الغير

باطل96

No person may deal with the property of another without such person’s permission ال يجوز ألحد أن يتصرف فى

ملك الغير بال إذنه97

No person may take another person’s property without legal cause ال يجوز ألحد أن يأخذ مال أحد

بال سبب شرعي98

Any change in the cause of the ownership of a thing is equivalent to a change in that thing itself

تبدل سبب الملك قائم مقامتبدل الذات

99Any person who hastens the accomplishment of a thing before its due time, is punished by being deprived thereof

من استعجل الشيئ قبل أوانهعوقب بحرمانه

100If any person seeks to disavow any act performed by himself, such attempt is disregarded

من سعى فى نقض ما تم منجهته، فسعيه مردود عليه

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APPENDIX 2:

SUMMARY OFISLAMIC LEGAL MAXIMS

BY FOUR SUNNI SCHOOLS OF LAW

A. The Qawaacid by the Hanafi ScholarsUsuul al-Karkhi (260-340 H.)

By : cUbaidullah ibn Hasan al-KarkhiContents: 36 maxims, namely al-caslComment by : Najm al-Din al-Nasafi

Ta’siis al-Nadzr By : al-Qadhi, cUbaidullah ibn cUmar ibn cIsa Abi Zaid al-Dabusi (430 H.)Contents: 86 maxims, mostly named as qawaacid al-Madzhaabiyyah

Al-Ashbaah wa al-Nadzaa’irBy : Zain al-Din ibn Ibrahim ibn Muhammad, Ibn Nujaim (970 H.)Contents: a. Qaacidah al-Asaasiyyah : 6 qawaacid

b. Qaacidah al-Furuuciyyah: 19 qawaacid ------------ total 25 qawaacid

=======Commentaries on Ibn Nujaim’s Ashbaah wa al-Nadzaa’ir1. Tanwiir al-Basaa’ir calaa al-Ahbaah wa al-Nadzaa’ir (1005 H.)

by cAbd al-Qadir Sharif al-Din al-Ghazzi.2. Ghamzu cUyuun al-Basaa’ir Sharh al-Ashbaah wa al-Nadzaa’ir (1098

H)

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by Ahmad ibn Muhammad al-Hamawi3. cUmdatu dzawi al-Basaa’ir li-Halli Muhtamaati al-Ashbaah wa al-

Nadzaa’ir (1099H.)by Ibrahim ibn Hussain, known as Ibn Biri, al-Makkati.

4. cUmdatu al-Naadzir cala al-Ashbaah wa al-Nadzaa’irby Abu Su c ud al-Husaini.

Majaamic al-Haqaa’iqBy : Abu Sa c id Muhammad ibn Muhammad al-Khadimi. ( 1176 H.)Contents: 154 maxims

Majallah al-Ahkaam al- cAdliyyah By : Committee of the ‘Ulama of the Daulah al- cUthmaniyyah (1286 H.)Contents : 99 maxims within 1851 articles.

Al-Faraa’id al-Bahiyyah fi al-Qawaacid al-Fawaa’id al-FiqhiyyahBy : Ibn Hamzah, Mahmood ibn Muhammad al-Husaini (1305 H.)Contents: 30 maxims

B. The Qawaacid by the Maliki ScholarsAnwaar al-Buruuq fi Anwaar al-Furuuq

Also well known as: Al-Furuuq; Kitab al-Anwaar wa al-Anwaa’; or Kitab al-Anwaar wa al-Qawaacid al-Sunniyyah.By : Al-Imam Shihab al-Din, cAbd al-Abbas Ahmad, al-Sonhaji, al-Qarafi (260-340 H.)Contents : 548 maxims

Al-QawaacidBy Muhammad ibn Muhammad ibn Ahmad al-Muqarri (758 H.)Contents : 100 maxims

Iidhaah al- Masaalik ilaa Qawaacid al-Imaam Maalik By : Ahmad ibn Yahya ibn Muhammad, al-Tilmisani, al-Winsharinsi (914 H)Contents : 118 maxims

Al-Iscaaf bi al-Talab Mukhtasar Sharh al-Manhaj al-Muntakhab calaa Qawaacid al-Madzhab

By : Al-Shaikh Abu al-Qasim ibn Muhammad al-Tiwani ( 995 H.)A Summary of a Comment on :al-Manhaj al-Muntakhab calaa Qawaacid al-Madzhab ( 912 H.)written by : Abu al-Hasan cAli ibn Qasim al-Zaqqaq, al-Fasi, al-TujibiComment by : Ahmad ibn cAli al-Fasi, al-Maghribi

C. The Qawaacid by the Shafici ScholarsQawaacid al-Ahkaam fi Masaadir al-‘Anaam

By : c Izz al-Din cAbd cAziz ibn c Abd al-Salam ( 577 - 660 H.)Contents : -

Kitaab Al-Ashbaah wa al-Nadzaa’ir Sadr al-Din Abi cAbdullah ibn Murahhil, Ibn Wakil al-Shafi ci (716 H.)Contents : -

Majmuuc al-Mudzhab fi al-Qawaacid al-Madzhab

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By : Salah al-Din Abi Sa cid al- c Ala’i Shafi ci (761 H.)Contents : 20 maxims

Comment : Mukhtasar Qawaacid al-cAla’iBy : 1. Al-cAllamah al-Sarkhadi (792 H.).

Combination with the writing of al-Isnawi on the same topic. 2. Al-cAllamah Ibn Khatib al-Dahshah

Combination with the speech of al-Isnawi on the same topic.

Al-Ashbaah wa al-Nadzaa’irBy : cAbd al-Wahhab ibn cAli Taj al-Din al-Subki (771 H.)Contents : 60 maxims

Al-Manthuur fi Tartiib al-Qawaacid al-Fiqhiyyah aw al-Qawaacid fi al-Furuuc By : Muhammad ibn Bahadur, Badr al-Din al-Zarkashi (794 H.)Contents : 100 maximsCommentary:Sharh calaa Qawaacid al-Zarkashi aw Haashiyah calaa Qawaacid al-

ZarkashiBy : Siraj al-din cUmar ibn cAbdullah al- c Abbadi (941-947 H.)

Al-Ashbaah wa al-Nadzaa’ir By : Siraj al-din cUmar ibn cAli al-Ansari, well known as: Ibn al-Mulaqqin

(804 H.)Contents : -

Al-Qawaacid (829 H.)By : Taqiyy al-Din Abu Bakr ibn Muhammad ibn cAbd al-Mu’min, al-HisniContents : -

Al-Ashbaah wa al-Nadzaa’irBy : Jalal al-din cAbd al-Rahman ibn Abi Bakr ibn Muhammad al-Suyuti

(al-Asyuti) (804 H.)Contents : a. 5 leading Shafi ci’s maxims (The Book 1);

b. 40 general maxims (The Book 2);c. 20 ‘ikhtilafi maxims and some rules, the similitudes and

the likes Al-Ashbaah wa al-Nadzaa’ir in Books 3-7.

Al-Istighnaa’ fi al-Furuuq wa al-Istithnaa’ By : Badr al-Din Muhammad ibn Abi Bakr ibn Sulaiman al-Bakri Contents: 600 maxims (some of them, as said by al-Nadwi, should be

classified as dhabit)

D. The Qawaacid by the Hanbali Scholarsal-Qawaacid al-Nuuraaniyyah al-Fiqhiyyah

By : Taqiyy al-Din Abu al-cAbbas Ahmad ibn cAbd al-Halim, ibn Taymiyyah

(661 - 728 H.)Contents : -

al-Qawaacid al-FiqhiyyahSharf al-Din Ahmad ibn al-Hasan, ibn Qadhi al-Jabal., al-Maqdisi. (771 H)Contents : -

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Taqriir al-Qawaacid wa Tahriir al-Fawaa’id (al-Qawaacid)By : cAbd al-Rahman Shihab ibn Ahmad ibn Abi Rajab (Ibn Rajab) al-Hanbali (795H.)Contents : 160 maxims

al-Qawaacid al-Kulliyyah wa al-Dhawaabit al-Fiqhiyyah (771 H.)By : Jamal al-Din Yusuf ibn Hasan ibn Ahmad ibn c Abd al-Hadi (1309-

1359 H.)Contents : -

(Qawaacid) Majallah al-Ahkaam al-Shar ciyyah calaa Madzhab al-Imaam Ahmad ibn Hanbal

By : Ahmad ibn c Abdullah al-Qari (1309-1359 H.)Contents : 160 maxims

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