Download Islamic Legal Maxims

Islamic Legal Maxims
‫القواعد الفقهية‬
Legal Maxims
(Qawaid Fiqhiyyah)
 Introduction
 The Meaning
 Discussion on Five Major Maxims
Introduction
 The general rules of Fiqh, which can be applied in
various issues.
 Used as principles to deduce many rules of Fiqh.
Without them many minor rules have no basis
which will make it hard to be solved. (Click)
 They are general rules which were derived from
various sources of Islamic Law
The Meaning
 al-Qawaid al-Fiqhiyyah = The principles of
Islamic Law
 Mustafa Ahmad al-Zarqa`
“General principles of Fiqh which are presented in a
simple format consisting of the general rules of
Shariah in a particular field related to it”
Five Major Maxims
• Al-Umur bi maqasidiha
Matters are determined according to intention
• Al-Yaqin la yazulu bi al-shakk
What is certain cannot be removed by doubt
• Al-mashaqqah tajlub al-taysir
Hardship begets facility
Five Major Maxims
• La darara wa la dirar
Harm shall not be inflicted nor reciprocated
• Al-‘Adah muhakkamah
Custom is arbitrary
Al-Umur bi maqasidiha
Matters are determined according to intention
 Intention
The will directed towards an action, or
The directing of the will towards the action of any
human being
 An act of any human being is judged in the
light of the intention or the purpose it seeks
to have effect.
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Origins of the Maxim
“‫”إمنا األعمال ابلنيات وإمنا لكل إمرى ما نوى‬
Narrated by ‘Umar r.a., the Prophet s.a.w. said: "Deeds
are judged by intentions and every person is judged
according to his intentions"
Application of the Maxim 1
 If a person finds something on the street or
anywhere else and took the object with the
intention of returning it to the owner, his conduct
is in order and he is considered as the keeper
(amin) of the item, but if he intends to keep the
item as his own, he is considered to be a person
wrongfully appropriating property (ghasib). The
physical act is identical in both cases but the
judgment therein differs according to the
intention.
Application of the Maxim 2
 If a person killed another person
intentionally, than doer should be killed
(qisas) if convicted, but if the crime is
perpetrated unintentionally, the punishment
is different in which case the paying of
blood money (diyah) is applied
The Purpose of Intention
A. To differentiate b’ween ‘Ibadah and ‘Adah
(custom or personal habit). For e.g., if a person
refrain from eating and drinking from dawn (fajr)
until sunset (maghrib) without having the intention
of fasting, the person is not considered as fasting.
This action is mere ‘Adah and will not be
rewarded. The same action if done with the
intention of fasting, it will be considered as
‘Ibadah and will be rewarded
B. To differentiate between one kind of ‘Ibadah and
another. For example in prayer, fasting, Ghusl and
hajj.
Branch of the Maxim
[‫]العربة يف العقود للمقاصد واملعاين ليس لأللفاظ واملباين‬
In contracts effect is given to intention and meaning and not
words and forms.
 This maxim gives the effect that in the event of a difference
between the intention and the outward expression in the
interpretation of contract, the judgement would be in accord
with the intention ad the meaning and not to the literal
wording. An intention should be made known to be efected. If
there is inconsistency between the intention and outward
connotation, effect should be given to the outward
connotation. Click
Example 2
 If a person fires a shot at another with the intention
of hitting him and does hit him, the doer is said to
have willed the action of firing and intended to hit
the other person.
 On the other hand, a person might fires towards a
certain object and accidentally hit a person, the
fact that the shooting is not directed to the person
indicates the intention of the person of not shooting
towards the person but it happened accidentally or
unintentionally. In this case the legal implication
will be different.
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Example
‫األصل بقاء ما كان على ما كان‬
The remaining of a thing in the state in
which it was found is the presumption
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Example 3
 A contract for the use of a thing is called a contract
of Ijarah (Hire/Lease) if remuneration is stipulated
in consideration of such a use, and it is a contract
of al-I’arah (Lease) if no such remuneration is
stipulated.
 If two persons conclude a contract ostensibly of a
loan but in consideration for which a specific rental
is provided for, the contract would be regarded as
al-Ijarah as its real meaning indicates, and not alI’arah as the wording of the contract would suggest.
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