Islamic Legal Maxims PDF by Prof. Amanullah

ISLAMIC LEGAL MAXIMS (‫)دعوقدلا دعاوقلا‬ Definition of Legal Maxims (Al-Qawa`id al-Fiqhiyyah)  Literal Meaning p Meaning of Qawa`id p The term “legal maxims” is the translation of the Arabic term “qawa`id fiqhiyyah” which consists of two words “qawa`id” and “fiqhiy...

ISLAMIC LEGAL MAXIMS (‫)دعوقدلا دعاوقلا‬ Definition of Legal Maxims (Al-Qawa`id al-Fiqhiyyah)  Literal Meaning p Meaning of Qawa`id p The term “legal maxims” is the translation of the Arabic term “qawa`id fiqhiyyah” which consists of two words “qawa`id” and “fiqhiyyah.” The word “qawa’id” is the plural form of the word “qa`idah,” which literally means base, basis, foundation, groundwork, ground, bottom, fundamental, foot, seat, support, rule, principle, maxim, norm, standard, rubric, canon, model or method.  Cont… of Literal Meaning p Among these literal meanings, the meaning of basis or foundation is mentioned in the Qur’an. Allah says in the Qur’an : p ‫َذيّبذْ ْذِإعوَذْلإلَي دعويذلولإ َإِذ دعووذقذدلإاذ ِإيوَذدرإلِي ُذَوْذَي ْذِإَو‬ ‫دعيوَا[ دعوِذَإلِي دعَِّإلَي َذّلذ ِإِّّذ َإبّْ لذوذيَّو‬:127 And remember when Abraham and Ismail were raising the foundations of the house –Ka`bah- (with this prayer): our Lord! Accept (this service) from us: You are all hearing, all knowing. The meaning of ‘maxim’ is widely used.  Meaning of Fiqhiyyah p The word fiqhiyyah is derived from fiqh, which means to understand, to have knowledge and intelligence, to comprehend and to be skilled in the law. According to ibn Manzur, fiqh is to know and understand something, or to have mastery of religious science. p Fiqh refers to Islamic Law or knowledge about the Islamic Law. Cont… of the Meaning of Fiqhiyyah p In Brief we might say that the word of - ‫ قعاوقلا‬refers to – Principles/maxims, and the word of ‫ – قعفاا‬in this regard refers to Islamic Law. Therefore, when we combine both of them, we might say that al-qawaid al-fiqhiyyah means Islamic legal Maxims  Technical Definition of al-Qawa`id al- Fiqhiyyah p According to Mustafa Ahmad al-Zarqa`: ‫يهّقْ دعاوقلا دعوقدلا َصقص ْوقلا يَلاة ْق ّلقص‬: " p ‫َق ةا ععًقَُاة لًاَِ َأ َْض ل َُِلا لَْا ْق‬ "ْ‫دع قدعو دعًق لالَ ل ل َق قلْلق‬ “Qawa’id fiqhiyyah is referred to the General principles of fiqh which are presented in short statements in the legislative form (dusturiyyah), consisting of the general rules of Shari`ah within its scope. ”  Continue… p According to Imam al-Jurjani and Imam al- Fayumi, Qa`idah Fiqhiyyah is: p "ْ‫"هالا يَلّا َبىيوا لَط َلَ ةكلْلق‬ “A general principle which applies to all of its related particulars”. According to Imam Taj al-Din al-Subki, Qa`idah Fiqhiyyah is: “‫"َََ يَيق ُبىيع لَط ةكلْل يرلَا‬ “A general matter which applies to many particulars”  Continue… Dr Akram Laldin in his book of Introduction to Shariah and Islamic Jurisprudence has mentioned that al-Qawa’id al-Fiqhiyyah or legal maxims are : General rules of fiqh, which can be applied in various cases that come under the common rulings. These legal maxims, as he added, have a great role in the formation of Islamic law because they are used as principles to deduce many rules of fiqh. Many cases, as he perceived, can be referred to these maxims for solutions; and in many instances, they can be the measurement for the validity of certain deeds.  Continue… Prof. Hashim Kamali in his writing on legal maxims says as follows: Legal maxims (al-qawa‘id al-fiqhiyyah) are theoretical abstractions, usually in the form of short statements, that are expressive, written in a few words, discussing about the fundamental principles in Islamic Law Therefore, we might say that Legal maxims of fiqh are statements of principles that are derived from the detailed reading of Muslim jurists on various verses of the Qur’an and ahadith of the Prophet and other sources, to be used as the reference, in order to deduce the rules of fiqh on various issues. p Summary of the definition of al-Qawa`id al- Fiqhiyyah (Legal Maxim): p They are written in a few words but provide comprehensive meanings. p They are used as principles to deduce many rules of fiqh. Therefore, they have a great role in the formation of Islamic Law. p They are general rules which were derived from various sources of Islamic Law.  An Example of Islamic Legal Maxim ‫""دعاََْدل ليلت دعَ رقَدل‬ "Necessity renders prohibited things permissible.“ This legal maxim provides rulings for various issues of fiqh, such as:  1-Permissibility for someone to eat dead animal ( ‫ )َلًا‬in the case of hunger that might cause him to die. 2- Permissibility for someone to utter the word of disbelief (‫ )دع اَ ي ََا لَات‬in the case of duress ( ‫ )ِيَدإ‬that might cause him to be killed. 3- Permissibility to throw the properties ( ‫ )دعَْص ِلتإ‬from a boat into the sea, if its owner fears that the properties will cause the boat to sink. Benefits of the study of Legal Maxims The study and memorization of Islamic Legal Maxims will provide various benefits to a jurist, a mujtahid, a judge, an imam and a mufti. Some of these benefits are as follows: 1-These maxims have great legal importance fo r the fo undatio n o f I s la m i c l e g i s l a t i o n because they bring together various branches (furu’) of fiqh, that sometimes seem to be in conflict with each other, into one single principle known as fiqh principle/maxim, for easy reference in the case of necessity. 2-The study of these maxims facilitates the Ulama’ (Muslim scholars) who are not expert in fiqh to observe various issues in fiqh, understand various fiqhi rulings and comprehend various rights and obligations in fiqh. 3-The study of legal maxims provides the researcher with a strong legal ability (malakah fiqhiyyah), which becomes a light for him to study various wide fields of fiqh, that enable him to understand Islamic rulings, as well, to be able to come out with solutions of various new and repeated problems encountered in our time. 4-The study of the legal maxims also helps a jurist to relate various topics of fiqh by putting all of them into one single principle, which will facilitate him to remember the legal rulings. 5-Study and comprehension of legal maxims help the judges, muftis and rulers to know the solutions of various issues easily. 6-As the majority of legal maxims are the subject of agreement among Muslim jurists, except a few of them, their study will provide a researcher with the ability to compare between the views of various schools of Islamic law (madhahib), and clarify the reasons of differences among them.  Some Classifications Of Al-Qawa’id Al- Fiqhiyyah  Continue… Some legal maxims are of general application, whereas others might apply to a particular area of fiqh, such as ‘ibadah (worship), mu‘amalah (transactions), contracts, litigation and court proceedings. Ibn Juzay al-Maliki, through his book Al-Qawanin al- Fiqhiyyah, identified and discussed the legal maxims and said that the most comprehensive and broadly based maxims are known as “al- qawa‘id al-fiqhiyyah al-asliyyah al-kulliyah”, or the comprehensive normative legal maxims, and these kinds of legal maxims apply to the entire range of fiqh without any specification.  Continue… Jurists said that these kinds of legal maxims are acceptable by all madhahib. Maxims such as “Harm must be eliminated” (Ad-darar yuzal) and “Acts are judged by the intention” (Al-umuru bi- maqasidiha) for example, belong to this category of maxims. The early ‘ulama have singled out five of the legal maxims and they are considered as the essence of the Shari‘ah as a whole, and the rest according to them, are simply an elaboration of these five maxims. These five are as follows:  Continue… 1- “Harm must be eliminated” (Ad-darar yuzal) 2-“Acts are judged by the intention” (Al-umur bi- maqasidiha) 3- “Certainty is not overruled by doubt” (Al-yaqin la yazulu bi al-shakk). 4- “Hardship begets facility” (Al-mashaqqah tujlab at-taysir). 5- “Custom is the basis of judgement” (Al-‘addatu muhakkamatun)  Continue… An example of a legal maxim which is used only in a particular field of law is: “The affairs of the imam or khalifah concerning his people are judged by reference to public interest (maslahah)” (Amr al-Imami fi shu’un ar-ra‘iyyati manutun bil-maslahah). This legal maxim is basically used in Islamic political affairs between the ruler and his people. Therefore, this legal maxim is difficult to be used in other matters, except the affairs of the people or the activities of their imam or khalifah. HISTORY OF WRITING AND DEVELOPMENT OF AL-QAWA`ID AL- FIQHIYYAH If we look closely to the various legal maxims that have been written and produced by the Muslim jurists, it can be seen that the actual wordings of the maxims are occasionally or rarely taken from the Qur’an or Ahadith. However, most of the time, these legal maxims are the writings of leading jurists and mujtahids that have subsequently been refined by others throughout the ages.  Continue… According to Muslim jurists, Legal Maxims have existed since the very beginning of Islam. They said that since, in the time of Prophethood (Risalah), there were various sayings which represent the essence of Legal Maxims.  Continue… It is understood that Legal Maxims are theoretical abstractions, usually in the form of short statements, that are expressive and communicative, often in a few words, telling about the goals and objectives of the Shari‘ah ( ََ‫)دع َِ قد‬. Therefore, according to Muslim jurists, when Allah (s.w.t.) revealed various verses, He sometimes used short statements, a few words, which are expressive and communicative, and provide a very comprehensive and inclusive meaning. The Prophet Muhammad (p.b.u.h.) also, in some of his ahadith, used short statements, a few words, which are expressive and communicative, and provide a very comprehensive and inclusive meaning.  An example of Allah’s short statements is:( ‫َْأَ أ‬ ْ‫( )دعيلَ ْأَو دعَي‬Allah made trading as lawful, while he forbade usury). An example of the Prophet’s short statements is: ( ‫( )يَدعيلبا لَط دعَالق ْدعلَلِ لَط َِ َا‬The burden of proof is on him who alleges; while the oath is on him who denies.“ These short statements are considered as similar to Islamic Legal Maxims, which consist of few words, but having deep and comprehensive meanings.  Continue… Therefore, according to Muslim jurists, the history of qawa’id fiqhiyyah basically started since the Prophet’s (s.a.w.) time. However, later on, it was developed by Muslim jurists, from different madhahib, throughout the history of Muslims.  Continue… - We must bear in our mind that all Al-Qawa’id al- Fiqhiyyah were not written at once by a particular scholar, but were developed by the jurists at the time of the resurgence of fiqh, especially during the prolong period of Abbasid dynasty. - Among the earliest jurists who developed most of the Fiqh maxims are the jurists of the Hanafi school. - The earliest compilation in the form of a note of these maxims was written by Abu al-Hasan al-Karkhi, and Sufyan ibn Tahir al-Dabbas. - In the 15th century of hijrah, Abu Zayd ‘Abdullah b. ‘Umar Al-Dabbusi wrote his famous book on legal maxim called: Ta’sis al-Nazar  Continue… Many scholars from various schools added to these writings and the total number of qawa‘id fiqhiyyah eventually exceeded 1200. After the Hanafis, Shafi‘is, then the Hanbalis, and following them the Maliki jurists wrote various maxims. Taj al-Din al-Subki wrote the most important work on legal maxims called: ‘al-Ashbah wa al- Naza’ir’ as the title of his book. Jalal al-Din al-Suyuti and Zayn al-‘Abidin ibn Nujaym al-Hanafi, also wrote books on legal maxims that closely resemble one another, both bearing the same title of: “Al-Ashbah wa al- Naza’ir”.  Continue… The leading Shafi‘i scholar, ‘Izz al-Din ‘Abd al- Salam wrote a book called: Qawa‘id al-Ahkam fi Masalih al-Anam, which is considered to be one of the greatest contributions to this field. Also ‘Abd al-Rahman ibn Rajab al-Hanbali wrote a book called : Al-Qawa‘id. The Ja‘fari School of the Shi‘ah have their own collections of legal maxims, but apart from some differences in style, the thematic arrangement in their collections closely resembles those of their Sunni counterparts.  Continue… The first Shi‘i work on maxims was that of ‘Allamah al-Hilli , entitled Al-Qawa‘id, followed by ash-Shahid al-Awwal Jamal al-Din al-‘Amili called : Al-Qawa‘id wa al- Fawa’id that contained over 300 maxims. However, the Mejelle collection ( ‫دعِاعلا دكأ ْو َلَا‬ ), represents the most advanced stage in the compilation of legal maxims. The more recent work of Muhammad al-Husayn Kashif al-Ghita’, bearing the title : Tahrir al- Mujalla, is a synopsis and commentary of the first 99 articles on legal maxims of the Mejelle collection. DIFFERENCE BETWEEN QAWA`ID & DAWABIT FIQHIYYAH  Difference Between Qawaid & Dawabit Fiqhiyyah Besides the term qawa’id fiqhyah, there is another term which is quite similar to it and that is dawabit fiqhiyyah. The scope of qawai’d fiqhiyyah is not limited to one field of fiqh; while th e s c o pe o f daw abi t fiqhiyyah is confined to only one particular field of fiqh. This distinction has been mentioned by al- Maqqari al-Maliki (d.758 H). He stated that qawai’d fiqhiyyah is more general than dawabit fiqhyah.  Continue… According to `Abd al-Rahman ibn Jad Allah al- Banni (d.1198 H), qawa’id fiqhiyyah is used in a general context and is not used for specific fiqh issues. Taj al-Din al-Subki (d.771 H) explained the differences between the terms qawai’d fiqhiyyah and dawabit fiqhiyyah. He said that among the qawa’id, some are not tied to a specific issue such as al-yaqin la yazulu bi al-syakk (what is certain cannot be removed by doubts).  Continue… But there are qawa’id that are used specifically for one fiqh issue such as kullu kaffarah sababuha ma’shiyah fahiya ‘al al-fawri (every expiation that is caused by sinful act, has to be performed immediately). A specific qa’idah that is used for one particular fiqh issue (Kaffarah in this case) is called dhabit and its plural is dawabit.  Some more Examples of Dawabit Fiqhiyyah Ibn Abbas (r.a.) (d. 68 H) reported from the Prophet (SAW), who said: َ‫َُرَْ ِرْ عي ْوا اق‬ (Any leather that has been tanned is clean). Ibrahim al-Nakha’i (d.96 H) stated that ‫يَر ئلش َبَ دعلَا َِ دعاِْع ْقق عيْد‬ (Everything that can prevent leather from getting damaged is called a tanner (dabbagh).  Continue… Imam Mujahid stated: ‫ي َر ئلش لَل َِ دكَم هَ َْ يرَ َ َرْ عول دعَِْ َْعوق‬ َ ِ‫(يْعِلقا ْال دع‬Anything that come out of the earth, a little or a lot, being watered by rain or water, the alms has to be paid for as much as ten percent). Scholars from Shafi`i madhhab stated: َ ‫صْْ اققَي َْ ي َر َْ َىَع ًُء لرَْقق ِْار يَ َْ عِ ًُء لرَ َأا‬ َ‫اقق‬ (Surely any water with not even one of its attributes changed is pure, or every absolute (mutlaq) water that is unchanged is pure). #Water changed to become tea, therefore no  Difference Between Qawa’id fiqhiyyah & Nazariyyah Fiqhiyyah Nazariyyah Fiqhiyyah (legal theory) is a new term in the development of Islamic fiqh. The contemporary Muslim scholars use this term to study fiqh with a new approach of study. They develop patterns, formats, and do systematic studies of various issues of fiqh by using this new approach and style. Nazariyyah fiqhiyyah is an ijtihad related effort to study a specific topic of fiqh with all of its particulars, issues, sub-topics, rulings, pillars, conditions, etc. to produce a comprehensive legal view about it.  Continue… It looks like that Abu Zahrah considers these two terms (qawa’id fiqhyyah and nazariyyah fiqhyyah) as similar. He states in his book, Usul al-Fiqh, as follows: “The knowledge of Usul al-Fiqh is supposed to be different from qawa’id fiqhyyah.  Continue… The contents of qawa’id fiqhyyah can be said as nazariyyat ‘Ammah (general theories) of fiqh. For instance, qawa’id al-milkiyyah fi al-Shari’ah al-Islamiyyah (principles of ownership in Islamic law); Qawa’id al-Daman (principles of guarantee); Qawa’id al-Khiyaraat (principles of options); Qawa’id al-Faskh (principles of revocation).”  Continue… However, after analyzing it, one may see differences between both terms. This matter has been mentioned by Ahmad bin Abdullah bin Hamid, the one who has edited al-Qawa’id, the work of Al- Maqqari Al-Maliki (d. 758 H). *He said that the similarity between qawa’id fiqhyyah and nazaariyyat fiqhiyyah is that both include various issues from different topics of fiqh. And the difference between both of them is located in their contents: qawa’id fiqhyyah contain hukm of fiqh that can be applied in all of its branches, while nazariyyat fiqhyyah does not contain only hukm of fiqh. (Rather, it contains so many other aspects related to a particular topic).  Continue… Some examples of nazariyyah fiqhyyah are: nadhariyyat al-milk (the theory of ownership); nazariyyat al-faskh (the theory of revocation); and nazariyyat al-butlan (the theory nullification or voidance). Then, he further has stated that qawa’id fiqhyyah does not include pillars (arkan) and conditions (shurut), while nazariyyat fiqhyyah should include pillars (arkan) and conditions (shurut).  Difference Between Qawa’id fiqhiyyah & Qawa’id Usuliyyah Qawa`id Usuliyyah is plural of Qa`idah Usuliyyah (Usuli maxim), which is a general principle through which a jurist can derive rulings of Islamic Shari`ah from their detailed sources. An example of Qa`idah Usuliyyah is: “Absolute command (amr mutlaq) indicates obligation.” Allah says: “Aqimu al-Salah” (Establish salah). The command mentioned in this verse is absolute, free from any sign that can change its meaning. A jurist can apply the mentioned usuli maxim on this verse and determine that, since there is an absolute command for establishing salah, it indicates that the establishment of salah is obligatory.  Continue… *Shihab al-Din al-Qarafi (d. 684 H) can be considered as the first jurist who differentiated between qa’idah usuliyyah and qa’idah fiqhyyah. *He stated: “Shari’ah of Muhammad covers usul (foundations) and furu’ (branches). The usul can be divided into two, which are usul al-fiqh and qawa’id fiqhyyah kulliyyah.  Continue… Generally, according to him, usul fiqh (or qawa`id usuliyyah) is the study of principles of hukm which emerge from words/statements, such as, ‘amr’, which indicates compulsion; ‘nahyi’, which shows prohibition; general expression (`amm) and specific expression (khas), and also principle of ‘nasikh’ (abrogator) and ‘mansukh’ (abrogated). While qawa’id fiqhiyyah according to him, have ma n y h i gh v a l u e s , i n c l u di n g th e s e c r e ts an d wisdoms of Shari`ah, and its unlimited branches of Islamic rulings.  Continue… Some differences between a legal maxim (qa`idah fiqhiyyah) and a usuli maxim (qa`idah usuliyyah): 1.A qa`idah fiqhiyyah is a general legal ruling that is applicable for many issues; while a qa`idah usuliyyah is not a legal ruling; rather it is a principle through which Shari`ah rulings can be derived. 2.Al-Qawa`id al-Usuliyyah existed before the existence of al-Qawa`id al-Fiqhiyyah. 3.A qa`idah fiqhiyyah can have some exception as it does not cover all related issues; but a qa`idah usuliyyah does not have any exception, rather it is applicable to all texts for which this maxim is applicable.  Continue… 4. Al-Qawa`id al-Usuliyyah are related to the texts of the Qur’an and the Sunnah of the Prophet (p.b.u.h.); meanwhile al-Qawa`id al-Fiqhiyyah are related to the deeds of legally responsible people. 5. The benefits of al-Qawa`id al-Usuliyyah go especially to a mujtahid; meamwhile benefits of al-Qawa`id al-Fiqhiyyah go to a mujtahid, a jurist, a mufti, a judge, and a student of Islamic law equally.  Source of Islamic Legal Maxims The first source of the Islamic legal maxims is the Holy Qur’an. There are verses or parts of verses of the Qur’an that are considered to be general principles. Muslim jurists used them as legal maxims. For instance, Allah SWT said: ِ‫َََْرِ ئقَ يلبق‬ (Their affairs are conducted by mutual consultation) (Al- Shura, 42: 38). This sentence can be considered as an Islamic legal maxim that can cover different affairs of Muslims. It means that many of their affairs can be conducted by mutual discussion and consultation. Cont. of Source… The second source of Islamic legal maxims is the Sunnah or hadith of the Prophet َِ‫صَط أ لَل ْع‬ The Prophet was given many concise statements that have wide meaning. Muslim jurists used these statements as Islamic legal maxims. For example, the Prophet said: ِ‫دعَََِقا لَط ئَْاق‬ (Muslims should abide themselves by their conditions). Muslim jurists took this hadith as an Islamic legal maxim. According to this maxim, once a Muslim imposes any condition in a transaction, he must adhere to it. This maxim covers all lawful transactions. A statement of a Companion or a follower of a Companion also can be a source of a maxim. Likewise, ijtihad of a Muslim jurist can be source of a maxim too.  Books On Legal Maxims Historically, the Hanafi jurists were the first to formulate legal maxims. An early ‘Iraqi jurist, Sufyan bin Tahir al- Dabbas, gathered and organized the first 17 maxims, and another Hanafi jurist, Abu al-Hassan ‘Ubayd Allah ibn al-Husayn al-Karkhi (d. 951 A.H.) increased this to 39 maxims.  Continue… Next to the Hanafis, the Shafi’is, and then following them the Hanbalis, and then the Malikis, in this order, as noted by al-Zarqa, they added their contribution to the literature on legal maxims.  Continue… As for the literature on this subject, there are many literatures written by the traditional as well as the modern scholars. The works on al-Qawaid al-Fiqhiyyah can be traced back to scholars as early as the third century of Hijrah and continues up to present.  Some Classical literatures on Legal Maxims 1. Takhrij al-Furu’ ‘ala al-Usul by I m a m A bu Manaqib Shihab al-Din Mahmud ibn ahmad al- Zanjani al-Shafi’i (d.656H). 2. Anwar al-Buruq fi Anwa’ al-Furuq written by Imam Shihab al-Din Ahmad ibn Idris al-Qarafi al- Maliki (d.684H). 3. Al-Ashbah wa al-Nazair by Jalal al-Din al-Sayuti al-Shafi’i (d.1201H). 4. Al-Ashbah wa al-Nazair by Ibn Nujaym, Zain al- Din bin Ibrahim bin Muhammad al-Hanafi (d.970H).  Continue… 5. Kitab: Qawaid ahkam fi masalih al-‘Anam, written by Imam `Izz al-Din Ibn `Abd al-Salam al-Sulami al-Shafi`i (d. 616h). This book was known as al-Qawaid al-Kubra. There is also another book written by Imam `Izz al-Din Ibn Abdul Salam al-Sulami al-Shafi`i by the title: al- Qawaid al-Shurgra. 6. Kitab: al-Ashbah wa al-Nazair, written by Imam Sadr al-Din Muhammad ibn Umar al-Shafi`i, famous by the name of ibn wakil or ibn al- marhal (d. 716h). 7. Al-Manthur fi Tartib al-Qawaid al-Fiqhiyyah, written by Badr al-Din Muhammad ibn `Abd Allah al-Zarkashi (d. 794 H).  Continue… 8. Kitab: Taqrir al-Qawa’id wa Tahrir al-Fawa’id, written by Abu al-Faraj `Abd al-Rahman Ibn Rajab al-Hanbali (d. 795 H). 9. Kitab: al-Qawa’id, written by Abu `Abd Allah Muhammad Ibn Muhammad Ibn Ahmad al- Maqarri al-Maliki (d. 758 H). 10. Kitab: al-Qawa’id, written by Imam Taqiyy al- Din Abu Bakr Ibn Muhammad al-Husayni al-Hasani al-Shafi`i (d. 829 H). 11. Kitab: Idah Al-Masalik Ila Qawa`id Imam Malik, written by Abu al-Abbas Ahmad Ibn Yahya al- Wanshirisi al-Maliki (d. 914 H).  Some Modern Literatures on Legal Maxim 1. Al-Madkhal al-Fiqhi al-’amm by Mustafa bin Ahmad al-Zarqa’. 2. Al-Wajáz fi Iidah Qawaid al-Fiqh al-Kuliyyah by Muhammad Sidqi bin Ahmad al-Borno al-Ghazzi. 3. Al-Qawa’id al-Fiqhiyyah Nash’atuha, wa Tatawurruha: by Syeikh Ali bin Ahmad al-Nadawi. 4. Al-Nazariyyah al-Fiqhiyyah by Dr. Muhammad bin Wahbah al-Zuhayli.  Books on Legal Maxims in Madhhab al-Hanafi Compilation and composition in the legal maxims started basically as we know by Abu Tahir al- Dabbas who compiled 17 legal maxims in the Hanafi School. Abu al-Hasan al-Karkhi, a contemporary of Abu Tahir al-Dabbas learned and took these maxims from him and added further to them. Then he compiled them in a book called al-Usul where he collated the maxims, their applications and sub- topics of the Hanafi doctrine.  Continue… Usul al-Khawli- This book was compiled by `Ubayd Allah ibn al-Hasan ibn Dallah, popularly known as Abu al-Hasan al Khawli. He stayed and studied in Baghdad and became the leading Hanafi jurist in Iraq. Usul al-Khawli is considered the first specific legal maxim book. There are 36 maxims in the book and each maxim starts with the word “al-asl”. Ta’sis al-Nazar: This book was compiled by `Ubayd Allah ibn ‘Umar ibn ‘Isa al-Qadi Abu Zayd al- Dabbüsi, a reference to Dabbusiyyah, a small town between Bukhan and Sumayqard.  Continue… Afterwards, Imam Abu Muaffar Asad ibn Muhammad al-Karabisi (d. 570 A.H.) compiled the book on legal maxim called al-Furuq and arranged the book according to the chapters of fiqh. Al-Ashbah wa al-Naza‘ir of Ibn Nujaym: This book was written by Zayn al-Din ibn Ibrahim ibn Muhammad popularly known as Ibn Nujaym al- Hanafi, a leading Hanafi jurist in Egypt.  Continue… Majallat al-Ahkam al- ‘Adliyyah: This book is now the most famous among non-Arab speaking Islamic banking professionals. It was compiled by a team of scholars during the time of al-Uthmaniyyah Empire to assist the courts in arriving at the correct decisions. Comprising 1857 legal articles under 16 headings, it is considered as an encyclopaedic work. At the beginning of this book, 99 legal maxims had been written, although they were not explained, nor were they grouped according to particular themes. The explanations were done by later scholars, such as the Mufti Abu Saud, Rustam Baz, ‘Ali Haydar and others. This book was compiled according to Hanafi Madhhab.  Books on Legal Maxims in Madhhab al-Shafi`i 1. Qawa’id al-Ahkam fi Islah al-Anam written by the leading Shafi’i scholar ‘Izz al-Din ‘Abd al-Salam al- Sulami. This is one of the salient contributions to this field and this is also named as al-Qawa’id al- Kubra fi Furu’ al-Shafi’iyyah. Here, the author referred all the rulings of Shari’ah to a single maxim which is “public well-being shall be obtained and injuries shall be prevented” or to the maxim “injuries shall be prevented” only.  Continue… Al-Ashbah wa al-Naza’ir by Jalal al-Din al-Suyuti (d.1201 A.H.). This book is considered as the main reference for the principles/maxims of fiqh in the school of Shafi’i. It was elaborated by another scholar of Shafi’i under the title, al-Mawahib al-Sunniyyah ‘ala al- Fara’id al-Bahiyyah by Shaykh ‘Abd Allah ibn Sulaymam al Jarhazi (d. 1201 A.H.).  Books on Legal Maxims in Madhhab al-Maliki Usul al-Futya: A book composed by Abu `Abd Allah Muhammad ibn Harith al-Kasani al-Qayrawani. Most chapters of the book commenced with a legal principle of the Maliki School of law. For instance, the chapter on adultery commenced with the legal maxim “punishment in Islamic law shall be warded off due to doubt; and neither the punishment nor the retribution (qisas) shall be established with the stone throwing (rajm)”.  Continue… Anwar al-Buraq fi Anwa’ al-Furüq known as Kitab al-Furuq written by Imam al-Qarafi Shihab al-Din Abu al-Abbas Ahmad ibn Idris. In this book, the author collated the legal maxims as well as the legal principles, and compared and contrasted among them.  Continue… Al-Qawa’id written by al-Maqarri Abu `A bd A l l ah Muhammad al -Q u r a s h i (d.758 H). This book comprises 1200 maxims. Idah al-Masalik ila Qawa’id al-Imam Malik written by Abu al-‘Abbas Ahmad ibn Yahya al-Wansharisi (d. 914 A.H.). This is an important and valuable literature in the Maliki doctrine. The book comprises 118 maxims.  Books on Legal Maxims in Madhhab al-Hanbali *Al-Qawa’id written by Ibn Rajab Abu al-Faraj ‘Abd al-Rahman al-Hanbali (d. 795 A.H.). The book consists of a 160 *Al-Qawa’id al-Nuraniyyah al-Fiqhiyyah composed by Shaykh al-Islam Taqiyy al-Din Ahmad ibn Tamiyyah (d. 728 A.H.). Here, the maxims have been selected for the chapters of ‘ibadat and then for the chapters of mu’amalat.  SOME WELL KNOWN LEGAL MAXIMS Some well known Islamic legal maxims ْ‫َكَقَ يَوْصار‬ Matters are determined based on their intention/objectives ِ ‫دعلولِ ز ُةْص يْع‬ Certainty cannot be removed by doubt ‫دعاََ ُةدص‬ Harm must be eliminated َ‫دعَ وا للَج دعًلِل‬ Hardship begets facility ‫دعِْعا َ َا‬ Custom is authoritative I shall discuss these five maxims in details later on. ISLAMIC LEGAL MAXIMS-2 Five Major Maxims  FIVE ESSENTAIL/MAJOR ISLAMIC LEGAL MAXIMS  Five Major Maxims 1.AL-UMUR BI MAQASIDIHA Matters are determined according to intention/objectives 5. AL-‘ADAH MUHAKKAMAH 2.AL-MASHAQQAH TAJLUB AL-TAYSIR Custom is authoritative LEGAL Hardship begets facility/ease MAXIM 4. AL-YAQIN LA YAZULU BI AL-SHAKK 3.La Darara Wala Dirar What is certain cannot be Harm shall neither be inflicted removed by doubt nor reciprocated 1. Al-Umur bi Maqasidiha ‫األمور بمقاصدها‬ [Matters are determined according to the intention/objectives] General Meaning  An act of any human being is judged in the light of his intention, or all acts are linked to someone’s intention.  Intention: a. The intent directed towards an action. b. The actions of a person is judged according his intention. c. A particular action could be good and could be rewarded for it, or it could be bad and could be punished for it.  Origins of Maxim 1 ‫ فمن‬،‫”إنما األعمال بالنيات وإنما لكل إمرى ما نوى‬ ‫كانت هجرته إىل هللا ورسوله فهجرته إىل هللا‬ ‫ ومن كانت هجرته لدنيا يصيبها أو امرأة‬،‫ورسوله‬ “ ‫ فهجرته إىل ما هاجر إليه‬،‫ينكحها‬ 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. Thus, he whose migration (hijrah) was to Allah and His Prophet, his migration is to Allah and His Prophet (pbuh). But he whose migration was for some worldly matters that he might gain, or for a woman whom he might marry, his migration is to that for which he migrated "  Origins of Maxim 1 In the Qur’an, Allah said: ُْ ‫سوِْل ِْه ثُمْ يُ ْد ِر ْك ْهُ ْال َم ْو‬ ‫ت فَقَ ْْد َوقَ َْع‬ ّْ ‫اجراْ ِإلَى‬ ُ ‫للاِ َو َر‬ ِ ‫و َمن َي ْخ ُر ْجْ ِمن بَ ْي ِت ِْه ُم َه‬ 100 : ‫غفُوراْ ر ِحيماْ [النساء‬ ّْ َْ‫للا َو َكان‬ َ ُ‫للا‬ ِّْ ‫على‬َ ُ‫أ َ ْج ُرْه‬ Anyone who departs his house, and his intention is to migrate for Allah and his Messenger, then death comes to him, his reward becomes due and sure with Allah: and Allah is most forgiving, and most merciful. Origins of Maxim 1 This verse explains that whoever goes out of his house with the intention to migrate towards Allah and the Prophet, indeed, he will achieve a reward of migration (hijrah) because of his intention (niyyah). This verse was sent down (sabab al-nuzul) for a man from the Khuza’ah tribe. At that moment, when the Muslims accepted the command of migration (hijrah) to Madinah, this particular man was ill. He asked his family to bring him in a stretcher to the Prophet (s.a.w). Origins of Maxim 1 His family then fulfilled his wish. However, before reaching the Prophet (s.a.w.) at Madinah, he passed away in the district called al-Tan’im. In conjunction with this event, Allah (s.w.t.) revealed this verse which explains that if death comes to a person before he settled his intention to do something good, it will not lessen his reward in the eyes of Allah (s.w.t.).  Origins of Maxim 1 99 : ‫للاُ َي ْعلَ ُْم َما ت ُ ْبدُونَْ َو َما ت َ ْكت ُ ُمونَْ [المائدة‬ ّْ ‫َو‬ Allah knows all that what you reveal and What you conceal. ْ ‫عال ُم‬ ِ ‫ْال ْغُيُو‬ 78 :ْ‫بْ[التوبة‬ َ ّ ‫ْوأَن‬ َ ْ‫ْللا‬ َ ‫ْون َْج َوا ُه ْم‬ َ ّ ‫أَلَ ْمْيَ ْعلَ ُمواْْأَن‬ َْ ‫ْللاْيَ ْعلَ ُمْ ِسر ُه ْم‬ Do they know that Allah knows their secret thoughts and their secret gossips, and that Allah knows well all things which are unseen.  Origins of Maxim 1 Allah said in Surah al-Bayyinah (98), verse 5: ِ ‫للا ُم ْخ ِل‬ َْ‫صين‬ ْ ‫َو َما أ ُ ِم ُروا ِإ‬ َْ ‫ّل ِل َي ْعبُدُوا‬ “And they are not asked except to worship Allah with sincerity” Allah said in Surah al-Nisa (4), verse 114: َ ْ‫َ نُؤْ تِي ِْه أ َ ْجرا‬ ْ‫ع ِظيما‬ َ َ‫للاِ ْف‬ َْ ‫س ْو‬ ّْ ‫ت‬ َ ‫ك ا ْبتَغَاء َم ْر‬ ِْ ‫ضا‬ ْْ ‫َو َمن يَ ْف َع‬ َْ ‫ل َذ ِل‬ “Whoever performs that matter to seek Allah’s stisfaction, We will provide him a big reward.”  Origins of Maxim 1 Praising believers, Allah said in Surah al-Baqarah: (2) verse 265: ِ‫للا‬ ّْ ‫ت‬ َْ ‫الذِينَْ يُن ِفقُونَْ أ َ ْم َوالَ ُه ُْم ا ْبتِغَاء َم ْر‬ ِْ ‫ضا‬ “Those who spend their wealth to seek for Allah’s satisfaction.” Allah said in Surah al-Baqarah (2) verse 225: ‫ت قُلُوبُ ُك ْْم‬ ْْ َْ‫سب‬ ِ ‫ي أ َ ْي َمانِ ُْك ْْم َولَ ِكن يُ َؤ‬ َ ‫اخذُ ُكم بِ َما َك‬ ّْ ‫اخذُ ُك ُْم‬ َْ ِ‫للاُ بِالل ْغ ِْو ف‬ ِ ‫ّلْ يُ َؤ‬ “Allah does not punish you because of your swear which are not intentional, but Allah punish you for your swears which are intentional by your heart.”.  Origins of Maxim 1 The Prophet (s.a.w.) said: ‫يبعث هللا على نياتهم‬ “Allah will resurrect them according to their intentions.” (Muslim).  Branches of Maxim 1 Some branches of this maxim are as follows: ‫العبرة في العقود للمقاصد و المعاني ّل لأللفاظ والمباني‬ In contracts, consideration is given to intention and meaning and not words and forms" ‫ّل ثواب وّل عقاب إّل بنية‬ There is no reward and no punishment, except based on the intention accompanied by. ‫مقاصد اللفظ على نية الالفظ‬ Meaning of a word is determined according to it’s speaker’s intention.  Branches of Maxim 1 ‫بحرمانه‬ ‫عوقب‬ ‫أوانه‬ ‫قبل‬ ‫الشيء‬ ‫استعجل‬ ‫من‬ "Any person, who hastens the accomplishment of a thing before its due time, is punished by being deprived thereof." ‫اّلختيار‬ ‫تحت‬ ‫داخلة‬ ‫النية‬ Intention is within someone’s choice. ‫بفسادها‬ ‫وفساده‬ ‫النية‬ ‫بصالح‬ ‫العمل‬ ‫صالح‬ Goodness of a deed is based on goodness of intention and badness of a deed is based on badness of intention.  Scope of Maxim: al-Umur bi Maqasidiha According to Ibn Rajab: ‫ّْلْيخرجْعنهماْشيء‬،‫هاتانْكلمتانْجامعتانْوقاعدتانْكليتان‬ These two words “al-Umur” and “bimaqasidiha” are considered as the precise, concise and universal legal maxim, no single issue of Islamic law is out of this particular legal maxim (which means in principle, everything is covered by this legal maxim).  Scope of Maxim: al-Umur bi Maqasidiha According to Ibn al-Qayyim al-Jawziyyah: ‫ والعملْتابعْلهاْيصح‬,ْ‫ " النيةْروحْالعمل‬:ْ‫ وْيقولْابنْالقيم‬, "ْ‫بصحتهاْوْيفسدْبفسادها‬ Intention is considered as the soul of any action. Therefore, an action depends on it. If the intention is valid and acceptable, then the ‘amal or action is also valid and acceptable, otherwise it is not. Application of Maxim 1 in Ibadat 1. If a person slaughters an animal with the intention to legalize it for food and consumption purposes, as requested by Allah (s.w.t.), then it is considered as ibadah and shall be rewarded for it. However, if the same person slaughters an animal because of superstition, then it is haram and therefore, he shall be punished for that. *Same action but difference of intention leads to different consequences. Application of Maxim 1 in Transaction (Mu`amalat) 1. If a person buys something, but he is in the state of hazl (joke), the contract is not valid, as there is no genuine intention to engage in this contract.  Application of Maxim 1 in Transaction 2. If a person finds something on the street or anywhere else and takes it with the intention of returning it to the owner, his conduct is good 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 who wrongfully appropriates property (ghasib) of someone. *The physical act is identical in both cases, but the judgment therein differs according to someone’s intention.  Application of Maxim 1 in Crime 1. If a person kills another person intentionally, than the killer should be killed (qisas) if convicted, but if the crime is committed unintentionally, the punishment is different in this case, i.e. only the payment of blood money (diyyah) is applied, the killer is not entitled to death penalty. * The same act of murder, but having different consequences, because of different intention or niyyah. The Purpose of Intention 1. To differentiate between ‘Ibadah and personal habit (‘Adah). For example, if a person refrains 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 habit, perhaps he/she does it to control his/her diet, for which there will be no reward. The same action, if it is done with the intention of fasting, it will be considered as ‘Ibadah and will be rewarded. 2. To differentiate between one kind of ‘Ibadah and another. For example between prayer, fasting, Ghusl and hajj.  Cont. of Purpose of intention 3. Good and sincere intention is necessary to make our `ibadat acceptable by Allah SWT. 4. Without good and sincere intention we cannot achieve the satisfaction (rida’) of Allah SWT, which is considered to be the most important matter for a believer. Allah SWT said:.‫ْذلكْهوْالفوزْالعظيم‬،‫ورضوانْمنْهللاْأكبر‬ (And the satisfaction of Allah SWT is the most important, which is the great success). [Al- Tawbah, 9: 72]. END 2.Al-Mashaqqah Tajlib al-Taysir ‫المشقة تجلب التيسي‬ [Hardship Begets Facility/Ease]  Literal Meaning of This Maxim ‫= المشقة‬Hardship ‫= تجلب‬Begets, Brings ‫=التيسير‬Facility, Ease ‫ = المشقة تجلب التيسير‬Hardship Begets/Brings Facility/Ease  General Meaning  Original rules are general in nature and apply to all individuals. However, in certain exceptional situations a strict adherence to the original rules may lead to injustice and harm.  Any ruling whose implementation causes hardship to a person or the action is unable to be performed for a specific acceptable reason, then there are alternative ways to be followed in order to overcome the difficulties and hardship.  Hardship in this maxim refers to that type of hardship that exceeds the normal limit and ability of a person to perform certain deeds. General Meaning [Cont’d]  The normal hardship (mashaqqah mu’tadah) that accompanies implementation of every obligatory duty does not fall under the interpretation of this maxim. For example, Hardship (or some extra efforts) in performing certain kind of ‘ibadah such as fasting, hajj, etc. is not counted to have any facility or alternative ruling.  General Meaning [Cont’d]  However, in a situation, if there is abnormal hardship (mashaqqah ghayr mu’tadah), provided that this kind of hardship is not created by the person himself, then Allah will allow certain concession (rukhsah) for him, in order to remove hardship from him and ensure justice and fairness for him.  In other words, when a person faces any abnormal hardship, then he is allowed to abandon performing the original rule related to a deed, and permitted to follow an alternative rule.  How can we determine an abnormal hardship? An abnormal hardship is the one that can cause a person or a member of his family to loose his life, or an organ of his body, or benefit of an organ, or that can be harmful for his health, or that can cause huge loss of property. Some examples are: 1. Being attacked by someone. 2. Use of Force (Ikrah). 3. Sickness. 4. Monthly Period of Women (Hayd). 5. Being in a Battle Field.  Origins of the Maxim (from the ِّ Holy ُ َ Qur’an) َ َ ْ ْ ْ َ‫َو َما َج َع َل عل‬ ِ ‫يكم ِ يف الد‬ 1. Allah says: ‫ين ِمن حرج‬ He did not make any difficulty for you regarding the religion (din of Islam) [Al-Hajj, 78] َ ْ ُ ْ ُ ُ ُ ُ َ َ ْ ُْ ُ ُ َُ ُ ُ 2. He also says: ‫ي ِريد اّلل ِبكم اليس ول ي ِريد ِبكم العس‬ Allah wants ease for you and He does not want hardship for you [Al- Baqarah, 2:185] َ َ ْ ُ ْ َ ُ َ ُ ِّ َ ُ 3. Moreover, He says: ‫ل يكلف اّلل نفسا ِإل وسعها‬ Allah does not give anyone legal responsibility for anything except what is within his capacity" [Al-Baqarah, 2:286] Origins of the Maxim (from Ahadith) 1. “You have not been sent like those who have been given hardship. Rather, you have been sent as those who have been given ease or facility.” (Bukhari). 2. Ayeshah (r.a.) said: "Whenever the Messenger of Allah (p.b.u.h.) was given choice between two things, he chose the easier one unless it was a sin.” (Bukhari and Muslim)  Application of Maxim No. 2 1. If someone enters into a rental contract (al-Ijarah) of an apartment or house and later he has to travel for certain valid reason, he is allowed to cancel the rental contract. Under normal circumstances, a person is not allowed to cancel this type of contract unless it has been agreed between the contracting parties beforehand. However, forcing a person to continue payment of the rental when he is not occupying the house, will amount to hardship. Therefore the Shari’ah has allowed the cancellation under specific circumstances in order to avoid hardship.  Application of Maxim 2 2. The general ruling related to the implementation of punishment against a person convicted for any crime is that the punishment should be carried out immediately upon conviction. However, under certain exceptional conditions, such as if the criminal is sick, the punishment can be deferred to a later time. This is to avoid the additional hardship for that person.  Application of Maxim 2 3. Permission to shorten prayers during the journey. 4. Permission for those who are sick and those who are on a journey, to break their fasting in the month of Ramadhan.   Branches (Sub-Maxims) of the Maxim 2 1. Necessity renders prohibited things permissible. [‫] الضرورات تبيح المحظورات‬ A. Literal Meaning: ‫= ضرورة‬necessity. ‫ = تبيح‬Allows/ Renders permissible/Gives permissibility. ‫=المحظور‬Forbidden thing. (Necessity renders prohibited things permissible). B. As a technical term of Islamic jurisprudence “Darurah” is: (1). “Reaching/coming of a human being to an extreme situation that if he/she does not take a forbidden (haram) thing, he/she will pass away or will be closer to pass away.”  Branches of the Maxim [cont’d] (2). “Fear of losing life, or an organ of the body, or its benefit, or entire property—whether this fear is confirmed or most probable—so that because of it, taking a forbidden thing will be lawful, rather taking it will be obligatory for the person who faces this situation.” (3). Permissibility means that there will be no sin and because of this no punishment will be inflicted on the Day of Judgment. Likewise, no punishment will be inflicted in this world.  Conditions of Necessity 1. Necessity must be existing at present, not to be expected in future. 2. In order to handle the necessity, there are no other means except violating the Shari`ah commands and prohibitions. 3. The amount of necessity must be considered. Therefore, it is not allowed to have more than what is necessary for survival. 4. Aspects that are not allowed (even at the time of necessity) should be taken into consideration, such as killing someone, or cutting an organ of someone (which are not allowed in any situation except at the time of defense).  Cont…of Conditions 5. The person facing this necessity must not be a rebel against a government. 6. The person facing this necessity must not cross the limits. 7. The permitted thing because of this necessity should not be a rule to be followed forever. Rather, it is a temporary permission, which is lifted when the necessity does not exist anymore.  Application of This Sub-Maxim 1. Necessity to take forbidden food, such as flesh of pork, flesh of a dead animal, etc. 2. Necessity to take forbidden drinks, such as alcohol, any other intoxicating drink, etc. 3. Necessity to take loan based on riba. 4. Necessity to take property of someone without his permission.  Cont. of Application 5. Necessity to uncover the private part of the body to a doctor, or touching it by a doctor. 6. Necessity to kill an attacker for self defense. 7. Necessity to pronounce words of kufr (unbelief).  Some Other Related Sub-Maxims 1. Necessity should be assessed according to its required amount. (Al-Darurat Tuqaddar bi- Qadriha). 2. What has become permissible because of an excuse, it should be null and void when this excuse does not exist anymore. (Ma Jaza li`Udhrin Btala bi- Zawalih).  Cont. of Some Other Related Sub-Maxims 3. Necessity does not nullify the right of others. (Al-Idtirar la Yubtil Haqq al- Ghayr). 4. Need should be placed in the place of necessity whether it is public or private. (Al-Hajah Tunazzal Manzilat al-Darurah `Ammatan Kanat aw Khassatan). END  3. AL-DARAR YUZAL ‫ر‬ ‫الضر يزال‬ [Harm Must be Removed]  Literal Meaning of This Maxim ‫( الضرر‬Al-Darar)= Harm, Loss, Damage, Disadvantage, etc. In other words, literally all that is opposite of benefit is darar. ‫يزال‬ (Yuzal)= Be removed, Be eliminated, To get rid of, To put an end, To relieve, To wipe out, etc. Full Literal Meaning: Harm must be removed/eliminated.  Definition of Darar As A Term 1. )‫(إلحاق مفسدة بالغير مطلقا‬ (To inflict absolute harm to others). 2.)‫ وكان فيه ضرر على غيره‬،‫(الضرر ما قصد اإلنسان به منفعة نفسه‬ (Darar is something through which a human being intends to get benefit for himself, but in doing so there will be harm to others). Note: The first definition is preferable to the second one because it covers all different types of harm, whether they bring benefits to the person who inflicts them or not. While the second one is confined to intending benefit for the person who inflicts them.  Types of Darar Darar can be divided into two types: 1. Darar (Harm) which is inflicted justly. For instance, implementation of qisas (just retribution) against the killer; forcing the oppressor (zalim) to pay the right of the oppressed back to him; slaughtering an animal to eat the meat; etc. fall under this type. Note: This type of harm is lawful because it brings benefit to the public. This type of harm is not covered by this maxim.  Cont. of the Types of Darar 2. Darar (Harm) which is inflicted unjustly. For instance, killing someone intentionally and oppressively; stealing wealth of others; oppressing someone; insulting someone; backbiting; etc. fall under this type. Note: This type of harm is forbidden in Islam. Only this type of harm is covered by this maxim.  General Meaning of the Maxim 1. All harms that fall under the second type of darar mentioned earlier and which are inflicted unjustly are forbidden, and therefore, they must be eliminated. 2. This elimination covers: A. Prevention of harm before its occurrence through possible means. B. It also covers removal of harm after its occurrence through steps and means prescribed by the Shari`ah.  Importance of This Maxim 1.An important objective of sending messengers and heavenly books is to establish justice in this world. Through the application of this maxim, it is possible to realize this objective. 2. This maxim has strong relationship with the five/six higher objectives of Islamic Shari`ah, i.e. protection of din (religion), protection of life, protection of progeny, protection of intellect, protection of wealth, and protection of honour. All the time there is possibility to inflict harm and damage to these higher objectives of Shari`ah. Application of this maxim causes the removal of this harm and can lead to protect these objectives of Shari`ah.  Cont. of Importance 3. This maxim covers all different fields of Islamic jurisprudence. 4. Some scholars say that this maxim is considered to be one half of Islamic Shari`ah because this Shari`ah is divided into two sections: 1st one is that this Shari`ah came to protect maslahah (public interest); and 2nd one is that it came to remove mafsadah (evil) from us; and this maxim covers the second section. Therefore, this maxim is half of the Shari`ah.  Sources/Proofs of this Maxim A. Proofs of the Holy Qur’an: 1. Allah SWT says: ‫وال تمسكوهن ضرارا لتعتدوا‬ (And do not take them back to hurt them) [Al-Baqarah, 2: 231] Allah SWT forbade a husband to take his wife back after divorce intending to harm her. This is an injustice and oppression (zulm) which should not be done. 2. He also says: ‫وال تضار والدة بولدها‬ (And no mother shall be treated unfairly on account of her child) [al-Baqarah, 2: 233]  Cont. of Sources 3. He also says: ‫وال يضار كاتب وال شهيد‬ (Let neither scribe nor witness suffer any harm) [Al- Baqarah, 2: 282] 4. He also says: ‫وال تعتدوا إن هللا ال يحب المعتدين‬ (And do not transgress the limits. Truly Allah does not like the transgressors) [Al-Baqarah, 2: 190] In all these verses Allah SWT forbade the infliction of harm and transgression.  Cont. of Sources B. Proofs of Hadith: 1. The Prophet (pbuh) says: ‫ال ضرر وال ضرار‬ (Harm neither should be inflicted, nor should be reciprocated). “La Darar” in this hadith means that we are not allowed to harm anyone unjustly. While “La Dirar” means that we are not allowed to respond to a harm with another harm. 2. The Prophet (pbuh) also says: ‫كل المسلم على المسلم حرام دمه وماله وعرضه‬ (For every Muslim the blood, wealth and prestige of other Muslims are forbidden). [Muslim].  Cont. of Sources/Proofs It means that we are not allowed to kill any Muslim, also we are not allowed to steal or take the wealth of anyone by force; likewise, we are not allowed to do or say anything that can damage the prestige of someone. All these are harms and they are forbidden by the Prophet (pbuh). C. Ijma` (Consensus): All Muslim jurists unanimously maintain that inflicting harm to others is forbidden.  Conditions of the Obligation to Remove Harm 1. Harm must occur. Imaginary harm is not counted. 2. Amount of harm must be reasonable. Very little harm is not counted. 3. Harm is inflicted unjustly. 4. Harm should violate the Shari`ah compliant public interest (maslahah Shar`iyyah). If a Muslim destroys alcohol that belongs to a Muslim, this harm should not be removed because the interest (maslahah) of this Muslim is not Shari`ah compliant. He is not allowed to own alcohol.  Application of This Maxim 1. If anyone sells anything that rots quickly, such as fruits, and the buyer disappears before the payment of the price and before receiving the sold items. The seller in this case is allowed to revoke the sale contract and sell the said item to another person, if he fears that the sold item will be spoiled. This is to prevent loss to the seller which will harm his business.  Cont. of Application 2. Driving beyond the speed limit on the highway, which might lead to an accident, is prohibited in Islam because it will cause harm to individuals and property. In order to avoid harming individuals and property, it is compulsory to adhere to the traffic rules and regulations.  Cont. of Application 3. If the period of leasing of an agricultural land ends before harvesting the crop, the land will remain in the hand of leaseholder until he can complete his harvesting, but he has to pay the leasing charge for this additional time. If this leaseholder is prevented from keeping the land until the time of the completion of harvesting, it will harm him; he will be not able to get his crop. So, in order to remove this harm, the land should remain in his hand until the completion of harvesting.  Cont. of Application 4. If someone is well-known to be a criminal, it is allowed to jail him until he repents from his sin, even if any particular crime is not proved against him. This should be done to eliminate his harm to the public. 5. If a wife is oppressed by her husband and she is unable to maintain her marital life with him, she is allowed to complain against him in a court, and a judge can order the separation between them This should be done to eliminate further harm to the wife.  Cont. of Application 6. If someone does not pay nafaqah (cost of living) to his wife or children, a judge can order him to be jailed until he pays it. 7. Qisas (Just retribution) is prescribed to remove harm from the guardian of the victim. 8. All hudud punishments are prescribed to remove harm from the victims.  Sub-Maxims/Branches of This Maxim 1. ‫ال ضرر وال ضرار‬ (Harm shall neither be inflicted nor reciprocated). The first part “La Darar” indicates that any unjust harm must not be inflicted to anyone. The second part (La Dirar) “Harm shall not be reciprocated” indicates that any harm that is inflicted should not be responded or revenged by inflicting another harm because it will cause further harm.  Cont. of Sub-Maxims The person upon whom harm was done, shall demand his right through the due process of law. For Example, if A damaged the property of B intentionally, B cannot under any circumstances damage the property of A in revenge, but he must get the compensation for the damages on his property from the court of law.  Cont. of Sub-Maxims 2. ‫الضرر ال يزال بمثله‬ (Harm must not be removed by means of a similar harm). A. If a Muslim is forced to kill another Muslim, he is not allowed to kill him. B. If a person is in the condition of necessity and he is hungry, he is not allowed to take the food of another needy person who needs it for himself.  Cont. of Sub-Maxims 3. ‫الضرر األشد يزال بالضرر األخف‬ (Greater harm must be prevented at the expense of the lesser harm). In case there are two harms, the lesser harm can be committed in order to prevent the greater harm from occurring. A. If a pregnant woman in her last month of pregnancy and she suffers from breathing problem because of the pregnancy, she has to do operation (cesarian) to give birth to her baby. This is considered to be lesser harm compared to the greater breathing problem, which can cause her death.  Cont. of Sub-Maxims B. It is allowed to donate blood to a reliable medical organization, which is a lesser harm, in order to help sick people who need blood, without which they may die, which is considered to be a greater harm. C. In the battle field, if non-believers create a shield in front of them with captive Muslims, it is allowed for Muslim army to kill these Muslims, which is lesser harm than the greater harm which may happen to Muslims, if they lose the battle and non-believers win the battle and occupy a Muslim country.  Cont. of Sub-Maxims 4.‫يتحمل الضرر الخاص لدفع الضرر العام‬ (A private harm is tolerated in order to prevent a public harm). A. If a wall of a person tilts towards a public road, it is mandatory to destroy this wall, which is a private harm, in order to prevent a public harm. B. During the COVID-19, it is mandatory to be in quarantine for the person who is infected by it. So this person will be not able to go out, which is considered to be a private harm. But it must be done to prevent this virus from being transmitted to other people, which is a public harm.  Cont. of Sub-Maxims/Branches 5. ِ‫ب ْال َمنَافِع‬ ِ ‫َد ْرء ْال َمفَا ِس ِد أ َ ْولَى ِم ْن َج ْل‬ (Prevention of an evil is preferable to securing a benefit). A. It is not allowed for a person to build a window of his house exactly in front of the window of his neighbor’s house, in order to prevent an evil to occur, which is to look at the `awrah of his neighbors. B. A person should not open a workshop to repair cars or to do welding near a residential area, to prevent his neighbors from being disturbed. END 4. Al-Yaqin La Yazulu bi al-Shakk ‫ن‬ ‫اليقي ال يزول بالشك‬ [What is Certain Cannot be Removed by Doubt]  Literal Meaning 1. ‫=اليقين‬Certain, Certainty, Definite, Doubtless, Sure, Assured. 2. ‫=ال يزول‬Cannot be removed, Cannot disappear, Cannot be vanished, Cannot be terminated. 3.)‫الشك‬+‫= بالشك (ب‬ ‫ = ب‬Through, By. ‫ =الشك‬Doubt, Suspicion, Uncertainty, Scepticism. 4. Complete Literal Meaning: -What is Certain Cannot be Removed by Doubt. -Or, Certainty Cannot be Removed by Doubt.  Meaning of Yaqin and Shakk as Islamic Terms 1. Yaqin is knowledge of something about which there is no doubt and hesitation, which conforms to the reality and cannot be removed. 2. Shakk is hesitation between the existence or absence of something without the preference of one to the other.  General Meaning of the Maxim *A fact established by law or proven with evidence will remain so, until there is another certainty that removes it. *Any doubt that occurs when the certainty prevails will have no power to remove the certainty.  Cont. of General Meaning * If something has not been established with certainty, it will remain so until it is proven otherwise. * Doubt, which comes later, is weaker than certainty on which it was founded. * Therefore, doubt cannot contradict, resist, or remove certainty.  Sources/ Proofs of the Maxim A. Qur’anic Proofs: 1. Allah says:‫إن الظن ال يغني من الحق شيئا‬ (Surely doubt/uncertainty can be of no avail against truth) [Yunus, 10: 36). 2. He also says:‫وإن الظن ال يغني من الحق شيئا‬ (And Surely doubt/uncertainty can be of no avail against truth) (Al-Najm, 53: 28)  Cont. of Sources/ Proofs B. Prophetic Ahadith: ‫ فل يخرجن‬،‫شء أم ال‬ ‫ فأشكل عليه أخرج منه ي‬،‫أحدكم يف بطنه شيئا‬ ‫”إذا وجد‬ ‫من المسجد ى‬ “‫حت يسمع صوتا أو يجد ريحا‬ "If anyone of you feels anything in his stomach and then he is confused whether anything has come out of it or not (fart, etc.), he should not go out of the mosque (for wudu’), unless he listens any sound or gets any smell.” [ Narrated by Muslim].  Cont. of Sources/Proofs ‫”إذا شك أحدكم يف الواحدة والثنتي فليجعلهما واحدة وإذا شك يف الثنتي‬ “‫والثلث فليجعلهما ثنتي ويسجد يف ذلك سجدتي قبل أن يسلم‬ If anyone of you doubts in his salah and he does not know whether he has prayed one rak`ah or two, he should consider them one rak`ah. Likewise, if this person is not certain whether he has prayed two rak`ahs or three, he should consider them two rak`ahs. In all these cases the person should prostrate twice, before completing his/her prayer by saying the greeting (salam). (Ibn Majah)  Cont. of Sources/Proofs C. Consensus (Ijma`): Muslim jurists unanimously maintain that this maxim is originated in the Qur’an and Sunnah and therefore, it must be applied or implemented to derive the rules of Shari`ah. Imam al-Qarafi said that this maxim is unanimously agreed upon by the jurists.  Importance of the Maxim This is one of the widest Islamic legal maxims. It covers all different fields of Islamic jurisprudence. Imam al-Suyuti said: “Know that this Islamic legal maxim covers all chapters of Islamic jurisprudence, and the (rules) of issues derived on the basis of this maxim amount to three-fourth or more of the Islamic jurisprudence.”  Application of the Maxim A. Application on Cleanliness of Cloth: 1. If a person is sure that his cloth is unclean (najis) but he is not sure about the exact place of (najis), then he has to wash the whole cloth because his doubt about the spot of the (najis) will not remove the impurity of the cloth. 2. If a person buys a new cloth but he doubts its cleanliness, then he must consider that the cloth is clean, and he does not need to wash it.  Application of the Maxim B. Application Related to Water: 1. If anyone was certain about the purity of water, then some doubt came to him about it, he should consider it pure because the purity is certain, which cannot be removed by this doubt. 2. On the other hand, if someone was certain about the impurity of water, then he started to doubt whether the impurity has gone or not, he should consider it as impure because this impurity is certain which cannot be removed by the doubt.  Cont. of Application C. Application Related to Ablution and Tayammum: 1. If someone was certain that he has wudu, then he started to doubt about losing it, he should maintain that he has wudu because this is certain which cannot be removed by doubt. 2. If someone was certain that he has tayammum, then he started to doubt about it, he should maintain that he has tayammum because it is certain which cannot be removed by doubt. 3. If someone doubts about the purity of a stone and hesitates whether he is permitted to do tayammum on it or not, he is allowed to do tayammum on it. This is because the stone originally is clean, which is certain. This certainty cannot be removed by some doubt.  Cont. of Application D. Application Related to Salah and Hajj: 1. If someone doubts whether he has performed one unit (rak`ah) of salah or two. He should consider it one unit (rak`ah). 2. If a pilgrim doubts whether he has completed six tawaf or seven, he should consider it six. 3. If a pilgrim doubts whether he has stoned Satan six times or seven, he should consider it six. 4. If a pilgrim doubts whether he has completed six round of walking between Safa and Marwa, or seven, he should consider it six.  Cont. of Application E. Application Related to Fasting: 1. If a fasting person doubts about the sunset, he is not allowed to break his fasting because the continuation of the day is certain which cannot be removed with this doubt. 2. On the other hand, if a person doubts about commencement of dawn, he is allowed to eat suhur because the continuation of the night is certain, which cannot be removed by this doubt. 3. If a fasting person uses oil, cream or lotion on his body, his fasting will remain valid, because it is certain that these things do not enter the digestion system.  Cont. of Application 4. Using spray for asthma during the day of fasting causes the nullification of fasting because medically it has been proved to be certain that spray enters the digestion system. 5. Using nasal drops during the day of fasting causes the nullification of the fasting because medically it is certain that these drops enter the digestion system. 6. Using eyedrops during the day of fasting has three situations: 6.1. If it does not enter the nose, the fasting will remain valid. 6.2. If it enters the nose but does not enter the mouth, the fasting will remain valid. 6.3. If it enters the mouth, mixes with saliva, and enters the digestion system, then the fasting will be invalid.  Cont. of Application 7. Using eardrops during fasting has two situations: 7.1. If the eardrum is intact, using eardrops will not cause the invalidity of fasting because it is medically certain that in this situation eardrops do not enter the digestion system. 7.2. However, if the eardrum is damaged and there is puncture or whole in it, then using eardrops will cause the invalidity of the fasting.  Conti. Of Application 8. Because of sickness, injecting vaccines or any other fluids in the skin, muscle or vein during the day of fasting will not lead to the nullification of fasting because it is certain medacally that the liquid of injections do not enter the digestion system.  Branches/Sub-Maxims of this Maxim ‫ض ْال َحا َج ِة َب َيان‬ ُّ ‫سا ِكت قَ ْول لَ ِكن ال‬ َ ‫س ُك‬ ِ ‫وت ِفي َم ْع ِر‬ َ ‫ب إلَى‬ َ ‫َال يُ ْن‬ ُ ‫س‬ "No statement is ascribed to a man who keeps silent, but silence is tantamount to a statement where there is a necessity for speech.” ‫إ ْع َما ُل ْال َك ََل ِم أ َ ْولَى ِم ْن إ ْه َما ِل ِه‬ "A word should be construed as having some meaning, rather than disregarded.” ِ ‫ار إلَى ْال َم َج‬ ‫از‬ َ ‫ص‬َ ُ‫ت ْال َح ِقيقَةُ ي‬ ْ ‫إ َذا ت َ َعذ َر‬ "When the real meaning cannot be applied, the metaphorical sense may be used."  Branches/Sub-Maxims of this Maxim ‫األصل بقاء ما كان على ما كان‬ "It is a fundamental principle that a thing shall remain as it was originally." ‫األصل براءة الذمة‬ “To be free from liability is a fundamental principle." َ ‫ْالقَدِي ُم يُتْ َر ُك‬ ‫علَى ِق َد ِم ِه‬ "Things which have been existing from time immemorial shall be left as they were."  Branches/Sub-Maxims of this Maxim."‫ت ِبزَ َمان يُ ْح َك ُم ِب َبقَا ِئ ِه َما لَ ْم يُو َج ْد َد ِليْل َعلَى ِخ ََل ِف ِه‬ َ ‫َما ث َ َب‬ "Judgment of existence shall be given in respect to any matter, which was established at any particular time, unless the contrary is proved” ‫ال عبرة للشك‬ There is no consideration for doubt.  Branches/Sub-Maxims of this Maxim ‫ال عبرة بالظن البين خطؤه‬ The speculation whose error is obvious cannot be taken into consideration. ‫ال عبرة للتوهم‬ No weight is attached to assumption. END 5. Al-‘adah Muhakkamah َ َّ َ ُ ‫العادة محكمة‬ [Custom is an Arbiter]  Literal Meanings of al-`Adah )‫ (العادة‬and Muhakkamah )‫(محكمة‬ 1. )‫ =العادة (ع و د‬Custom, habit, manner, practice, to do something again and again. 2. )‫ حكم‬/‫= ُم َح َّكمة (تحكيم‬ a. ‫ =تحكيم‬To appoint a ruler, to choose someone as an arbitrator, to make someone the judge between two parties, arbitration, etc. b. ‫ = ُحكم‬judgment, decision, verdict, sentence, rule, decree, command, provision, etc. c. ‫ = ُم َح َّكمة‬Arbiter, arbitrator, arbitrary. 3. ‫ =العادة محكمة‬Custom is an arbiter, custom is an arbitrator, custom is arbitrary. Meaning of `Adah )‫ (العادة‬as an Islamic Term 1. Muslim scholars have provided several definitions of `adah. After mentioning some of these definitions, a contemporary scholar prefers the following definition: ‫ما استقر في النفوس من جهة العقول وتلقته الطباع السليمة بالقبول‬ (`Adah is something that is established in the minds of people on the basis of their intellect, and their sound nature accepts it). 2. Shaykh Zakariyya al-Ansari said: ‫ما استقرت الناس فيه على حكم العقول وعادوا إليه مرة بعد أخرى‬ (`Adah is something which is established among the people according to the judgment of their intellect and they return to it or practice it again and again).  Cont. of Meaning of `Adah as a Term 3. Based on these definitions, an `adah should have the following attributes: 3.1. An `adah should be well established in the society. 3.2. Human intellect judges it as a good practice. 3.3. Sound human nature accepts it. 3.4. It is repeatedly done or practiced by most people of the society.  Meanings of `Urf )‫(العرف‬ 1. Introduction: Although some Muslim scholars maintain that `adah is different from `urf, most Muslim jurists (fuqaha’) consider them as synonyms. In this course, I shall treat them as synonyms. Now let us talk about the meanings of this term. 2. Literal meanings of `Urf )‫ =(العرف‬Custom, practice, tradition, habit, usage, etc.  Cont. of Meanings of `Urf 3. Meaning of `Urf as an Islamic Term: 3.1. `Abd al-Karim Zaydan says: ‫هو ما ألفه المجتمع واعتاده وسار عليه في حياته من قول أوفعل‬ (`Urf is a word or action which is familiar to a society, and practiced and maintained by them in their life). 3.2. Al-Zarqa’ says: ‫عادة جمهور قوم من قول أوفعل‬ (`Urf is a word or action which is practiced by majority of people).  Cont. of Meanings of `Urf 3.2. According to these two definitions, attributes of an `urf are as follows: 3.2.1. It is familiar among the society or a particular group of people. 3.2.2. It is practiced by most people of a society or most members of a particular group of people. 3.2.3. It can either be a word or an action. 3.2.4. Practice of an individual is not an `urf. 3.2.5. According to these attributes, there is no contradiction between `adah and `urf. 3.2.6. However, an `adah can be individual, which is not acceptable as a source of law. Therefore, an important point of similarity between `adah and `urf is that both should be the practice of majority of people or most members of a particular group.  Types of Custom (`Urf) 1. First Division: Custom (`Urf) is divided into two types: 1.1. Action related custom (`Urf `Amali): An action which is practiced by most people, such as entering a public toilet without fixing the time to stay in it and without fixing the amount of water to be used. 1.2. Word related custom (`Urf Qawli) : A word which is known to the public and used for a meaning for which it was not created originally. For instance, the word “walad” in Arabic used for a son, but originally it was created for a child, which includes both son and daughter.  Cont. of Types of Custom 2. Second Division: Both `urf `amali and `urf qawli are again divided into general (`am) and specific (khas) customs. 2.1. General custom is that custom which is used in all countries. For instance, the word “haram” is used for divorce in all Arab countries. This is `urf qawli `am (word related general custom). On the other hand, entering a toilet without fixing the amount of time and water is an `urf `amali `am (action related general custom), which is practiced in all countries.  Cont. of Types of Custom 2.2. Specific Custom (`Urf Khas) is a custom which is practiced in a particular region or by a particular group of people. For instance, dividing the mahr (dowry) into instant portion and differed portion originally started in Iraq. Therefore, it was a specific custom of Iraq and it is an action related custom. On the other hand, the word “Faqih” (jurist) is used within the circle of Muslim scholars who are involved in Islamic juristic study and scholarship. This is `urf khas qawli (word related specific custom).  Cont. of Types of Custom 3. Third division: Custom is also divided into valid (sahih) and invalid (fasid) customs. 3.1. Valid custom is the one which does not contradict the Holy Qur’an and sound sunnah of the Prophet (pbuh) and does not cause missing of any benefit or inflicting any harm. For instance, whatever is given to a bride before the marriage contract is considered a gift and not part of mahr. This is a valid custom, which does not contradict the Holy Qur’an and Sunnah and also does not cause any harm  Cont. of Types of Custom 3.2. Invalid Custom (`Urf Fasid): Invalid custom is a custom which contradicts the Holy Qur’an and Sunnah or causes missing of any benefit, or causes inflicting of harm. For example, the practice of receiving or giving usury (riba’) is an invalid custom because it contradicts the Holy Qur’an.  Conditions of the Acceptance of Custom for Deriving Rules Based on It For deriving the rules from it, a custom must fulfil several conditions. Most important of these conditions are as follows. 1. A custom should not contradict the Holy Qur’an and Sunnah of the Prophet (pbuh). 2. It should not cause missing of a benefit (maslahah). 3. It should not cause to inflict harm (darar). 4. It should be used in all related instances. 5. It should be used by majority of public. 6. It should be present and practiced at the time of deriving a rule from it. 7. It should not be a temporary habit or practice.  General Meaning of the Maxim: ‫( العادة محكمة‬Custom is an arbiter) A custom whether it is general or specific, whether it is word related or action related, and which is practiced by the majority of people, and which does not contradict the Holy Qur’an and Sunnah, does not cause missing of a benefit and does not cause to inflict any harm, is considered to be a source (masdar) for deriving a rule of Shari`ah for an issue for which no text of the Holy Qur’an or Sunnah of the Prophet (pbuh) is found.  Importance of the Maxim Importance of this maxim is summarized in following points: 1. Custom is considered to be a sub-ordinate or supplementary (taba`i) source of Shari`ah. 2. Muslim jurists used this maxim for deriving rules for many issues. 3. A Shafi`i jurist Qadi Husayn referred the whole mdhhab of Imam Shafi`i to four Islamic legal maxims. One of them is the maxim of “Custom is an arbiter.” 4. Among all schools of Islamic law, probably Maliki School used it most; then Hanafi School, then the remaining schools.  Cont. of the Importance 5. Custom is used to explain some Qur’anic verses especially to make a general expression (`amm) as specific, and to make an unqualified (Mutlaq) expression as qualified (muqayyad). 6. It has great role in the judiciary to solve the disputes of the people. 7. It has also a great role in the field of fatwa. A mufti should know the customs of his area before issuing a fatwa related to the issues, rules of which are not found in the Qur’an and Sunnah and they are based on customs.  Sources/Proofs of This Maxim A. Proofs of the Holy Qur’an: 1. Allah SWT says: ‫ولهن مثل الذي عليهن بالمعروف‬ (And women shall have rights similar to the rights against them, according to what is fair/reasonable) [Al-Baqarah, 2: 228). 2. He also says: ‫وعاشروهن بالمعروف‬ (Live with them with fairness/honourably). According to some scholars, there is indication to `urf in the word of al-ma`ruf in )‫ (المعروف‬in these verses. It means that what is fair according to the practice or custom of the society should be applied in living with the wives and giving their rights.  Cont. of Sources/Proofs 3. He also says: ‫وعلى المولود له رزقهن وكسوتهن بالمعروف‬ (But the father of the chid shall bear the cost of the mother’s food and clothing on a reasonable basis) [Al- Baqarah, 2: 233]. Ibn Kathir says that the father should bear the cost of food and clothing of the mother according to the custom in her country.  Cont. of Sources/Proofs B. Ahadith of the Prophet (pbuh) and Tradition of Some Companions: 1. The prophet (pbuh) said to Hind daughter of `Utbah: ‫خذي ما يكفيك وولدك بالمعروف‬ (Take from the wealth of your husband what is sufficient for you and your child, according to what is fair/reasonable) [Bukhari and Muslim]. The Prophet (pbuh) ordered Hind to take what is reasonable or fair according to the custom known to calculate the cost of living in her society.  Cont. of Sources/Proofs 2. When the Prophet (pbuh) migrated to Madinah, several customary practices were used by the people over there. He approved a number of them, such as bay` al-salam, mudrabah, etc. with adding some Shari`ah conditions to them. 3. A tradition (athar) had been narrated by Ibn Mas`ud (May Allah SWT be pleased with him): ‫ما رآه المسلمون حسنا فهو حسن عند هللا‬ (What is considered by Muslims as good, that is considered by Allah SWT as good). (Ahmad)  Cont. of Sources/Proofs C. Consensus (Ijma`): Muslim jurists unanimously maintain that the custom can be used to derive the rules of Shari`ah for those issues for which no rules are found in the Holy Qur’an and Sunnah of the Prophet (pbuh).  Application of the Maxim A. Transactions: 1. If an agent was asked in Saudi Arabia to buy a car for five thousand Riyals with no further specification on the currency, then the agent has to buy it using Saudi Riyals because it is customary that Riyals refer to Saudi Riyals in Saudi Arabia. Thus, the agent cannot buy using Qatari Riyals, for instance. 2. However in Kelantan, a state in Malaysia, the word Riyal is used to mean Ringgit. So, the agent cannot buy using Saudi Riyals in this state. Rather, he has to use Malaysian Ringgit.  Application of the Maxim 3. A kind of buying and selling is called: bay’ al-mu’atah [ ‫بيع‬ ‫]المعاطاة‬, which is normally concluded without the utterance of offer and acceptance. This type of transaction involves small amount of money. Therefore, it is allowed to conclude this contact without offer and acceptance based on the customary practice of the people. 4. Whether something has monitory value or not, it depends on the custom of that area or country. 5. The contract of making something (istisna`) such as jewellery is allowed based on the custom. 6. For buying valuable things, such as a refrigerator, computer, smart phone, washing machine, etc. the custom of the market is allowed to determine the period of free repairing them.  Cont. of Application B. Affairs Related to Family and Marriage: 1. Cost of living for a wife or children or any other relatives can be determined based on the custom of the related society. 2. The age of puberty can be decided based on the custom of the related society. 3. If a proposal (khitbah) for marriage is cancelled, then the custom of the related society should be followed in returning of the gifts.  Cont. of Application C. Cleanliness: 1. The minimum duration of hayd (menstruation) for women can be decided based on the custom. 2. The minimum duration of tuhr (purity) for women also can be decided based on the custom.  Cont. of Application D. Crime: 1. The discretionary punishment for internet related crimes can be determined on the circumstances and situations in which the crime is committed. 2. The punishment for cheating in examinations can be determined on the basis of custom.  RELATED SUB-MAXIMS 1. ‫ال ينكر تغير األحكام بتغير األزمان‬ (Change of the rulings cannot be denied with the change of times). 1.1. For example, it is permitted in our time to shut the door of the mosque, when it is not prayer time, to avoid theft. 1.2. Likewise, offer and acceptance in electronic based contracts (ATM, internet banking, etc.) are accepted. 1.3. In the past there was no requirement for the registration of marriage, but now with the change of time and conditions, it is required by the government to register the marriage contract. 2. ‫المعروف عرفا كالمشروط شرطا‬ (A thing known by common usage is like a stipulation, which has been made). 2.1.For example: In the manufacturing of cloth, as a custom, a customer gives cloth and size of his body to a tailor. Subsequently, the tailor will make dresses for the customer without returning any remaining items/cloth back to him. 2.2. If a person buys a car, the related things, such a the key, spare tires, etc. will be included with the car, even if they were not mentioned at the time of the contract. This is because people are accustomed with this practice. 3. ‫المعروف بين التجار كالمشروط بينهم‬ (A thing known among merchants is as if it is fixed by a stipulation between them). Example: If a merchant sold a commodity to a purchaser without agreement on the time or a manner of payment, and it was customary for merchants to obtain the price by weekly installment, then the contract of sale should be interpreted according to that custom. 4. ‫التعيين بالعرف كالتعيين بالنص‬ (A matter established by custom is like a matter established by a legal text). Example: If a contract of sale is concluded using local currencies, then a dispute occurred about the payment of currency, it must be referred to the type of currency used in that place of transaction, unless it is stipulated otherwise. 5.‫شائِعِ َال ِللنَّاد ِِر‬ ِ ‫ْال ِعب َْرة ُ ِل ْلغَا ِل‬ َّ ‫ب ال‬ “Consideration is given to what occurs commonly, not to what happens infrequently.“ For instance, the time of termination of hayd for a woman can be fixed 55 years because a woman when reaches this age generally her hayd is terminated. َ ‫اب َك ْال ِخ‬ 6. ‫طاب‬ ُ َ ‫ْال ِكت‬ “Writing resembles conversation.“ 7. ‫ان‬ ِ ‫س‬َ ‫الل‬ ِ َ‫ات ْال َم ْع ُهو َدة ُ ِل ْْل َ ْخ َر ِس َك ْالبَي‬ ِ ِ‫ان ب‬ ُ ‫َار‬ ِْ َ ‫اْلش‬ "The recognized signs of a dumb person take the place of a statement by word of mouth." END