Islamic Jurisprudence and Legal Maxims
Islamic Jurisprudence and Legal Maxims
Legal maxims replicate established principles of law to which jurists appeal when confronting new legal cases. The rules of the Shariah specify the set of principles which great Muslim jurists derived from the Quran and the Sunnah. This research paper encapsulates the selection of largely accepted legal maxims (rules) that are relevant in contemporary situations, reflecting the economic activities of individuals and society and its application. The broad classification of these legal maxims sets out certain rules from the Fiqh, construed in accordance with intention, the applicable legal theories which are normative legal maxims, guided by the textual injunctions of the Qu’ran and the Sunnah.
Although various researches have been conducted and discussed in all major works of jurisprudence, these great works have been confined mostly to rituals or citing of the precedents. The current study shall attempt to articulate the application of certain applicable maxims to contemporary economic activities.
Objectives of the research:
This research paper has been submitted as the term paper of the Islamic Jurisprudence and Legal Maxim Subject for the PhD program in January Semester at Inceif. It proposes to articulate the continuum of legal maxims of Islamic Law that is particularly useful in depicting a general picture of the nature, goals and objectives of the Shari’ah. In particular, in enhancing our understanding of the legal maxims, we shall assess the relevance of the application of legal maxims as applied throughout the centuries, and its economic relevance in society today. In this regard, we shall endeavour to explain and articulate the legal maxim with respect to the following:
1. The rules and principles which applies.
2. The differences in relation to the theoretical abstractions.
3. Knowledge and understanding of the practical juristic rules.
4. The historical juristic positions and formulation of the legal maxims.
5. The theoretical development and departure.
Table of Contents
Objectives of the research 1
Key terms of the research 2
Table of Contents 2
1. Introduction 3
2. The Basic Principle of Qawaid al Fiqhiyyah 3
3. The History of Legal Maxims in Islamic Jurisprudence 4
3.1. The Linguistic definition 6
3.2. The Technical definition 6
3.3. The Examples of Legal Maxims 6
3.4. The Categories of Legal Maxims 7
4. The Status of Qawaa’id al-Fiqhiyyah in Islamic Law 8
5. Discussion of the Five Major Maxims 8
6. Claims and Practice 19
7. Conclusion and finding 22
8. References 23
Qawa’id al-fiqhiyyah (legal maxims) encapsulates concepts and precepts that facilitate a person to deliver an appropriate ruling where no explicit law exists previously. The definitive meanings were developed from the knowledge and application of the injunctions and the rules of the Shari’ah. The word injunction signifies the prescriptive and the prohibitive injunctions of the Qu’ran and the Sunnah. These rules are the systemic expositions of the fortitude of the legal text (nass) which are intended to guide man towards diverse situation in society. They provide broad contours within which policy conception can be pursued and its legitimacy judged. Legal maxims, in contrast, are amenable to trade-offs and substitutions.
2. The Basic Principle of Qawaid al Fiqhhiyah (legal maxims)
It is necessary to take precautions against fallacious analogy, misleading over confidence and lapse when reproducing and applying the legal maxims. Legal maxims are theoretical abstractions in the form, of short epithetical statements that are expressive, often in few words, of the goals and objectives of Shari’ah. Unless they affirm and reiterate a ruling of the Quran, Sunnah or other sources of Islamic Law, legal maxims do not bind the judge or jurist, but provide persuasive sources of influence in the formation of judicial decisions and ijtihad.
Legal maxims, similar to legal theories are designed for better understanding of the subject matter, rather than for enforcement. The actual wordings of the maxims are occasionally derived from the Quran or Ahadith. Legal maxims were gradual evolution and the history of their development in general is parallel with that of fiqh itself.
The five leading legal maxims are:
1. Acts are judged by their goals and purpose. (Al Umur Bimaqasidiha).
2. Certainty is not to be overruled by doubt. (Al yaqin la yuzal Bi al-shakk).
3. Harm must be eliminated (Al Darar Yuzal)
4. Hardship begets facility. (Al Mashaqqah Tajlib Al Taysir)
5. Custom is the basis of judgment. (Al-Adah Muhakkamah)
These Legal Maxims shall in turn be explained below.
3. The History of Legal Maxims in Islamic Jurisprudence
Al-qawaid al-fiqhiyyah was not written all at once by any particular scholar. It was developed by the jurists during the resurgence years of the fiqh. The earliest jurists to develop most of the fiqh maxims were from the Hanafi schools. The authors of most of the maxims were not known, but for those maxims which originated from the sayings of the Prophet. For instance, the maxim “Injury may not be met by injury”. Most of the works involving legal maxims were attributed by scholars back in the third century of hijrah and still continues till this day. The earlier literature were a compilation of maxims by Abu Tahir al-Dabbas, which consisted of seventeen maxims gathered from the Hanafi schools. In the fifth century of hijrah, Abu Zayd Abdullah b Umar Al-Dabbusi wrote his book, entitled Ta’asis al-Nazar. Subsequently, many more books were written on the subject, and most, incorporated into the Majallah al-Ahkam al-Adliyah, the Ottoman Civil Code.
The classical literatures are attributed by the following:
(a) Takhruj al-Furu ala al-Usul by Imam Abi Manaqib Shihab al-Din Mahmud ibn Ahmad al-Zanjani al-Shafii (d.656H). This book compares the principles of the Hanafi and the Shafi’i schools.
(b) Anwar al-Buruq fi Anwa al-Furuq, known as Kitab al-Furuq, written by Imam Shihab al-Din Ahmad ibn Idris al-Qarafi al-Miliki (d.684H). It comprises four volumes and discusses the principles of fiqh, including the detail meaning and its applications.
(c) Al-Ashbah wa al-Naza’ir by Jalal al-Din al-Sayuti al-Shafi’i (d.1201H). This book is considered as the main reference for the principles of fiqh in the school of Shafi’i. It was elaborated by another scholar of Shafie under the title, al-Mawahib al-Sunniyyah ala al-Fara’id al-Bahiyyah by Syekh Abdallah bin Sulaiman al-Jarhazi (d.1201H).
(d) Al-Ashbah wa al-Naza’ir by Ibn Nujaym, Zain al-Din ibn Ibrahim ibn Muhammad al-Hanafi (d.970H). This book and the previous book are the most important reference on this subject during the later part of the fourth century and earlier fifth century of Hijrah, and the Hanafi School. Many scholars of Hanafi have elaborated this book and some have commented on this great work of Ibn Nujayn. Among the famous “Sharah” of this book is Ghamz uyun al-Basa’ir by Sayyid Muhammad bin Ahmad al-Hanafi (d.1098H).
(e) Majallah al-Ahkam al-Adliyyah produced in the year 1286H by the Ottoman Government. This is the first codification of Islamic law and there are ninety-nine principles of fiqh mentioned.
a) Al-Madkhal al-Fiqhi al-Amm by Mustafa bin Ahmad al-Zarqa. This book discusses the development of this topic and elaborated all the principles mentioned in Majallah al-Ahkam al-Adliyyah.
b) Al-Wajaz fi Iidah Qawaid al-Fiqh al-Kiliyyah by Muhammad Sidqi bin Ahmad alBorno al-Ghazzi. Elaborated one hundred and eighty principles of fiqh in this book.
c) Al-Qawa’id al-Fiqhiyyah Nash’atuha, wa Tatawurruha Dirasat Muallifatiha by Syekh Ali bin Ahmad al-Nadawi. Discussed many principles of fiqh and dealt with systematically.
d) Al-Nazariyyah al-Fiqhiyyah by Prof Dr Muhammad bin Wahbah al-Zuhaili. Examines other doctrine relating to fiqh, in addition to discussing a number of principles of fiqh.
Other literature included works written by scholars, namely by Sheikh Mahmud bin Mustafa Abud al-Lubnani : Qa’idah, I’mal al-Kalam aula min Ihmalihi and Sheikh Salih bin Sulaiman bin Muhammad al-Yusuf al-Hanbali : Qa’idah al-Mashaqqah tajlub al-Taysir.
3.1. The Linguistic definition
The tri-literal root of qawaid is qa’ada, which means fixation, consistency and to become well established. Qawaid is the plural for qa’ada, which means:
i. The base and foundation of a structure
ii. Rule and principle
iii. Model and pattern
The tri-literal root of fiqhiyyah is faqaha. The term fiqh means the proper understanding of what is intended.
3.2. The Technical definition
A general rule of fiqh (jurisprudence) which applies to all its related particulars. General rule means that a general meaning is prescribed, though not necessarily an exclusive or explicit meaning. A primary and comprehensive juristic maxim governs a set of secondary rules that fall within an exclusive principle. Many rules fall within this juristic maxim. The two categories are primary and secondary rules.
Fiqhiyyah refers to the proper knowledge and understanding of the practical juristic rules derived from their detailed legal evidences. Examples are salah, fasting. When someone says that fasting is obligatory on a person, then that is fiqh.
3.3. Example of Legal Maxim
Every matter that is considered (legally) good is halal. This is the general rule. However, there are good matters that are not halal because their long term effect could be harmful and therefore are prohibited. In respect of food, every food that is not harmful is considered halal.
In contracts, contracts are considered binding by the intentions of the parties and not the actual phrasing and wording of the contract itself. For instance, a man goes to a friend who is selling chocolate, but he does not have the money to buy it. He then left his watch with his friend, until he returns with the money. The contract is a contract of trust since you are entrusting him with the watch.
3.4. The Categories of Qawaid
Differences between Qawaid fiqhiyyah and other Categories
Qawaid al- fiqhiyyah
Qawaid al-fiqhiyyah are theoretical abstractions, in the form of short epithetical statements that are expressive, in a few words, of the goals and objectives of the law. The legal maxims of fiqh are statements of principles that are derived from the detailed reading of the rules of fiqh on various themes. It deals directly with the actual practical rules of fiqh. The fuqaha formulated the maxims into short terminologies and put them under one principle. Qawaid al-fiqhiyyah is a product of the fiqh itself. For instance, if someone wants to make salah and is wondering if he has wudu’ or not, then he goes by the closest certainty. From the different segments of fiqh, the ulama realised that there must be a rule of fiqh that can have all of them under it. The fuqaha studied the different themes of fiqh like fasting, salah, criminal law and others. They found consistency and uniformity in certain principles which were extracted and made into principles.
Qawaid Usuliyyah (Rules of the Theory of law – this is related to Usul al Fiqh)
Qawaid usuliyyah are the theoretical principles of Usul al-fiqh which deals objectively with the theory of law independent from its actual practical rule. This means that it does not tell you that your salah is invalid if you laugh in salah. Also, it does not tell you that your contract is haram if it involves riba. It tells why it is haram. Usul fiqh tells a person how to recognise what is prohibition and what is a command.
4. The Status of Qawaid in Islamic Law
All the injunctions of the Shari’ah seek to benefit human beings and eliminate harm. But those benefits and harms are not entirely left to the judgment of man. In a large number of cases those benefits and harms have been specified in the Quaran and Hadith and should be made the criteria of judgment. In cases where benefits and harms are not pointed out human intellect will judge the virtue or vice of any act. Thus intellect would be guided by sound reasoning, experience, prevalent and sound judgment of scholars who have well understood the spirit of the Shari’ah.
5. Discussion of Five Major Maxims
(I). Acts are judged by their goals and purposes (Al Umuru Bimaqasidiha(
Evidence of the maxim
This maxim has its origin from the Hadith of the prophet (S.A.W) which said that "deeds are judged by intentions and every person is judged according to his intentions". This Hadith stated that all deeds are judged according to intention. The legal implications of certain deeds are also based on the intention . Another Hadith narrated by Anas (R.A) the prophet ( S.A.W) is reported to have said " there is no deeds to those who have no intention". According to the general meaning of the maxim , intention refers to the will directed towards an action, or the direction of the will towards the action of any human being. Some scholars have said that this maxim has implications for at least seventy different branches of knowledge while others have said about this Hadith that it comprises a third of all knowledge.
Intention plays an important role in all actions of human beings. The element of intent often plays a crucial role in differentiating between a custom or a personal habit ( Ibadah and ‘Adah). Some actions can be considered as personal habits if the action performed without the proper intention to do it as a form of Ibadah. If a person refrains from eating and drinking from dawn until sunset 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. The other role of Niyyah is to differentiate between one kind of Ibadah and another , example in prayer , fasting and hajj, there are different kinds if Ibadah such as compulsory , highly recommended , Nazar and others. therefore a person should specify the kind of Ibadah he intends to perform whether it is compulsory or otherwise .
Conditions of the maxim
Many Muslim scholars have different views on the position of intention. The Shafi'i school held that it is recommended to pronounce the intention in order to support the intention in the heart. The Hanbalis held that uttering of intention is not recommended and considered it as a form of Bidah (innovation). The Malikis have different views in which they said uttering of intention is permitted but it is better not to utter it , if uttering of intention will distract the concentration of a person in performing Ibadah, it is better not to practice it, if it can assist a person in backing his intention , then it is recommended to utter it.
The intention and the outward expression
The maxim gives rise to the question of difference between the intention and the outward expression. In the event of such differences, the judgment should be in accordance with the intention. In the event of a difference between the wording of an expression and its meaning, consideration should be given to the intention and the outward connotation and there is difficulty in determining the intention, effect should be given to outward connotation.
Application of the maxim
The rules captured in this maxim has been applied by early jurists mostly in different applications, such as:
a) The liability of a person who finds somebody's goods lying in the way and picks it up will be contingent upon the intention with which he has picked it up. If he intends to hand it over to the owner and has made it known to others he will be treated as a trustee and will not be required to indemnify the owner in case the property is destroyed while in his possession. But if he has kept it as owner he would be treated as usurper ,(Ghasib) and will be required to indemnify the owner in case the property is destroyed .
b) An act of any human being is judged in the light of the intention or the purpose it seeks to have effect. This means that the effect to be given to any particular action or transaction must be in accordance with the intent underlying such action or transaction. This maxim could be applied in the interpretation of contracts.
c) In contracts, effect is given to intention and meaning and not words and forms. For example, it is known that a contract for the use of a thing is called a contract of hire if remuneration is stipulated in consideration of such a use. and is called a contract of Ijarah if no such remuneration is stipulated.
d) If two persons concluded a contract apparently a specific rental is provided for, the contract would be regarded as a contract of hire as it real meaning indicates, and not a contract of loan as the wording of the contract would suggest. The relationship between intention and act could further be elaborated by the following examples:
A man makes an earning:
- for the satisfaction of his selfish urges.
- personal consumption and demonstration effects.
- for complying with the divine command to earn for the sake of survival and spending on noble causes.
In all the above cases, the act is the same but the intention/object is different. A man may grow and sell grapes to the consumer or to the manufacturer of wine. A farmer may grow poppy for sale of seeds or to prepare opium or drugs. In all these cases it is the intention that determines the legality or illegality of the act or an individual.
(II): Certainty is not to be overruled by doubt ( Al yaqin La Yuzalu Bil Shakk)
This maxim provide guidance in respect of the principle, which should be adopted in addressing prevailing issues that arises due to the existence of doubt in the underlying facts of the matter. In essence, rules of law that are established with proven evidence will remain applicable and relevant and will only be supersede with a new ruling that is established with a stronger evidence . The prevailing certainty shall be accepted to remove or reject element of doubt the co-exists in the matters under consideration. Practices that are established with certainty will continue to be relevant and applicable until it is concretely proven otherwise. This is due to the fact that the foundation of doubt that existed in presence of certainty is in weaker position to nullify the latter, which was established based on substantive evidence.
Evidence and meaning of the maxim
This was developed and formulated based on several verses of the Qur'an and Sunnah. Among others are: "but most of them follow nothing but fancy: truly fancy can be of no avail against truth" Yunos:36) . This verse indicates and emphasize that the unbelievers continue to be in the state of doubtful. The doubt that they encounter will not prevail over the truth or certainty on particular matters. Therefore, those who follow “Al-Zann” or doubtful will never be successful and whatever they follow will never lead them to the right path.
The prophet (S.A.W) said: "if anyone of you feels anything in his or her stomach then he is confused of whether anything has come out of it or not, he should not go out of the masjid unless he hears a sound or gets a smell". Imam Al-Nawawi explained that this Hadith remarked that it is a great maxim of Islamic law that is the affairs should be judged to be on their original condition unless the opposite is certainly proved.
If any doubt arises later this doubt would not hamper the certainty that had been originally established for those affairs. The prophet (S.A.W) said: "if forgetfulness arises to anyone of you in his or her Salah or prayers and he or she has doubt or not certain of whether he or she has prayed one Rak'ah or two , he or she should consider that they have performed one Rak'ah. Likewise if a person is not certain of whether they have actually performed three Rak'ahs or four , he or she should consider that they have performed three , a person should prostrate twice before he or she completed his prayer by saying the greeting ( Salam ) . This Hadith provided the basis that certainty cannot be removed by doubt.
In the case of performing specific Ibadah that is Salaah for instance , a person shall accept that he has prayed at least one Rak'ah in the event where they are not sure or having doubt whether they have actually performed the prayer either one rak'ah or two during the prayer. The certainty of having prayed one Rak'ah, therefore cannot be removed by doubt that has arisen regarding the second Rak'ah. In second case it is certain that this person has at least prayed completed two Rak'ah of his prayer. The certainty of praying two Rak'ah is therefore cannot be removed by the doubt that arose for the third. This Hadith essentially highlighted that there is no room for doubt and if a person is in doubt of anything then he should disregard the doubt and be affirmed on certainties in the matters under consideration.
Conditions of the maxim
Elements of certainty that existed in the issue under consideration is fundamentally a stronger element than doubt as the doubt over the original matter normally arises as a subsequent event or secondary issue. The certainty in the primary matter shall always prevail over secondary matter in view that it is more reliable, certainty element that existed in a particular matter shall not be removed merely by doubt and therefore decisions shall be upheld based on certainty in the underlying issue under consideration.
Application of the maxim
The maxim is directly applicable in the context of Ibadah and other matters as well:
a) In the case of performing the ablution, the maxim emphasize that the status of ablution undertaken or carried out by a person is considered to remain valid unless there is evidence or indication showing otherwise. The state of ablution of that person shall not be disputed or ceased to be valid primarily due to the doubt that arises on the matter. The decision on the invalidity of ablution shall only be supported by strong evidence.
b) In the case where a person who has doubt in terms of the number of Rak'ah that he has performed during Salah, the prophet (S.A.W) informed that the issue shall be resolved based on certainty of the fact on the matter. The person has to accept the number of Rak'ah in which he has strongly believes in with greater certainty. The Hadith propagates that decision or judgment shall be driven based on certainty element in matters under consideration as opposed to giving focus on doubt that exist with the absence of strong evidence.
c) In the case of loan contract, a person shall consider that he or she is still indebted to the lender in the event where he or she is unable to provide the evidence of payment. This is due to the fact that outstanding amount of loan will remain valid and certain as stipulated under the contract and will only reduced by settlement amount. It is known facts that loan of financing transaction executed with financial institutions are supported with written evidence and proper documentation.
d) In respect of the contract of marriage, a husband and wife relationship shall remain valid unless a strong evidence for the pronouncement of divorce is presented.
(III): Harm must be eliminated ( Al Darar Yuzal )
This maxim has its origin from the Hadith of the prophet (S.A.W) which said that : " there must be neither harm nor the imposition of harm". This maxim is one of the pillars of Islamic law. The rule forms the basis of the laws of option, return of defective merchandise, compensation and indemnity, etc. It is necessary that an Islamic state should legislate and manage in such a way that would plug the sources of causing harm or damage. It is on this basis that the government has a right to blacklist those traders who indulge in illegal and anti-social activities such as smuggling.
Other relevant maxims
These maxims requires the following conditions are to be observed:
a) " Let the ancient rest on its age"
Thus it is not permissible to close an age -old thoroughfare or to prevent the livestock from grazing in jungle or public pasture which has been in use since a long time. These rights have to be guarantees unless their exercise is harmful to general interest.
b) " A wrong is a wrong even though it be ancient"
Thus if an age - old canal is causing water logging it should not be allowed to flow simply on account of previously held rights. If a well has become dangerous to the neighboring population it will be leveled up even if it is very old.
c) "Unlawful things are to be prevented irrespective of benefit"
There may be situations in which an act might have certain benefits while it produces corruption and inequity. In such a case shari'ah would ban that act despite the benefits that it might apparently yield. Trading in unlawful items and earning with unlawful ways might provide employment to a large number of persons and bring substantial revenues to the government. The unlawful items in trading must be eliminated since the removal of harm has priority over acquisition of benefits - economic, social or otherwise. Gambling might be an effective source of collecting funds. Nevertheless, they have to be avoided since the acquisition of benefits is less important from the viewpoint of the shari'ah than the avoidance of corruption.
Application of the maxim
This maxim is applied in the validation of the option of defects ( khiyar al-ayb) in Islamic law which is designed to protect the buyer against harm. when [a] buys a car and then discovers that it is substantially defective, he has the option to revoke the contract for there is a legal presumption under the shari'ah that the buyer concluded the contract on condition that the object of sale was not defective.
(IV): Hardship begets facility ( Al Mashaqqa Tajlib Al Tayseer )
This maxim has its origin from the Qur'an : " we hath chosen you and hath not laid upon you in religion any hardship" (22:78). Hardship for physical persons has been defined by jurists as a situation in which acting upon an injunction of the shari'ah causes loss of life or limb or leads one to performance of a prohibited act. This maxim is related to necessity. Scholars have distinguished between "Darura"( compulsive necessity) , and "Hajah" ( need) . Darura is an indispensable necessity which, if not met, may cause severe hardship resulting in loss of life known or suspected. Hajah on the other hand is a need which when unsatisfied, does not cause hardship.
Conditions of the maxim
Hardship may be faced because of compulsion, distress and universal affliction ( Umum Balwa ) , physical handicap, ignorance , forgetfulness, sickness and journey, but are conditioned on:
a) The necessity should not be speculative or imaginative.
b) No lawful alternative should be available to the suffering person than the one which calls for relaxation.
c) The solution should not infringe the inviolable rights of the people leading to homicide, apostasy, usurpation of property (Ghasb) or indulgence in unlawful sex.
d) There should be a very strong justification such as the protection of the life or limb, to the extent of consuming an unlawful thing or performing an unlawful act.
e) In view of experts it should be a genuine solution and the only one available. For example, in the case of medical treatment, only an expert who can pronounce whether liquor alone is the available remedy for disease and that nothing else would be effective.
f) A very important condition of permitting an act under constraint or compulsion is that "necessity does not destroy the right of others.
(V): Custom is basis of judgment ( Al Adah Muhakkamah)
This maxim has its origin from the Qur'an : " keep to forgiveness , enjoy Urf and turn away from ignorant" ( Al-Aaraf 199). Ibn Masoud said : " what Muslims determine to be good is good with Allah". Urf is a noun which means to know. Urf is a very important term in fiqh as many of the rulings ( fatwas) issued by Mujtahid on different issues are based on Urf. Urf is what that shari'ah considers to be good, and not what human reason or the prevalent practices consider to be good. Urf refers to the norms of the majority of society whether applied in speech or deed. It is considered as "Adaat Jama'iyyah" customs that are collectively acceptable) and can be used as a legal basis so long as it does not contradict Shari'ah.
In the context of the Islamic market, Urf Tijari refers to customary practices in businesses that are considered a basis for guidance and Hukm. The word Urf is usually associated with the word " Ma'ruf" (good) in the texts. Ma'ruf which literally means " known" is, in its Qur'anic usage , is equated with good , while it's opposite, the "Munkar" or strange , is equated with evil. Khallaf defines it as "what is established and practiced by people from their saying and doing or not doing". Al-Zarqa defined it as the behavior of a group of people in their saying or doing. Badran defined it as: Urf is what is established and common in a group of people ( Jumhur) from their saying and doings and it is consistently repeated until it influences them and is therefore accepted by their reason.
Conditions of the maxim
In order for the Urf to constitute a valid basis for legal decision it must be the consistent practice of a group of people. The practice of individuals is not an Urf but it is a personal habit, Urf must be sound, acceptable and reasonable. Urf it is what the shari’ah considers to be good, and not what human reason or the prevalent practices consider to be good. If some of these practices are approved by the shari’ah, then, they are acceptable to the law. The process of approval prior to acceptance is necessary:
a) The custom and usage should not be in defiance to the injunctions of the shari’ah. The practice of charging interest on loan has a universal usage but t is prohibited and cannot be recognized. The practice of forcing a borrower to work at sub-standard wage by virtue of his indebtedness is also exploitative and hence prohibited. Parents taking possession of dower money (Mahr) of the daughter without passing it on to her is not acceptable according to the shari’ah. The practice of paying fixed amounts by way of bribe to officials are not permissible.
b) “The custom which is most widely prevalent and operative is to be relied upon”. Food grain that was traded in the early Islamic period was measured in terms of “Mudd” and “Saa’”. But it is now universally weighed, but not measured . Thus all calculations whether for trading or for purposes of payment of will be made in terms of the prevalent units of weight.
c) The custom must be in existence at the time the transaction is concluded, in order for Urf to be considered as a basis for shari’ah decisions, the practice must be prevalent at the time the transaction is concluded and not an extinct customary practice. This condition is particularly relevant to the interpretation of documents or sayings, which are to be understood in the light of the custom that prevailed at the time they were written. If the customary meaning changes after the transaction has been concluded and if there arises a problem concerning the interpretations and implications of the transaction, it must be referred to the customary meaning when the transaction was concluded and not the customary meaning that occurred later.
d) Credence is to be given to that which is publicly and generally operative, and not to what is rare. It seldom happens that some parents present to their daughters returnable gifts. But the regular custom is to provide dowry for good. In case of any dispute on the point of ownership it is the predominant custom that will be made a precedent. The main rule “custom is a source of judicial decisions” shall be made applicable. Thus “ what is a matter of common practice has the same effect as an express condition”.
In case a person authorizes another to sell something on his behalf without laying down conditions as to sale price and unit of currency, the agent will be treated to be bound by conventional rules of charging a reasonable price and prevalent currency. An attorney would be expected to rent his principal’s house, machinery or workshop on the terms and conditions customarily prevalent in the market. In none of the above cases the detail understood by common usage would need to be mentioned. The general rule is that contractual agreements prevail over customs. Should there arise a conflict between them, it will normally be determined in the favor of the former. An example is that the costs of formal registration in the sale of a real property according to the custom are payable by the purchaser. But if there is a stipulation in the contract that specifically requires the vendor to bear these costs, then the custom would be of no avail and the purchaser would not pay these costs.
6. Claims and Practice
To illustrate the applicability of the five Major Maxim, listed below, in no particular order, the application to contemporary economic activities. Sometimes, the exigencies of the situation require that a lawful act should be disallowed for perseverance of public interest. However, interpretation and application of these rules require thorough knowledge of Islamic law and jurisprudence.
In contemporary economic activities, let us take the example of nationalisation of financial institutions in some countries. Nationalisation may be the best result of political ambitions while in some countries, it may aim at correcting mismanagement and regulating credit. In other countries, it may be aimed at preventing foreign domination. Nationalisation in socialist countries has a deep-rooted philosophical basis and underlying rationale quite different from the one which prompts nationalisation of key industries in non-socialist countries. On the other hand, different actions by different countries by way of granting rebates on export, making available easy credit to exporters, fixation of import tariffs, laying down licensing procedures and quota restrictions in connection with imports etc, may aim at achieving a common cause of improving the balance of payments position. The relationship between intention and act could further be elaborated by the following examples:
1. A man makes a living;
a. For the satisfaction of his selfish effects.
b. For personal consumption and demonstration effects.
c. For complying with the divine command to earn for the sake of survival and spending on noble causes.
In this case, the act is the same, but the intention or object is different.
2. A man may grow and sell grapes to the consumer or to the manufacturer of wine;
3. A fanner may grow poppy for sale of seeds or to prepare opium or drugs. In all these cases, it is the intention that determines the legality of the act or an individual.
The same would apply in cases of public policies. For instance, inscription of sacred words on coins may have the intention to symbolize a distinctive feature or the inscription may be desecration of sacred words. The former may be acceptable but the later would be treated as offensive. In short, the intention of the government in carrying out an act or in making policy, that matters.
The relationship between an act and intention could take the following forms:
1. Acts/policies that are good in themselves and are actuated by good objectives/intentions. For example, a government might seek to promote welfare through zakat and charity funds, donations, government revenues and just and equitable taxes.
2. Acts and policies that are not good in themselves but are resorted to for achieving commendable objectives. The instances that relates to this may include winking, over a smuggling attempt, in order to allow some people to earn their livelihood or mobilizing funds for charity by means of games of chance and by floating interest-bearing loans and bonds.
3. Acts and policies that actuated objectionable intentions but lead to good results. An example is the nationalization of an industry or of an industrial unit with the view to harassing or black-mailing one’s political opponents but the step might result in providing job security to workers, reduction in the prices of products, elimination of cut-throat competition and waste, and standardization of the products and avoidance of incongruent growth of industry.
4. Objectionable intentions – example, conniving at smuggling of wine into the country for use by Muslims.
As illustration, let us refer to a contract between two parties, which is treated as binding, although doubts do exists. The rule, if read with its following subrules, provides a broader explanation of its application. “as to incorporeal matters – that do not prove themselves, the basic principle (presumption) is that they do not exist”: so that if between the active partner and the financier, there be a dispute as to profit, the word of the active partner will be taken, and the financier may lead evidence to prove the actual profit.” An illustration could be made in relation to a firm’s declaration of income. Thus doubts of the assessment statement should not be unilaterally or arbitrarily be sustained, unless the income statement filed by the firm is proven to contain discrepancies.
Similarly, in cases of profit sharing, a partner has no right to assume a minimum rate of profit earned and he claimed his share in that profit. The most important rule of the Shari’ah is based on the Hadith “No wrong, no wrong doing”. This guiding rule, read with its sub-rule, “wrong is to be undone” provides a guideline to regulate the entire economic and financial system in such a manner that prohibits harm being imposed and discourages retribution. This basic rule is treated as a pillar of Islamic law. The rule forms the basis of the laws of option, inhibition, return of defective merchandise, pre-emption, Hudud, compensation, indemnity etc. It is on the basis of this that the landlord is disallowed from ejecting the tenant from the cropped land even on expiry of the tenure of the tenancy contract, so that the cultivator is protected from the loss of his crop, till the crop sown is harvested. These are but some of the common examples on the Maxim’s applicability.
6. Conclusion and finding
Recourse may be made to reasoning based on these rules only if the Quran and the Sunnah do not provide guidance on a specific issue. Consensus of early jurists (ijma) also commands priority over the legal maxims. Injunctions of the Quran and the instructions of the holy prophet are also to be taken as a whole.
Jurists have also recorded the judgments and the opinions that are based on the consensus (ijma) of early ulama. This leaves a large number of issues that require decision within the limits of Shari’ah. For example legal opinion in regard to profit-sharing in a joint venture is that :” Profit is to be distributed according to the agreement but loss is to be borne in proportion to capital contribution.
1. Dr Wahbah Al-Zuhayli: Islamic Jurisprudence and its Proof (Volume 2, 2003)
2. The Majelle: English Translation of Majallah El-Ahkam-I-Adliya and A Complete Code on Islamic Civil Law
3. M.H Kamali: Principles of Islamic Jurisprudence
4. Dr Mohamad Akram Laldin: Introduction to Shari’ah and Islamic Jurisprudence (2008)
B: Journal, Article, Paper & Magazine
1. S.M. Hasanuzzaman (2007): The Economic Relevance of the Shari’ah Maxims
2. Mohammad Hashim Kamali : Qawa’id Al-Fiqh
3. Class Notes
C: Data from the internet: