Introduction

Islamic Legal Maxims which includes the definition of legal maxim, historical development of legal maxim, origin of legal maxim, categories of legal maxim. Normally in our discussion of legal maxim, we will highlight some of the most essential maxims that were written by our muslim jurists The concentration shall be given on selected five legal maxims as they are aggreable by all jurists. These 5 maxims are as Follows: Matters are determined according to the intention, Hardship begets facility, Certainty is not dispelled by doubt, injury must be removed and finally Custom is authoritative.

Islamic Legal Maxims

The Meaning

The History Discussion on Five Major Maxims

The Definition
Literally : it consists of two different words of qawaid and al-fiqhiyyah. Qawaid is derived from the root of qaada-yaquduquudan, and it is the plural of qaidah. whereas the al-fiqhiyyah is derived from the root of faqaha-yafqahu-fiqhan. In Brief we might say that the word of refers to Principles, and the word of in this regard refers to Islamic Law. Therefore, when we combine both of them, we might say that al-qawaid al-fiqhiyyah or legal Maxim is referred to Principles In Islamic law or in Malay Kaedah-kaedah fakeh.

The Definition
Technically : Mustafa Ahmad al-Zarqa`
General principles of Fiqh refers to a statement which is presented in a simple format consisting of the general rules of Shariah in a particular field related to it

The

principles of Islamic Law

Legal Maxim

Islamic

The Definition
Technically : Imam al-Jurjani and imam alFayumi: a general rule which applies to all of its related particulars. Technically : Imam al-Tahanawi: a general rule which applies to all of its related particulars when the hukm about it is perceived

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Dr Akram Laldin in his book of Introduction to Shariah and Islamic Jurisprudence has mentioned that al-Qawaid 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.

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Prof Hasyim Kamali in his writing on legal maxims says that Legal maxims (qawaid alkulliyah 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 and ahadith from the Prophet and other sources, to be used as the rules of fiqh on various matters.

 Summary of Legal Maxim: The general rules of Fiqh, which can be applied in various issues of fiqh.

Few words but provides comprehensive meaning.

Used as principles to deduce many rules of Fiqh. Therefore they have a great role in the formation of Islamic Law. They are general rules which were derived from various sources of Islamic Law.

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If we looked closely to the various legal maxims that have been written and produced by the Muslim jurists, we would realize that the actual wordings of the maxims are occasionally or rarely taken from the Quran or Ahadith. However, most of the times, these legal maxims are the writings of leading jurists and mujtahids that have subsequently been refined by others throughout the ages

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It this regard, it is understood that Legal maxims as a set of established principles of law derived from various sources, to which the Muslim jurists most of the times will refer to, when they confronting new legal cases. It is also importance to remember that legal maxims according to Muslim jurists, do not bind the judge or jurist, but provide persuasive sources of influence in the formation of their judicial decisions and ijtihads.

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It is stated in the Mejelle that legal maxims are designed to facilitate a better understanding of the Shariah and the judge may not base his judgement on them unless the maxim in question is derived from the Quran or Ahadith or supported by other strong evidence. However, according to some jurists such as Shihab al-Din al-Qarafi, who held the opinion that a judicial decision is reversible if it violates a generally accepted maxims. Therefore, based on his view, the judge, must base his judgment upon these generally accepted maxims.

Continue.. If we wish to compare the Islamic Legal maxims with something that we might be familiar with, we may compare these legal maxims with the various proverbs that we have in our literature. The saying such as Bagai aur dengan Tebing or in English like the river and its bank or proverb which says : Bapa borek anak rintik which means Like father like son, like mother like daughter Or proverb says Sekali air bah sekali pantai berubah which means once there was a flood, the beach changed or etc. These proverbs were produced by our forefathers, and they have derived them based on their own observations and experiences in their life.

Continue.. Therefore, these proverbs or words of wisdom that were written by our forefathers, which consist of few words, but having comprehensive and very deep meaning, and they could be considered as guideline in different divisions in our life. Of course Islamic legal maxims are the fiqh principles which are used in various matters pertaining to our religion, whereby the proverbs or words of wisdom used by our forefathers as guideline in solving various problems arising within our society. Islamic Legal Maxims used to solve problems in religion, and proverbs used as guideline to solve various problems pertaining to our society.

Continue.. A prominent modern Muslim jurist, Mustafa alZarqa, in his discussion on legal maxim, mentioned that although these legal maxims are general principles, they have significant roles in fiqh. These maxims, according to him, have solved most of the minor rules of fiqh and without them, these minor rules, will have no standing ground which will make it hard to solve them.
Jurists and mujtahids will refer to these legal maxims and used them, in order to solve problems which are not mentioned in other sources of law.

The Different Classifications Of Al-Qawaid AlFiqhiyyah

1. The scope of the qawaid in term of its application towards the issues of Fiqh: a) The major maxims : 5 major maxims b) The minor maxims : i. the extension maxims from the major maxims ii. The maxims that are not related to the major maxims. 2. The acceptance of a particular maxim among the different schools of Islamic law: a) The maxim which is accepted and utilised by all scholars from different mazhab. b) The maxim that is accepted by certain scholars from certain mazhab and rejected by others.

Continue.. Some legal maxims are of general application, whereas others might apply to a particular area of fiqh, such as ibadah (worship), muamalah (transactions), contracts, litigation and court proceedings. Ibn Juzay al-Malikis for instance, through his book of Al-Qawanin al- Fiqhiyyah has identified and discussed about the legal maxims and he said that the most comprehensive and broadly based of all maxims are known as al-qawaid alfiqhiyyah 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.

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Jurists said that this kind of legal maxims are acceptable by all madhahib. Maxims such as Harm must be eliminated (Ad-dararu yuzal) and Acts are judged by the intention (Al-umuru bimaqasidiha) for example, belong to this category of maxims. The early ulama have singled out about five of the legal maxims and they are the essence of the Shariah as a whole, and the rest according to them, are simply an elaboration of these five maxims.

Continue.. These five legal maxims are as follows: Harm must be eliminated (Ad-dararu yuzal)
Acts are judged by the intention behind them (Al-umuru bi-maqasidiha) - Certainty is not overruled by doubt (Al-yaqinu la yazulu bish-shakk). - Hardship begets facility (Al-mashaqqatu tujlab at-taysir). - Custom is the basis of judgement (Al-addatu muhakkamatun)

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The example of a legal maxim which is used only in a particular issue such as the legal maxim which says: The affairs of the imam concerning his people are judged by reference to maslahah (Amr al-Imami fi shuun ar-raiyyati manutun bilmaslahah). This kind of legal maxim is basically often used in Islamic political affairs between the ruler and his people. Therefore, this kind of legal maxim is difficult to be used in other matters, except the affairs of the people or the activities of their imam or ruler.

History of Al-Qawaid al-Fiqhiyyah

- We must bear in our mind that Al-Qawaid alFiqhiyyah was not written all at once by a particular scholar, but was developed by the jurists at the time of the resurgence of Fiqh, especially during the Abbasiyyah 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 alKarkhi (d.334AH/945CE) and Sufyan ibn Tahir alDabbas. - In the 15th century of hijrah, Abu Zayd Abdullah b. Umar Al-Dabbusi wrote his book Tasis al-Nazar

Continue.. Many scholars from various schools added to these from time to time and the total number of qawaid eventually exceeded twelve hundred. After the Hanafis, the Shafiis, then the Hanbalis, and following them the Maliki jurists started to write various maxims. Taj ad-Din as-Subki, for instance, wrote a most important work on legal maxims al-ashbah wannazair as the title of his book. Jalal ad-Din as-Suyuti (d.911) and Zayn alAbidin Ibn Nujayam al-Hanafi (d.972) also wrote works on legal maxims that closely resemble one another, both bearing the title Al-Ashbah wanNazair.

Continue.. The leading Shafii scholar, Izz ad-Din Abd asSalams (d. 660H), Qawaid al-Ahkam fi Masalih al-Anam is noted as one of the great contributor to this field. Also Abd ar-Rahman ibn Rajab al-Hanbalis (d.795) via his work Al-Qawaid.
The Jafari School of the Shiah 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 Shii work on maxims was that of Allamah al-Hilli (d.726H) entitled Al-Qawaid, followed by ash-Shahid al-Awwal Jamal al-Din alAmili's (d. 786) Al-Qawaid wal- Fawaid that contained over three hundred maxims. However, the Mejelle collection, 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 alMujalla, is a synopsis and commentary of the first ninety-nine articles on legal maxims of the Mejelle collection.

Classical literatures
1. Takhrij al-Furu ala al-Usul by Imam Abu Manaqib Shihab al-Din Mahmud ibn hmad alZanjani al-Shafii (d.656H). 2. Anwar al-Buruq fi Anwa al-Furuq written by Imam Shihab al-Din Ahmad ibn Idris al-Qarafi alMaliki (d.684H). 3. Al-Ashbah wa al-Nazair by Jalal al-Din al-Sayuti al-Shafii (d.1201H). 4. Al-Ashbah wa al-Nazair by Ibn Nujaym, Zain alDin ibn Ibrahim ibn Muhammad al-Hanafi (d.970H).

Modern Literature
1. Al-Madkhal al-Fiqhi al-amm by Mustafa bin Ahmad al-Zarqa . 2. Al-Wajz fi Iidah Qawaid al-Fiqh al-Kuliyyah by Muhammad Sidqi bin Ahmad al-Borno al-Ghazzi. 3. Al-Qawaid al-Fiqhiyyah Nashatuhu, wa Tatawurruhu: Dirasat Muallifatiha by Syeikh Ali bin Ahmad al-Nadawi. 4. Al-Nazariyyah al-Fiqhiyyah by Prof. Dr. Muhammad bin Wahbah al-Zuhaili.

Some of the legal maxims as proposed by Jurists Matters are determined based on the intention Certainty cannot be removed by doubt Harm Shall Not Be Inflicted Nor Reciprocated Hardship begets facility Custom is authoritative In contracts effect is given to intention and meaning and not words and forms"

Continue. "It is a fundamental principle that a thing shall remain as it was originally." "Freedom from liability is a fundamental principle." "Things which have been existence from time immemorial shall be left as they were." ." : "Judgment shall be given in respect to any matter, which has been proof at any particular time, unless the contrary is proved"

Continue.. "In principles, word shall be construed according their real meaning." "Where there is a text there is no room for interpretation." "One legal interpretation does not destroy another." "Latitude should be afforded in the case of difficulty." "Necessity is determined by the extent thereof."

Continue.. "When a prohibition is removed the thing to which such prohibition attaches reverts to its former status of legality." "Whatever is permissible owing to some excuse ceases to be permissible with the disappearance of that excuse." : "A private injury is tolerated in order to ward off a public injury." "Severe injury is removed by lesser injury."

Continue.. "In the presence of two evils, the one whose injury is greater is avoided by the commission of the lesser." "Repelling an evil is preferable to securing benefit." "Injury is removed as far as possible." "Necessity does not invalidate the right of another." "When it is forbidden to take a thing it is also forbidden to give it."

Continue.. "When it is forbidden to perform an act it is also forbidden to request to its performance." It is undeniable that rules of law vary with change in time." "Effect is given to what is of common occurrence, not to what happens infrequently. "A matter recognized by custom is regarded as if stipulated by agreement."

: "A matter recognized customary amongst merchant is regarded as if agreed upon between them. "A matter established by custom is like a matter established by a legal text. "An accessory which is attached to an object in fact is also attached to it in law. : "The owner of a thing held in the absolute ownership is also the owner of the things indispensable to the enjoyment of such thing."

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Continue.. "Management of citizen's affairs is dependent upon public welfare." "A word should be construed as have some meaning, rather than disregarded." "When the real meaning cannot be applied, the metaphorical sense may be used." "No statement is imputed by to a man who keeps silence, but silence is tantamount to a statement where there is a necessity for speech."

Continue.. "Correspondence resembles conversation. "The recognized signs of a dumb person take the place of a statement by word of mouth." "No weight is attached to assumption. "The burden of proof is on him who alleges; the oath on who denies." "The enjoyment of a thing is the compensating factor for any liability attaching thereto."

Continue.. Liability is an obligation accompanying gain. (That is to say, a person who enjoys the benefits of a thing must submit to the disadvantage attaching thereto.)" "No person may deal with the property of another without such person's permission." "No person may take another person's property without legal cause." "Any person, who hastens the accomplishment of a thing before its due time, is punished by being deprived thereof."

Five Major Maxims

1.AL-UMUR BI MAQASIDIHA Matters are determined according to intention 5. AL-ADAH MUHAKKAMAH Custom is authoritative

LEGAL MAXIM

2.AL-MASHAQQAH TAJLUB AL-TAYSIR Hardship begets facility

4. AL-YAQIN LA YAZULU BI AL-SHAKK What is certain cannot be removed by doubt

3.La darara wa la dirar Harm Shall Not Be Inflicted Nor Reciprocate

1. Al-Umur bi Maqasidiha

[Matters are determined according to intention]

General Meaning
Origins of the Maxim

Applications of the Maxim

Branches of the Maxim

General Meaning
An act of any human being is judged in the light of the intention or all the acts have been linked to someones intention. Intention:
a. The will directed towards an action b. action of man judged through his intention c. A particular action could be good and having reward and could be bad and getting punishment.


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. But he whose migration was for some worldly matters, he might gain, or for a

Origins of the Maxim 1

Origins of the Maxim 1

99 : [ God knows all that what you reveal and what you conceal.

78 : [ Do they know that God knows their secret (thoughts) and their secret gossips, and that God knows well all things which are unseen.

Application of the Maxim 1 in Ibadat

1. If a person slaughtering an animal with the intention to legalize it for food and consumption purposes, as requested by Allah, then it is considered as ibadat and shall be rewarded. However, if the same person slaughtering an animal because of superstition, then it is haram and there shall be punishment on him. *Same action but different in the intention, bearing different consequence.

Application of the Maxim 1 in Muamalat

2. If a person finds something on the street or anywhere else and took the object with the intention of returning it to the owner, his conduct is in order and he is considered as the keeper (amin) of the item, but if he intends to keep the item as his own, he is considered to be a person wrongfully appropriating property (ghasib). *The physical act is identical in both cases, but the judgment therein differs according to the someones intention.

Application of the Maxim 1 in crime

3. If a person killed another person intentionally, than doer should be killed (qisas) if convicted, but if the crime is perpetrated unintentionally, the punishment is different in this case, only the paying of blood money (diyah) is applied, the doer is not entitled to qisas. * The same act of murder, but having different consequence, because of different intention or niat.

The Purpose of Intention

A. To differentiate bween Ibadah and Adah (custom or personal habit). For e.g., if a person refrain from eating and drinking from dawn (fajr) until sunset (maghrib) without having the intention of fasting, the person is not considered as fasting. This action is mere Adah (for example she is diet) and will not be rewarded.

The same action if done with the intention of fasting, it will be considered as Ibadah and will be rewarded
B. To differentiate between one kind of Ibadah and another. For example in prayer, fasting, Ghusl and hajj.

Branch of the Maxim 1

[

In contracts effect is given to intention and meaning and not words and forms.

This maxim gives the effect that in the event of a difference between the intention and the outward expression in the interpretation of contract, the judgement would be in accord with the intention to the extent that it may be ascertained.

2.Al-Mashaqqah Tajlub al-Taysir

[Hardship begets facility]
General Meaning
Origins of the Maxim

Applications of the Maxim

Branches of the Maxim

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 rulings whose implementation causes hardship to a person OR the action is unable to be performed for a specific acceptable reason then, there are alternatives and way out that can be resorted to in order to overcome the difficulties and hardship. Hardship in this maxim refers to those kind of hardships that exceed the normal limit and ability of a person to perform them.

General Meaning

[Contd]

The normal hardship (masyaqqah mutadah) that accompanies implementation of every obligatory duty does not fall under the interpretation of this maxim.
E.g. Hardship in performing certain kind of ibadah such as in fasting, hajj, jihad. (Reward and punishment of Allah based on the degree of someones obedience to Him).

General Meaning

[Contd]

However, in the situation, where there is abnormal hardship (masyaqqah gharyr mutadah) , provided this kind of hardship is not created by his own self, then by that time Allah will allow certain concessions (rukhsah), in order to remove hardships and ensure justice and fairness. In other words, when a situation gets difficult, the law becomes flexible.

Origins of the Maxim

He did not make any difficulty for you regarding the religion (din of Islam) [Al-Hajj, 78]

Allah wants ease for you and He does not want hardship for you [Al-Baqarah, 2:185]

Allah does not give anyone legal responsibility for anything except what is within his capacity"
[Al-Baqarah, 2:286]

Origins of the Maxim [contd]

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

Surely Allah (SWT) introduced the din as easy, full with kindness, and wide. He did not make it narrow
Ayesha 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

Application of the Maxim 2

If someone enters into a rental contract (al-Ijarah) and later on he has to travel for certain reason, he is allowed to cancel the rental contract. Under normal circumstance, a person is not allowed to cancel this type of contract unless it is agreed between the contracting parties beforehand. However, forcing a person to continue paying the rental when he is not occupying the premise, will amount to hardship, therefore the Shariah has allowed the cancellation under specific circumstances in order to avoid hardship.

Application of the Maxim 2

The general ruling related to the implementation of punishment towards a person convicted for any crimes 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 ease the person from additional hardship.

Branches of the Maxim

Necessity renders prohibited things permissible. [al-Darurat tubih al-mahzuraat]
This means that prohibited things is allowed to be carried out under extreme circumstances provided there are no other alternative for such situations. As an example, a person is allowed to consume prohibited food in order to survive under extreme situation provided no other food is available.

Branches of the Maxim

[contd]

Where a matter is narrow it becomes wide. [al-amr iza daqa ittasa] Latitude should be afforded in the case of difficulty.
This means upon the appearance of hardship in any particular matter, latitude and indulgence must be shown.

Branches of the Maxim

[contd]

"Whatever is permissible owing to some excuse stops to be permissible with the disappearance of that excuse. Necessity is determined by the extent thereof."

3. La Darara Wala Dirar

[Harm Shall Not Be Inflicted Nor Reciprocated]
General Meaning
Origins of the Maxim

Applications of the Maxim

Branches of the Maxim

General Meaning
A general maxim which indicates the importance to remove all kind of harm. This maxim is divided into two parts:

i. [La Darar]
Harm shall not be inflicted

ii. [La Dirar]

Harm shall not be reciprocated

Part One [La Darar]

Harm shall not be inflicted indicates that all kinds of harm whether it involves individual, society, environment or any other things shall be avoided.
The word harm in this maxim is general and it includes all kinds of harm. All necessary measures should be taken in order to prevent any kind of harm from happening.

Part Two [La Dirar]

Harm shall not be reciprocated indicates that any harms that is inflicted should not be responded or revenged by inflicting another harm as this will add to the harm already inflicted and will cause or incur further harm. The person upon whom harm was done, shall demand his right through the due process of law.
E.g. 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.

Origins of the Maxim 3

The Prophet (pbuh) said:

Harm Shall Not Be Inflicted Nor Reciprocated

The obligation to avoid any kind of harmful actions were indicated by many verses of the Quran and other Hadith. One of the verses read:

make not your own hands contribute to (your) destruction"

[Al-Baqarah: 195]

... ...

Application of the Maxim 3

If anyone sells anything that could 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.

Application of the Maxim 3

Driving recklessly or beyond the stipulated speed limit on the highway which might lead to an accident is prohibited in Islam as it will cause harm to individual and property.
Similarly it is obliged to adhere to the traffic rules and regulation in order to prevent the harm for going against them.

Branches of the Maxim 3

Harm must be prevented wherever possible
All necessary measure must be taken to prevent any harm from happening

Greater harm must be prevented even at the expense of the lesser harm
In case there is two evil, the lesser evil can be committed in order to prevent the greater evil from occurring. In other word, it is choosing the lesser of two evil or between two harm things

4. Al-Yaqin La Yazulu bi al-Shakk

[What is Certain Cannot be Removed by Doubt]
General Meanings
Origins of the Maxim Applications of the Maxim Branches of the Maxim

General Meaning I
Principles to be followed if there arise any doubt in any matters pertaining to Islamic Law. A fact established by law or proven with evidence will remain so, until there is another certainty that remove it. Any doubt that occur when the certainty prevail will have no power to remove the certainty.

FACT/CERTAINTY EVIDENCE A IS ALIVE

EVIDENCE DOUBT ? FACT/CERTAINTY A A IS IS DEAD DEAD

General Meaning II
If something has not been established with certainty it will remain so until proven otherwise.

Doubt, which comes later, is weaker than certainty on which it was founded. Therefore, doubt cannot contradict or resist certainty.

Origins of the Maxim

"If anyone of you feels anything in his stomach and then he is confused of whether anything has come out of it or not, he should not go out of the mosque unless he hears any sound or gets any smell
[Muslim]

Origins of the Maxim

[contd]

If the forgetfulness arises to anyone of you 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 he will finish his her prayer by saying the greeting (salam)

Application of the Maxim 4

1. If a person is certain that he is in the state of ablution, he is considered to have ablution until there is evidence or indication showing otherwise

Application of the Maxim 4

2. If person have taken loan from another person and is in doubt whether he still indebt, he is considered to be in debt until there is proof to show otherwise

Branches of the Maxim

Originally A Matter Will Remain As It Is
This maxims reiterate the meaning of the earlier maxims in which it says a matter will remain in its position until there are proof that indicated otherwise.

There is no consideration for doubt

Imagination cannot be taken into consideration

The speculation whose error is obvious cannot be taken into consideration

5. Al-adah Muhakkamah

[Custom is Arbitrary]
General Meanings
Origins of the Maxim Applications of the Maxim Branches of the Maxim

General Meanings
Custom in the practices whether in their doings or regardless of whether it practices of the people or certain groups of people. of the people in their sayings, is the general the practices of

These practices has the authority and can specify a general matter (takhsis al-Amm) or restrict an unrestricted matter (taqyid almutlaq).
Click for example

Example
If a contract does not specify whether the delivery of the goods is the responsibility of the purchaser or the retailer.
In this case the prevailing custom should be depended upon to specify and clarify this matter which is not cited in the contract.

Origins of the Maxim

Abd Allah b. Masud:

"What the Muslims deem to be good is good in the sight of Allah"

Custom, if not against Islamic teachings, is normally considered as good practice to the Muslims and acceptable by people and reason. Therefore, such a practice is accepted by Allah. So, it can be regarded as a source of law in Islam. Earlier and more recent scholars of Islamic law have agreed that custom is an important source in Islamic law. They have not objected to the role of custom in solving the problems that arise in Islamic law.

Application of the Maxim

The practice of people in certain places to divide the dowry in marriage contract into two type. The first is the dowry paid when the contract is concluded and second is the dowry paid at a later period of time. The custom that involves transactions is the sale of offering and accepting, or bay almutatah [] , which is normally concluded without the utterance of offer and acceptance.

Branches of the Maxim

A matter recognized by custom is regarded as though it were a contractual obligation. A matter recognised by merchants is regarded as being a contractual obligations between them. A matter established by custom is like a matter established by law. Effect is only given to custom where it is of regular occurrence or when universally prevalent.