REVIEW OF ISLAMIC LEGAL MAXIMS

OF MAHMASSANIS FALSAFAT AL-TASHRI FI AL-ISLAM

WITH A SPECIAL REFERENCE TO
AL-NADWIS AL-QAWACID AL-FIQHIYYAH
Masyhudi Muqorobin
Universitas Muhammadiyah Yogyakarta, Indonesia
(masmubin@yahoo.com)

Books for review:

Sobhi Mahmassani, 1980, Falsafah al-Tashric fi al-Islam, English
translation by Farhat J. Ziadeh, Shah Alam, Malaysia, Penerbitan
Hizbi, 1987. The original Arabic, Beirut, Dar al- cilm li al-Malayin.
Special reference:
Ali Ahmad al-Nadwi, 1412H/1991M, Al-qawacid al-fiqhiyyah:
Mafhumuha, Nash-atuha, Tatawwuruha, Dirasatu Mu-allafatiha,
Adallatuha,
Muhimmatuha,
Tatbiqatuha,
Dar
al-Qalam,
Damascus,.
NEED FOR THE QACIDAH
The presence of Islamic legal maxim (al-qacidah al-fiqhiyyah) is
prerequisite for understanding the objectives (maqasid) of the Sharicah. In the
eyes of both the usuliyyun and the fuqaha, it is absolutely required aimed at
performing their ijtihad to provide more applicable rules, derived from the
original text. The maqasid of the Sharicah revealed to mankind to facilitate the
ease of human being fall under three categories as follows:
1. Protecting the Dharuriyyat (basic necessities) of human being, which
includes five elements: religion, life, intellect, linkage and property.
2. Fulfilling the Hajjiyyat (needs) of mankind for facilitating easiness of their
life.
3. Achieving the Tahsiniyyat (amelioration) for public interest.
Using these maxims, they can provide guidelines for solutions to the real
problems arising in different specific circumstances. Islam does encourage
intellectual exercise along the line of the Sharicah. As widely known, this
religion introduces distinguished ways of the exercise by making use of various
methods of ijtihad, based on the Quran itself (Al-cAnkabut/29: 43), the main
source of law and knowledge. There is popular tradition of the Prophet (pbuh)
concerning the appointment of his companions, Mu cadz Ibn Jabbal and Abu
Musa al-Ashcari to be judges in Yemen and Egypt. Different perspectives
between the Usuliyyun and the Fuqaha have generated two distinctive
categories of maxims, al-qawacid al-usuliyyah, the maxims of usul, by the
Usuliyyun, and al-qawacid al-fiqhiyyah, the maxims of fiqh by the fuqaha.
DEFINITION AND MEANING
Mahmassani defined the maxim(s) in a simple way, quoting al-Suyutis
definition, a general rule which applies to all particulars 1, which is differentiated
from dhabit. All of these are covered only in a five-line paragraph, which may
lack of information. Difficulties in differentiating such terms may confront the
1

The Original Arabic is on page 297. See also note 8 of the section on definition above.

readers with lack of understanding in Islamic jurisprudence. This necessitates

the paper discussing it in a wider context with some other related terms in the
following sections
In Milton Cowans (ed.) Dictionary of Modern Written Arabic, The word
qacidah (or plural: qawacid) literally means: basis; foundation; groundwork;
fundament; or base. It can also be translated as: precept; rule; maxim;
formula; pattern; or method. This word is synonymous with the Arabic term
asas or principle, on which, following al-Nadwi (1991), everything such as
building; religion; and the like is established.
From the viewpoints of Islamic knowledge (sciences), al-Nadwi defined
qacidah, in general as universal rule, which is applicable to all of its particulars.
While clear-cut definition put forward by the fuqaha is not applicable to all, but
to major, or majority of, cases. They define the qacidah as lots of particulars
are applicable on it. Elaborating some views of the fuqaha of various Sunni
schools, in comparison with the view point of the usuliyyun and of the nuhah
(grammarian), al-Nadwi came to his own definition: The Sharci (or legal) rule
in the majority (legal) case from which it identifies the derived rules under its
category
He underlined the words sharci, to show its different from the nonc
shar i rule; and aghlabiyyah (majority; greater portion), which excludes the
detail cases from the main part of the qacidah, and to differentiate itself from
kulliyyah (totality; universal). The exclusion process in the latter part is equal
to deriving methodology of qiyas (jalli) to select the proper rules in the usul
fiqh. As a matter of deriving rules, Mahmassani argued, if detailed rules
primarily elaborated in pioneering works of al-Ashbah wa al-Nazha-ir, stem
from the same causes, it follows that they have common generally-applicable
qacidah.
Al-Ashbah and Al-Nazhair
Qacidah is a vital instrument in guiding the determination of particular
branches of Islamic Sharicah. Ash-Shiddieqie (1981) observed its importance in
relation to deriving the rules, which also requires proofs and evidence.
Therefore, some of the prominent fuqaha in the prior had compiled these
qacidah into a set of sophisticated rules, namely al-Ashbah wa al-Nazha-ir.
These terms were originally used by the Caliph of cUmar ibn al-Khattab,
when he sent Abu Musa al-Ash cari take the position of a judge in Basra, saying:
Know the semblances and the similitudes, and perform the qiyas on matters
to their likes. From this instruction, the fuqaha have agreed that the process
of understanding those matters is equal to what the usuliyyun have derived
the rules by means of qiyas.
Al-Nadwi said, as also amenable by Mahmassani the writings on the
qacidah al-fiqhiyyah under this title had started at the eighth century of Hijrah,
by Ibn al-Wakil al-Shafici (716 H.); followed by Taj al-Din al-Subki (771 H.); Ibn
al-Mulaqqin (804 H.); and then accomplished in the very genuine book which
embodies most of the general maxims by Jalal al-Din al-Suyuti (911 H.) of the
same school of thought (madzhab), al-Shafici. A Hanafi scholar, Ibn Nujaim (970
H.), who came later followed their counterpart from al-Shafi ci school, and made
the writing confirm to his school.
AL-QACIDAH AL-FIQHIYYAH AND RELATED TERMS
Al-Qacidah al-Fiqhiyyah, and Qacidah al-Usuliyyah,
The term al-qacidah al-fiqhiyyah, to many of those who are not familiar
with Arabic, is likely to be confusing as associated with some related concepts
such as al-qacidah al-usuliyyah; al-dhawabit al-fiqhiyyah; and al-nazhariyyah alfiqhiyyah. Al-qacidah al-fiqhiyyah can be differed from the first, al-qacidah al2

usuliyyah, in the sense that both are independent discipline of knowledge in

Islam that have their own maxims. Al-Imam al-Qarafi al-Maliki was the first
who distinguished these terms, in his Differences between the Maxims, quoted
by al-Nadwi, he suggested that the Sharicah comprises usul (basic
rules/principles) and furuc (branches). The former consists of two things:
1. Al-qawacid al-usuliyyah: maxims of the rules resulting from the expression
of the Arabic terms, such as al-amru li al-wujub (the command is for
obligations) and al-nahyu li al-tahrim (the ban for prohibitions) etc.
2. Al-qawacid al-fiqhiyyah : general maxims which comprise the inmost and
secrecy of revelation and wisdom, from which the derived maxims are not
found in the usul fiqh. The main feature of these maxims is that they are
very large in number, in accordance with the leading fatwas and
judgements.
Among the basic differences as expounded by al-Nadwi are:
1. The former is a measure of, and a controlling device for, invention of the
correct rule from particular evidence; and its subject matters are permanent
and lie between the proofs and the rules. While the latter is either a
universal or a majority case, that the particulars of which are parts of legal
problems; and its subject matters are also permanent
2. The former talks about universal or general maxim applicable to all of its
particulars and its subject matters. Whereas the latter discusses majority in
which the rule is applicable to most of its particulars, and it makes the rule
be exceptional.
3. The former is a means of discovering/deriving the sharci rules and by this
the latter can be distinguished.
4. The former comes into existence first as its existence is necessary, in
accordance with the furuc, while latter comes up subsequently, talking
about the furuc.
Al-Qacidah al-Fiqhiyyah, and al-Dhabit al-Fiqhi
Technical meaning of the word dhabit is regulator; control; controlling
device. It can also be: general rule; canon; (moral) precept; or order. Al-Nadwi
reviewed that its literal sense is, as observed by al-Nablusi, similar as qacidah,
except in terminological meaning in the eyes of the fuqaha, both are different
in their scope and comprehensiveness. The qacidah classifies the particulars of
various chapters, or comprises various legal aspects, Mahamassani added,
while dhabit consists of only one chapter or legal aspect (of, even in, various
details). Examples of both were also given by Al- cAllamah Taj al-Din al-Subki:
Al-qacidah al-fiqhiyyah : Certainty is not dispelled by doubt is unable to be
specified.
Al-dhabit al-fiqhi
: Every penance (kaffarah) caused by macsiyah
(disobedience) are penalized immediately. The word
kaffarah, can be specified, as it is considered as dhabit,
that includes dzihar (pre Islamic form of divorce); murder;
sexual intercourse during (the day of) fasting time of
Ramadhan; and the like.
Al-Qacidah al-Fiqhiyyah, and al-Nazhariyyah al-Fiqhiyyah
Al-nazhariyyah means theory, from the word Nazhara (to see; to view; or
to perceive). It is a new terminology in (usul) fiqh. It appears only in discourses
of modern Islamic jurisprudence. Al-Nadwi defined nazhariyyah al-cammah or
general theory as legal matters, or enactment that comprises legal problems
or legal issues. Basic elements, conditions and the rules rise from any matter
connected with legal aspect. For example: theory of ownership, transaction
3

theory, and theory of evidence. A theory requires more detail elements. Theory
of evidence, for instance, needs real evidence/facts; testimony; conditions for
testimony; procedures of testimony; withdrawal from testimony; responsibility
of witness; confession or admission; complements/conditions; written
evidence/proof; prior judgement; al-yamin (the oath); al-qusamah (the stronger
oath under the name of Allah, using the words: Wa Allahi; Bi Allahi; and Ta
Allahi) al-lican (sworn allegation, in case of adultery committed by either
husband or wife).
General theory is differed from comprehensive maxim in Islamic fiqh, in
the sense that the former is a special maxim categorized under the latter.
Two main differences between these two were suggested by al-Nadwi:
1. As discussed earlier, al-qacidah al-fiqhiyyah includes legal rules, under
which the number of furuc can be derived. For example, the maxim certainty
is not dispelled by doubt contains legal rules in every aspect pertaining to
the matter, where certainty and doubt are of mutual existence.
Inversely, it is not the case for al-nazhariyyah al-fiqhiyyah to include any
legal rule.
2. It is inevitable for al-nazhariyyah al-fiqhiyyah to take the detail elements
and conditions into consideration, as never al-qacidah al-fiqhiyyah does.
To give a straightforward meaning of the differences, below are
examples of developing theory of fiqh derived from a few numbers of Islamic
legal maxims, as introduced by al-Nadwi, with some modification. Suppose the
maxims on custom and usage
Art-36 Custom is authoritative
Art-37 Public usage is conclusive and action must be taken accordance
therewith
Art-38 A thing which is customary to regard as impossible is considered to be
impossible in fact.
Art-39 It is undeniable that rules of law vary with change in time.
Art-40 The original (real) meaning is to be regarded in favour of that
established by custom.
Art-41 Effect is only given to custom where it is of regular occurrence or
when universally prevailing
Art-42 Effect is given to what is of common occurrence, not to what happens
infrequently
Art-43 A matter recognized by custom is regarded as if stipulated by
agreement.
Art-44 A matter recognised customary amongst merchant is regarded as if
agreed upon between them.
Art-45 A matter established by custom is like a matter established by a legal
text
From the collection of these maxims, a theory can be developed under the title
Theory of curf (Custom).
EVALUATION : GENERAL REMARKS
About the Book and How It Was Translated
With regard to its English translation, Ziadeh in his note admitted the
deletion of two minor parts: A Historical Sketch of European Laws for the
reason of less importance; and the names of minor authors and works
pertaining to Hanafi, Shafi ci and Hanbali. This is more ridiculous, since anything
not necessary for him or for a certain purpose may be required by others, or for
other purposes. Elimination of certain parts of a book to be translated may
substantially reduce the meaning and origin of the book.

In relation to the maxims, he in fact did not take into account the other
minor parts, which are to him irrelevant -- for example in passages under
subheading of the definition of maxims (Mahmassani, the Original Arabic Book:
297-300), as it includes several kinds of maxims. Nevertheless, the deletion in
this part may, on the other hand, also be part of his affirmation pertaining to
the second half.
As a matter of translation, readers perspective in discerning the
authors ideas of such a book are within the boundary of the view, perception,
experience and other aspects of the translator, Farhat Ziadeh. However, he has
attempted to do his best in this effort, as observed by Nabih Amin Faris of
American University of Beirut in the preface of this work.
The work has the good fortune of being Englished by one who
has also practiced the legal profession both as an attorney and as
a judge, and has been several years teaching the subject at
Princeton University. Like the author, he combines an intimate
knowledge of Western legal system and Moslem law alike.
About the Book as in Its Translation
Mahmassanis book is considered a systematic effort in the field of usul
fiqh. However, the first point to be noted here is that it does not discuss any
topic concerning philosophy, as regarded in the title of the book. The content
of it is mostly dealing with usul fiqh, as a methodology of Islamic jurisprudence.
Hence, the word principles2 or methodology3 may be more appropriate to
be used instead of philosophy.
Having defined the meaning of Islamic jurisprudence (fiqh) and some
related terms, the book advances historical background of the formation and
development of Islamic schools of law, including both the Sunni and the Shi ci
schools. While the second is not given enough space for elaboration in the
book, the first school (Sunni) is spread over the chapters covering various
branches in the schools including Hanafi, Maliki, Shafi ci, Hanafi and its other
subdivisions. The most pages of this book are devoted to discuss the sources of
Islamic law, which appear in two parts, Part III and Part IV. The rest, Part V, in
which the hundred maxims from the Majallah al-Ahkam al-cAdliyyah of the
Ottoman Civil Code observed through five sections, as mentioned earlier, are
the emphasis of this review paper.
EVALUATION : ON THE MAXIMS4
The Content and Structure
Basically, entire discussion of this part (Part V) is considered more than a
compilation of the Majallahs maxims and added by the authors commentary
remarks. Fortunately, despite the weakness in defining the terms therein, using
a thematic approach, he systematically groups the maxims according to
certain related terms. This lets the readers grasp the clearer meaning of each
maxim in such groups. On the basis of meaning and definition discussed in the
prior sections, it is not an exaggeration to conclude that this lucid explanation
is likely able to build a general theory under which, the readers can classify it
into theory of necessity; theory of intention; and theory of evidence.
The distinction between ground and detailed maxims is not found in the
reviewed book and in the Majallah as well. It is, otherwise, found in the texts of
2

Compare to Kamalis Principles of Islamic Jurisprudence (1989) who observes the methodology of Islamic
law in almost the entire book, without discussing the maxims. Nevertheless, he employ the word principle
for such a book.
3
Rahman (1965) prefers the word methodology to dicuss it.
4
Regardless the omission in the translation, this section evaluates mainly Mahmassanis Part V, Maxims, of
the book as translated by Ziadeh, p. 146-207, unless otherwise noted.

al-Ashbah wa al-Nadzair, to which the Majallah referred, in the writings of Taj

al-Din al-Subki, al-Suyuti and Ibn Nujaim. Both the first two, the Shafi ci scholars,
place the well-known five basic principle maxims into the first position, namely
al-Asasiyah al-Khamsah, that are also found on the articles 2, 4, 17, 21 and 36
of the Majallah:
1. Art-2 Matters are determined according to intention
2. Art-4 Certainty does not dispel caused by doubt.
3. Art-17 Hardship begets facility.
4. Art-21 Necessity renders prohibited things permissible.
5. Art-36 Custom is authoritative.
The latter, Ibn Nujaim, preceded another principle maxim to the five, becoming
his six al-Qawacid al-Asasiyah: No merit or credit (arising from a pious
deed) without intention therein.
Article 15, thing contrary to the qiyas, which is nullified of being used
as a tool of establishing another qiyas, disappears from the book reviewed
(Ziadehs translation). The whole one hundred maxims as appear in the
Majallah can be found in the Appendix 1 of this paper. The lacks found in this
book may be due to fact that it is only an introduction to another book the
author wishes to publish, concerning the general theory of contracts and
obligations in Islamic law according to various schools. Appendix 2 provides
summary of the treatises on maxims by Muslim jurists.
Theory of Necessity
Only two principle maxims, article 17 and article 21, obtain sufficient
elaboration by the author, and used as subheadings in this part of maxims. The
most significance in this chapter is a methodological explanation by
enumerating Islamic legal sources, like the Quran, the sunnah of the Prophet
SAW, istihsan and also masalih al- mursalah.
In particular conjunction with such derived sources, the prior section of
this paper treats necessities and needs, as usually discussed, in a special place
of the discourses on the Maqasid al-Sharicah. Mahmassani also enumerated
several opinions of distinguished Muslim jurists. Islam is actually a religion of
ease, in the sense that Allah, The Master, hath not burdened human being
beyond their capacity (Al-Baqarah/2: 286). Hence, in any special case of
difficulty when emergency takes place, man is permissible to act something
which is originally prohibited, article 21 says. Permissibility, however, is by no
means of unlimited. Mahmassani enumerated three kinds of limitations under
three categories: by the Texts; by extent; and by time.
In case of conflicting needs and other interests, some articles of the
maxims are taken into consideration in this part. However, neither the
reviewed book itself nor the Majallah provides answer to the conflict between
prohibition and permissibility, except article 46, which may not be appropriate
to completely answer it. The answer is available in the Ashbah: In the
presence of conflict between permissible and prohibited thing, prohibition is
preferred to permissible.
We have a case of bay al-dayn, which is permissible in Malaysia and
otherwise in most Muslim countries, especially Middle East. This type of
transaction is based on two traditions of the Prophet (pbuh), and nullified by
some others. It is suggested, the prohibition of the transaction type is of
preference; and thus conservative way of NOT having bay al-dayn is of
importance, in reference to such a qaidah.
On Intention
6

The only principle maxim, article 2, matters are determined according

to intention is incorporated here as the first subheading. This maxim is set on
the basis of the tradition of the Prophet: Deeds are judged by intentions and
every person is judged according to his intention.
In Islam, the emphasis on intention is shown by giving preference to it over any
expression of human being. It is supported by article 3.
As intention closely relates to wording, the meanings of words are,
hence, also taken into account in every discussion on this topic, including the
conflict between; real and metaphorical; explicit and implicit; and absolute
versus restricted.
About the Theory of Evidence
In a subsection concerning the difference of the maxim from the theory,
the discussion briefly expounded several elements of the theory of evidence.
As also realized by the author, evidence or proof is one of supreme importance
to administration of justice.
It is to note that the need for evidence, in term of al-bayyinah, is
definitely introduced in the Quran (al-Hujurat/49 : 5). Allah hath reminded to
the Muslims, that every aspect of report or news concerning any performance
or act or even scandal of others in the community, particularly if emanating
from persons who and whose attitude are not known, must be examined. This
verse contains very general rule of producing evidence in every single
reporting case, thus, not only applicable to penal cases but also any other
cases including transaction, which is emphasized by the Majallah. Therefore,
evidence must be established in order to reach the certainty in the judgement
as it must be given in respect to matter which has been proved at any
particular time, unless the contrary is proved (article 10); and avoiding from
doubt, as certainty is not dispelled by doubt (article 4). Both are quoted in
the reviewed book. Otherwise, it may cause to harm to either such accused
persons (defendants) or reporters, as well as to the whole community.
In case of testimony, which is used for translation of the word shahadah
or bayyinah al-shahsiyyah (personal evidence), the author seems to have
carefully elaborated the Text and the opinions of the jurists, and to have drawn
them in a systematic passages. In addition, he also gave several words with
regard to conflicting testimony, in the last sections three and four and
compared to the Lebanese Code of Civil Procedure, to which the author is
relatively familiar. Despite many articles from the whole 1850 articles of the
Majallah were quoted, only about three of hundred maxims are employed in
these two sections, spread over approximately nineteen pages.
CONCLUSION
Generally speaking, part V of the investigated Mahmassanis Falsafat alTashri fi al-Islam, consists of a compactly systematic and lucid explanation on
maxims. In discerning such a book, particularly on that mentioned part, the
paper needs to describe from its own point of view. However, to avoid from
misleading and misunderstanding about fiqhs
terminology, another
suggested book, al-Nadwis al-Qawacid al-Fiqhiyyah, is used as the main
reference.
The need for the role of al-Qawacid al-Fiqhiyyah is considered in the
effort of attaining the Maqasid al-Sharicah, in order to facilitate the society the
ease of performing both worldly and religious duties. Al-Qawacid al-Fiqhiyyah,
in this discussion based on the Majallahs statements, are mostly found in the
works of al-Ashbah wa al-Nadzair and some ather related works. The paper
views that the contents of the reviewed part of the book are likely to form a
general theory which comes under three chapters of such part: theory of need;
7

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

his introduction.
REFERENCES
Kamali, Muhammad Hashim, 1989, Principles of Islamic Jurisprudence,
Pelanduk Publication (M) Sdn Bhd., Petaling Jaya, Malaysia.
Rahman, Fazlur, 1965, Islamic Methodology in History, Islamic Research
Institute, Karachi, Pakistan.
Shiddieqy, T.M. Hasbi, ash-, 1981, Pengantar Hukum Islam, Penerbit Bulan
Bintang, Jakarta.

APPENDIX 1:
AL - MAJALLAHS
ISLAMIC LEGAL MAXIMS
8

Article No. 1

INTRODUCTION TO LEGAL MAXIMS

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

.... -1



... .
( 99)
... .





.

THE NINETY NINE LEGAL MAXIMS

2 Matters are determined according to intention

3

In contracts effect is given to intention and

meaning and not words and forms
Certainty is not dispelled, (does not dispel

4 caused), by doubt.

It is a fundamental principle that a thing shall

5 remain as it was originally

Things which have been existence from time

6 immemorial shall be left as they were.

7 Injury cannot exist from the time immemorial
8
9

Freedom from liability is a fundamental

principle
Non-existence is a fundamental presumption
attached to intervening (transitory) attributes
Judgement shall be given in respect to any

10 matter, which has been proof at any

11
12
13
14

particular time, unless the contrary is proved

It is a fundamental principle that any new
event shall be regarded as happening at the
time nearest to the present.
In principles, word shall be construed
according their real meaning
No attention shall be paid to inferences
(implication) in the face of an explicit
statement
Where there is a text there is no room for
interpretation

15 A thing established contrary to the Qiyas can

9

( )

not be used as an analogy for other things

16
17

One legal interpretation does not destroy

another
Hardship begets facility

19

Latitude should be afforded in the case of

difficulty
Injury may not be met by injury

20

Injury is to be repaired.

18

Necessity renders prohibited things

21 permissible
22 Necessity is determined by the extent thereof
23
24
25
26
27

28

Whatever is permissible owing to some

excuse ceases to be permissible with the
disappearance of that excuse
When a prohibition is removed the thing to
which such prohibition attaches reverts to its
former status of legality
An injury cannot be removed by a similar
injury
A private injury is tolerated in order to ward
off a public injury.
Severe injury is removed by lesser injury.
In the presence of two evils, the one whose
injury is greater is avoided by the commission
of the lesser

29 The lesser of evils is preferred

Repelling an evil is preferable to securing

30 benefit

31 Injury is removed as far as possible

Need, whether a of a public or private nature,

32 is treated as necessity

Necessity does not invalidate the right of

33 another

When it is forbidden to take a thing it is also

34 forbidden to give it

When it is forbidden to perform an act it is

35 also forbidden to request to its performance

36 Custom is authoritative
37

Public usage is conclusive and action must be

taken accordance therewith
A thing that is customary to regard as

38 impossible is considered to be impossible in

39

fact
It is undeniable that rules of law vary with
change in time.

The original (real) meaning is to be regarded

40 in favour of that established by custom

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

10

prevailing

42
43

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 recognised customary amongst

44 merchant is regarded as if agreed upon

45

between them
A matter established by custom is like a
matter established by a legal text
When prohibition and exigency conflict,

46 preference is given to prohibition

An accessory which is attached to an object

47 in fact is also attached to it in law

48
49
50

An accessory to an object cannot be dealt

with separately
The owner of a thing held in the absolute
ownership is also the owner of the things
indispensable to the enjoyment of such thing
If the principle fails, the accessory also fails

If no meaning can be attached to a word it is

A reference to a part of an indivisible thing is

The absolute is construed in its absolute

sense, provided that there is no proof of a
restricted meaning either in the explicit text
or by implication

A thing which has been discharged or

51 annihilated cannot be restored

When a thing becomes void, the thing

52 contained in it also becomes void

When the original fails it is restored to its

53 substitute

A thing which is not permissible in itself, may

54 be permissible as an accessory

A thing which is not permissible by way of

55 commencement, may be permissible by way

of continuance

56 Continuance is easier than commencement

57 A gift becomes complete by delivery
Management of citizens affairs is dependent

58 upon public welfare

Private trusteeship is more effective than

59 public trusteeship

A word should be construed as have some

60 meaning, rather than disregarded

When the real meaning cannot be applied,

61 the metaphorical sense may be used

62 regarded altogether

63 regarded as a reference to the whole

64

11

65
66
67

68

A description with reference to a thing

present is of no consequence, but the
contrary is the case if such thing is not
present
A question is considered to have been
repeated in the answer.
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
In obscure matters the proof of a thing stands
in the place of such a thing

69 Correspondence resembles conversation

The recognized signs of a dumb person take

70 the place of a statement by word of mouth

The word of an interpreter is accepted in

71 every respect

No validity is attached to conjecture which

72 obviously tainted by error

No argument is admitted against supposition

73 based upon evidence

74 No weight is attached to fancy

A thing established by proof is equivalent to a

75 thing established by visual inspection

The burden of proof is on him who alleges;

76 the oath on who denies.

The object of evidence is to proof what is the

77 contrary to the apparent fact.

79

Evidence is an absolute proof in that it affects

third person; admission is relative proof in
that it affects only the person making such
admission
A person is bound by his own admission

80

Contradiction and proof are incompatible, but

this does not invalidate a judgment

78

Failure to establish the principal claim does

81 not imply failure to establish a claim

82
83

subsidiary thereto
Anything dependent upon a condition
precedent is established on the happening of
the condition
A condition must be fulfilled as far as
possible.
Promises dependent upon a condition

84 precedent are irrevocable

The enjoyment of a thing is the compensating

85 factor for any liability attaching thereto

Remuneration and liability do not run

86 together
87 Liability is an obligation accompanying gain.
(That is to say, a person who enjoys the

12

) -

88

89

90
91

benefits of a thing must submit to the

disadvantage attaching thereto.)
The burden is in proportion to the benefit and
the benefit to the burden.
The responsibility for an act falls upon the
author thereof; it does not fall upon the
person ordering such act, provided that such
person does not compel the commission
thereof
In the presence of the direct author of an act
and the person who is the cause thereof, the
first alone is responsible therefore
Legal permission is incompatible with liability
Liability lies on the direct author of an act,

92 even though acting unintentionally

No liability lies on a person who is the cause

93 of an act unless he has acted intentionally

Any order given for dealing with the property

95 of others is void

No person may deal with the property of

96 another without such persons permission

No person may take another persons

97 property without legal cause

Any change in the cause of the ownership of

98 a thing is equivalent to a change in that thing

100

No liability attaches in connection with injury

94 caused by animals of their own accord

99

itself
Any person who hastens the accomplishment
of a thing before its due time, is punished by
being deprived thereof
If any person seeks to disavow any act
performed by himself, such attempt is
disregarded

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APPENDIX 2:
SUMMARY OF
ISLAMIC LEGAL MAXIMS
BY FOUR SUNNI SCHOOLS OF LAW
A. The Qawaacid by the Hanafi Scholars
Usuul al-Karkhi (260-340 H.)
By : cUbaidullah ibn Hasan al-Karkhi
Contents: 36 maxims, namely al-casl
Comment by : Najm al-Din al-Nasafi
Tasiis al-Nadzr
By : al-Qadhi, cUbaidullah ibn cUmar ibn cIsa Abi Zaid al-Dabusi (430 H.)
Contents: 86 maxims, mostly named as qawaacid al-Madzhaabiyyah
Al-Ashbaah wa al-Nadzaair
By : Zain al-Din ibn Ibrahim ibn Muhammad, Ibn Nujaim (970 H.)
Contents: a. Qaacidah al-Asaasiyyah :
6
qawaacid
c
c
b. Qaa idah al-Furuu iyyah:
19 qawaacid
-----------total
25 qawaacid
=======
Commentaries on Ibn Nujaims Ashbaah wa al-Nadzaair
1. Tanwiir al-Basaair calaa al-Ahbaah wa al-Nadzaair (1005 H.)
by cAbd al-Qadir Sharif al-Din al-Ghazzi.
2. Ghamzu cUyuun al-Basaair Sharh al-Ashbaah wa al-Nadzaair (1098
H)
by Ahmad ibn Muhammad al-Hamawi
3. cUmdatu dzawi al-Basaair li-Halli Muhtamaati al-Ashbaah wa alNadzaair (1099H.)
14

by Ibrahim ibn Hussain, known as Ibn Biri, al-Makkati.

4. cUmdatu al-Naadzir cala al-Ashbaah wa al-Nadzaair
by Abu Su cud al-Husaini.
Majaamic al-Haqaaiq
By : Abu Sa cid Muhammad ibn Muhammad al-Khadimi. ( 1176 H.)
Contents: 154 maxims
Majallah al-Ahkaam al- cAdliyyah
By : Committee of the Ulama of the Daulah al- cUthmaniyyah (1286 H.)
Contents : 99 maxims within 1851 articles.
Al-Faraaid al-Bahiyyah fi al-Qawaacid al-Fawaaid al-Fiqhiyyah
By : Ibn Hamzah, Mahmood ibn Muhammad al-Husaini (1305 H.)
Contents: 30 maxims
B. The Qawaacid by the Maliki Scholars
Anwaar al-Buruuq fi Anwaar al-Furuuq
Also well known as: Al-Furuuq; Kitab al-Anwaar wa al-Anwaa; or Kitab
al-Anwaar wa al-Qawaacid al-Sunniyyah.
By : Al-Imam Shihab al-Din, cAbd al-Abbas Ahmad, al-Sonhaji, al-Qarafi
(260-340 H.)
Contents : 548 maxims
Al-Qawaacid
By Muhammad ibn Muhammad ibn Ahmad al-Muqarri (758 H.)
Contents : 100 maxims
Iidhaah al- Masaalik ilaa Qawaacid al-Imaam Maalik
By : Ahmad ibn Yahya ibn Muhammad, al-Tilmisani, al-Winsharinsi (914 H)
Contents : 118 maxims
Al-Iscaaf bi al-Talab Mukhtasar Sharh al-Manhaj al-Muntakhab calaa Qawaacid alMadzhab
By : Al-Shaikh Abu al-Qasim ibn Muhammad al-Tiwani ( 995 H.)
A Summary of a Comment on :
al-Manhaj al-Muntakhab calaa Qawaacid al-Madzhab ( 912 H.)
written
by : Abu al-Hasan cAli ibn Qasim al-Zaqqaq, al-Fasi, al-Tujibi
Comment by : Ahmad ibn cAli al-Fasi, al-Maghribi
C. The Qawaacid by the Shafici Scholars
Qawaacid al-Ahkaam fi Masaadir al-Anaam
By : cIzz al-Din cAbd cAziz ibn cAbd al-Salam ( 577 - 660 H.)
Contents : Kitaab Al-Ashbaah wa al-Nadzaair
Sadr al-Din Abi cAbdullah ibn Murahhil, Ibn Wakil al-Shafi ci (716 H.)
Contents : Majmuuc al-Mudzhab fi al-Qawaacid al-Madzhab
By : Salah al-Din Abi Sa cid al-cAlai Shafi ci (761 H.)
Contents : 20 maxims

15

Comment : Mukhtasar Qawaacid al-cAlai

By : 1. Al-cAllamah al-Sarkhadi (792 H.).
Combination with the writing of al-Isnawi on the same topic.
2. Al-cAllamah Ibn Khatib al-Dahshah
Combination with the speech of al-Isnawi on the same
topic.
Al-Ashbaah wa al-Nadzaair
By : cAbd al-Wahhab ibn cAli Taj al-Din al-Subki (771 H.)
Contents : 60 maxims
Al-Manthuur fi Tartiib al-Qawaacid al-Fiqhiyyah aw al-Qawaacid fi al-Furuuc
By : Muhammad ibn Bahadur, Badr al-Din al-Zarkashi (794 H.)
Contents : 100 maxims
Commentary:
Sharh calaa Qawaacid al-Zarkashi aw Haashiyah calaa Qawaacid alZarkashi
By : Siraj al-din cUmar ibn cAbdullah al- cAbbadi (941-947 H.)
Al-Ashbaah wa al-Nadzaair
By : Siraj al-din cUmar ibn cAli al-Ansari, well known as: Ibn al-Mulaqqin
(804 H.)
Contents : Al-Qawaacid (829 H.)
By : Taqiyy al-Din Abu Bakr ibn Muhammad ibn cAbd al-Mumin, al-Hisni
Contents : Al-Ashbaah wa al-Nadzaair
By : Jalal al-din cAbd al-Rahman ibn Abi Bakr ibn Muhammad al-Suyuti
(al-Asyuti) (804 H.)
Contents : a. 5 leading Shafi cis maxims (The Book 1);
b. 40 general maxims (The Book 2);
c. 20 ikhtilafi maxims and some rules, the similitudes and
the likes Al-Ashbaah wa al-Nadzaair in Books 3-7.
Al-Istighnaa fi al-Furuuq wa al-Istithnaa
By : Badr al-Din Muhammad ibn Abi Bakr ibn Sulaiman al-Bakri
Contents: 600 maxims (some of them, as said by al-Nadwi, should be
classified as dhabit)
D. The Qawaacid by the Hanbali Scholars
al-Qawaacid al-Nuuraaniyyah al-Fiqhiyyah
By : Taqiyy al-Din Abu al-cAbbas Ahmad ibn cAbd al-Halim, ibn Taymiyyah
(661 - 728 H.)
Contents : al-Qawaacid al-Fiqhiyyah
Sharf al-Din Ahmad ibn al-Hasan, ibn Qadhi al-Jabal., al-Maqdisi. (771 H)
Contents : Taqriir al-Qawaacid wa Tahriir al-Fawaaid (al-Qawaacid)
By : cAbd al-Rahman Shihab ibn Ahmad ibn Abi Rajab (Ibn Rajab) alHanbali (795H.)
16

Contents : 160 maxims

al-Qawaacid al-Kulliyyah wa al-Dhawaabit al-Fiqhiyyah (771 H.)
By : Jamal al-Din Yusuf ibn Hasan ibn Ahmad ibn cAbd al-Hadi (1309-1359
H.)
Contents : (Qawaacid) Majallah al-Ahkaam al-Shar ciyyah calaa Madzhab al-Imaam Ahmad
ibn Hanbal
By : Ahmad ibn cAbdullah al-Qari (1309-1359 H.)
Contents : 160 maxims

17