LECTURE 1

ISLAMIC LEGAL MAXIMS

(AL QAWA’ID AL FIQHIYYAH)
References
• Azman Ismail, Md. Habibur Rahman, Islamic Legal Maxims -
Essentials and Applications, (IBFIM 2013)

• Mohd. Akram Laldin, Introduction To Shariah and Islamic

Jurisprudence, (CERT Publications 2006)

• Mohammad Zaini Yahaya, Muhammad Adib Samsudin &

Hayatullah Lalulddin, An Overview of the Principles of
Jurisprudence Vis-A-Vis Legal Maxim, Asian Social Science; Vol.
10, No. 2; 2014, ISSN 1911-2017 E-ISSN 1911-2025.
DEFINITION
• Legal maxims or principles of Islamic law, which can be applied
in various cases under the common rulings.

• The principles in the legal maxims which are presented in a

simple format consisting of the general rules of Shariah in a
particular field related to it.
THE DIFFERENT
CLASSIFICATION OF ISLAMIC
LEGAL MAXIMS

• It is depending upon the following 2 different factors :

The scope of the methods(qawa’id) in term of its application

towards the legal issues(fiqh).
The acceptance of a particular maxim among the different
schools of Islamic law.
FIVE MAJOR MAXIMS
• 1. Acts are determined according to intention,

• 2. Harm must be eliminated,

• 3. What is certain cannot be removed by doubt,

• 4. Custom is arbitrary.

• 5. Hardship begets facility,

 Maxim 1: “Al-umur bi-maqasidiha”
Acts are judged by the intention behind them
• This maxim is about ‘claim and practice’, where Muslims are
required to demonstrate consistency in faith and practice, and
in words and deeds.
• It embodies the relationship between intention and deed;
claims and acts.
• It is about how legality and illegality is determined through
intention and deed.
• For example : A man makes an earning for (a) the satisfaction
of his selfish urges; (b) personal consumption and
demonstration effects; or (c) complying with the divine
command to earn for the sake of survival and spending on
noble causes. The act of earning may be the same, but the
intention behind the act itself determines its standing.
• Intention:
• a. The will directed towards an action
• b. The directing of the will towards the action of any human
being

• Origins of Maxim 1:
Narrated by ‘Umar r.a., the Prophet s.a.w. said:
"Deeds are judged by intentions and every person is judged
according to his intentions"
Application of the Maxim 1
• 1. If a person finds something on the street or anywhere else
and took the object with the intention of returning it to the
owner, his conduct is in order and he is considered as the
keeper (amin) of the item, but if he intends to keep the item
as his own, he is considered to be a person wrongfully
appropriating property (ghasib). The physical act is identical in
both cases but the judgment therein differs according to the
intention.
• 2. If a person killed another person intentionally, than doer
should be killed (qisas) if convicted, but if the crime is
perpetrated unintentionally, the punishment is different in
which case the paying of blood money (diyah) is applied.
• The Purpose of Intention
• 1. To differentiate b’ween ‘Ibadah and ‘Adah (custom or
personal habit). For e.g., if a person refrain from eating and
drinking from dawn (fajr) until sunset (maghrib) without
having the intention of fasting, the person is not considered as
fasting. This action is mere ‘Adah and will not be rewarded.
The same action if done with the intention of fasting, it will be
considered as ‘Ibadah and will be rewarded
• 2. To differentiate between one kind of ‘Ibadah and another.
For example in prayer, fasting, and hajj.
Branch of 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.
 Maxim 2: “Ad-darar yuzal”
Harm must be eliminated
• M.H. Kamali: ....the maxim....is the validation of the option of
defect in Islamic law, which is designed to protect the buyer
against harm.”
• This maxim is treated as a ‘pillar’ of Islamic law –established
laws of option, inhibition, return of defective merchandise,
pre-emption, requital, Hudud, compensation and indemnity,
etc....
• The following are prerequisites to the application of the
maxim :

• -“Let the ancient rest on its age”

• -“ A wrong is a wrong even though it be ancient”
• -“Unlawful things are to be prevented irrespective of benefit”
• The basis for this maxim is the hadith:
"Harm may neither be inflicted nor reciprocated in Islam."
• “…make not your own hands contribute to (your)
destruction…" [Al-Baqarah: 195]
• 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.
• 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.
• 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 harm must be
eliminated
• Harm may not be eliminated by its equivalent
• To repel a public harm a private harm is preferred
• A greater harm is eliminated by tolerating a lesser one
• When two wrongful acts meet, the remedy of the greater is
sought by the doing of the less
• The smaller of two harms is chosen
• The repelling of mischief is preferred to the acquisition of
benefits
• Harm is repelled as far as possible
 Maxim 3:“Al-yaqin la yazulu
bi al-shakk”
Certainty is not overruled by doubt
• In other words : “Innocent until proven guilty”
• 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. Although mainly used in relation to
principally criminal matters, in general this maxim really means that
one cannot be deemed liable until proven
• Any guilt attributed to any person must be treated as doubtful until
proof is given to lift the doubt and create certainty–“Certainty can,
in other words, only be overruled by certainty, not by doubt.” M.H.
Kamali
• Example : A firm which declares a certain amount of income during
the year –this must be accepted by the income tax authorities in the
absence of contradicting evidence.
Origins of the Maxim
• 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)
• 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
• 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 to Maxim 3
• It is presumed that a matter shall remain as it was originally
• Freedom from liability is presumed
• The presumption for incorporeal matters is that they do not
exist
• What has been proven will remain until proven to the contrary
• Where there is text there is no room for interpretation
• No weight is given to arguments where there is a clear
statement opposed to them
• No weight is given to mere imagination
 Maxim 4: “Al-’adah muhakkamah”
Custom is the basis of judgement
• Custom refers to practices of the people whether in their doings or
in their sayings, regardless of whether it is the general practices of
the people or the practices of certain groups of people. These
practices has the authority and can specify a general matter or
restrict an unrestricted matter
• Certain instances may not be accounted/prescribed for in texts –the
courts are authorised accordingly to rule on matters based on
customary practices
• These customary rules may be allowable provided that they are not
in conflict with the Shariah, current and used predominantly by
people.
• For example : In a certain town, it may be customary for the seller to
include a local gift to the buyer as a way of thanking the buyer for
his/her custom (not the same meaning as ‘custom’ above).
• Based on a statement made by the Companion, Abdullah ibn
Mas’ud, “...what the Muslims deem to be good is good in the
eyes 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.
• 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.
• The custom that involves transactions is the sale of offering
and accepting, which is normally concluded without the
utterance of offer and acceptance.
Branches to Maxim 4
• A thing made impossible by custom is as though it were in truth
impossible
• It cannot be denied that with a change of time the requirements of
law change
• In the presence of custom, no regard is paid to the literal meaning of
a matter
• Effect is only given to custom where it is of regular occurrence or
when it is universally prevalent
• Effect is given to what is commonly known, not to what happens
infrequently
• A matter recognized by custom is regarded as though it were a
contractual obligation
• A matter recognized by merchants is regarded as being a contractual
obligation between them
• A matter established by custom is like a matter established by law
 Maxim 5: “Al-mashaqqah tujlabat-
taysir”
Hardship begets facility
• 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 refer to those kind of hardships that surpass
the normal limit and ability of a person to perform them.
• The normal hardship 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.
• This is a rule of relaxation in terms of difficulty or hardship; but it
must not be assumed that this rule can so easily be invoked as there
are conditions that must be fulfilled.
Origins of the Maxim 5
• 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]
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 religion
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
• 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 Shari’ah has allowed the
cancellation under specific circumstances in order to avoid hardship.
• 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.
• 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 - to be consumed only
enough to ensure survival
Branches of Maxim 5
• Where a matter is narrowed, it becomes wide
• Necessity renders prohibited things permissible
• Necessity is determined by the extent thereof
• A matter permitted on account of an excuse becomes
unlawful on cessation of the excuse
• When the prohibition returns, the forbidden matter returns