Uncovering the Bedrock: A Primer on Islamic Legal Maxims
What are maxims?
The historical origins of the qawāʿid
[al-Shaybānī] said: “What is your opinion about a man who misappropriates (ghaṣaba) a log from another man and builds on top of it a building, spending in the process one thousand dinars? Then the owner of the log appears, proving through two reliable witnesses that the man has misappropriated his log and built this building upon it. What would you decide in this [case]?” I said: “The value of [the log] is estimated. If [the owner] agrees, he is awarded the value of the log. And if he refuses and only wants his log, the building is taken down and his log is returned.” So he said to me: “What is your opinion about a man who misappropriates a silver thread and stitches up his own belly with it [after an injury or operation], then the owner of the thread appears and proves through two reliable witnesses that the man misappropriated the thread with which he stitched up his belly? Would you have the thread removed from his belly?” I said: “No.” He said: “God is great; you have abandoned your position!” And his followers exclaimed: “You have abandoned your position!” So I said: “Do not rush. Tell me: what if he had not misappropriated the log from anyone else and wanted to take down the building in order to build another one; would that be permissible or impermissible for him?” They said: “Permissible.” I said: “So what is your opinion (afaraʾayta) if the thread were his own and he wanted to remove it from his belly [thereby opening the wound again]; would this be permissible or impermissible for him?” They said: “Impermissible.” I said: “So how can you draw an analogy between that which is permissible and that which is not?”7
Where do the maxims come from?
How to understand maxims
1- The difference between the qawāʿid and uṣūl al-fiqh
2- The difference between a qāʿida and a ḍābiṭ
3- Maxims are not created equal
4- The aversion to using maxims as a basis for rulings
- Matters are treated in accordance with their accompanying intention.
- Certainty is not displaced by doubt.
- Harm is to be removed.
- Hardship calls for ease.
- Custom is determinative.
- [English translation of primary maxim]
- a. [English translation of secondary maxim]
- b. [Additional secondary maxim, if applicable]
- [English translation of primary maxim]
- a. ...
- a. ...
1. Matters are treated in accordance with their accompanying intentions. (الأمور بمقاصدها)
Ritual matters (ʿibādāt)
And [there are] those [hypocrites] who took for themselves a mosque to cause harm and disbelief and division among the believers and as a station for whoever had warred against Allah and His Messenger before. And they will surely swear, “We intended only the best.” And Allah testifies that indeed they are liars.
Do not stand [for prayer] within it ever. A mosque founded on righteousness from the first day is more worthy for you to stand in. Within it are men who love to purify themselves; and Allah loves those who purify themselves.
Non-ritual matters (muʿāmalāt)
Exceptions to the maxim
2. Certainty is not displaced by doubt. (اليقين لا يزول بالشك)
The application of the maxim
- If the presence of a contract is established, having doubt as to whether it has been rescinded is inconsequential. The contract remains in effect until it is proven to be rescinded.39
- If a purchaser seeks to return a product to the seller on the grounds that it is faulty, and the testimony of expert witnesses does not satisfy the judge that it is more likely than not that the product is faulty, the purchaser cannot return the item on these grounds.40 That is because it is presumed that the product sold by the seller is free of faults until the claimant proves otherwise.
- If it is established that one is in a state of ritual impurity and one subsequently enters into a state of doubt as to whether he or she subsequently entered into a state of purity, the state of impurity remains.41
- If one is fasting and is in doubt as to whether the sun has set or not, they cannot break their fast. That is because the last established matter is the presence of daytime. Conversely, if one is awaiting dawn to begin one’s fast and is in doubt as to whether the sun has risen or not, they may continue to eat and drink since the night is presumed to continue until the presumption is rebutted by sufficient knowledge.42
- According to Ḥanafī doctrine, if one travels, leaving behind his family, and the family hears no news of him for a prolonged period of time (such a person is classified as a mafqūd), the heirs are not permitted to assume the person’s death and embark on dividing the estate. That is because the person is presumed to remain alive until proven to be dead.43
- If a party proves a debt against another, the debt is presumed to remain until the debtor proves its satisfaction.
- If a wife sues her husband claiming outstanding spousal support (nafaqa), her word is believed and it is presumed that the husband owes the claimed amount until he proves payment.
- If one proves ownership of property, it is presumed to remain under his or her ownership until proven otherwise.44
a. Transient matters are presumed to be non-existent. (الأصل في الأمور العارضة العدم)
b. The absence of liability is presumed. (الأصل براءة الذمة)
3. There shall be no initiation of harm, nor any reciprocation of harm.
(لا ضرر ولا ضرار)
- One who rents farmland and is unable to complete the harvest before the end of the term may extend the term to the extent needed without the consent of the owner. Otherwise, undue harm would befall the tenant who invested effort and resources in his farming operation.54 The owner is not being unduly harmed because he rented out his farmland for the express purpose of farming. He should expect that the tenant will require the land until the harvest season ends.
- The bankrupt is prevented from selling or disposing of his property so as to not harm the creditors.
- A lessee of a property may immediately terminate the lease upon discovering a flaw in the property and does not have to seek the consent of the lessor or a judicial ruling. That is because forcing the lessee to wait would cause the lease payments to rack up in the meantime.55
- A person may not sell property that is under his possession which is the subject of a legal dispute. Even though the property is apparently still under his ownership, its sale would harm the claimant who may be described as a “contingent” owner of the property.
- If a person erects a structure on his or her land which blocks off sunlight from the property of the neighbor, the person will be ordered to remove that structure as it causes harm to the neighbor.
- A judge is prevented from ruling on a case where there exists hostility between him and one of the parties. A person also has the right to seek the reversal of a judge’s ruling on the grounds that there exists a personal hostility between him and the judge, which places the impartiality of the ruling in question. All this is to prevent the harm that results from a lack of impartiality in judicial proceedings.56
- An incompetent physician (al-ṭabīb al-jāhil) is to be prevented from offering medical services or advice due to the harm that his incompetence will cause.57
a. Harm is to be repelled to the extent possible. (الضرر يدفع بقدر الإمكان)
b. Harm is to be removed. (الضرر يزال)
c. Harm is not to be removed by an equivalent harm. (الضرر لا يزال بمثله)
d. That which existed from time immemorial is to be left as it is.
(القديم يترك على قدمه)
e. Harm cannot exist from time immemorial. (الضرر لا يكون قديما)
4. Hardship calls for ease. (المشقة تجلب التيسير)
a. Necessities render the impermissible permissible.
(الضرورات تبيح المحظورات)
He has forbidden upon you carrion, blood, flesh of swine, and that which has been immolated to (the name of) any other than Allah. But he who is driven by necessity, neither craving nor transgressing, it is no sin for him. Indeed, Allah is Forgiving, Merciful. (2:173)
Prohibited to you are dead animals, blood, the flesh of swine, and that which has been dedicated to other than Allah, and [those animals] killed by strangling or by a violent blow or by a head-long fall or by the goring of horns, and those from which a wild animal has eaten, except what you [are able to] slaughter [before its death], and those which are sacrificed on stone altars…But whoever is forced by severe hunger with no inclination to sin—then indeed, Allah is Forgiving and Merciful. (5:3)
Say, “I do not find within that which was revealed to me [anything] forbidden to one who would eat it unless it be a dead animal or blood spilled out or the flesh of swine—for indeed, it is impure—or it be [that slaughtered in] disobedience, dedicated to other than Allah. But whoever is forced [by necessity], neither desiring [it] nor transgressing [its limit], then indeed, your Lord is Forgiving and Merciful.” (6:145)
Whoever disbelieves in Allah after his belief... except for one who is forced [to renounce his religion] while his heart is secure in faith. But those who [willingly] open their breasts to disbelief, upon them is wrath from Allah, and for them is a great punishment. (16:106)
He has only forbidden to you dead animals, blood, the flesh of swine, and that which has been dedicated to other than Allah. But whoever is forced [by necessity], neither desiring [it] nor transgressing [its limit]—then indeed, Allah is Forgiving and Merciful. (16:115)
- There must be a necessity at stake; e.g., preservation of life or limb;
- The impermissible action must be the only means to preserve the necessity;
- The danger must be a real and likely possibility; and
- The necessity at stake must be weightier than the impermissible action, such that the contemplated conduct does not involve forgoing a weightier or equal benefit. 74
b. That which is permitted due to a necessity is only permitted to the extent of the necessity. (الضرورات تقدر بمقدارها)
c. That which has been permitted for an excuse no longer remains permitted with the disappearance of the excuse. (ما جاز لعذر بطل بزواله)
d. Necessity does not suspend the rights of others. (الإضطرار لا يبطل حق الغير)
5. Custom is determinative. (العادة محكمة)
a. Popular usage is an authority that must be acted upon.
(إستعمال الناس حجة يجب العمل بها)
b. That which is customarily known is like that which is explicitly stipulated in a contract. (المعروف عرفا كالمشروط شرطا)
c. There is no objection to the change in rulings along with the change in times. (لا ينكر تغير الأحكام بتغير الأزمان)
the custom of his time, such that if he was present at the time of the newly-emerging custom he would have ruled in a manner contrary to his original ruling. That is why it has been said that among the conditions for [attaining the rank of] ijtihād is knowledge of the customs of people. For many of the rulings differ in accordance with differences in time due to changes in the custom of the people, or the emergence of a necessity, or the corruption of people, such that if the ruling remained in its original form it would have necessarily brought about hardship and harm to the people; and it would have contravened the principles of the Shariah that are based on decreasing hardship, facilitating ease, and removing harm and damage so that the world may run in accordance with the most perfect system and the best of laws. This is why you see many scholars of the madhhab [i.e., the Ḥanafī school of law] have contradicted what has been stated by the mujtahid [i.e., Abū Ḥanīfa] on many points [of law] which he based on what existed during his time—due to their knowledge that if he existed during their time he would have ruled as they did in accordance with the principles of his own madhhab.101
We practice deference to the teachings of the master jurists, and we lack the authority to introduce a new rule on account of the fact that we do not have the capacity to engage in independent legal interpretation[.] Should we then give legal opinions in accordance with what is in the books containing the transmitted views of the master jurists?102
This is a chapter of great benefit, ignorance of which has caused great error against the Shariah, which has imposed difficulties, hardships, and obligations that cannot be fulfilled, all of which are known to be things that cannot be brought about by the marvelous Shariah which is the highest rank of benefits.104
6. One ijtihād cannot invalidate another.
(الإجتهاد لا ينقض بمثله)
7. Gains correspond to the risk of loss.
8. The risk of loss is contingent upon the possibility of gain. (الغنم بالغرم)
9. It is impermissible for anyone to act with the property of another without permission.
(لا يجوز لأحد أن يتصرف في ملك الغير بلا إذنه)
10. The validity of public actions hinges on their benefit (التصرف على الرعية منوط بالمصلحة)
Public officials and their agents must pursue actions that are in the best interest of those over whom they practice authority—in order to repel harm and corruption and attain benefit and guidance. No public official may restrict his pursuit to what is simply beneficial in the presence of that which is more beneficial, unless pursuing that which is more beneficial will bring about undue hardship. The proof for this is His words: “And do not draw near to the property of the orphan except in the best of ways.” And if this is the case with the rights of orphans, then it applies, a fortiori, to the rights of the Muslim public over which public officials practice authority by using public property. That is because the Divine Law’s concern over public matters is greater than its concern over private matters. And every action that attracts a harm or repels a benefit is prohibited.118