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Qawaid Fiqhiyyah

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  • 1. ISLAMIC LEGAL MAXIMS INTRODUCTION TO QAWAID FIQHIYYAH MAHYUDDIN KHALID  emkay@salam.uitm.edu.my
  • 2. CONTENT QAWAID  INTRODUCTION TO QAWAID FIQHIYYAHFIQHIYYYAH  DEFINITION OF TERMSDIFFERENCES  DIFFERENCES BETWEEN THE TERMS OF TERM  SHARIAH AND FIQH RULING  FIQH AND USUL FIQH  USUL FIQH AND QAWAID FIQHIYYAH SOURCES  IMPORTANCE OF LEARNING QAWAID FIQHIYYAH  SOURCES OF QAWAID FIQHIYYAH MAQASID SHARIAH  AL-QURAN  AL-SUNNAHDHARURIYAT AL-KHAMS  AL-IJMA‟  IJTIHAD  MAQASID AL-SYARIYYAH 2
  • 3. INTRODUCTION QAWAID  Qawaid fiqhiyyah or Legal maxims are generalFIQHIYYYAH rules which can be applied in various cases thatDIFFERENCES come under common rulings. OF TERM  Plays great role in the formation of Islamic law RULING because they are uses as principles to deduce rules of fiqh SOURCES  According to al-Qarafi. Islamic law can be divided into two parts: MAQASID SHARIAH  Fundamental matters (Usul)DHARURIYAT  Usul Fiqh AL-KHAMS  Qawaid Fiqhiyyah  Branches (Furu‟) 3
  • 4. DEFINITION QAWAID  Literal meaning :FIQHIYYYAH  Qawa‟id - plural of al-qa‟idah, means general principlesDIFFERENCES  Fiqh means Islamic law OF TERM  Generally, Qawaid Fiqhiyyah means the principles RULING of fiqh (Islamic law) which can be applied in different fields of fiqh that come under the common SOURCES rulings MAQASID  Most principles of QF consist of a few words but SHARIAH provide comprehensive meaningDHARURIYAT AL-KHAMS 4
  • 5. DEFINITION QAWAID  Technical meaning:FIQHIYYYAH  General rules which applied to all its particulars. ItDIFFERENCES based on the idea that , if detailed rules stem from OF TERM similar causes, it follows the common generally applicable principles or maxims. RULING  Mustafa al-Zarqa: SOURCES  General fiqh principles which are presented in a simple format consisting of the general rules of syariah in a MAQASID particular field related to it SHARIAHDHARURIYAT AL-KHAMS 5
  • 6. CONCEPT AND SCOPE QAWAID  Hashim Kamali:FIQHIYYYAH  Legal maxims are theoretical abstractions, often in a fewDIFFERENCES words that are expressive of the maqasid al-shari‟ah. OF TERM  Consists mainly of statements of principles derived RULING from the rules of fiqh on various themes.  Represent the culmination of cumulative progress- SOURCES not expected to take place at the formative stages of fiqh development MAQASID SHARIAHDHARURIYAT AL-KHAMS 6
  • 7. CONCEPT AND SCOPE QAWAID  They were developed gradually-their history isFIQHIYYYAH parallel with that of fiqh.DIFFERENCES  Designed primarily for the better understanding of OF TERM their subject matter rather than for enforcement. RULING  Thus judge cannot base his judgment on a particular maxim unless it is derived from the Qur‟an or SOURCES Sunnah or supported by evidence. MAQASID SHARIAHDHARURIYAT AL-KHAMS 7
  • 8. CONCEPT AND SCOPE QAWAID  Legal maxims are indeed general rules of fiqh,FIQHIYYYAH which can be applied in various cases that comeDIFFERENCES under the common rulings eg. transactions, OF TERM munakahat, evidence etc RULING  Have a great role in the formation of Islamic law because they are used as guidelines in finding the SOURCES rules of fiqh but cannot be accepted as sources of shariah. MAQASID SHARIAH  These maxims have solved most of the minor rulesDHARURIYAT of fiqh and without them these minor rules will AL-KHAMS have no standing ground which will make it hard to solve them 8
  • 9. INTRODUCTION TO MAXIMS QAWAID  MaximFIQHIYYYAH  General rule which applies to all its particularsDIFFERENCES  Al-Shatibi OF TERM  Eternal maxims … Pillars ... Human interests rests on RULING them …  Historical background – From the time before Islam SOURCES through Aristotle, Justinian, etc – later French and English MAQASID SHARIAH  He who comes to equity must come with clean handsDHARURIYAT AL-KHAMS 9
  • 10. CHARACTERISTICS OF LEGAL MAXIMS QAWAID  Legal maxims (qawaid al-fiqhiyyah al-kuliyyah) areFIQHIYYYAH theoretical abstractionsDIFFERENCES  Usually in the form of short epithetical statements OF TERM  An established principle RULING  Expressive, often in a few words, of the goals and objectives of the shari„ah SOURCES  Statements of principles that are derived from the MAQASID detailed reading of the rules of fiqh on various SHARIAH themesDHARURIYAT AL-KHAMS  General in nature so that can be applicable to many different areas and situations 10
  • 11. SOME CHARACTERISTICS QAWAID  Actual wordings of the maxims are occasionallyFIQHIYYYAH taken from the qur‟an or ahadith - often the refinedDIFFERENCES work of leading jurists and mujtahids OF TERM  According to The Mejelle, legal maxims are: RULING  Designed to facilitate a better understanding of the shari„ah SOURCES  Judge may not base his judgment on them  Unless the maxim in question is derived from the MAQASID SHARIAH Qur‟an or Hadith or supported by other evidence  Maxims of fiqh to be significantly conducive toDHARURIYAT AL-KHAMS ijtihad, may be utilized by mujtahid and judge as persuasive evidence. 11
  • 12. FUNCTIONS QAWAID  Functions :FIQHIYYYAH  QF as a guidance /sourceDIFFERENCES  QF as a tool towards understanding problem/issues OF TERM  QF as a code of law RULING SOURCES MAQASID SHARIAHDHARURIYAT AL-KHAMS 12
  • 13. IMPORTANCE OF LEARNING QF QAWAID  To know how the previous scholars solvedFIQHIYYYAH problems in their life and formed the general rulesDIFFERENCES in fiqh al-islam which covered all various chapters. OF TERM  To solve new problems in the society including RULING cases of property, banking and food industry using the related maxims. SOURCES  To prove Islam is a progressive religion and can provide solutions to the new cases that occur in the MAQASID SHARIAH society.DHARURIYAT AL-KHAMS 13
  • 14. ORIGIN AND LITERATURE OF QF QAWAID  The first formulate legal maxims is the Hanafi juristFIQHIYYYAH  Develop gradually and hostory of theirDIFFERENCES development in a general sense is parallel with the OF TERM fiqh himself RULING  Develop mainly during the era of imitation (taqlid), in the nature of extraction (takhrij) of guidelines SOURCES from the detailed literature of fiqh that were contributed during the first three centuries of MAQASID SHARIAH Islamic scholarship, known as the era of ijtihad.DHARURIYAT AL-KHAMS 14
  • 15. ORIGIN AND LITERATURE OF QF QAWAID  The works on QF can be traced back as early as theFIQHIYYYAH third century of Hijrah and continues up to theDIFFERENCES present. OF TERM  Compilations of maxims by Abu Tahir al-Dabbas RULING which consists 17 maxims gathered from the Hanafi school. SOURCES  Earliest compilation in the form of a note of these maxims was written by Abu al-Hasan al-Karkhi. MAQASID SHARIAH  Abu Zayd Abdullah b. Umar al-Dabbusi (Ta‟sis al-DHARURIYAT Nazar) - elaborate some of important maxims. AL-KHAMS 15
  • 16. ORIGIN AND LITERATURE OF QF QAWAID  QF was not written all at once by a particularFIQHIYYYAH scholar, but was developed by the jurists at the timeDIFFERENCES of the resurgence of fiqh. OF TERM  Earliest jurists who developed most of the maxim - RULING jurists of the Hanafi school.  As for the author of these maxims, most of them are SOURCES not known except for those maxims originally deduced from the saying of the Prophet, or is MAQASID SHARIAH attributed to a particular scholars.DHARURIYAT AL-KHAMS 16
  • 17. FIVE MAJOR MAXIMS QAWAID Acts Are Judged By TheFIQHIYYYAH Intention Behind ThemDIFFERENCES OF TERM Certainty Is Not Dispelled By RULING Doubt SOURCES Hardship Begets Facility MAQASID SHARIAHDHARURIYAT AL-KHAMS Harm Must Be Removed Custom Is The Basis Of Judgement 17
  • 18. TYPES OF LEGAL MAXIMS QAWAIDFIQHIYYYAH Maxims which are reiteratedDIFFERENCES from a particular text of the Maxims which are OF TERM Qur‟an or Sunnah formulated by the jurists. Carry greater authority RULING • Examples: • Examples: SOURCES • Al-masyaqqah tajlib al- • Al-yaqin la yuzalu bi al- taysir syakk MAQASID • Al-‟umuru bi • Dar al-mafasid awla min SHARIAH maqasidiha jalb al-manafi‟DHARURIYAT • Al-dhararu Yuzal ("Warding off detriments AL-KHAMS takes priority over the acquisition of benefits" ) 18
  • 19. CLASSICAL LITERATURE QAWAID  Takhrij al-Furu‟ ala al-UsulFIQHIYYYAH  Anwar al-Buruq fi Anwa‟ al-FuruqDIFFERENCES OF TERM  Al-Asybah wa al-Naza‟ir (Jalaluddin al-Suyuti)  Al-Asybah wa al-Naza‟ir (Ibn Nujaym) RULING SOURCES MAQASID SHARIAHDHARURIYAT AL-KHAMS 19
  • 20. MAJALLAH AL-AHKAM AL-’ADLIYYAH QAWAID  The MajelleFIQHIYYYAH  Produced in the year 1285H by the OttomanDIFFERENCES government OF TERM  1st codification of Islamic law RULING  There are 99 principles of fiqh mentioned in article 2 to article 100 in this set of law SOURCES  Most of these principles are taken from the MAQASID collection of Ibn Nujaym and some from other SHARIAH collectionDHARURIYAT AL-KHAMS 20
  • 21. MODERN LITERATURE QAWAID  Al-Madkhal al-Fiqhi al-‟AmmFIQHIYYYAH  Al-Wajiz fi „Iidah Qawa‟id Fiqh al-KulliyyahDIFFERENCES OF TERM  Al-Qawa‟id al-Fiqhiyyah Nash‟atuha wa Tatawwuruha Dirasat Muallifatiha RULING  Al-Nazariyyah al-Fiqhiyyah SOURCES MAQASID SHARIAHDHARURIYAT AL-KHAMS 21
  • 22. THE DIFFERENT CLASSIFICATION OF QF 1. The scope of the qawaid in term of its application QAWAIDFIQHIYYYAH towards the issues of fiqh i. The major maxims that cover various issues of fiqhDIFFERENCES  5 maxims OF TERM ii. Maxim that covers substantial amount of fiqh subjects but the coverage is lesser RULING  It is either extension maxims or maxims that is not related to the major maxim SOURCES 2. The acceptance of a particular maxim among the different schools of islamic law MAQASID SHARIAH i. Maxim which is accepted and utilized by all scholars of islamic law from different mazhabDHARURIYAT  5 maxims AL-KHAMS ii. Maxim that is accepted by certain scholars from certain mazhab and rejected by others  Known as qawaid al-mazhabiyyah 22
  • 23. DIFFERENCES OF TERMComparing Qawaid Fiqhiyyah with Shari‟ah, Fiqh and Usul Fiqh
  • 24. DEFINITION OF SHARI’AH QAWAID  Literally:FIQHIYYYAH  A waterhole where animals gather daily to drink or theDIFFERENCES straight path. OF TERM  Path to be followed RULING  A straight path as said by Allah:  “Then we put thee on the (right) way of religion. So follow thou that (way) and follow not the desires of those who SOURCES know not”  (Quran: Jathiyah: 18 ) MAQASID SHARIAHDHARURIYAT AL-KHAMS 24
  • 25. DEFINITION OF SHARI’AH QAWAID  Technically:FIQHIYYYAH  The sum total of Islamic laws which were revealed toDIFFERENCES the Prophet Muhammad and which are recorded in the OF TERM Holy Quran as well as deducible from the prophets divinely guided lifestyle RULING  (Muhammad Shalabee : 1969)  The right way of religion - wider than mere formal rites SOURCES and legal provisions which mostly came in Madinah after Makkah verses had been revealed. It encompasses MAQASID SHARIAH all legal rules as belief rules (aqidah), moral (akhlaq) and the practical rules (shari‟ah/fiqh)DHARURIYAT AL-KHAMS  (Abdullah Yusuf Ali : 2001) 25
  • 26. COMPONENTS QAWAIDFIQHIYYYAH Al-Ahkam al-DIFFERENCES I‟tiqadiyah OF TERM • Sanctions relating to belief RULING • Aqidah SOURCES Al-Ahkam al- Al-Ahkam al- MAQASID SHARIAH Amaliyah Akhlaqiyah • Sanctions relating • Sanctions relatingDHARURIYAT to actions/sayings to moral & ethics AL-KHAMS of individuals • Akhlaq • Fiqh 26
  • 27. DEFINITION OF FIQH QAWAID  Literally:FIQHIYYYAH  The true understanding of what is intended.DIFFERENCES  Hadith: “Whoever Allah wishes good, he OF TERM gives the fiqh of the religion”. RULING  Technically:  „The knowledge of the detailed rules of Islamic law with SOURCES reference to conduct, that has been derived from its specific evidence‟ MAQASID SHARIAH  It is the end product of usul fiqhDHARURIYAT AL-KHAMS 27
  • 28. 2 ASPECTS OF FIQH QAWAID Aspect 1 Aspect 2FIQHIYYYAHDIFFERENCES • The science of practical • The knowledge of the OF TERM rules. Fiqh in this detailed rules of context means absolute Islamic law in its RULING understanding of various branches, or something in terms of • The knowledge of the SOURCES concept and validation. practical rules of MAQASID • It is a body of shari‟ah acquired from SHARIAH legalized practical the evidence in the rules in Islam. sources.DHARURIYAT AL-KHAMS • From the definition, it derived the word „hukm‟. 28
  • 29. DIFFERENCES BETWEEN SHARI’AH & FIQH QAWAID SHARI‟AH FIQHFIQHIYYYAH The body of revealed laws Body of laws deduced fromDIFFERENCES OF TERM found in the Quran & Sunnah shari‟ah to cover specific situation not directly treated in Shari‟ah law RULING Wider in scope-includes all Confined to human acts in terms human actions of legality and illegality SOURCES Unchangeable, fixed Changes according to MAQASID circumstances under which it is SHARIAH appliedDHARURIYAT Lay down basic principles Specific : show how the basic AL-KHAMS principle of shari‟ah should be applied in given circumstances. 29
  • 30. USUL FIQH QAWAID  LiterallyFIQHIYYYAH  Roots of Islamic lawsDIFFERENCES  Technically: OF TERM  Methods by which rules of fiqh are deduced from their RULING sources / methods how to deduce the hukum  They are the principles borne by the use of which the SOURCES mujtahid arrives at the legal rules through specific evidence MAQASID SHARIAH  Al-Ghazali:  Usul fiqh is an expression emplyed for the evidences ofDHARURIYAT AL-KHAMS these legal rules and for a knowledge of the broad ways in which they reveal such rules, and not by way of specific indication (for a specific rule). 30
  • 31. DIFFERENCES BETWEEN SHARIAH AND FIQH SYARIAH FIQH QAWAIDFIQHIYYYAH 1 • The wider circle, includes all • Confined to what are human actions commonly understood asDIFFERENCES human acts as far as their OF TERM legality and illegality are concerned RULING 2 • The body of revelaaled • Fiqh is one component of injuction found both in the shariah SOURCES Quran and Sunnah 3 • Fixed and unchangeable • Certain rulings on fiqh changes MAQASID to the changes of circumstances SHARIAH under which it is applied 4 • Based on revelation in which • Power of reasong is stressed,DHARURIYAT AL-KHAMS the knowledge is only deductions based upon obtained from the Quran and knowledge are continously or Sunnah referred to with approval 5 • Various degree of approval or • Action is either legal or illegal disapproval 31
  • 32. DIFFERENCES BETWEEN FIQH & USUL FIQH QAWAIDFIQHIYYYAH FIQH USUL FIQH 1 • Concerned with the • Methods that are applied inDIFFERENCES OF TERM knowledge of detailed the deduction of such rules rules of Islamic law in its from their sources various branches RULING 2 • The law itself • Methodology of the law SOURCES MAQASID SHARIAHDHARURIYAT AL-KHAMS 32
  • 33. DIFFERENCES BETWEEN QF AND USULFIQH QAWAIDFIQHIYYYAH USUL FIQH QAWAID FIQHIYYAH 1 • Is concerned with the • Maxims are based on theDIFFERENCES methodology of legal reasoning fiqh itself OF TERM RULING 2 • Method which been applied in • Principle of the law deducing law 3 • External part of fiqh • Internal part of fiqh SOURCES MAQASID SHARIAHDHARURIYAT AL-KHAMS 33
  • 34. RULINGS RELATED TO SHARIAH QAWAID WajibFIQHIYYYAH •ObligatoryDIFFERENCES OF TERM Mandub •Voluntary RULING Mubah SOURCES •Permissible MAQASID SHARIAH Makruh •DislikeDHARURIYAT AL-KHAMS Haram •Forbidden 34
  • 35. SOURCES OF QAWAID FIQHIYYAH QAWAID PRIMARY SOURCESFIQHIYYYAH • Al-QuranDIFFERENCES OF TERM • Sunnah • Ijma‟ RULING • Qiyas SOURCES SECONDARY SOURCES MAQASID • Istihsan (juristic preference of the stronger principles) SHARIAH • Istishab(Presumption of continuity)DHARURIYAT AL-KHAMS • Maslahah Mursalah (extended analogy/ consideration of public interest) • Sadd al-Zarai‟ (blocking unlawful means to an unlawful end) 35
  • 36. AL-QURAN QAWAID  The fundamental and main sources of Islamic LawFIQHIYYYAH from which all other sources derive their authorityDIFFERENCES  It may be defined as: OF TERM  The book containing the speech of Allah, revealed to RULING Prophet Muhammad in Arabic and transmitted to us by continuous testimony, or tawatur. SOURCES  Consists of the word of Allah SWT revealed on Prophet Muhammad saw in 23 years – divine origin MAQASID SHARIAH  Address to all humanity, without distinction of race,DHARURIYAT region or time AL-KHAMS  It seeks to guide human beings in all aspect of life 36
  • 37. THE SUNNAH QAWAID  SunnahFIQHIYYYAH  Literally: a way or rule or manner of actingDIFFERENCES  Technically: What has been (authentically) related to us OF TERM on behalf of the Prophet from his sayings, actions, and tacit approvals. RULING  Hadith  Literally: communication, story, conversation SOURCES  Technically: What was transmitted on the authority of the Prophet ,his deeds, sayings, and MAQASID SHARIAH tacit approvals, or description of his sifaat (features).”  Both cover the same ground: practice, sayings and tacitDHARURIYAT approvals(taqrir) AL-KHAMS  Quran generally deals with the broad principles or essential of religion. The details are supplied by Prophet saw through hadith 37
  • 38. IJMA’ QAWAID  Ijma‟ – Consensus of opinion among the jurist onFIQHIYYYAH certain issues and rulingDIFFERENCES  Literally: OF TERM  Ijma is the verbal noun of the Arabic word Ajma‟a which has two meanings: RULING  To determine  To agree upon something SOURCES  Technically MAQASID  Consensus of mujtahids (jurist) from the ummah oh SHARIAH Muhammad (saw), after his death in a determined period upon a rule of Islamic lawDHARURIYAT AL-KHAMS  Consensus of opinion among the jurist of a particular period on a question of law  Ijma‟ maybe based on Quran, hadith or analogy 38
  • 39. QIYAS QAWAID  Qiyas – analogical deductionFIQHIYYYAH  LiteralDIFFERENCES  Measuring or estimating on thing in terms of another OF TERM  Technical RULING  The extension of Shar‟iah ruling from an original case (Asl) to a new case (far‟) because the new case has the same effective cause (Illah) as the original case. SOURCES  Qiyas or analogy is resorted to in respect of problems MAQASID about which there is no specific provision in the Quran SHARIAH or the Sunnah of the ProphetDHARURIYAT  Analogical deduction of new issues on existing evidence AL-KHAMS from the Quran and Sunnah  Process by which a rule of law is deduced from original text in views of common effective cause (illah) 39
  • 40. MAQASID AL-SHARIAH QAWAID  The primary objectives of the shariah is theFIQHIYYYAH realization of benefit to the people, concerning toDIFFERENCES their affairs both in this world and the hereafter. OF TERM  It is generally held that the shariah in all parts aims RULING at securing a benefit for the people or protecting them against corruption and evil. SOURCES  The Quran explained the main objectives of shariah when it declares MAQASID SHARIAH                                   DHARURIYAT  “ and We sent you (O Muhammad SAW) not but as a AL-KHAMS mercy for „alamin (mankind,jinns and all the exists)  (Al-Anbiya‟:107) 40
  • 41. CATEGORIES OF OBJECTIVES OF SYARI’AH QAWAIDFIQHIYYYAH The ComplementaryDIFFERENCES (Hajiyyat) OF TERM RULING The The Essentials Embellishments (Daruriyyat) SOURCES (Tahsiniyyat) MAQASID SHARIAH CATEGORIESDHARURIYAT OF AL-KHAMS OBJECTIVES OF SYARI‟AH 41
  • 42. THE ESSENTIALS (AL-DARURIYYAT) QAWAID  The essentials are the matter on which the religionFIQHIYYYAH and worldly affairs of the people depend upon,DIFFERENCES their neglect will lead to the total disruption and OF TERM disorder and it could lead to evil ending. RULING  The essentials can be divided into the protection of the 5 fundamental values. These five values are : SOURCES MAQASID SHARIAHDHARURIYAT AL-KHAMS 42
  • 43. AL-DARURIYYAH AL-KHAMSAH QAWAIDFIQHIYYYAH Protection of al-dinDIFFERENCES OF TERM Protection of life (al-nafs) RULING SOURCES Protection of dignity (al-‟ird) MAQASID SHARIAH Protection of intellect (al-‟aql)DHARURIYAT AL-KHAMS Protection of property (al-mal) 43
  • 44. PROTECTION OF AL-DIN QAWAID  Al-din is the most important values that must beFIQHIYYYAH protected by the Muslims. It is obligatory upon eachDIFFERENCES and every Muslims to protect his al-din. OF TERM  The protection of al-din at personal level is achieved RULING through the observance of ibadah, such as performing the 5 prayers, fasting, paying zakah and SOURCES performing hajj.  Executing all these rituals will increase the iman of MAQASID SHARIAH the person and will therefore be a shield to protectDHARURIYAT the person from committing sin or indulging in any AL-KHAMS action that will destroy his din. 44
  • 45. PROTECTION OF AL-DIN  As an example, the Quran has pointed out that QAWAID performing prayers will save a person from evil:FIQHIYYYAHDIFFERENCES OF TERM                                                               RULING                       “…and perform al-salat. Verily, al-salat prevents from al- SOURCES fahsya (i.e great sins of every kind, unlawful sexual intercouse, etc) and al-munkar (i.e disbelief)” MAQASID  (al-Ankabut:45) SHARIAH  The protection of al-din at the wider scope involves defending Islamic faith particularly if it is attacked byDHARURIYAT the enemy of Islam. AL-KHAMS  For instance, the situation demands waging of war with the enemy of Islam, then it should be done for the sake of protecting Islam from being destroyed by others 45
  • 46. PROTECTION OF LIFE (AL-NAFS) QAWAID  Life is essential and valuable to everyone. ProtectingFIQHIYYYAH everyones life is equally important and obligatoryDIFFERENCES to each and every individual and societies. OF TERM  In the punishment of the murderer, even though RULING one life is killed because of the crime, this will lead to saving many more lives as the punishment will SOURCES deter others from committing such crime.  The al-Quran emphasis this point when it says: MAQASID SHARIAH  “ and there is (a saving of) life for you in al-qisasDHARURIYAT (the law of equality in punishment), O men of AL-KHAMS understanding, that you may become al-muttaqin (the pious)”  ( al-Baqarah:179) 46
  • 47. PROTECTION OF LIFE (AL-NAFS) QAWAID  It is important to note that generally, saving of onesFIQHIYYYAH life is required, however it should not be done at theDIFFERENCES expenses of other lives. OF TERM  For example, saving a drowning person is RULING compulsory, but if the saving of this life might lead to losing of another life, then it should not be done SOURCES as the principles of shari‟ah states:  “a particular harm shall not be removed by MAQASID SHARIAH inflicting another harm”DHARURIYAT AL-KHAMS 47
  • 48. PROTECTION OF PROPERTY (AL-MAL)  Acquiring property is one of the necessities of mankind. QAWAIDFIQHIYYYAH Everyone has his own property and would like to have all the necessary protection for his property. Islam hasDIFFERENCES ordered that no one should acquire the property of OF TERM others without legitimate reasons and without proper contract. RULING  Al-Quran emphasizes this point when it say :  “and eat up not one another‟s property unjustly, nor give SOURCES bribery to the rulers that you may knowingly eat up a part of the property of others sinfully.” MAQASID SHARIAH  (al-Baqarah:188)  God has placed laws to regulate the commerce andDHARURIYAT AL-KHAMS transactions between people, in order to ensure fair dealing, economic justice and to prevent oppression and dispute. 48
  • 49. PROTECTION OF PROPERTY (AL-MAL) QAWAID  There are several ways of acquiring the property ofFIQHIYYYAH others illegitimately e.g. : taking riba‟, cheating inDIFFERENCES transaction, breaking the trust in matters related to OF TERM property, stealing property of others and etc. The shari‟ah prohibits all these means. RULING  Chopping off the hand of a thief is the punishment SOURCES for those convicted for stealing. Al-Quran mentioned the punishment when it says: MAQASID SHARIAH  “cut off the hand of the thief, male or female, as a recompense for that which they committed, aDHARURIYAT AL-KHAMS punishment by way of example from Allah. And Allah is All Powerful, all Wise”  (al-Ma‟idah:38) 49
  • 50. PROTECTION OF THE INTELLECT OR MIND (AL-AQL) QAWAID  Al-aql is a great gift from Allah s.w.t to mankind.FIQHIYYYAH This is one of the human capacities thatDIFFERENCES differentiates man from animals. OF TERM  Allah s.w.t has ordered that everyone should RULING protect this precious gift from Allah by utilizing the mental for benefit of all and not for anything that SOURCES might lead to destruction.  Islam has given freedom for its followers to express MAQASID SHARIAH their views and has tolerated the differences ofDHARURIYAT views and opinion. AL-KHAMS 50
  • 51. PROTECTION OF THE INTELLECT OR MIND (AL-AQL) QAWAID  Protection of the mind requires safeguarding it fromFIQHIYYYAH anything that might harm the ability and function of brainDIFFERENCES OF TERM  e.g: the consumption of liquor or any similar substance that will disturb the function of brain. RULING  The Quran forbids liquor when it says:  “o you who believe! Intoxicant, gambling, Al-Ansab SOURCES and Al-Azlam are an abomination of Syaitan‟s handiwork. So avoid that in order that you may be MAQASID successful” SHARIAH  (al-Ma‟idah : 90 )DHARURIYAT AL-KHAMS  He has also imposed preventative punishments in order that people stay away from them.  e.g: punishment for those who consume liquor = eighty lashes 51
  • 52. PROTECTION OF DIGNITY (AL-IRD) QAWAID  Islam is very concern about dignity of a person andFIQHIYYYAH emphasizes the importance of protecting dignity.DIFFERENCES  It also ensuring that the relationship between man OF TERM and women are done in respectful and responsible RULING way. Free mixing between the two sexes is disallowed. SOURCES  Islam has regulated the relationship by encouraging its followers to enter into marriage contract. The MAQASID SHARIAH Prophet s.a.w. is reported to have said in hadith:DHARURIYAT  “O Youth! Those of you who have the means to get AL-KHAMS married shall do it, as it is better to protect your eye and your desire, as for those who are unable to do so, he shall fast as it is a protection for you” 52
  • 53. PROTECTION OF DIGNITY (AL-IRD) QAWAID  Furthermore, Islam prohibits it followers fromFIQHIYYYAH accusing others of mischief such as committingDIFFERENCES adultery or other immortal behaviors. OF TERM  “verily, those who accuse chaste women, who ever even think of anything touching their chastity and are good RULING believers; are cursed in this life and in the hereafter, and for them will be a great torment” SOURCES  (al-Nur:23) MAQASID SHARIAHDHARURIYAT AL-KHAMS 53
  • 54. THE COMPLEMENTARY (AL-HAJIYYAT) QAWAID  The complementary interest on the wholeFIQHIYYYAH supplement to the five essential interests and itsDIFFERENCES refers to those kind of interest who neglect leads to OF TERM hardship of the individual or community although it does not lead to the total disruption of normal life. RULING  There are Many example of al-hajiyyat such as the SOURCES rukhsah that the shariah has granted in regards to ibadah for the travelers and the sick. MAQASID SHARIAH  Travelers are allowed to combine and shorten theirDHARURIYAT prayers and break fast in Ramadan.A sick person is AL-KHAMS allowed to pray in sitting or sleeping position and break his fast in Ramadan 54
  • 55. THE EMBELLISHMENTS(AL-TAHSNIYYAT) QAWAID  The embellishments refer to interests whoseFIQHIYYYAH realization lead to improvement and the attainmentDIFFERENCES of that which is desirable. OF TERM  Therefore, the observance of cleanliness in personal RULING appearance and in ibadah, moral virtues and avoiding extravagance and measure that are SOURCES designed to prevent proliferation of false claims in the courts. MAQASID SHARIAH  The disappearance of tahsiniyyat may not interruptDHARURIYAT the normal life, but it might lead to the lack of AL-KHAMS comfort in life. 55
  • 56. END OF CHAPTER QAWAIDFIQHIYYYAHDIFFERENCES OF TERM RULING SOURCES  MAQASID SHARIAHDHARURIYAT AL-KHAMS 56