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Principles Of Law (Qawasid Al Shariat)


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  • 1. ISLAMIC MEDICAL EDUCATION RESOURCES029912-PRINCIPLES OF THE LAW (QAWASID AL SHARIAT)Lecture to 3rd year students at the Kulliyah of Medicine, International Islamic University, Kuantan on Saturday 4thDecember 1999.OUTLINE1.0 INTRODUCTIONA. Definition of qaidatB. Historical backgroundC. HujjiyatD. Sources and derivation 2.0 THE 5 PRINCIPLES OF FIQH, qawaid fiqhiyyatA. The Principle Of Intention, Qaidat Al MaqsadB. The Principle Of Certainty, Qaidat Al YaqeenC. The Principle Of Injury, Qaidat Al DhararD. Principle Of Hardship (Qaidat Al Mashaqqat)E. The Principle Of Custom  Or Precedent, Qaidat Al Urf 1.0 INTRODUCTIONA. DEFINITIONSQAIDATDefinition: Qaidat is defined as general principle that is applicable to the specifics, qadhiyat kulliyat tantabiqu ala jamiu al juz'iyaat. QAIDAT FIQHIYYATDefinition: Qaidat fiqhiyyat has been defined as a legal principle that embraces general legal rulings from several chapters of the law, abwaab al fiqh, that deal with the issues that are the subject matter of the qaidat, asl fiqhi yatadhamanu ahkaaman tashri'iyat aamat min abwaab mu'adidat fi al qadhayat allati tadkhulu tahta mawdhu'ihi. Five major principles are unanimously recognized as the pillars of the law, arkaan al fiqh: Intention, qasd; certainty, yaqeen; injury, dharar, difficulty; mashaqqat and custom or precedent, urf. Each of the 5 Principles is a group of legal rulings or axioms that share a common derivation by analogy, qiyaas.Besides these there are other principles derived from the hadith or the writings of jurists. B. HISTORICAL BACKGROUNDTHE INITIAL STAGE, TWAWR al NUSHU'UQawaid existed and were used from the first generation. They were found in the concise but comprehensive sayings, jawamiu al kalim,  of the prophet; sayings of the companions, athaar al sahabat, and the sayings of the followers, aqwaal al tabiin. Qawaid were also found scattered in the earliest books of fiqh such as kitaab al Kharaaj by Abu Yusuf Ya'aqub Ibn Ibrahim (d. 182H), Kitaab al Asl by Imaam Muhammad bin al Hasan al Shaybani (d. 189H), al Kitaab al Umm by Imaam al Shafie (d. 204H). Imaam Ahmad Ibn Hanbal also wrote some qawaid. STAGE OF DEVELOPMENT and DOCUMENTATIONQawaid were scattered in the books of al Juwayni (d. 478H), Ibn Rushd the grandfather (d. 520H), al Nawawi (d. 676H), an Qarafi (d. 784H), Ibn Taymiyat (d. 728H), and Ibn al Qayyim (d. 751H). The following authors collected and published them in dedicated books: Imaam Abu Tahir al Dabaas al Hanafi in the 4th century (d.   ), Imaam al Karakhi (d. 340H), al Dabuusi (d. 430H), al Subki (d. 771H), al Zarkashi (d. 794H), al Suyuti (d. 911H), Ibn Nujaim (d. 970H), STAGE OF ESTABLISHMENT and COORDINATIONThis was the stage of writing the majallat al ahkaam al adliyat by a group of scholars of the Ottoman state. Unfortunately this effort was not continued to its fruition because of the decline of the Ottoman state and its eventual overthrow by the European colonial powers who then went on to impose their legal codes on Muslim countries and marginalized the shariat. C. HUJJIYATUSE OF GENERAL PRINCIPLES IN THE QUR'ANThe Qur'an is the basic motivation for development of the qawaid because most of it is statement of general principles. These general principles are then applied to specific situations. The wisdom, hikmat, behind this is that the Qur'an has to be a precise authority on principles that can then be applied to varying situations and circumstances be they of time or space. If the Qur'an were to go into specifics it would have been considerably longer than it is. GENERAL PRINCIPLES and JAWAMIU al KALIM in THE SUNNATOne of the 5 exclusive bounties of the prophet was his ability to speak in concise terms with a lot of underlying meaning, jawamiu al kalim. His pronouncements therefore were principles most of the time. He used to reiterate and explain them by giving examples or telling illustrative stories.  D. SOURCES and DERIVATIONQUR'ANThe basic and primary source of the law and its principles is the Qur'an. It states the general principles that can guide the development and application of the law. An examples of the precise Qur'anic principles is 99:18 SUNNATThe sunnat is a source of qawaid in two ways. Some are direct text of the sunnat for example the qaidat 'la dhararat wa la dhiraar'. However most are derived by the jurists from the text of the hadith. BOOKS OF FIQHJurists who wrote the first books of fiqh stated many principles without using the terminology qaidat. Later jurists either collected these principles of derived them from the opinions of the ancients. 2.0 PRINCIPLES OF FIQH, qawaid fiqhiyyat /THE 5 PILLARS OF THE LAW, al qawaid al kulliyat al khamsat A. THE PRINCIPLE OF INTENTION, qaidat al maqsadThe basic principle is that each action is judged by the intention behind it, al umuur bi maqasidiha. There is no reward in the hereafter for any good act or leaving a prohibited action without a specific intention , la thawaab illa bi al niyyat. Intentions and meanings are what matter and not literal interpretations or structures, maqasid wa ma’ani la alfadh wa mabani. The terms or words used are symbols of the underlying meaning. If there is a contradiction between the term and the meaning, it is the underlying meaning that matters. Means are judged with the same criteria as the intentions, al wasail laha hukm al maqasid. If the intention, qasd, is wrong the means,wasiilah, is wrong. B. THE PRINCIPLE OF CERTAINTY, qaidat al yaqeenThe main principle is that certainty can not be removed by doubt, al yaqeen la yazuulu bi al shakk. Certainty,yaqeen, is a situation when there is no doubt or hesitation, taraddud. Doubt, shakk, is a situation in which there are two or more competing options with no sufficient evidence to prove one of them as the most valid. Shakk is the opposite of yaqeen. Conjecture, dhann, is a situation in which there is some evidence in favor of one option but that evidence is not strong enough to rule out the other alternatives. The order of gradation is certainty,yaqeen; predominant conjecture, ghalabat al dhann; conjecture, al dhann; and doubt, al shakk. A certainty  cannot be voided, changed or modified by an uncertainty, al yaqeen la yazuulu bi al shakk. When an assertion  is an established truth, it should not be changed by a mere doubt being raised about all or some of its components. Existing assertions should continue in force until there is compelling evidence to change them,al asl baqau ma kaana ala ma kaana. Innocence of a suspect is presumed until compelling evidence is produced, al asl baraat al dhimma. An event is considered of recent occurrence unless there is evidence to the contrary, al asl idhafat al haadith ila aqrab waqtihi.  An acquired attribute or change is not accepted unless there is compelling evidence, al asl fi al umuur al ‘aaridhat al ‘adam. An existing structure, situation or condition whose origin is not known should be left as is until there is evidence to the contrary, al qadiim yutraku ala qadamihi. What has been accepted as customary over a long time is not considered harmful unless there is evidence to the contrary, al qadiim la yakuun dhararan. All acts are considered permissible unless there is evidence to prove their prohibition, al asl fi al ashiya al ibaaha. In acts of worship, caution and ?restraint, tawaqquf, should be exercised in new things or changes, al asl fi al ibadaat al hadhr aw al tawaqquf. All matters related to the sexual function are presumed forbidden unless there is evidence to prove permissibility, al asl fi al abdhai al tahriim. Declaration of original motive takes precedence over what is de facto, la ibrat bi al dalaalat fi muqabalat al tasriih.  C. THE PRINCIPLE OF INJURY, qaidat al dhararThe basic principle is that injury, if it occurs, should be relieved, al dharar yuzaal. An individual should not harm others or be harmed by others, la dharara wa la dhirar. Injury should be prevented as much as is possible, al dharar yudfau bi qadr al imkaan..  An injury is not relieved inflicting or causing an injury of the same degree, al dharar la yuzaal bi mithlihi. An injury is presumed to be of recent occurrence, al dharar la yakuun qadiiman. Prevention of a harm has priority over pursuit of a benefit of equal worth, dariu al mafasid awla min jalbi al masaalih. If the  benefit has far more importance and worth than the harm, then the pursuit of the benefit has priority. The prohibited has priority of recognition over the permitted if the two occur together and a choice has to be made, idha ijtama'a al halaal wa al haram ghalaba al haraam al halaaal. If a prohibited and a permitted act The lesser of two harms is selected, ikhtiyaar ahwan al sharrain. If confronted with 2 actions both of which are harmful and there is no way but to choose one of them,  the one with lesser harm is committed in order to block the way for the bigger harm. A lesser harm is committed in order to prevent a bigger harm, al dharar al ashadd yuzaalu bi al dharar al akhaff. This also implies that an individual could suffer in the interest of preventing a public harm since public interest has priority over individual interest, al maslahat al aamat muqaddamat ala al maslahat al khaassat. The individual may have to sustain a harm in order to protect public interest, yatahammalu al dharar al khaas li dafiu al dharar al aam. The state can not infringe the rights of the public unless there is a maslahat to be achieved, al tasarruf ala al ra'iyat manuutu bi al maslahat. D. PRINCIPLE OF HARDSHIP, qaidat al mashaqqatThe basic principle is that difficulty calls forth ease, al mashaqqat tajlibu al taysir. Hardships that were considered valid by classical scholars were: travel, illness, coercion, forgetting, general disasters. This list can be extended by adding anything that threatens any of the 5 purposes of the law, diin, life, progeny, intellect, and wealth. Hardship mitigates easing of the shariat rules and obligations, al mashaqqa tajlibu al tayseer. The religion is easy and any attempt to make it hard is self-defeating, al ddiin yusr wa lan yashaada hadha al ddiin illa ghalabahu. The religion seeks the equilibrium of the middle path and shuns extremism that causes hardships, la ghuluwwu fi al ddiin.  The law is relaxed in restrictive situations, al amr idha dhaaqa ittasa. The law is restrictive in lax situations, al amr idha ittas’a dhaqa. The law-giver does not oblige humans beyond their capacity, la takliif fawqa al taaqat. The human has to perform to the extent of capability and can not give up the effort to achieve partial fulfillment on the grounds that he is not capable of perfection, al maysuur la yasqut bi al ma'asuur. Necessity legalizes the prohibited, al  dharuraat tubiihu al mahdhuuraat. If any of the 5 necessities, al dharuraat al kahmsat, is at risk permission is given to commit an otherwise legally prohibited action. Committing the otherwise prohibited action should not extend beyond the limits needed to preserve the Purpose of the Law that is the basis for the legalization, al dharuraat tuqaddar bi qadriha. Necessity however does not permanently abrogate others’ rights which must be restored or recompensed in due course; necessity only legalizes temporary violation of rights, al idhtiraar la yubtilu haqq al ghair. The temporary legalization of the prohibited action ends with the end of the necessity that justified it in the first place, ma jaaza bi ‘udhri batala bi zawaalihi. This can be stated in al alternative way if the obstacle ends, enforcement of the prohibited resumes, idha zaala al maniu, aada al mamnuu’u. It is illegal to get out of a difficulty by delegating to someone else to undertake a harmful act, ma haruma fi’iluhu, haruma talabuhu. The same principle applies with regard to rights of property. What is illegal to get, use or possess is also illegal as a gift or a trade good, ma haruma akhdhuhu, haruma itauhu. E. THE PRINCIPLE OF CUSTOM or PRECEDENT,qaidat al urfThe basic principle is that custom or precedent is a legal ruling, al aadat muhakamat. What is considered customary is what is uniform, wide-spread, and predominant, innama tutabaru al aaadat idha atradat aw ghalabat. What is considered is what is predominant, wide-spread, and not what is rare, al ibrat li al ghaalib al shaiu la al naadir. The customary must also be old and not a recent phenomenon. Custom is recognized as a source of law on which legal rulings are based, al aadat muhkkamat, unless contradicted specifically by text,nass. The way people use words is used as evidence, istimaal al naas hujjat yajibu al amal biha. What is objectionable by custom is like what is legally objectionable, al mumtaniu aadat ka al mumtaniu haqiiqat. What is known customarily is like what is agreed on as a condition, al maaruf urfan ka al mashrut shartan. A fact could be abandoned on the basis of a custom, al haqiiqat tutrak bi dalaalat al aadat. You can not deny the change of rulings with times, situations, and customs, la yunkiru taghayyur al ahkaam bi taghayyuri al azmaan wa al ahwaal wa al aadaat wa a’raaf ie customs eventually change with time.
    © Professor Omar Hasan Kasule, Sr. December 1999