Islamic Legal Maxims

1. Legal Maxims in Islamic
Law
Prepared By
I.Saujan
Temp. Assits. Lecturer in Islamic Law
Department Of Islamic Studies

2. Islamic Legal Maxims
❖. The Meaning
❖. The History
❖. Arguments related to the Al-qa’idah
❖. Classifications
❖. Discussion on five major maxims
❖. Literatures

3. The Definition
❑. Literally : qawa’id is the plural form of the word qa’idah. which has many lexical meanings
in Arabic, denoting foundation, stability, firmness.
❑In the Qur’an, the plural form (i.e. Qawa’id) was mentioned in three places;
❑two of which were used to mean foundations (Surah al-Baqarah: 127; Surah al-Nahl: 26)
❑whereas the third refers to women who are past child-bearing age (Surah Anoor: 60)
❑In contrast, there is no mention of the singular form (i.e. Qa’idah) in any place in the
Qur’an.
❑. Technically: Mustafa Ahmad al-Zarqa
“General principles of fiqh which are presented in a simple format consisting of the general rules of shari’ah
in a particular field related to it”
❑. Al-Jurjani (d.816/ 1413) defines the term qa’idah in his al-Ta’rifat as: “A comprehensive principle
or law that is applicable to all of its particulars” (Fawzy, 2012).

4. Continue…
❑ Taj al-din ibn al-Subki (d.771/ 1370) The first jurist who provided a definition for this field
“A comprehensively valid rule which applies to many particulars, so that their legal determinations
can be comprehended from it”
❑.The general rules of fiqh, which can be applied in various issues.
❑. Few words but provides comprehensive meaning
❑. Used as principles to deduce many rules of fiqh. Therefore they have a great role in the
formation of Islamic Law
❑. They are general rules which were derived from various sources of Islamic Law

5. Arguments related to the Al-qa’idah
❑. The agreement over the extent of application of al qaw’id al-fiqhiyyah over their particulars
1. The first group of Scholars
• The majority thought that they are similar to the rules of other disciplines, such as Usul al-fiqh (legal
theory), kalam (theology), mantiq (logic), nahw (grammar), etc. in term of being comprehensively
applicable to their particulars without exception.
2. The second group of Scholars
◦ some fuqha believed that al-qawa’id al-fiqhiyyah are only hukm aghlabi (predominantly valid rules)
rather than comprehensive (Kulliyah).
◦ Al-Hamawi (d. 1098/1687) says “qa’idah according to fuqaha is different from that of grammarians and
legal theorists. According to them, it is a predominant principle, rather than comprehensive”

6. Continue….
The first group of the scholars provided the following arguments In terms of excluding qawa’id
1. Comprehensiveness is one of the basic characteristics of any rules in any discipline. Qawa’id
al-fiqh, in this regard, are no exception.
2. Excluding a single matter or problem does not invalidate or put onto question the
comprehensiveness of the qa’idah.
3. the excluded matters might not originally meet the conditions of the qa’idah, and thus not be
considered exceptions to the comprehensive nature of the qa’idah.
4. it is a general phenomenon in all disciplines that a single matter might be excluded from a
qa’idah, and this by no means restricts or nullifies its comprehensiveness.
5. An excluded problem from a particular qa’idah might be included in another qa’idah.

7. The different classifications of Al-Qawa’id
al-Fiqhiyyah
1. The scope of the Qawa’id in term of its application towards the issues fiqh:
a) The major maxims: five Major maxims
b) The minor maxims: No limitations
i. The extension maxims form the major maxims
ii. The maxims that are not related to the major maxims
2. The acceptance of a particular maxim among the different schools of Islamic Law:
1. The maxim which is accepted and utilised by all scholars from different mathhab
2. The maxim that is accepted by certain scholars from certain Mathhab and rejected by others.

8. History of Al-Qawaid al-Fiqhiyyah
❑. Al-Qawa’id al-fiqhiyyah was not written all at once by a particular scholar, but was developed
by the jurist at the time of the resurgence of fiqh
❑.Among the earliest jurists who developed most of the fiqh maxims are the jurist of the
Hanafiate school.
❑. The earliest compilation in the form of a note of these maxims were written by Abu al-Hasan
al-Karki (d.334AH/ 945CE) and Abu Tahir al-Dabbas.
❑. In the 15th century of hijirah, Abu Zayd’ Abdullah b. Umar Al-Dabbusi wrote his book Ta’sis
al-Nazar

9. Legal maxims can be divided into four types:
Islamic
jurisprudential
maxims
‫الفقهية‬ ‫الضوابط‬
The Jurisprudential
controllers
‫الكبر‬ ‫غير‬ ‫الكلية‬ ‫القواعد‬
‫ئ‬
Non-Normative
Legal Maxims
‫الكبرئ‬ ‫الكلية‬ ‫القواعد‬
Normative Legal
Maxims
‫الكبرئ‬ ‫الجزئية‬ ‫القواعد‬
Partial Normative
Legal Maxims

10. Continue…
1. Normative Legal Maxims ( ‫القواعد‬
‫الكلية‬
‫الكبرئ‬ )
◦ “Hardship begets ease ( ‫المشقة‬
‫تجلب‬
‫التيسير‬ )”
2. Partial Normative Legal Maxims ( ‫القواعد‬
‫الجزئية‬
‫الكبرئ‬ )
◦ “Hardship begets ease ( ‫المشقة‬
‫تجلب‬
‫التيسير‬ )”
◦ “Necessities permit the prohibited ( ‫الضرورات‬
‫تبيح‬
‫المحظورات‬ )”
3. Non-Normative Legal Maxims ( ‫القواعد‬
‫الكلية‬
‫غير‬
‫الكبرئ‬ )
◦ “Rulers’ decisions must be in favour of the people ( ‫التصرف‬
‫علي‬
‫الرعية‬
‫منوط‬
‫بالمصلحة‬ )”
4. The Jurisprudential controllers ( ‫الضوابط‬
‫الفقهية‬ )
◦ “Every Kaffarah by disobedience is supposed to be fulfilled immediately ( ‫كل‬
‫كفارة‬
‫سببها‬
‫معصية‬
‫فهئ‬
‫علئ‬
‫”)الفور‬

11. Classical Literatures
1. Takrij al-furu’ala al-usul by Imam Abu manaqib Shihab al-Din Mahmud ibn himad al Zanjani
al- Shaf’I (D.656H)
2. Anwar al-Buruq fi Anwa’al-Furuq written by Imam shihab al-Din ahmed ibn Idris al-Qarafi
al- Maliki (d.684H)
3. Al-Ashbah wa al-Nazair by Jala sl-din al-sayuti al-shaf’I (d.1201H)
4. Al-Asbah wa al-Nazair by Ibnu Mujaym, Zain al-Din ibn Ibrahim ibn Muhammad al-Hanafi
(d.970H)

12. Modern Literature
1. Al-Madkhal al-Fiqhi al-’amm by Mustafa bin Ahmad al-Zaraq’.
2. Al-wajaz fi Idah Qawaid al-fiqh al-Kuliyyah by Muhammad Sidqi bin Ahmad al-Borno al-
Ghazzi.
3. Al-Qawa’id al-fiqhiyyah Nah’atuhu, wa Tatawurruhu: Dirasat Mullifatiha by Syeikh Ali bin
Ahmad al-Nadawi.
4. Al-Nazariyyah al-fiqhiyyah by Prof.Dr.Muhammad bin wahbah al-Zuhaili.

13. Five Major Maxims
Legal
Maxims
1.Al-UMUR BI
MAQASIDIHA
(Matters are
determined according
to intention)
2. Al-MASHAQQAH
TAJLUB AL-TAYSIR
(Hardship begets
Facility)
3. LA DARARA WA LA
DIRAR
(Harm shall not be
inflicted nor
reciprocated)
4. AL-YAQIN LA YAZULU
BI AL-SHAKK
(What is certain cannot
by removed by doubt)
5. AL-’ADAH
MUHAKKAMAH
(Custom is arbitrary)

14. References
1. Mishkah, (2013)., Al-Qawaid al-Fiqhiyyah (Legal maxims of Islamic jurisprudence) A
translated compilation. America: Islamic university of North America (Mishkah) Islamic studies
English program.
2. Fawzy Shaban, (2012). Al-Qawaid al-Fiqhiyyah (Islamic Legal maxims): concept, functions,
History, Classifications and Application to contemporary medical issues. University of Exeter.
3.Saiti, Buerhan and Abdullah, Adam, The Legal Maxims of Islamic Law (Excluding Five
Leading Legal Maxims) and Their Applications in Islamic Finance (July 1, 2016). Journal of
King Abdulaziz University: Islamic Economics, Vol. 29, No. 2, 2016, Available at
SSRN: https://ssrn.com/abstract=3062121