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Principle of Yaqeen

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Principle of Yaqeen

1. 1. ISLAMIC LEGAL MAXIMS THE PRINCIPLE OF YAQEEN MAHYUDDIN KHALID  emkay@salam.uitm.edu.my
2. 2. CONTENT  INTRODUCTIONINTRODUCTION  EVIDENCES EVIDENCES  ISSUES: BURDEN OF PROOF  DEGREE OF CERTAINY BURDEN OF PROOF  RELATED MAXIMS CERTAINTY  APPLICATION RELATED MAXIMSAPPLICATION 2
3. 3. THE MAXIMINTRODUCTION EVIDENCES BURDEN OF PROOF With doubt certitude does not fade CERTAINTY Certainty is not dispelled by doubt RELATED MAXIMS (Art 4)APPLICATION 3
4. 4. INTRODUCTION  Meaning:INTRODUCTION  Something that is certain could not be removed with the appearance of doubt. EVIDENCES  Certainty can only be remove by another certainty. BURDEN OF  A general principle in law of evidence. PROOF  This maxim is very important in the absence of CERTAINTY proof on either disputing side. RELATED  The judgment in court case depends on the standard MAXIMS of proof.APPLICATION  The standard of proof:  Balance of probabilities  Beyond reasonable doubt (highest degree of evidence) 4
5. 5. EVIDENCES  Al-Quran:INTRODUCTION EVIDENCES  “Most of them follow nothing but zann (fancy); truly BURDEN OF PROOF fancy can be of no avail against truth. Verily God is aware of all that they do.”(10:37) CERTAINTY RELATED MAXIMSAPPLICATION 5
6. 6. EVIDENCES  Hadith:INTRODUCTION  “If one of you feel something in his stomach during his prayer, and it is difficult for him to ascertain whether EVIDENCES such thing had discharged or not, thus do not stop his BURDEN OF prayer until he do hear sound or smell” PROOF  “If anyone forget in his solat and unsure whether he has completed 1 or 2 rakaat, so take 1 rakaat, if unsure CERTAINTY between 2 or 3 rakaat, take 2 rakaat.” RELATED  Have to take the certain one and reject the new one MAXIMS which has created confusion.APPLICATION 6
7. 7. ISSUE: THE BURDEN OF PROOF  In dispute, 2 parties involvedINTRODUCTION 1. claims something/ accusing someone 2. denies the claims/ denies the accusation EVIDENCES  So, in judicial dispute, it is important to know upon BURDEN OF PROOF whom the oaths of proof lies  The burden of proof is on him who alleges, and the CERTAINTY oath on him who denies RELATED  if someone claims something towards another, it is his MAXIMS his duty to prove it, because the defendant is presumed to be free from any liabilityAPPLICATION 7
8. 8. ISSUE: THE BURDEN OF PROOF INTRODUCTION  Freedom from liability is a fundamental principle (Art 8) EVIDENCES  Example: BURDEN OF  If a person destroys the property of another and a PROOF dispute arises as who will be held responsible,, the statement of the person causing such destruction shall CERTAINTY be heard and the burden of proof is upon the owner of the property. RELATED MAXIMS  Related with the application of Istishab approved by Shafi’i juristsAPPLICATION  The proofs of a matter requires a presentation of evidence until the matter attain the degree of certainty 8
9. 9. DEGREE OF CERTAINTYINTRODUCTION Al-Yaqin •Certainty EVIDENCES BURDEN OF Ghalabatul- •Conjecture PROOF Zan CERTAINTY RELATED MAXIMS Syak •DoubtAPPLICATION Wahm • Fancy 9
10. 10. AL-YAQIN  Al-yaqin refers to a feeling of confidence uponINTRODUCTION something where there is no doubt at all. EVIDENCES  Example:  A was caught with 4 witnesses while committing BURDEN OF zina, the evidence brings to certainty. PROOF CERTAINTY RELATED MAXIMSAPPLICATION 10
11. 11. ZAN & GHALABATUL-ZAN  It means siding which is 75% towards al-yaqinINTRODUCTION (certainty) and 25% toward non-yaqin EVIDENCES  Example:  if the sinking of ship has been established, the death of BURDEN OF its passengers would be presumed on the basis of PROOF plausible conjecture(probability) CERTAINTY RELATED MAXIMSAPPLICATION 11
12. 12. ZANN  Maxim:INTRODUCTION  “No validity is attached to conjecture (zann) which is obviously tainted by error” (Art 72) EVIDENCES  Zann (conjecture) = siding toward the correctness BURDEN OF PROOF  “Conjecture can not take the place of truth”(10:36)  Zann, if it is plausible, may take the place of CERTAINTY certainty when the latter is unattainable. RELATED MAXIMSAPPLICATION 12
13. 13. SHAK (DOUBT)  Maxim:INTRODUCTION  “Certainty is not dispelled by doubt” EVIDENCES  It refers to a feeling between two fences of yaqin and non-yaqin which is 50% towards certainty and BURDEN OF another 50% inclines towards non-yaqin PROOF  Between certainty and uncertainty. CERTAINTY  Not sufficient to dispel certainty RELATED MAXIMSAPPLICATION 13
14. 14. WAHM (FANCY)  Maxim: “No weight is attached to fancy” (Art 74)INTRODUCTION  It means siding which is 75% towards nonj-yaqin EVIDENCES and only 25% towards yaqin.  It cannot be relied at all and has no consequences BURDEN OF PROOF  Siding towards the incorrectness (error)  Mere supposition is to be rejected. CERTAINTY RELATED MAXIMSAPPLICATION 14
15. 15. RELATED MAXIMS INTRODUCTION  It is a fundamental principle that a thing shall EVIDENCES remain as it was originally (Art 5)  Meaning: BURDEN OF PROOF  What is apparent is presumed to be the original state (go back to the originality). CERTAINTY  In the matter of burden of proof, the burden is upon RELATED the plaintiff or the prosecutor MAXIMS  Example:APPLICATION  A debtor is considered liable until proven that he had paid the loan;  A couple charged with khalwat is considered unmarried unless proven otherwise. 15
16. 16. RELATED MAXIMS INTRODUCTION  Something is considered non-existence in the first EVIDENCES place(Art 9)  Meaning: BURDEN OF PROOF  Generally, non existence is prior to existence.  Example: CERTAINTY  In Mudharabah, if there is dispute between rabbulmaal RELATED and mudarib on whether or not profit had been MAXIMS made, the word of mudharib is taken into account unless proven otherwise;APPLICATION  If Maria claimed that Ali had breached his promise to marry her but denied by Ali, the promise is considered non-existence unless proven. 16
17. 17. RELATED MAXIMS INTRODUCTION  Freedom from indebtedness is to be presumed, or EVIDENCES freedom from liability is a fundamental principle (Art 8) BURDEN OF PROOF  Meaning:  One cannot be considered liable and the condition shall CERTAINTY remain as it is until proven otherwise. RELATED  Example: MAXIMS  A crime suspect is considered innocent until proven guiltyAPPLICATION  If 2 persons quarrel with each others on the price of damaging goods, the person who bears the loss will get the compensation 17
18. 18. RELATED MAXIMS  A thing established by proof is equivalent to a thingINTRODUCTION established by visual inspections.(Art. 75) EVIDENCES  General rule:  A claim, though authentic, is of no consequence if a BURDEN OF claimant is unable to prove it PROOF  The proof of a matter require presentation of CERTAINTY evidence until the matter attain the degree of certainty. RELATED MAXIMSAPPLICATION 18
19. 19. RELATED MAXIMS INTRODUCTION  The origin of a thing is permissible unless proven EVIDENCES otherwise  Meaning: BURDEN OF PROOF  According to As-Syafie, anything is considered permissible originally until there is prove that the thing CERTAINTY is prohibited.  Applied mainly in muamalat. RELATED MAXIMSAPPLICATION 19
20. 20. RELATED MAXIMS INTRODUCTION  The origin of a thing is prohibited unless proven EVIDENCES otherwise  Meaning: BURDEN OF PROOF  According to Hanafi, anything is considered haram or prohibited unless there is prove that it CERTAINTY permissible/mubah.  Applicable mainly in ibadah. RELATED MAXIMSAPPLICATION 20
21. 21. APPLICATION  If a person is certain that he is in the state ofINTRODUCTION ablution, he is considered to have ablution until there is evidence or indication showing otherwise EVIDENCES  If a person has taken a loan from another person BURDEN OF and is in doubt whether he is still in debt, he is PROOF considered to be in debt until there is proof to show CERTAINTY otherwise  Of a man marries a woman through a valid contract, RELATED MAXIMS then a doubt occurs regarding the divorce of his wife, their marriage would be considered validAPPLICATION because the doubt has arisen after certainty. This doubt of divorce, therefore cannot remove the certainty of marriage 21
22. 22. END OF CHAPTERINTRODUCTION EVIDENCES BURDEN OF PROOF CERTAINTY RELATED MAXIMSAPPLICATION 22