The document discusses the Islamic legal maxim of yaqeen (certainty). It defines yaqeen as a feeling of confidence without any doubt. It discusses the different levels of certainty including: 1) Yaqeen (certainty) 2) Ghalabatul-zan (conjecture leaning 75% towards certainty) 3) Zann (conjecture) 4) Shak (doubt) 5) Wahm (fancy leaning 75% towards error) It also discusses related maxims including the burden of proof lying with the claimant, the presumption of original and non-existence states, and the equivalency of proven and seen evidence.

1. ISLAMIC LEGAL MAXIMS
THE PRINCIPLE OF YAQEEN
MAHYUDDIN KHALID  emkay@salam.uitm.edu.my

2. CONTENT
 INTRODUCTION
INTRODUCTION
 EVIDENCES
EVIDENCES  ISSUES: BURDEN OF PROOF
 DEGREE OF CERTAINY
BURDEN OF
PROOF  RELATED MAXIMS
CERTAINTY
 APPLICATION
RELATED
MAXIMS
APPLICATION
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3. THE MAXIM
INTRODUCTION
EVIDENCES
BURDEN OF
PROOF
With doubt certitude does not fade
CERTAINTY
Certainty is not dispelled by doubt
RELATED
MAXIMS
(Art 4)
APPLICATION
3

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)
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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
MAXIMS
APPLICATION
5

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. ISSUE: THE BURDEN OF PROOF
 In dispute, 2 parties involved
INTRODUCTION
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 liability
APPLICATION
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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 jurists
APPLICATION  The proofs of a matter requires a presentation of
evidence until the matter attain the degree of
certainty
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9. DEGREE OF CERTAINTY
INTRODUCTION
Al-Yaqin •Certainty
EVIDENCES
BURDEN OF Ghalabatul- •Conjecture
PROOF Zan
CERTAINTY
RELATED
MAXIMS
Syak •Doubt
APPLICATION
Wahm • Fancy
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10. AL-YAQIN
 Al-yaqin refers to a feeling of confidence upon
INTRODUCTION
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
MAXIMS
APPLICATION
10

11. ZAN & GHALABATUL-ZAN
 It means siding which is 75% towards al-yaqin
INTRODUCTION
(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
MAXIMS
APPLICATION
11

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
MAXIMS
APPLICATION
12

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
MAXIMS
APPLICATION
13

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
MAXIMS
APPLICATION
14

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.
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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.
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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
guilty
APPLICATION
 If 2 persons quarrel with each others on the price of
damaging goods, the person who bears the loss will get
the compensation
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18. RELATED MAXIMS
 A thing established by proof is equivalent to a thing
INTRODUCTION
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
MAXIMS
APPLICATION
18

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
MAXIMS
APPLICATION
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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
MAXIMS
APPLICATION
20

21. APPLICATION
 If a person is certain that he is in the state of
INTRODUCTION
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 valid
APPLICATION
because the doubt has arisen after certainty. This
doubt of divorce, therefore cannot remove the
certainty of marriage
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22. END OF CHAPTER
INTRODUCTION
EVIDENCES
BURDEN OF
PROOF
CERTAINTY
RELATED
MAXIMS
APPLICATION
22