Topic 1- Legal Maxims PDF

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Islamic law II

LECTURE 1- ISLAMIC LEGAL MAXIMS (AL QAWA’ID AL FIQHIYYAH)

DEFINITION • Legal maxims or principles of Islamic law, which can be applied in various cases under the common rulings.  Legal maxims: A set of principles which created or adopted by Muslim scholars can be applied to various issues or matter of law (Islamic law). • The principles in the legal maxims which are presented in a simple format consisting of the general rules of Shariah in a particular field related to it. • Consists of few words but it carries a comprehensive meaning by looking at its application in numbers of cases)  Legal maxims (general principle of law) can be used as a supplement to other sources of law THE DIFFERENT CLASSIFICATION OF ISLAMIC LEGAL MAXIMS • It is depending upon the following 2 different factors : (1) The scope of the methods (qawa’id) in term of its application towards the legal issues (fiqh). • 2 types of application: 1. Major 2. individual legal maxim that stands alone) 2. Minor (1. branches of major legal maxims;  Eg: (Major) Hardship begets facility → Necessity renders prohibited things permissible (Minor)  Don’t have a choice but to take or opt a thing that is prohibited in Islamic law, so it is permissible for you to take upon it.  Eg: Babi is haram to Muslims however it is permissible during starvation for the sake of survival. (2) The acceptance of a particular maxim among the different schools of Islamic law. (Acceptance of school of thoughts)

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FIVE MAJOR MAXIMS Acts are determined according to intention, Harm must be eliminated, What is certain cannot be removed by doubt, Custom is arbitrary. Hardship begets facility,

Problematic Question**

1. Identify the legal maxim 2. Define the legal maxim 3. Identify or quote the origins of the legal maxim (AQ/ Sunnah) 4. Application of the identified legal maxim to the issue of the question.

Islamic law II Maxim 1: “Al-umur bi-maqasidiha” Acts are judged by the intention behind them

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This maxim is about ‘claim and practice’, where Muslims are required to demonstrate consistency in faith and practice, and in words and deeds. It embodies the relationship between intention and deed; claims and acts.  The will that is directed towards an action, it evolves around the claims and actions  Intended must be reflected to action It is about how legality and illegality is determined through intention and deed.

• Intention: a. The will directed towards an action b. The directing of the will towards the action of any human being Origins of Maxim 1 (Hadeeth) Narrated by ‘Umar r.a., the Prophet s.a.w.:  "Deeds are judged by intentions and every person is judged according to his intentions"  “There is no deeds to those who have no intention.” Application of the Maxim 1 1. If a person finds something on the street or anywhere else and took the object with the intention of returning it to the owner, his conduct is in order and he is considered as the keeper (amin) of the item, BUT if he intends to keep the item as his own, he is considered to be a person wrongfully appropriating property (ghasib). • The physical act is identical in both cases but the judgment therein differs according to the intention. 2. If a person killed another person intentionally, then doer should be killed (qisas) if convicted, BUT if the crime is perpetrated unintentionally, the punishment is different in which case the paying of blood money (diyah) is applied.  Intentionally- will be sentenced to death. Unintentionally- has to pay compensation. •

Eg: A man makes an earning for (a) the satisfaction of his selfish urges; (b) personal consumption and demonstration effects; or (c) complying with the divine command to earn for the sake of survival and spending on noble causes. o The act of earning may be the same, but the intention behind the act itself determines its standing. o Mens rea or intention of person when contract in a business transaction

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Eg: Divorce case (outward expression) In a marriage case, the husband can divorce his wife indirectly/directly Husband uttered these words to his wife “leave the house, I don’t want to see you, go back to your parents”.

 In Islamic family law or divorce law, it can bring two meanings, i. the husband is chasing away her wife temporary/ permanently ii. He meant to say that, he intended to divorce his wife.

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 Pronouncement of divorce (talaq) (2 type) i. Talaq sarih (clear pronouncement) ii. Talaq kinayah (unclear pronouncement)  Thus, it is the responsibility of Syariah court to determine his intention of making such pronouncement •

Eg: murder intentionally/ unintentionally A aims and shoots B. A will be charged for murder with intention under S.300 in Penal Code A aims to shoot a deer, however, A mistakenly shot B by accident. (mistake by negligent) Thus, the legal impact will be different based on the intention.

The Purpose of Intention 1. To differentiate b’ween ‘Ibadah and ‘Adah (custom or personal habit).  Puasa wajib- Observe fasting during Ramadhan month Puasa sunnat- recommended to observe fasting on every Monday and Thursday. • Eg: if a person refrain from eating and drinking from dawn (fajr) until sunset (maghrib) without having the intention of fasting, the person is not considered as fasting. • This action is mere ‘Adah and will not be rewarded. • The same action if done with the intention of fasting, it will be considered as ‘Ibadah and will be rewarded 2. To differentiate between one kind of ‘Ibadah and another. • Eg: prayer, fasting, and hajj. Branch of Maxim 1  In contracts effect is given to intention and meaning and not words and forms. This maxim gives the effect that in the event of a difference between the intention and the outward expression in the interpretation of contract, the judgement would be in accord with the intention to the extent that it may be ascertained. Maxim 2: “Ad-darar yuzal” Harm must be eliminated

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“...the maxim....is the validation of the option of defect in Islamic law, which is designed to protect the buyer against harm.” - M.H. Kamali This maxim is treated as a ‘pillar’ of Islamic law → established laws of option, inhibition, return of defective merchandise, pre-emption, requital, Hudud, compensation and indemnity, etc.... The following are prerequisites to the application of the maxim :  “Let the ancient rest on its age”  “ A wrong is a wrong even though it be ancient”  “Unlawful things are to be prevented irrespective of benefit”

Origins of Maxim 2  AQ 2:195 “…make not (Do not make) your own hands contribute to (your) destruction…" o Do not make or create any harms  Hadith: "Harm may neither be inflicted nor reciprocated in Islam." Harms shall be eliminated or removed in any possible ways.

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2 types of harms: i. Harm shall not be inflicted ii. No harm shall be further responded by inflicting further harm to it to avoid further harm. •

Harm shall not be reciprocated indicates that any harms that is inflicted should not be responded or revenged by inflicting another harm as this will add to the harm already inflicted and will cause or incur further harm.

Application of the Maxim 2 • The person upon whom harm was done, shall demand his right through the due process of law. E.g. If A damaged the property of B intentionally, B cannot under any circumstances damage the property of A in revenge, but he must get the compensation for the damages on his property from the court of law. •

If anyone sells anything that could rots quickly, such as fruits (banana), and the buyer disappears before the payment of the price and before receiving the sold items. The seller in this case is allowed to revoke the sale contract and sell the said item to another person, if he fears that the sold item will be spoiled. This is to prevent loss to the seller which will harm his business.

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Driving recklessly or beyond the stipulated speed limit on the highway which might lead to an accident is prohibited in Islam as it will cause harm to individual and property. Similarly it is obliged to adhere to the traffic rules and regulation in order to prevent the harm for going against them. • Driving beyond speed limit. Thus B shall not respond to the harm by inflicting further harm.

Branch of Maxim 2 → Harm must be eliminated  A greater harm is eliminated by tolerating a lesser one ** (more relevant to current cases) o Incase there are 2 harms occurred to a person, then the lesser harm can be committed to prevent a greater harm from occurring. • Harm may not be eliminated by its equivalent • To repel a public harm, a private harm is preferred • When two wrongful acts meet, the remedy of the greater is sought by the doing of the less • The smaller of two harms is chosen • The repelling of mischief is preferred to the acquisition of benefits • Harm is repelled as far as possible

Maxim 3: “Al-yaqin la yazulu bi al-shakk” Certainty is not overruled by doubt

** Keyword: Investigation, police officer, arrested, bring the matter to the court, claim for damages, compensation, religion reinforcement officer • •

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In other words : A person is presumed “Innocent until proven guilty” If something has not been established with certainty, it will remain so until proven otherwise. Doubt, which comes later, is weaker than certainty on which it was founded. Therefore, doubt cannot contradict or resist certainty. Although mainly used in relation to principally criminal matters, in general this maxim really means that one cannot be deemed liable until proven Any guilt attributed to any person must be treated as doubtful until proof is given to lift the doubt and create certainty–“Certainty can, in other words, only be overruled by certainty, not by doubt.”

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A fact that is established or proven by law or evidence shall be remained so until there is another certainty that removes it. Eg: A firm which declares a certain amount of income during the year this must be accepted by the income tax authorities in the absence of contradicting evidence.

Origins of the Maxim 3 (hadith of Prophet Muhammad)  If anyone of you feels anything in his stomach and he is confused of whether anything has come out of it or not, he should not go out of the mosque unless he hears any sounds or gets any smell. (when performing prayer)  AQ 10:36 ..but most of them follow nothing but fancy, truly fancy • Fancy means uncertain ex: rumours Application of the Maxim 2 • If the forgetfulness arises to anyone of you in his salah and he does not know whether he has prayed one rak`ah or two, he should consider them one rak`ah. Likewise, if this person is not certain whether he has prayed two rak`ahs or three, he should consider them two rak`ahs. In all these cases the person should prostrate twice before he will finish his prayer by saying the greeting (salam) • If a person is certain that he is in the state of ablution, he is considered to have ablution until there is evidence or indication showing otherwise •

If person have taken loan from another person and is in doubt whether he still in debt, he is considered to be in debt until there is proof to show otherwise

Branches to Maxim 3  Freedom from liability is presumed A person is presumed innocent unitl he is proven guilty  Where there is text there is no room for interpretation Text refers to AQ and Sunnah. It means cannot change the law. • It is presumed that a matter shall remain as it was originally • The presumption for incorporeal matters is that they do not exist • What has been proven will remain until proven to the contrary • No weight is given to arguments where there is a clear statement opposed to them • No weight is given to mere imagination Maxim 4: “Al-’adah muhakkamah” Custom is the basis of judgement

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Custom refers to practices of the people whether in their doings or in their sayings, regardless of whether it is the general practices of the people or the practices of certain groups of people. These practices have the authority and can specify a general matter or restrict an unrestricted matter Certain instances may not be accounted/prescribed for in texts –the courts are authorised accordingly to rule on matters based on customary practices These customary rules may be allowable provided that they are not in conflict with the Shariah, current and used predominantly by people. Eg : In a certain town, it may be customary for the seller to include a local gift to the buyer as a way of thanking the buyer for his/her custom (not the same meaning as ‘custom’ above).

Islamic law II

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Custom, if not against Islamic teachings, is normally considered as good practice to the Muslims and acceptable by people and reason. Therefore, such a practice is accepted by Allah. So, it can be regarded as a source of law in Islam. Earlier and more recent scholars of Islamic law have agreed that custom is an important source in Islamic law. They have not objected to the role of custom in solving the problems that arise in Islamic law. Eg: If a contract does not specify whether the delivery of the goods is the responsibility of the purchaser or the retailer. In this case the, prevailing custom should be depended upon to specify and clarify this matter which is not cited in the contract. The custom that involves transactions is the sale of offering and accepting, which is normally concluded without the utterance of offer and acceptance.

Origins of the Maxim 4 • Hadith by Abdullah ibn Mas’ud, “...what the Muslims deem to be good is good in the eyes of Allah” • AQ 7:99 Enjoy and turn away from ignorant Application of the Maxim 4 • Ex: Payment of dowry in marriage (One half) Payment of dowry is paid soon when the marriage is concluded (one half) Payment of dowry shall be paid during the course of marriage. However, if the agreement stipulates prompt payment of the whole of the dower, the rule of custom would be of no account Branches to Maxim 4  A matter established by custom is like a matter established by law • A thing made impossible by custom is as though it were in truth impossible • It cannot be denied that with a change of time the requirements of law change • In the presence of custom, no regard is paid to the literal meaning of a matter • Effect is only given to custom where it is of regular occurrence or when it is universally prevalent • Effect is given to what is commonly known, not to what happens infrequently • A matter recognized by custom is regarded as though it were a contractual obligation • A matter recognized by merchants is regarded as being a contractual obligation between them Maxim 5: “Al-mashaqqah tujlabat-taysir” Hardship begets facility

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Any rulings whose implementation causes hardship to a person OR the action is unable to be performed for a specific acceptable reason then, there are alternatives and way out that can be resorted to in order to overcome the difficulties and hardship. Hardship in this maxim refer to those kinds of hardships that surpass the normal limit and ability of a person to perform them. The normal hardship that accompanies implementation of every obligatory duty does not fall under the interpretation of this maxim. • E.g. Hardship in performing certain kind of ‘ibadah such as in fasting, hajj, jihad. This is a rule of relaxation in terms of difficulty or hardship; but it must not be assumed that this rule can so easily be invoked as there are conditions that must be fulfilled.

Origins of the Maxim 5  AQ 22:78 He did not make any difficulty for you regarding the religion (din of Islam)  AQ 2:185 Allah wants ease for you and He does not want hardship for you

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 AQ 2:286 Allah does not give anyone legal responsibility for anything except what is within his capacity  "You have not been sent like those who have been given hardship. Rather, you have been sent as those who have been given ease or facility. Surely Allah (SWT) introduced the religion as easy, full with kindness, and wide. He did not make it narrow”  "Whenever the Messenger of Allah (p.b.u.h) was given choice between two things he chose the easier one unless it was a sin” - Ayesha r.a 6 types of hardships: 1. Traveler 2. Sickness 3. Coercion 4. Forgetfulness

5. Ignorance 6. Deficiency (minor, disability, minority) 7. Difficulty

Application of Maxim 5 • If someone enters into a rental contract (al-Ijarah) and later on he has to travel for certain reason, he is allowed to cancel the rental contract. o Under normal circumstance, a person is not allowed to cancel this type of contract unless it is agreed between the contracting parties beforehand. o However, forcing a person to continue paying the rental when he is not occupying the premise, will amount to hardship, therefore the Shari’ah has allowed the cancellation under specific circumstances in order to avoid hardship. •

The general ruling related to the implementation of punishment towards a person convicted for any crimes is that the punishment should be carried out immediately upon conviction. o However, under certain exceptional conditions, such as if the criminal is sick, the punishment can be deferred to a later time. o This is to ease the person from additional hardship.

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Prohibited things is allowed to be carried out under extreme circumstances provided there are no other alternative for such situations o Eg: A person is allowed to consume prohibited food in order to survive under extreme situation provided no other food is available - to be consumed only enough to ensure survival

 Traveling in a long journey give them difficulties to perform prayer, Muslim are permissible to combine prayer.  Hardship here can refer to sickness, Muslim can still perform prayer using eyes as signal/indicator while sitting on the chair. Branches of Maxim 5 • Where a matter is narrowed, it becomes wide • Necessity renders prohibited things permissible • Necessity is determined by the extent thereof • A matter permitted on account of an excuse becomes unlawful on cessation of the excuse • When the prohibition returns, the forbidden matter returns...