Islamic Legal Maxims-Consisting of Al Karkhi’s Al-Usul pdf

ISLAMIC LEGAL MAXIMS – Book Sample

CONTENTS – ISLAMIC LEGAL MAXIMS

• Preface1
• Introduction7
• Definition of Legal Maxim7
• Literal Definition Technical Definition
• Difference between Qawa`id al-Fiqh (legal maxims) and Dawabit (principles dealing with a particular subject) 10
• Legal Position of Maxims 11
• Methodology adopted by the Federal Shari`at Court and the Shari`at Appellate Bench of the Supreme Court in discovering whether a provision of an existing law is against the injunctions of Islam 15
• Kinds of Legal Maxims 18
• Advantages of Legal Maxims 19
• Sources of Legal Maxims 20
• Books on Legal Maxims 24
• Maxims Under Latin and Anglo-Saxon Law26
• Life Sketch of the Author 28
• Life Sketch of the Commentator30
• Text and Translation of 40 Legal Maxims13
• Bibliography 41
• Index 46

INTRODUCTION

Definition of Legal Maxims (qawa`id al-fiqhiyyah)

Literal Definition

Al-Subki (d. 771AH) has given the literal definition of legal maxim as under:

“al-qa`idatu al-asasu fa qawa`idu’l-bayti asasuhu.”

“The word al-qa`idatu (pl. al-qawa`id) means foundation and qawa`idu’l-bayt means the foundations of a house.”(( Al-Subki, Tajuddin `Abd al-Wahhab, Al-Ashbah wa’l-Naza’ir.))

The wood fixed under the palanquin are also called qawa`id as those are the foundations for it. The capital of a country is also called al-qa`idah as it is also significant like the foundation of a country.

The word al-qawa`idu has been used in the Holy Qur’an at three places, viz.:

1. “wa iz yarfa`u Ibrahimu’l-qawa`ida mina’l-bayti wa Isma`il: rabbana taqabbal minna: innaka anta’l-sami`ul

`alim.”

“And remember Abraham And Isma`il raised

The foundations of the House (With this prayer): Our Lord! Accept (this service) from us: For Thou art the All-Hearing, The All-Knowing.”

[II : 127]

2. “qad makara’l-lazina min qablihim fa atallahu buyanahum mina’l-qawa`idi fakharra `alayhimu’l-saqfu min fauqihim wa atahumu’l-`azabu min haythu la yash`urun.”

“Those before them did also Plot (against Allah’s Way):

But Allah took their structures From their foundations and the roof Fell down on them from above And the Wrath seized them

From directions they did not perceive.” [XVI : 26]

3. “wa’l-qawa`idu mina’l-nisa’i’l-lati la yarjuna nikahan fa laysa `alayhinna junahun an yada`na thiyabahunna ghayra mutabarrijatin bi zinatin, wa an yasta`fifna khayrun lahunna wallahu sami`un `alim.

“Such elderly women as are Past the prospect of marriage,– There is no blame on them,

If they lay a side Their outer garments, provided They make not a wanton display Of their beauty: but It is best for them To be modest: and Allah Is One Who sees and knows All things.” [XXIV : 60]

Technical Definition

Technically, a legal maxim has a little different meaning than the maxims of other arts and sciences. For example, in grammar, physics and mathematics etc., a legal maxim refers to such value or principle that applies to all its particulars. In other words, it applies to all branches of such science. For example, the rules of grammar are,–

1. an active agent (fa`il) is always marfu`; and

2. a passive agent (maf`ul) is always mansub.

Both these rules cover all kinds of active agents and passive agents and are equally applicable to all of them. There is not a single active agent or passive agent that can be excluded from the application of these fundamental rules.

Likewise, the fundamental laws of physics, mathematics, logic, etc., apply in all circumstances to their sub-issues. For example,–

1. Every body continues in its state of rest or of uniform motion in a straight line except in so far as it is compelled by the impressed forces to change that state.
2. The rate of change of momentum is proportional to the impressed force and takes place in the direction of the force.
3. To every action there is an equal and opposite reaction.
4. Two plus two make four.
5. A whole is greater than any of its parts.

A legal maxim does not become applicable in all the circumstances and problems that may come under it. Rather it applies to most of its forms and many other forms remain excluded from its application. Therefore, in sciences other than fiqh, a fundamental principle is defined in the following words:

“hukmun kulliyyun yantabiqu `ala jami`i juz’iyyatihi li ta`rafa ahkamuha minha.”

“A fundamental principle is that general principle or law that applies to all particular forms to know the values regarding them by that principle.”(( Al-Hamawi, Sharh Al-Ashbah wa’l-Naza’ir, Lakhnow: Nolkashor Press, p. 19))

“Qadiyyatun kulliyyatun muntabiqatun ‘ala jami` juz’iyyatihi”

“A general rule that is applicable to all its particulars (details / items).”(( Muhammad Rawwas Qal`aji, Mu`jam Lughatu’l-Fuqaha’, Karachi, p. 4.))

As against it, the definitions of a legal maxim are such that due regard has been made in the definitions of the fact that its application is not on all the particular forms. Rather its application is on most of the particular forms.

Some definitions of legal maxims are reproduced below.

• “Hukmun akthariyyun la kulliyyun yantabiqu `ala

akthari juz’iyyatihi li ta`rafa ahkamaha minha.”

“A legal maxim is a fundamental principle that is not general in its application. Rather, it applies to the most of the particulars (details / items) that come under it so that the juristic value of such particulars (details) may be known by its application.”(( ibid.))

• “Hukmun aghlabiyyun yantabiqu `ala mu`zami juz’iyyatihi”

“A legal maxim is a probable value and applies to the most of the particulars (items/details) coming under it.”(( ibid. Refer to by Allama Mustafa Ahmad al-Zarqa’, Al-Fiqh al-Islami fi Thaubihi al-Jadid, Damascus, 1963, vol. II, p. 946.))

• “Hukmun kulliyyun au ghalibun yantabiqu `ala

juz’iyyati kulliha au akthariha.”

“A legal maxim is a value which is general or probable which applies on all or majority of its particulars.”(( ibid.))

• “Huwa’l-hukmu’l-kulliyyu awi’l-akthariyyu allazi yuradu bihi ma`rifati hukmi’l-juz’iyyat.”

“A legal maxim is a value which is general or applicable to the most , the object of which is to know the particulars by it.”¹¹

1. “Hukmun kulliyyun yantabiqu `ala jami`i juz’iyyatihi li tu`arrafa ahkamuha minhu.”

“A legal maxim is such general value that applies to all its particulars so that their values are known.”(( Ibn Khatib al-Dahshanah, Mukhtasar Qawa`id al-`Ula’i.))

6. “Hukmun aghlabiyyun yuta`arrafu minhu

hukmu’l-juz’iyyati al-fiqhiyyati mubashiratan.”

“A legal maxim is a probable value whereby the values of juristic particulars are known directly.”(( Al-Muqri, Abu `Abdullah Muhammad bin Muhammad bin Ahmad, Al-Qawa`id, Makkah al-Mukarramah, p. 107.))

In all the above definitions, two things are common, viz.,

1. The fundamental principles of fiqh are called kulliyyah but in most of the cases they are not general. Rather they apply in most of the cases of particulars coming under them. This thing has been given due regard in all the definitions.
2. All the above definitions are useful knowledge for those who have concept of fundamental principles but those who have no concept of a fundamental principle, it is very difficult for them to have the correct concept of a legal maxim by the aid of these definitions.

For this reason, Dr. Mustafa Ahmad al-Zarqa’ is not satisfied with the above definitions. In his opinion, none of the above definitions is such exhaustive, clear, and perfect that by the help of it a reader may get full awareness of the nature and reality of a fundamental principle.  He has himself given a  definition whereby the nature and reality of a fundamental principle becomes fully manifest. His definition is as under:

“Usulun fiqhiyyatun kulliyyatun fi nususin mujizatin dasturiyatin tatadammanu ahkaman tashri`iyyatan

`ammatan fi’l-hawadith allati tadkhulu tahta maudu`iha.”

“Legal maxims are those fundamental juristic principles that have been prepared in concise legal language whereby such general legal and juristic values are stated that are concerning the events (incidents) falling under that subject.”

Kemal A. Faruki says:

“We have seen that, ultimately, qiyas is the deduction from a shari`ah principle, of the hukm or shari`ah value, applicable to a new problem. Thus, the reasoning is from general principle to

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