Legal Maxims and Other Genres of Literature in Islamic Jurisprudence

LEGAL MAXIMS AND OTHER GENRES OF LITERATURE IN ISLAMIC JURISPRUDENCE

Mohammad Hashim Kamali*

Introductory Remarks

This essay introduces the legal maxims of fiqh (qawā'id kulliyya fiqhiyya) as a distinctive genre of fiqh literature side by side with three other related areas of development, namely al-qawā'id (rules controlling specific themes), al-furūq (distinctions and contrasts), and al-naẓariyyāt al-fiqhiyya (general theories of fiqh). Developed at a later stage, these genres of fiqh literature seek, on the whole, to consolidate the vast and sometimes unmanageable juris corpus of fiqh into brief theoretical statements. They provide concise entries into their respective themes that help to facilitate the task of both the students and practitioners of Islamic law. Legal maxims are on the whole inter-scholastic, and disagreement among the legal schools is negligible on them. Legal maxims also closely relate to the maqāṣid, and provide useful insights into the goals and purposes of Shari'a (maqāṣid al-sharī'a), so much so that some authors have subsumed them under the maqāṣid. Yet, for reasons that will presently be explained, legal maxims represent a late development in the history of Islamic jurisprudence. The discussion which follows begins with introductory information on the basic concept and scope of legal maxims. This is followed by a more detailed account of the leading five maxims which the jurists have seen as representative of the entire field, saying that all the other maxims can be seen as a commentary on these five. The discussion continues by looking into the history of legal maxims, and then provides an account of their subsidiary themes, namely the ḍawābit, the furūq, the resemblances and similitudes (al-ashbāh wa'l naẓā'ir), and finally the naẓariyyāt.

There is a lacuna in the available English literature on Islamic law that cries to be filled. Except for a few cursory references in the works

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of Joseph Schacht and three other articles,¹ the present writer has not seen any substantive coverage of legal maxims in the English language. Unlike the existing works in English that tend to be historical, the present essay focuses on a juridical coverage of legal maxims, and traces salient developments of its allied genres of literature. No one has, to the best of the present writer's knowledge, placed the legal theories of Islamic law (naẓariyyāt) and the fiqh encyclopedias in context with the legal maxims. There is also a certain ambiguity and convergence in some of the existing works between qawāʿid and the goals and objectives (maqāṣid) of Sharīʿa, both in the Arabic and English works, which call for clarification. This has also been attempted in our discussion below.

Legal maxims as a distinctive area of fiqh studies has gained considerable recognition, in recent decades, in the legal studies programmes of Islamic universities and institutions of higher learning. Many traditional Arabic texts on the subject have been published for the first time, and a number of modern works added, for basically two reasons. One is the somewhat excessive attention to detail in the fiqh texts and difficulty of access due to poor classification, and the refreshing contrast one finds in the synoptic summaries of legal principles in the qawāʿid, especially for purposes of teaching. The other reason is that, unlike the wider fiqh literature that bears the vestiges of the imitative tradition of taqlīd, legal maxims are not hampered by that factor as much. Taqlīd finds its foothold mainly in concretised detail, but, since legal maxims consist mainly of abstract ideas, they are not particularly affected by the legacy of taqlīd, and can thus be more readily utilised as aids in the renewal of fiqh and contemporary ijtihād (independent reasoning).

The renewed interest in legal maxims is also informed by a parallel revival of interest, among teachers and researchers of Sharīʿa, in the maqāṣid al-Sharīʿa, goals and objectives of Islamic law. Since legal maxims bear close affinity to the maqāṣid, they tend to provide an efficient entry into the understanding of the maqāṣid al-Sharīʿa.

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The upsurge of interest in both the maqāṣid and legal maxims is underscored, in turn, by a certain awareness that the legal theory of uṣūl al-fiqh has somehow fallen short of meeting the demands of contemporary ijtihād. Ever since Jamal al-Dīn al-Afghanni (d. 1898) and his disciple Muhammad ʿAbduh's (d. 1905) clarion call for the revival of ijtihād, Muslim scholars have continued to emphasise the need for re-interpretation and reform of aspects of Sharīʿa through ijtihād. The twentieth century marked a general disaffection with taqlīd, and witnessed the revival of ijtihād through statutory legislation, fatwā and juristic research by individuals, committees and institutions. Codification and partial reforms of the Islamic law of transactions in the renowned Ottoman Mejelle (1876) was followed, in the twentieth century, by legislative reforms of Sharīʿa family law, and the revival in recent decades of the Sharīʿa law of transactions (muʿāmalāt) in Islamic banking and finance. Yet, despite these achievements, and the rich experiences they have generated, Muslim scholars have spoken at length that the legal theory of uṣūl al-fiqh has not adequately responded to the demands of renewal and ijtihād in the era of statutory legislation. Questions have arisen, and explanations offered, yet the decades of Islamic resurgence and Islamisation of law and government have left Muslims with the impression that ijtihād has not become an engaging theme of legislation. The present writer has elsewhere addressed some of these issues, and it is not his purpose to delve into them here.² The point to be made, however, is that the legal theory of uṣūl al-fiqh is now studied mainly as an academic discipline that falls short of meeting the demands of ijtihād, or of neo-ijtihād, as per the late Noel Coulson, in the era of statutory legislation. Muslim scholars have consequently taken greater interest in the study of the maqāṣid al-Sharīʿa, a somewhat neglected chapter that was not even included in the conventional coverage of uṣūl al-fiqh, but which is now seen as a more dynamic tool of greater relevance to the concerns of ijtihād. This endorses further the renewed interest in the qawāʿid, which bear a close affinity to the maqāṣid al-Sharīʿa.

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Concept and Scope

Legal maxims are theoretical abstractions in the form, usually, of short epithetical statements that are expressive, often in a few words, of the goals and objectives of Sharī'a. They consist mainly of statements of principles that are derived from the detailed reading of the rules of fiqh on various themes. The fiqh has generally been developed by individual jurists in relationship to particular themes and issues in the course of history, and differs, in this sense, from modern statutory law rules, which are concise and devoid of detail. The detailed expositions of fiqh in turn enabled the jurists, at a later stage of development, to reduce them into abstract statements of principles. Legal maxims represent the culmination, in many ways, of cumulative progress which could not have been expected to take place at the formative stages of the development of fiqh. The actual wording of the maxims is occasionally taken from the Qur'ān or hadith, but are more often the work of leading jurists, that have subsequently been refined by other writers throughout the ages. It has often been a matter of currency and usage that the wording of certain maxims have been taken to greater refinement and perfection.

Unless they affirm and reiterate a ruling of the Qur'ān or Sunna, legal maxims as such do not bind the judge and jurist, but they do provide a persuasive source of influence in the formulation of judicial decisions and ijtihād. Legal maxims, like legal theories, are designed primarily for better understanding of their subject matter, rather than for enforcement. A legal maxim differs, however, from a legal theory in that the former is limited in scope, and does not seek to establish a theoretically self-contained framework over an entire discipline of learning. A theory of contract, or a constitutional theory, for example, is expected to offer a broad, coherent, and comprehensive entry into its theme. We may have, on the other hand, numerous legal maxims in each of these areas.

Legal maxims are of two types. Firstly, those which rehash or reiterate a particular text of the Qur'ān or Sunna, in which case they carry greater authority. "Hardship is to be alleviated—al-mashaqqa tajlub al-taysīr", for example, is a legal maxim of fiqh which merely paraphrases parallel Qur'ānic dicta on the theme of removal of hardship (raf 'al-araj). Another legal maxim which provides: "actions are judged by their underlying intentions (innama al-a'māl bi al-niyyāt)" reiterates the exact wording of a renowned hadīth. In his Kitab al-Ashbah wa'l-Naẓā'ir (resemblances and similitudes), which is a collection of legal maxims, Jalāl al-Din al-Suyūți (d. 911/1505) has, in numerous instances, identified the origin, whether the Qur'ān, Sunna or the precedent of Companions, of the legal maxims he has recorded.

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The second variety of legal maxims are those which are formulated by the jurists. Despite the general tendency in legal maxims to be interscholastic, jurists and schools are not unanimous, and there are some on which the madhāhib have disagreed. Legal maxims such as “certainty may not be overruled by doubt” or “ijtihād does not apply in the presence of naṣṣ”, or “preventing an evil takes priority over securing a benefit”, or “absence of liability (i.e. innocence) is the normative state” are among the well-known maxims on which there is general agreement.

Legal maxims represent an important area of fiqh literature, as their study imparts strategic knowledge of their subject matter, and helps the reader gain insight into the general character and attributes of the Sharī‘a. They are particularly useful and inspiring in the vision they impart for the search particularly of new solutions through ijtihād.

Legal maxims are different from uṣūl al-fiqh (sources of fiqh) in that the maxims are based on the fiqh itself and represent rules and principles that are derived from the reading of the detailed rules of fiqh on various themes. The uṣūl al-fiqh is concerned, on the other hand, with the sources of law, rules of interpretation, methodology of legal reasoning, meaning and implication of command and prohibition, and so forth. A maxim is defined as “a general rule which applies to all or most of its related particulars”.³ This definition is attributed to Tāj al-Dīn al-Subki (d. 771/1370), which is generally adopted and followed by subsequent authors. Legal maxims are usually articulated in incisive literary style. It is due partly to the abstract and generalised terms of their language that legal maxims are hardly without some exception to which they do not apply even if their wording might suggest otherwise. Some would even say that legal maxims are in the nature of probabilities (aghlabiyya) that may or may not apply to cases to which they apparently apply. According to al-Shāṭibi (d. 790/1388), exceptions do not invalidate a general rule, because the stray particulars do not form a second general rule in opposition to the first.⁴ Some writers have noted, however, that in the legal field, a maxim is only predominantly valid, whereas in certain other fields, such as grammar and uṣūl al-fiqh, it is said to be generally valid almost as a matter of certainty. We shall presently note, however, that this is rather a weak opinion.

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It is due to their versatility and comprehensive language that legal maxims tend to encapsulate the broader concepts and characteristics of the Sharī’a. They tend to provide a bird’s-eye-view of their subject matter in imaginative ways without engaging in burdensome details.

A legal maxim is reflective, in the meantime, of a consolidated reading of fiqh, and it is in this sense different from what is known as al-ḍābiṭa (lit. a controller), which is somewhat limited in scope, and controls the particulars of a single theme or chapter of fiqh. Dābiṭa is thus confined to individual topics such as cleanliness (ṭahāra), maintenance (nafaqa), paternity, and fosterage (al-riḍā‘), and as such does not apply to other subjects. An example of a ḍābiṭa is: “marriage does not carry suspension”; and, with reference to cleanliness: “when the water reaches two feet, it does not carry dirt”.⁵ An example of a legal maxim, on the other hand, is “the affairs of imam concerning his people are judged by reference to maṣlaḥa” (amr al-imam fi shu’ūn al-ra‘iyya manūṭ bi’l-maṣlaḥa), as the theme here is more general, without any specification of the affairs of the people or the activities of the imam. Similarly, when it is said, in another maxim, that “acts are judged by their underlying intentions”, the subject is not specified, and it is, as such, a maxim (qā‘ida), and not a ḍabiṭa of a specified import. Having drawn a distinction between dābiṭa and qā‘ida, we note, however, that legal maxims also vary in respect of the level of abstraction, and the scope which they cover. Some legal maxims are of general import, whereas others might apply to a particular area of fiqh, such as the ‘ibādāt, the mu‘āmalat, contracts, litigation, court proceeding, and so forth. Some of the more specific maxims may qualify as a dābiṭa rather than as a maxim proper, as the distinction between them is not always clear, nor regularly observed.

The Five Leading Maxims

The most comprehensive and broadly-based of all maxims are placed under the heading of “al-qawā‘id al-fiqhiyya al-aṣliyya” or the normative legal maxims that apply to the entire range of fiqh without any specification, and the madhāhib are generally in agreement over them. Maxims such as “harm must be eliminated” (al-ḍararu yuzāl) (The Mejelle, Art. 20) and “acts

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are judged by their goals and purposes" (al-umūr bi-maqāṣidihā) (The Mejelle, Art. 2), belong to this category of maxims.

The early ulama have singled out five legal maxims as the most comprehensive of all, in that they encompass the essence of the Sharīʿa as a whole, and the rest are said to be simply an elaboration of these. Two of these have just been quoted. The other three:

• "Certainty is not overruled by doubt" (al-yaqīn lā yazūlu bi’l-shakk) (The Mejelle, Art. 4);

• "hardship begets facility" (al-mashaqqatu tajlibu al-taysīyr) (The Mejelle, Art. 17);

• "custom is the basis of judgment" (al-ʿadatu muḥakkamatun) (The Mejelle, Art. 36).

Each of these will be discussed in some detail in the following pages. Yet, it will be noted in passing that reducing the number of legal maxims to a minimum has invoked criticism from al-Subki, who said that this cannot be done without engaging in artificiality and compromise. In this connection al-Subki is noted to have been particularly critical of ʿIzz al-Din ʿAbd al-Salām’s (d. 660/1262) attempt to reduce the whole of the law to almost one principle, namely that “prevention of harm takes priority over securing of benefits—darʾ al-mafāsid awlā min jalb al-manāfi". This kind of approach, according to al-Subki, simply ignores the specificity and character of the qawāʿid.⁶

The first of the leading five maxims may be illustrated with reference to the state of ritual purity (ṭahāra). If a person has taken ablution (wuḍūʾ), and knows that with certainty, but doubt occurs to him later as to the continuity of his wuḍūʾ, the certainty prevails over doubt, and his wuḍūʾ is deemed to be intact. According to another, but similar maxim, “knowledge that is based in certainty is to be differentiated from manifest knowledge that is based on probability only—yufarraqu bayn al-ʿilmi idhā thabata ẓāhiran we baynahu idhā thabata yaqīnan”. For example, when the judge adjudicates on the basis of certainty, but later it appears that he might have erred in his judgment, if his initial decision is based on clear text and consensus, it would not be subjected to review on the basis of a mere probability.⁷ Similarly, a missing person (mafqūd) of unknown whereabouts is presumed to be alive, as this is the certainty that is known about him

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before his disappearance. The certainty here shall prevail, and no claim of his death would validate distribution of his assets among his heirs until his death is proven by clear evidence. A doubtful claim of his death is thus not allowed to overrule what is deemed to be certain.⁸

Other supplementary maxims of a more specified scope that are subsumed by the maxim under review include the following: "The norm (of Sharī'a) is that of non-liability" (al-aṣlu barā'at al-dhimma). This is an equivalent, although perhaps a more general one, to what is known as the presumption of innocence. This latter expression implies that it relates primarily to criminal procedure, whereas the non-liability maxim of fiqh also extends to civil litigation, and to religious matters generally. The normative state, or the state of certainty, for that matter, is that people are not liable, unless it is proven that they are, and until this proof is forthcoming, to attribute guilt to anyone is treated as doubtful. Certainty can, in other words, only be overruled by certainty, not by doubt. Another supplementary maxim here is the norm that presumes the continued validity of the status quo ante until we know there is a change: "The norm is that the status quo remains as it was before" (al-aṣlu baqā' mā kāna 'alā mā kāna), and it would be presumed to continue unless it is proven to have changed. An example of this is the wife's right to maintenance which the Sharī'a has determined; when she claims that her husband failed to maintain her, her claim will command credibility. For the norm here is her continued entitlement to maintenance for as long as she remains married to him. Similarly, when one of the contracting parties claims that the contract was concluded under duress, and the other denies this, this latter claim will be upheld because absence of duress is the normal state, or status quo, which can only be rebutted by evidence.⁹ According to yet another supplementary maxim: "The norm in regard to things is that of permissibility" (al-aṣlu fi'l-ashyā' al-ibāhah). Permissibility is, in other words, the natural state and will therefore prevail until there is evidence to warrant a departure from that position. This maxim is also based on the general reading of the relevant evidence of the Qur'ān and Sunna. Thus, when we read in the Qur'ān that God Most High "has created all that is in the earth for your benefit" (2:29), and also the hadith: "whatever God has made ḥalāl is ḥalāl and whatever that He rendered ḥaram is ḥaram, and whatever concerning which He has remained silent is forgiven"—the

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conclusion is drawn that we are allowed to utilize the resources of the earth for our benefit and, unless something is specifically declared forbidden, it is presumed to be permissible.

"Al-ḍararu yuzāl—harm must be eliminated" is a derivative, in turn, of the renowned hadith "la ḍarara wa lā ḍirār—let there be no infliction of harm nor its reciprocation". This hadith has also been adopted into a legal maxim in precisely the same words as the hadith itself.¹⁰ A practical illustration of this hadith-cum-legal maxim is as follows: Suppose that someone opens a window in his house which violates the privacy of his neighbour, especially that of its female inhabitants. This is a harmful act which should not have been attempted in the first place, and may call for legal action and remedy. But, it would be contrary to the maxim under review for the neighbour to reciprocate the harmful act by opening a window in his own property that similarly violates the privacy of the first neighbour.

A similar manifestation of the maxim "al-ḍararu yuzāl—harm must be eliminated" is the validation of the option of defect (khiyār al-‘ayb) in Islamic law, which is designed to protect the buyer against harm. Thus, when a person buys a car and then discovers that it is substantially defective, he has the option to revoke the contract. For there is a legal presumption under the Shari'a that the buyer concluded the contract on condition that the object of the sale was not defective.

The hadith of "lā ḍarar" has given rise to a number of additional maxims on the subject of ḍarar. To quote but a few, it is provided in a maxim: "A greater ḍarar is eliminated by (tolerating) a lesser one—al-ḍarar al-ashadd yuzālu bi'l-ḍarar al-akhaff." For example, the law permits compelling the debtor, or one who is responsible to support a close relative, to fulfill their obligations, and give what they must, even if it means inflicting some hardship on them. According to another maxim, "harm may not be eliminated by its equivalent—al-ḍarar la yuzālu bi-mithilih" (The Mejelle, Art. 25). This may also be illustrated by the example we just gave of "la ḍarara wa lā ḍirār".

Another maxim on ḍarar has it that "harm cannot establish a precedent—al-ḍararu lā yakūnu qadīman." Lapse of time, in other words, cannot justify tolerance of a ḍarar. For example, waste disposal that pollutes a public passage should be stopped regardless as to how long it has been.

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tolerated. And then, also, that “harm is to be eliminated within reasonable bounds—al-ḍarar yudfa‘u bi-qadr al-imkān.” For example, if a thief can be stopped by the blow of a stick, striking him with a sword should not be used to attempt to obstruct him. According to yet another maxim, “harm to an individual is tolerated in order to prevent a harm to the public—yuta ḥammalu al-ḍarar al-khāṣ li-daf‘ al-ḍarar al-‘ām” (The Mejelle, Art. 26).¹¹ For example, the law permits interdiction on an adult and competent person, including an ignorant physician, or a fraudulent lawyer, in order to protect the public, notwithstanding the harm this might inflict on such individuals.

It is stated in the Mejelle that legal maxims are designed to facilitate a better understanding of the Sharī‘a, and the judge may not base his judgment on them unless the maxim in question is derived from the Qur’ān or Hadith, or supported by other evidence.¹² This is in contrast, however, with the view of Shihāb al-Dīn al-Qarāfi (d. 682/1281), who held that a judicial decision is reversible if it violates a generally accepted maxim.¹³ The ulama have generally considered the maxims of fiqh to be significantly conducive to ijtihād, and they may naturally be utilized by the judge and mujtahid as persuasive evidence; it is just that they are broad guidelines, whereas judicial orders need to be founded in specific evidence that is directly relevant to the subject of adjudication. Since most of the legal maxims are expounded in the form of generalised statements, they hardly apply in an exclusive sense, and often admit exceptions and particularisation. Instances of this were often noted by the jurists, especially in cases where a particular legal maxim failed to apply to a situation that evidently fell within its ambit, who then sometimes attempted to formulate a subsidiary maxim to cover those particular cases.

Legal maxims were developed gradually, and the history of their development in a general sense is parallel with that of the fiqh itself. More specifically, however, these were developed mainly during the era of imitation (taqlīd), as they are in the nature of an extraction (takhrīj) of guidelines from the detailed literature of fiqh that were contributed during the first three centuries of Islamic scholarship, known as the era of ijtihād.¹⁴