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

78 MOHAMMAD HASHIM KAMALI

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.

LEGAL MAXIMS AND OTHER GENRES OF LITERATURE 79

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.

80 MOHAMMAD HASHIM KAMALI

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.

LEGAL MAXIMS AND OTHER GENRES OF LITERATURE 81

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.

82 MOHAMMAD HASHIM KAMALI

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

LEGAL MAXIMS AND OTHER GENRES OF LITERATURE 83

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

84 MOHAMMAD HASHIM KAMALI

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

LEGAL MAXIMS AND OTHER GENRES OF LITERATURE 85

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.

86 MOHAMMAD HASHIM KAMALI

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

LEGAL MAXIMS AND OTHER GENRES OF LITERATURE 87

The hadith of lā ḍarar has also been used as the basic authority for legal maxims on the subject of necessity (ḍarūra). I refer here to only two, the first of which proclaims that “necessity makes the unlawful lawful” (al-ḍarūrāt tubīḥ al-maḥẓūrāt). It is on this basis that the jurists validate the demolition of an intervening house in order to prevent the spread of fire to adjacent buildings, just as they validate dumping of the cargo of an overloaded ship in order to prevent danger (or ḍarar) to the lives of its passengers. Another maxim on necessity declares that “necessity is measured in accordance with its true proportions” (al-ḍarūrāt tuqdaru bi-qadrihā). Thus, if the court orders the sale of the assets of a negligent debtor in order to pay his creditors, it must begin with the sale of his movable goods—if this would suffice to clear the debts—before ordering the sale of his real property.¹⁶

The maxim “hardship begets facility” (al-mashaqqatu tajlub al-taysīr) is, in turn, a rehash of the Qur’ānic āyāt: “God intends for you ease and He does not intend to put you in hardship” (2:185), and “God does not intend to inflict hardship on you” (5:6), a theme which also occurs in a number of hadiths. The jurists have utilised this evidence in support of the many concessions that are granted to the disabled and the sick in the sphere of religious duties, as well as civil transactions. With reference to the option of stipulation (khiyār al-sharṭ), for example, there is a hadith which validates such an option for three days, that is, if the buyer wishes to reserve for himself this amount of time before ratifying a sale. The jurists have then reasoned that this period may be extended to weeks, or even months, depending on the type of goods that are bought, and the need of the buyer, who may need a longer period for investigation. According to another, but still related, legal maxim “idhā ḍāq al-amru ittasa‘a—an opening must be found when matters become exceedingly difficult.” For example, a debtor who accedes to his obligation, but is unable to pay, must be given time, if this would enable him to clear his debt. The same logic would validate, on the other hand, killing a violent thief if a lesser threat or action is not likely to put a stop to his evil. The judge may likewise admit the best available witnesses, even if some doubt as to their uprightness (ʿadālah) persists, if this is deemed to facilitate justice in stressful situations. The maxim under review is also related to the

88 MOHAMMAD HASHIM KAMALI

subject of necessity, and its leading maxim, as quoted above, that “necessity makes the unlawful lawful”.¹⁷

The maxim al-umūr bi-maqāṣidihā—acts are judged by their goals and purposes—is also a rehash of the renowned hadith “acts are valued in accordance with their underlying intentions” (innamā al-aʿmāl bil-niyyāt). This is a comprehensive maxim with wide implications that the ulama have discussed in various areas, including devotional matters, commercial transactions, and crimes. The element of intent often plays a crucial role in differentiating, for example, a murder from an erroneous killing, theft from an inculpable appropriation of property, and the figurative words that a husband may utter in order to conclude the occurrence, or otherwise, of a divorce. To give another example, when someone takes possession of the lost property of another (al-luqṭa), he could qualify either as a trustee (amīn) if he intends to return it to its owner, or as a usurper (ghāṣib) if he intends to unlawfully keep it. Similarly, when a person lays a net, or digs a pit, in his own property, and a bird or animal is consequently caught, the game would belong to him if he intended to hunt, but if the net was laid in order to prevent entry, or the pit was intended for some drainage purposes, then the game caught therein is not presumed to have fallen into his ownership, and it would consequently be lawful for others to take.¹⁸

The maxim “custom is the basis of judgment” is again based on the statement of the Companion, ʿAbdullāh Ibn Masʿūd: “what the Muslims deem to be good is good in the eyes of God”. This is sometimes identified as an elevated (marfūʿ) hadith, as the Prophet had, himself, on numerous occasions upheld customary practices of the Arabian society. The court is accordingly authorised to base its judgment on custom in matters which are not regulated by the text, provided that the custom at issue is current, predominant among people, and is not in conflict with the principles of Sharīʿa. A custom which runs contrary to Sharīʿa and reason is therefore precluded. Several other subsidiary maxims have been derived from this, including the one which proclaims “what is determined by custom is tantamount to a contractual stipulation” (al-maʿrūf ʿurfan kaʾl-mashrūṭ sharṭan) (The Mejelle, Art. 42). Thus, when the contract does not regulate a matter which is otherwise regulated by custom, the customary rule would be presumed to apply. Similarly, when someone rents a house or

LEGAL MAXIMS AND OTHER GENRES OF LITERATURE 89

a car, he should use it according to what is customary and familiar, even if the detailed manner of its use is not regulated in the contract. To give yet another example, when the father of a bride gives her a wedding gift of, say, a set of furniture, and later claims that it was a temporary loan (ʿāriya), and not a gift (hibba), and there is no evidence to prove the claim, credibility would be given to the prevailing custom. If it is found that the father customarily gave such items as gifts on such occasions, it would be counted as a gift, even if the father claimed otherwise.¹⁹

A general custom of unrestricted application qualifies as a basis of judgment and many jurists have accorded the same value to customs that are confined to a particular area and locality. Technically, however, only the general custom has the strength to take priority over normal rules, or the rulings of analogy (qiyās).²⁰ Custom has thus validated the plucking of ripened fruit that is likely to go to waste, should there be no impediment, and no one is there to collect it. This is contrary to normal rules, which do not permit taking the property of others. Similarly, people tend to weigh and measure goods and commodities differently in different places, and customary practices concerning them will be recognised by the courts in the locality concerned, even if such practices happen to be contrary to normal rules.²¹

According to a parallel, although slightly differently worded, legal maxim, "the usage of people is a proof that must be followed—istiʿmāl al-nāsi ḥujjatun yajibu al-amalu bihā".²² The word istiʿmāl in this maxim is synonymous with ʿādah and this maxim is said to contemplate linguistic usages that concern the meaning of words, whether literal, metaphorical, judicial, etc. Which of these meanings, if any, should prevail in the event of a conflict arising between them is of concern to this maxim. The first of the two maxims under review (i.e., al-ʿādatu muḥakkamatun) is thus concerned with actual practices, whereas the second mainly relates to the linguistic usages of words and their meanings. According to yet another supplementary maxim, "the literal is abandoned in favour of the customary—al-ḥaqīqatu tutraku bi-dalālat al-ʿādah" (The Mejelle, Art. 40). For example, when someone takes an oath that he will never "set foot" in so-and-so's house, but then he only technically sets his foot in that house.

90 MOHAMMAD HASHIM KAMALI

without entering into it, he will not be liable to an expiation (kaffāra) for breaking an oath. This is because, customarily, the expression means entering the house, and not the literal meaning that it conveys.²³

The maxim which declares "profit follows responsibility" (al-kharāj bil-ḍamān)²⁴ is a direct rendering of a hadith in those identical words. Thus, the yield of trees and animals, etc., belongs to those who are responsible for their upkeep and maintenance. Suppose that person A, who has bought a machine, decides to return it to the seller when he finds it to be defective. Suppose, also, that the machine has yielded profit during the interval when it was with A. Does A have to return to the seller the profit he made through the use of the machine? By applying the legal maxim before us, the answer is that A may keep the profit, as the machine was his responsibility during the interval, and he would have been responsible for its destruction and loss before he returned it to the seller.²⁵

The maxim that a ruling of "ijtihād is not reversed by its equivalent" (al-ijtihād la yunqaḍ bi-mithlih)²⁶ has, in turn, been attributed to a statement of the Caliph 'Umar Ibn al-Khattab, which is also upheld by the consensus of the Companions. Supposing a judge has adjudicated a dispute on the basis of his own ijtihād, that is, in the absence of a clear text to determine the issue. Then he retires, and another judge, whether of the same rank or at the appellate level, looks into the case, and the latter's ijtihād leads him to a different conclusion on the same issue. Provided that the initial decision does not violate any of the rules that govern the propriety of ijtihād a mere difference of opinion on the part of the new judge, or a different ijtihād he might have attempted, does not affect the authority of the initial ijtihād, simply because one ruling of ijtihād is not reversible by another ruling of ijtihad. It is further noted that the Caliph 'Umar had ruled, in one or two similar cases, contrary to what his predecessor Abu Bakr had done, but he did not attempt to declare Abu Bakr's ruling invalid, on the analysis that his own ijtihād was not necessarily better than that of Abu Bakr.²⁷

LEGAL MAXIMS AND OTHER GENRES OF LITERATURE 91

A Brief History of Legal Maxims

Historically, the Hanafi jurists were the first to formulate legal maxims. An early Iraqi jurist, Sufyān Ibn Ṭāhir al-Dabbās al-Qāḍi, a contemporary of al-Karkhi, collated the first seventeen maxims, and Abu al-Ḥassan 'Ubayd Allah Ibn al-Husayn al-Karkhi (d. 340/952) increased this to 39. Al-Karkhi's work, entitled Uṣūl al-Karkhi, is regarded as an authoritative precursor on the subject among the Hanafis, although some scholars regard it as a work in the genre of uṣūl al-fiqh—as might have been suggested by its title. A more relevant explanation for that title was probably the fact that every one of the 39 legal maxims in it was identified as an aṣl (pl. uṣūl). To avoid ambiguity in the use of this term, it will be noted that aṣl carries three meanings: 1) a source of law; 2) a legal principle that covers numerous individual cases; 3) an act that has already been determined and now serves as a model for similar cases. Whereas the basic corpus of fiqh and uṣūl al-fiqh were developed in roughly the first four centuries of Islam, a marked resurgence of interest in the qawāʿid is noted from the eighth century A.H. onward, which ushered in the ʿulamāʾ efforts to extract general rules by way of induction from the legal manuals of the madhāhib. Al-Karkhi's collection began by recording the first aṣl (norm): "What is proven with certainty may not be overruled by doubt", and it ended with the aṣl that "explanation to a speech is credible for as long as it is given at a time when it can be considered valid, but not otherwise" (al-aṣlu ann'l-bayān yuʿtabaru bil-ibtidāʾ, in ṣaḥḥa al-ibtidāʾ, wa illā fa-lā). This may be illustrated as follows: suppose a man divorces two of his wives in a single pronouncement and address such as: "you are both divorced." Later, he elaborates that he only meant that one of them be divorced by triple ṭalāq. This explanation will be credible only during the probation period of ʿidda, but it will not carry any weight if it is given after that period. Some of the early maxims that were compiled also included the following: "The norm is that the affairs of Muslims are presumed to be upright and good unless the opposite emerges to be the case". What it means is that acts, transactions, and relations among people should not be given a negative interpretation that verges on suspicion and mistrust, unless there is evidence to suggest the opposite.

92 MOHAMMAD HASHIM KAMALI

Another maxim has it that “question and answer proceed on that which is widespread and common and not on what is unfamiliar and rare”. Once again, if we were to interpret a speech and enquire into its implications, we should proceed on that which is widespread and commonly understood, as opposed to what might be said to be a rare understanding and interpretation. Another maxim, to which a reference has already been made, has it that “prevention of harm takes priority over the attraction of benefit” (dar’ al-mafāsid awlā min jalb al-manāfi‘). The earliest collection of maxims also included the five leading maxims that were discussed above.²⁹

Al-Karkhi’s collection, which is one of the earliest on record, is not necessarily articulated in the incisive and eloquent style that is typically associated with maxims.³⁰ Many scholars from various schools added to these over time, and the total number of qawā‘id and ḍawābit eventually exceeded 1200.

Next to the Hanafis, the Shāfi‘īs, and then following them, the Hanbalis, then the Mālikīs, in this order, as al-Zarqā has noted, added their contributions to the literature on legal maxims. The leading Shāfi‘ī scholar, ‘Izz al-Dīn ‘Abd al-Sulami’s (d. 660/1262), Qawā‘id al-Ahkām fī Maṣāli al-Anām, is noted as one of the salient contributions to this field, and so is ‘Abd al-Raḥmān ibn Rajab al-Hanbalī’s (d. 795/1393) work Taqrīr Al-Qawā‘id wa Taḥrīr al-Fawā‘id, both of which have been highly acclaimed. Yet, in terms of conciseness and style, the Mejelle Ahkam Adliyye, an Islamic law code, written by a group of Turkish scholars under the supervision of Ahmed Cevdet Pasha (d. 1895) the then Minister of Justice in the 1870s, is said to represent the most advanced stage in the compilation of legal maxims. The introductory section of the Mejelle only records ninety-nine legal maxims, which have in turn been elaborated in many other works. One such work was authored by Muhammad al-Zarqā, bearing the title Sharḥ al-Qawā‘id al-Fiqhiyya (1403/1983). The son of this author, and also his commentator, Muṣtafā al-Zarqā, has noted, however, that the Mejelle selection does not necessarily represent a self-contained collection of all the leading maxims. Whereas many fall in that category, there are some which are decidedly subsidiary. The Mejelle selection is also not systematic, in that maxims which relate to one another do not appear in clusters, but tend to appear on a stand-alone kind of arrangement.³¹

LEGAL MAXIMS AND OTHER GENRES OF LITERATURE 93

The development of this branch of fiqh is in many ways related to the general awareness of the ulama over the somewhat piecemeal and fragmented style of the fiqh literature which, somewhat like the Roman juristic writings, is on the whole issue-oriented, and short of theoretical exposition of the governing principles. This is related, in turn, to the fact that fiqh was mainly developed by private jurists who were not acting on behalf of governments and institutions that might have exerted a unifying influence. They wrote often in response to issues as and when encountered, and we consequently note that theoretical abstraction was not a well-developed feature of their works. The legal maxims filled that gap to some extent, and provided a set of general guidelines in an otherwise diverse discipline that combined an impressive variety of schools and influences into its fold.

Islamic jurisprudence is also textualist, as it is guided by the textual injunctions of the Qurʾān and Sunnah. In developing the law, the jurists have shown the tendency to confine the range of their expositions to the given terms of the text. The theoretical generalisation of ideas was generally viewed with caution vis-à-vis the overriding authority of the text, and attention was focused on the correct interpretation of the text, rather than on developing general theories. Questions are being asked to this day whether Islamic law has a constitutional theory, a theory of contract, or a theory of ownership.

It is only in recent times that Muslim scholars began to write concise, yet self-contained, expositions of the law in these areas, as I shall presently explain, but first, I turn to al-ashbāh waʾl-naẓāʾir.

Resemblances and Similitudes (al-Ashbāh waʾl-Naẓāʾir)

This genre of literature emerged in the writings of the ulama well after the formation of the madhāhib. The term evidently originated in the renowned letter of the Caliph ʿUmar al-Khaṭṭāb addressed to judge Abū Mūsā al-Ashʿarī of Baṣra in which the latter was instructed to “ascertain resemblances and similitudes and adduce matters to their likes in giving judgment”. The term al-ashbāh waʾl-naẓāʾir was later chosen by Tāj al-Dīn al-Subkī, who wrote an important work on legal maxims, as the title of that book. Jalāl al-Dīn al-Suyūṭī (d. 911/1505) and Zayn al-ʿābidīn Ibn Nujaym al-Hanafī (d. 970/1563) also wrote works that closely resembled one another, both bearing the title al-ashbāh waʾl-naẓāʾir, they relied mainly

94 MOHAMMAD HASHIM KAMALI

on al-Subki’s writings, with certain modifications that were reflective, perhaps, of their respective scholastic orientations. At the beginning of every maxim that he discussed, Al-Suyuṭi identified the source evidence from which the maxim was derived and then added illustration and analysis. Al-Suyuṭi devoted the first chapter of his al-Ashbāh wa’l-Naẓā’ir to the five leading maxims, and the fiqhi issues to which they applied. Then he discussed, in the second chapter, forty other maxims of a more specific type that are derived from the first five. Another chapter in that work is devoted to a selection of the most useful and recurrent maxims in the works of fiqh, and yet another chapter discussed maxims on which the jurists were in disagreement. The next two chapters in al-Suyuṭi’s work put together clusters of maxims that related to one another, and those that resembled one another in some way. The last chapter added miscellaneous maxims that are not classified in any manner.³²

Some of the leading maxims that al-Suyuṭi recorded were: “private authority is stronger than public authority” (al-wilāya al-khāṣṣa aqwa min al-wilāya al-‘āmma),³³ which evidently means that the authority, for example, of the parent and guardian over the child is stronger than that of the ruler and the judge; another maxim thus declared “no speech is attributed to one who has remained silent” (lā-yunasb li’l-sākit qawl).³⁴ And, we read in yet another maxim “the attachment follows the principal” (al-tābi‘ tābi‘), which obviously means that, in reference, for example, to contracts and transactions, things which belong to one another may not be separated: one does not sell a yet-to-be born animal separately from its mother, or a living room separately from the house.³⁵

Ibn Nujaym divided the legal maxims into two categories of normative or leading maxims, and subsidiary maxims. He only placed six under the former, and nineteen under the latter, but discussed a number of other subsidiary rules and maxims of fiqh in his detailed elaboration and analysis. The sixth leading maxim of Ibn Nujaym that he added to the familiar five, as reviewed above, was that “no spiritual reward accrues without intention” (lā thawāb illā bi’l-niyya), which is why the ritual prayer, and most other acts of devotion, are preceded by a statement of intention, or niyya.³⁶ The introductory part of the Ottoman Mejelle, compiled

LEGAL MAXIMS AND OTHER GENRES OF LITERATURE 95

in the 1870s, which contains ninety-nine legal maxims, was mainly derived from Al-Ashbāh Wa'l-Naẓā'ir of Ibn Nujaym.

Despite the general tendency in legal maxims to be inter-scholastic, jurists and schools are not unanimous on all of them, but the differences between schools in this area are not very wide. The Ja'fari school of Shī'a has its own collection of legal maxims, yet, notwithstanding some differences of style, the thematic arrangement of the Shī'ī collection resembles closely to those of their Sunni counterparts. The first Shī'ī work on maxims was that of 'Allama Ibn Mutahhar al-Ḥilli (d. 771/1369), entitled Al-Qawā'id, followed by al-Shahīd al-Awwal Shams al-Din al-'Āmili's (d. 782/1389) Al-Qawā'id wa'l-Fawā'id, which compiled over 300 maxims, and many more works that elaborated and enhanced the earlier ones. The more recent work of Muhammad al-Ḥusayn Kāshif al-Ghiṭā', bearing the title Taḥrīr al-Mujalla, is an abridgment and commentary on the Ottoman Mejelle. In this work, the author has commented on the first 99 articles of the Mejelle, out of which he selected 45 as being the most important in the range, and the rest he found to be overlapping and convergent or obscure, but he added 82 others to make up a total 127 maxims of current application and relevance, especially to transactions and contracts. Al-Ghiṭā' went on to say, however, that "if we were to recount all the maxims that are referred to in the various chapters of fiqh, we can add up to five hundred or more."³⁷

The Discordances (al-Furuq)

Other developments of interest in the fiqh literature that relate to the qawāʿid are the discordances (al-furūq), which occur in almost the opposite direction to that of al-ashbāh wa'-naẓā'ir. As the word indicates, the furūq highlights differences between seemingly similar concepts, or those which have an aspect in common. The attempt to highlight such differences in the substantive juris corpus of fiqh was also extended to the maxims, in that the furūq literature specified the differences between some of the maxims that resembled one another, but could subtly be distinguished in some respect. The Māliki jurist Shihāb al-Dīn Ahmad b. Idrīs al-Qarafi's (d. 682/1281) Kitāb al-Furūq has discussed 548 maxims, and 274 differences

96 MOHAMMAD HASHIM KAMALI

(furūq) in this light, and it focuses on distinctions and differences between similar themes and ideas. Occasionally the word qawāʿid is used in reference to what is a ḍābiṭa or even a specific ruling of fiqh. Al-Qarāfī often poses questions as to the differences between two maxims that address similar themes but which involve subtle variations. He also explains the subjects of his enquiry by referring to their opposites, as he believes that this is often a very effective way of highlighting the merits or demerits of particular ideas and maxims. His work is generally regarded as one of the best in the field.³⁸ Al-Zarqāʾ has noted, however, that al-Furūq is not, strictly speaking, confined to legal maxims. This is because the book is dominated by comparisons and contrasts, and engages in the explanation of basic fiqh themes and issues in a way that almost puts the work in the general category of fiqh, rather than the maxims of fiqh, which is a separate branch of fiqh in its own right.³⁹

Examples of the furūq include the distinctions between ijārah and sale, between custody (ḥaḍānah) and guardianship (wilāyah), between testimony (shahāda) and narration (riwāyah), between verbal custom and actual custom (al-ʿurf al-qawlī, al-ʿurf al-fiʿlī) and so forth; these are often expressed in rule-like statements that generally resemble ḍābiṭas, as they apply to specific themes, but named al-furūq, as they usually compare similar themes, and highlight the differences between them. Al-Qarāfī's approach represented a new development in the qawāʿid literature. He has also discussed legal maxims in his other works, namely al-Dhakhīra, but more specifically in al-Iḥkām fi Tamyīz al-Fatāwā ʿan al-Aḥkām. This title itself is, it may be noted, furūq-oriented, as it refers to differences between fatāwā and judicial decisions. Ibn al-Shāṭ Qāsim bin ʿAbd Allāh al-Anṣārī's (d. 723/1323) work, Idrār al-Shurūq ʿalā Anwār al-Furūq is also a work on furūq, and smaller works of similar kind were also written by some Shāfiʿi scholars.⁴⁰

Theories of Fiqh (Naẓariyyāt al-Fiqhiyya) and Encyclopedias

The next development that may briefly be explained is relatively recent, and appears in the modern writings of fiqh under the general designation al-naẓariyyāt al-fiqhiyya, or legal theories of fiqh. Naẓariyya in this context implies a self-contained and comprehensive treatment of an important