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