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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