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