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.