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.