LEGAL MAXIMS AND OTHER GENRES OF LITERATURE 81

The second variety of legal maxims are those which are formulated by the jurists. Despite the general tendency in legal maxims to be interscholastic, jurists and schools are not unanimous, and there are some on which the madhāhib have disagreed. Legal maxims such as “certainty may not be overruled by doubt” or “ijtihād does not apply in the presence of naṣṣ”, or “preventing an evil takes priority over securing a benefit”, or “absence of liability (i.e. innocence) is the normative state” are among the well-known maxims on which there is general agreement.

Legal maxims represent an important area of fiqh literature, as their study imparts strategic knowledge of their subject matter, and helps the reader gain insight into the general character and attributes of the Sharī‘a. They are particularly useful and inspiring in the vision they impart for the search particularly of new solutions through ijtihād.

Legal maxims are different from uṣūl al-fiqh (sources of fiqh) in that the maxims are based on the fiqh itself and represent rules and principles that are derived from the reading of the detailed rules of fiqh on various themes. The uṣūl al-fiqh is concerned, on the other hand, with the sources of law, rules of interpretation, methodology of legal reasoning, meaning and implication of command and prohibition, and so forth. A maxim is defined as “a general rule which applies to all or most of its related particulars”.³ This definition is attributed to Tāj al-Dīn al-Subki (d. 771/1370), which is generally adopted and followed by subsequent authors. Legal maxims are usually articulated in incisive literary style. It is due partly to the abstract and generalised terms of their language that legal maxims are hardly without some exception to which they do not apply even if their wording might suggest otherwise. Some would even say that legal maxims are in the nature of probabilities (aghlabiyya) that may or may not apply to cases to which they apparently apply. According to al-Shāṭibi (d. 790/1388), exceptions do not invalidate a general rule, because the stray particulars do not form a second general rule in opposition to the first.⁴ Some writers have noted, however, that in the legal field, a maxim is only predominantly valid, whereas in certain other fields, such as grammar and uṣūl al-fiqh, it is said to be generally valid almost as a matter of certainty. We shall presently note, however, that this is rather a weak opinion.