82 MOHAMMAD HASHIM KAMALI

It is due to their versatility and comprehensive language that legal maxims tend to encapsulate the broader concepts and characteristics of the Sharī’a. They tend to provide a bird’s-eye-view of their subject matter in imaginative ways without engaging in burdensome details.

A legal maxim is reflective, in the meantime, of a consolidated reading of fiqh, and it is in this sense different from what is known as al-ḍābiṭa (lit. a controller), which is somewhat limited in scope, and controls the particulars of a single theme or chapter of fiqh. Dābiṭa is thus confined to individual topics such as cleanliness (ṭahāra), maintenance (nafaqa), paternity, and fosterage (al-riḍā‘), and as such does not apply to other subjects. An example of a ḍābiṭa is: “marriage does not carry suspension”; and, with reference to cleanliness: “when the water reaches two feet, it does not carry dirt”.⁵ An example of a legal maxim, on the other hand, is “the affairs of imam concerning his people are judged by reference to maṣlaḥa” (amr al-imam fi shu’ūn al-ra‘iyya manūṭ bi’l-maṣlaḥa), as the theme here is more general, without any specification of the affairs of the people or the activities of the imam. Similarly, when it is said, in another maxim, that “acts are judged by their underlying intentions”, the subject is not specified, and it is, as such, a maxim (qā‘ida), and not a ḍabiṭa of a specified import. Having drawn a distinction between dābiṭa and qā‘ida, we note, however, that legal maxims also vary in respect of the level of abstraction, and the scope which they cover. Some legal maxims are of general import, whereas others might apply to a particular area of fiqh, such as the ‘ibādāt, the mu‘āmalat, contracts, litigation, court proceeding, and so forth. Some of the more specific maxims may qualify as a dābiṭa rather than as a maxim proper, as the distinction between them is not always clear, nor regularly observed.

The Five Leading Maxims

The most comprehensive and broadly-based of all maxims are placed under the heading of “al-qawā‘id al-fiqhiyya al-aṣliyya” or the normative legal maxims that apply to the entire range of fiqh without any specification, and the madhāhib are generally in agreement over them. Maxims such as “harm must be eliminated” (al-ḍararu yuzāl) (The Mejelle, Art. 20) and “acts