LEGAL MAXIMS AND OTHER GENRES OF LITERATURE 83

are judged by their goals and purposes" (al-umūr bi-maqāṣidihā) (The Mejelle, Art. 2), belong to this category of maxims.

The early ulama have singled out five legal maxims as the most comprehensive of all, in that they encompass the essence of the Sharīʿa as a whole, and the rest are said to be simply an elaboration of these. Two of these have just been quoted. The other three:

• "Certainty is not overruled by doubt" (al-yaqīn lā yazūlu bi’l-shakk) (The Mejelle, Art. 4);

• "hardship begets facility" (al-mashaqqatu tajlibu al-taysīyr) (The Mejelle, Art. 17);

• "custom is the basis of judgment" (al-ʿadatu muḥakkamatun) (The Mejelle, Art. 36).

Each of these will be discussed in some detail in the following pages. Yet, it will be noted in passing that reducing the number of legal maxims to a minimum has invoked criticism from al-Subki, who said that this cannot be done without engaging in artificiality and compromise. In this connection al-Subki is noted to have been particularly critical of ʿIzz al-Din ʿAbd al-Salām’s (d. 660/1262) attempt to reduce the whole of the law to almost one principle, namely that “prevention of harm takes priority over securing of benefits—darʾ al-mafāsid awlā min jalb al-manāfi". This kind of approach, according to al-Subki, simply ignores the specificity and character of the qawāʿid.⁶

The first of the leading five maxims may be illustrated with reference to the state of ritual purity (ṭahāra). If a person has taken ablution (wuḍūʾ), and knows that with certainty, but doubt occurs to him later as to the continuity of his wuḍūʾ, the certainty prevails over doubt, and his wuḍūʾ is deemed to be intact. According to another, but similar maxim, “knowledge that is based in certainty is to be differentiated from manifest knowledge that is based on probability only—yufarraqu bayn al-ʿilmi idhā thabata ẓāhiran we baynahu idhā thabata yaqīnan”. For example, when the judge adjudicates on the basis of certainty, but later it appears that he might have erred in his judgment, if his initial decision is based on clear text and consensus, it would not be subjected to review on the basis of a mere probability.⁷ Similarly, a missing person (mafqūd) of unknown whereabouts is presumed to be alive, as this is the certainty that is known about him