Islamic Legal Maxims
The development of jurisprudential maims comprises one of the greatest intellectual contributions of the history of Islamic thought. They are the general formulas of Islamic legal statutes, the most comprehensive axioms of legal reasoning, derived by the jurists over a lengthy period according to proofs adduced from Shari‘a texts. They formulated these principles as pithy propositions and offered specific cases to explain and support their implications, forming thus a singular contribution to the world of Islamic legal theory and indeed of positive law as well. Many of them resonate with the principles of human rights established today, for they are the fruit of deep contemplation on questions of justice, with due consideration given aspects of legislation, execution, rights, and judgment.
These principles are vital in jurisprudence and greatly beneficial. The jurist’s ability depends on comprehending them, and they clarify for him the course of the ruling (fatwa). For whoever delves into a particular ancillary matter without maintaining the general principle in fact errs and is confounded, while one who tests his jurisprudence against these principles is able to clarify particulars due to their derivation from the general. He is thus able to achieve what eluded his fellow jurist.
The early scholars strove to posit and formulate these jurisprudential principles. This effort began in the epoch of the Prophet, God bless him and grant him peace, and continued through the era of the Companions and their Followers and indeed throughout Islamic history, as jurists took it upon themselves to formulate and expound these principles in their works in order to rigorously assess Islamic law and its foundations. They employed these principles in justifying and weighing their arguments, in order to preserve and aid in understanding the objectives of the law; and as they were articulated they became beacons guiding the jurist in establishing the scope of flexibility and adaptability. These are the specific features that enable this sacred law to be contextually applied and accommodated in every time and place, facing human progress and unprecedented situations.
Scholars in jurisprudential academies today—such as the Organization of Islamic Conference, based in Jeddah—seek to continue the efforts of earlier scholars by compiling encyclopedic works of legal principles. Such projects retrieve these maxims from their dispersal in the early Islamic legal corpus, including such works as al-Fiqh by Abu Hanifa (d. 150 H), al-Kharaj by Qadi Abu Yusuf (d. 182 H), al-Asl by Muhammad b. al-Hasan al-Shaybani (d. 189), al-Mudawwana al-kubra by Imam Malik (d. 179 H), al-Umm by al-Shafi‘i (d. 205 H), and others. By pondering over these early works, the later researchers of the Islamic world are able to glean legal maxims from them, in order to gather them together in encyclopedic fashion. This is the next stage in their development and serves to accommodate the flux of the contemporary world, which changes from moment to moment—especially in the fields of telecommunications, advances in which have transformed the world into a global village, altering lifestyles, education, culture, and transportation—and by which the language of civilization itself has shifted. All of these aspects have repercussions relevant to the legal principles discussed here, where, for instance, it becomes possible to trace the laws of economic transactions and contracts into electronic and digital media.
Defining and understanding legal principles
A “principle” (qa‘ida) linguistically denotes “foundation,” as in the Qur’anic verse And when Ibrahim and Isma‘il were raising the foundatiosn of the House… (Q 2:127). In a technical sense, however, it is what al-Jurjani termed a general proposition corresponding to all particular instances. Thus we can say that these jurisprudential principles are axioms that encompass a broad range of empirical legal cases emerging under their ambit. They are distinguished in being broad formulations with universal meaning and yet particular import. For the most part, they are not constant rules, because (operating like analogies) they admit exceptions. This is what al-Shatibi refers to when he writes in his al-Muwafaqat: As the purpose of the Lawgiver was the right ordering of creation according to general principles, and the worldly occurrences as generated by the Custom of God yield majority but not absolute forms, and as the Shari‘a is posited to appropriately address what exists, so it is imperative to consider that the legal maxims address general practices, not universal cases without exception.
‘Allama Mustafa al-Zarqa defined the maxims as: General legal theorems in concise, juridical expression, encompassing general legislated rulings on incidental matters falling under their ambit.
In this way it is clarified that the legal principle is a Shari‘a ruling on a broad matter that demonstrates the case for specific rulings that follow it; we can otherwise define it as a general legal theorem that encompasses broad legislated rulings on a number of juridical issues on its topic.
The origins and development of this discourse
These legal principles were not formulated at once at a specific time by a single individual. Rather, they developed gradually in the maturation of jurisprudence and at the hands of the arch-scholars of each legal school, those devoted to the weighting and derivation of rulings. Nor were they articulated in their final form until the major schools of jurisprudence had reached a certain stability, as we can see by tracing the development of these principles through three general phases.
First: Origin and Formation
This period extended from the era of the Prophet, God bless him and grant him peace, through the time of the Companions and their Followers and the great jurists and authorities of the legal schools, until the third century AH.
The epoch of the Prophet, God bless him and grant him peace, and his noble hadiths provided a host of broad legal maxims, given his pithy speech and as recounted above regarding the Prophetic source of later legal principles. For example, he said: “entitlement assumes liability” and “no blood-money is due a beast’s attack.” When one sifts through the works on the holy Prophetic practice, one finds it teeming with such propositions of great significance to Islamic jurisprudence.
The age of the Companions and their Followers, God be pleased with them all, also offered such formulations which today are oft-cited in works on the topic—for instance, the famous saying of ‘Umar b. al-Khattab included in Sahih al-Bukhari, “Claims are bounded by their conditions.”
When we move to the era of the Imams of the sacred Law, searching there too for such precedents of legal maxim, we find there the two students and fellow-authorities of the Hanafi school. Abu Yusuf al-Qadi Ya‘qub b. Ibrahim (d. 182 AH), for example, offered in his Kitab al-kharaj the principle “At the imam’s discretion, viz. the gravity of the offense and the offender’s age” and the principle “the wealth of a Muslim who dies without heir defaults to the public treasury.” For his part, Imam Muhammad b. al-Hasan al-Shaybani (d. 189 AH) offered in his al-Asl the axiom (regarding one suspicious of his purity after ablutions) “Inquiry is permissible into whatever requires inquiry,” and in his book al-Hujja the axiom (regarding the people of Madina) “they deemed the sale of everything whose consumption and use they themselves found detestable, to be detestable; and everything they would themselves use they deemed proper to sell.”
Next to this we find in Imam al-Shafi‘i’s al-Umm the principles we may term “the everys,” for each one of them begins with “every”, adding to the legal maxim and indicating the depth of the legal thought and reasoning among these early sages. Of these were the axiom: “When the greatest fall, so too do those beneath them” (on the contemporary matter of coercion and infidelity); and the axiom “When a matter straitens, ease it”, as transmitted by al-Zarkashi in al-Manthur fil-qawa‘id.
Various narrations of Imam Ahmad are reported by Imam Abu Dawud in his al-Masa’il, including the axiom “everything it is permitted to sell is permitted to gift, spend in charity, and pledge as security” and the axiom “everything one purchases by weight or measure must be acquired before it can be resold.”
Second: Growth and Articulation
This period extends from the fourth century AH until after the eleventh century AH. It is the age of the “golden axioms”, as we will expound in some detail. It is reported that Imam al-Dabbas (ca. third-fourth century AH) compiled 17 general axioms of the Hanafite guild; his contemporary al-Karkhi (d. 340 AH) adopted some of these and included them in his famous treatise that included 37. He was the perhaps the one to properly inaugurate this field, which underscores the early role of Hanafi legal scholars in positing these principles—especially in their relation to ancillary legal matters. Another early example in this vein is Imam Muhammad b. Harith al-Khushani al-Maliki’s (d. 361 AH) work Usul al-futya.
In the fifth century AH, Imam al-Dabusi ‘Abd Allah b. ‘Umar Zayd al-Hanafi (d. 430 AH) composed his book Ta’sis al-nazr, continuing the earlier work of al-Karkhi by including within his work a number of jurisprudential guidelines specifically related to the legal axioms and ancillary considerations. In the sixth century AH, Imam ‘Ala al-Din Muhammad b. Ahmad al-Samarqandi (d. 540AH) composed his Ihdah al-qawa‘id. Then, in the seventh century AH, the discourse around the axioms began to mature with Muhammad b. Ibrahim al-Jajarmi (d. 613 AH), author of al-Qawa‘id fi furu‘ al-Shafi‘i, followed by al-‘Izz b. ‘Abd al-Salam, author of Qawa‘id al-ahkam fi masalih al-anam, and among the prominent Maliki scholars Muhammad b. ‘Abd Allah b. Rashid al-Bakri al-Qafsi (d. 736 AH), author of al-Mudhhab fi dabt qawa‘id al-madhhab. And so it continued until the ‘golden age’ of the codification of the legal axioms in the eighth century AH, in which Shafi‘i jurisprudents were especially prominent. Among the most renowned and important texts of that period are the following:
- Ibn Wakil Muhammad b. ‘Umar b. Makki al-Shafi‘i’s (d. 716 AH) al-Ashbah wal-naza’ir
- Muqri Muhammad b. Muhammad b. Ahmad Abi ‘Abd Allah al-Maliki’s (d. 758 AH) al-Qawa‘id
- ‘Ala’i al-Shafi‘i Salah al-Din Khalil b. Kaykaldi’s (d. 761 AH) al-Majmu‘ al-Midhhab fi dabt qawa‘id al-madhhab
- Taj al-Din al-Subki ‘Abd al-Wahhab b. ‘Ali b. ‘Abd al-Kafi’s (d. 771 AH) al-Ashbah wal-naza’ir
- Jamal al-Din ‘Abd al-Rahim al-Asnawi’s (d. 772 AH) al-Ashbah wal-naza’ir
- Badr al-Din al-Zarkashi Muhammad b. Bahadir b. ‘Abd Allah’s (d. 794 AH) al-Manthur fil-qawa‘id
- Ibn Rajab al-Hanbali Zayn al-Din Abil-Faraj ‘Abd al-Rahman Shihab al-Din b. Ahmad al-Salami’s (d. 795 AH) al-Qawa‘id fil-fiqh
- Sharaf al-Din ‘Ali b. ‘Uthman al-Ghazzi al-Dimashqi al-Hanafi’s (d. 799 AH) al-Qawa‘id fil-furu‘
Turning to the ninth century AH, we find Ibn al-Mulaqqin ‘Umar b. ‘Ali b. Ahmad (d. 804 AH), who compiled a work on the topic relying on al-Subki’s work above. Among other works of this time are the following texts, which largely reprised and complemented the axioms gleaned by earlier scholars:
- Muhammad b. Muhammad al-Zabiri’s (d. 808 AH) Asna al-maqasid fi tahrir al-qawa‘id
- Ibn al-Ha’im al-Muqaddasi’s (d. 815 AH) al-Qawa‘id al-manzuma and Tahrir al-qawa‘id al-‘ala’iyya wa tamhid al-masalik al-fiqhiyya
- Taqi al-Din al-Husani’s (d. 829 AH) al-Qawa‘id
- Shuqayr Muqaddasi ‘Abd al-Rahman b. ‘Ali’s (d. 876 AH) Nazm al-dhakha’ir fil-Ashbah wal-naza’ir
- Ibn ‘Abd al-Hadi’s (d. 880 AH) al-Qawa‘id wal-dawabit
The codification of the jurisprudential axioms was greatly developed in the tenth century AH, that being the age of Imam al-Suyuti (d. 910 AH), who composed the weighty al-Ashbah wal-naza’ir fi furu‘ al-Shafi‘iyya, which extracted the most important axioms from across the works of al-‘Ala’i, al-Subki, and al-Zarkashi. Likewise this time saw the systematic work of Abul-Hasan al-Zaqqaq al-Tajibi al-Maliki (d. 912 AH), who drew on earlier texts including al-Qarafi’s al-Furuq and al-Muqri’s al-Qawa‘id. These were followed by ‘Allama Ibn Nujaym Zayn al-Din b. Ibrahim al-Hanafi (d. 970 AH), whose al-Ashbah wal-naza’ir was penned after the fashion of Ibn al-Subki and al-Suyuti and which garnered much attention (by way of commentary, study, and meticulous regard) from later Hanafis.
Everything that transpired at this time on this topic was adapted and gleaned from existing jurisprudential works, but was more precisely articulated than it earlier had been—except for the works of some foremost and subtle scholars such as Ibn al-Wakil and al-Subki, who formulated new axioms.
Third: Consolidation and Systematization
The genre of jurisprudential maxims was not settled at the beginning. Rather, it was initially highly dispersed and embedded among other legal arts, such as legal-theoretical principles, differences between the legal guilds, and hypothetical problems. Indeed, it was only consolidated with the legal codification developed for use in the courts established in the late thirteenth century AH, by high Hanafi scholars of the Ottoman Empire during the reign of Sultan al-Ghazi ‘Abd al-‘Aziz. These scholars gathered works such as Ibn Nujaym’s al-Ashbah wal-naza’ir and al-Khadimi Muhammad b. Mustafa’s (d. 1176 AH) Majami‘ al-haqa’iq, and developed a careful process by which they selected and ordered the foremost statues in the most succinct expressions. This codification, known as the Mejelle, disseminated the jurisprudential maxims, and became like a legal encyclopedia of practical rulings. The rulings of this civil code were articulated according to the conventions of legal articles, 1851 of them arranged in 16 volumes. This filled an urgent need of the time, as the civil matters of the Shari‘a were otherwise scattered across innumerable tomes of law; with this new systematization, the responsa and various legal texts on a single topic were organized according to a single method. The Mejelle included theoretical maxims, including “No attention is paid inferences in the face of obvious facts” (13) and “The unrestricted [rule] is taken in its unrestricted sense, provided there is no proof of a textual or implied restriction” (64).
The Most Famous Texts on Legal Principles in the Four Schools of Law
The Hanafite Guild
1 – Abu l-Hasan al-Karkhi al-Hanafi’s (d. 340 AH) al-Usul, which is one of the first books to delineate legal principles. He included 39 such principles that he attributed specifically to (have been developed by) the Hanafi guild, though they may be common to others as well. In his list of such principles, Najm al-Din Abu Hafs al-Nasafi included the maxims “what is established with certainty is not removed by doubt” and “the manifest has sufficient priority over what takes investigation, and does not oblige investigation.”
2 – Abu Layth al-Samarqandi’s (d. 373 AH) Ta’sis al-naza’ir, which mentions 74 principles. It also mentions the matters on which Imam Abu Hanifa differed from his two students and fellow-authorities of the Hanafi school, and the disagreements between the two of them, and the matters on which the three of them differed from Malik, and Zafar, Ibn Abi Layla, and al-Shafi‘i, and mentioning principles as well as rulings throughout. For example, he writes, “the legal presumption of Muhammad is that something enduring admits the ruling of something beginning, while Abu Yusuf does not makes this presumption in certain topics. An issue where this is relevant is the case of a man who perfumes himself before donning the ihram, such that the fragrance of the perfume abides with him after he is in the ritual state. Muhammad takes the situation to be ritually disliked, regarding it like the case of one who applies perfume after donning ihram (for him, something enduring is like initiating something), while Abu Yusuf does not give this ruling (for him, something enduring is not like initiating something).”
3 – Abu Zayd al-Dabusi’s (d. 430 AH) Ta’sis al-nazr, which for the most part is a transcription of Abu al-Layth al-Samarqandi’s book.
4 – Zayn al-din Ibn Nujam’s (d. 970 AH) al-Ashbah wal-naza’ir, which was authored in the manner of Ibn al-Subki’s al-Ashbah wal-naza’ir. It is obvious that the Hanafi scholars deemed this work highly, such that there were around twenty-five works of critical commentary on it.
5 – Majallat al-ahkam al-‘adaliyya, authored by a group of Hanafi Ottoman scholars (described above as the Mejelle). They ordered it in the manner of codified legal statutes and articles (though in accordance with the Hanafi school). It is specifically related to civil and transactional matters, and includes 99 jurisprudential maxims noted by Hanafi scholars. There came to be many commentaries on this text, including ‘Ali Haydar’s Darar al-hukkam sharh Majallat al-ahkam, Khalid al-Atasi’s Sharh al-majalla, Rustum Salim al-Baz’s commentary, and others, such as the commentary on its legal principles by Shaykh Ahmad al-Zarqa’ titled Sharh al-qawa‘id al-fiqhiyya.
The Malikite Guild
1 – Muhammad b. Harith al-Khushani’s (d. 361 AH) Usul al-futya, which lays out many legal principles and includes selected cases clarifying the position of the school. It is said that this was the first book devoted to Maliki legal theory. It organizes cases on a single topic in a manner unlike those of legal treatises.
2 – Abul-‘Abbas al-Qarafi al-Sanhaji’s al-Furuq anwar al-buruq fi anwa’ al-furuq, which clarifies the distinctions between jurisprudential maxims (and not legal cases). The author wrote this work after his earlier, famous al-Dhakhira, taking the maxims mentioned in that text and adding more, organizing them, and comparing them. Al-Furuq includes 548 maxims according to his terminology, though some of these might not be considered maxims according to others. For example, he includes technical definitions among his maxims (“the difference in principle between a loan and a sale…”). Al-Qarafi’s meticulousness served to aid the reader, for in the convention of his day, the jurisprudential maxims and definitions were scattered across the text, as well as among the reasoning in deriving rulings, such that the reader was not able to easily comprehend the import of what was being said. It is for this reason that Shaykh Muhammad al-Baquri (d. 707 AH) appreciated the achievement of this text and its fruits.
3 – Muhammad b. Muhammad al-Maqqari’s (d. 758 AH) al-Qawa‘id, which is among the foremost (and in its length perhaps the most comprehensive) Maliki texts composed on the topic. Al-Maqqari investigates the method of Imam Malik and his fellow authorities in the school as compared with that of the Hanafis and Shafi‘is in propounding both legal principles and rulings, sometimes also with reference to the Hanbalis—but on occasion, despite its grand vision, becomes enwrapped in obscurity. Al-Wanshrisi said: it is a work of prolific knowledge, a multitude of benefits, indeed unprecedented, but it need an opening to the world.”
4 – Ahmad b. Yahya al-Wansharisi’s (d. 914 AH) Ihdah al-masalik ila qawa‘id al-Imam Malik, which includes 118 maxims attributed to the Maliki school. It states the maxim and then notes the legal cases said to fall under its ambit, though it neglects to mention certain prominent maxims.
The Shafi‘ite Guild
1 – ‘Izz al-Din ‘Abd al-‘Aziz b. ‘Abd al-Salam’s (d. 660 AH) Qawa‘id al-ahkam fi masalih al-anam, whose lofty purpose is encapsuled in the proposition “convene what benefits and avert what corrupts!” This is achieved through a number of jurisprudential principles disseminated throughout the work.
2 – Sadr al-Din ibn al-Wakil’s (d. 716 AH) al-Ashbah wal-naza’ir, which is the first jurisprudential text of the name. Ibn Taghri Bardi commented: it is unprecedented. Its distinction is that in presenting jurisprudential principles it also includes a number of theoretical principles as well—as though it did not have a clear hierarchy in presenting principles and legal issues together.
3 – Al-‘Ala’i’s (d. 761 AH) al-Majmu‘ al-mudhhahhab fi qawa‘id al-madhhab, which compiles legal theoretical and jurisprudential principles. It expounds at length on the five great maxims, and is distinguished by the many proofs it offers for them drawn from the Qur’an and Prophetic practice.
4 – Taj al-Din ‘Abd al-Wahhab b. al-Subki’s (d. 771 AH) al-Ashbah wal-naza’ir, which sought to redact the book of Ibn al-Wakil and add certain maxims to it. He begins his book with the five great maxims, followed by the others necessary for an adequate grasp of the law, and then notes a number of general precepts, theoretical principles, and key grammatical and technical terms employed in deriving ancillary legal rulings.
5 – Muhammad b. Bahadir al-Zarkashi’s (d. 794 AH) al-Manthur fi tartib al-qawa‘id al-fiqhiyya, which some reckon among the foremost compendiums of legal principles. The over 100 principles listed are alphabetically ordered.
6 - al-Suyuti’s (d. 911 AH) al-Ashbah wal-naza’ir, one of the most famous works dedicated to legal maxims—not merely among the Shafi‘i guild of jurisprudence but indeed among all the legal schools—for he (God have mercy upon him) perfected their order and hierarchy. The widely-read and prolific al-Suyuti gathered in this single text everything the Shafi‘i school had to offer on the knowledge of legal principles. He began the text by explicating and expounding the five great legal maxims, then the 40 necessary ones, and then mentioned the principles on which the scholars differ. The Shafi‘is celebrated this text, which proved a trove of knowledge.
The Hanbalite Guild
This legal school has one of the fewest number of texts dedicated to legal principles. Among them are the following:
1 – Shaykh al-Islam Ibn Taymiyya’s (d. 728 AH) al-Qawa‘id al-nuraniyya, which in truth is a book of legal rulings proper but contains a number of legal principles as well.
2 – Ahmad b. al-Hasan Ibn Qadi al-Jabal’s (d. 771 AH) al-Qawa‘id al-fiqhiyya, which addresses selected legal issues accompanied with the legal principles employed though is not a book on legal maxims as we know it today. The extant text of this work was finally published in 1431 AH.
3 – Zayn al-Din ‘Abd al-Rahman Ibn Rajab’s (d. 795 AH) Taqrir al-qawa‘id wa tahrir al-fawa’id, which is one of the most prized works of the school and the most wondrous of books—for it discusses various legal issues accompanied by 160 comprehensive legal maxims.
4 – Yusuf b. Hasan b. ‘Abd al-Hadi Ibn al-Mubarrad’s (d. 909 AH) al-Qawa‘id al-kulliyya wal-dawabit al-fiqhiyya, which is a treatise devoted to the fruits of the law. He notes a number of maxims at the end of the treatise; although he does not explain them, he does offer certain examples.
The Importance of the Legal Maxims
Islamic jurisprudence proliferated into countless varied ancillary matters, such that even issues which were similarly framed and defined yet incurred different rulings and set in motion different lines of reasoning. There is thus no doubt as to the advantage afforded by the employ of jurisprudential maxims and as confirmed by careful study. For their eloquence opens the fields of perception and trains one in legal discernment, as alluded by ‘Allama al-Suyuti: “Verily, fiqh is the recognition of correspondences.” Something similar is narrated from Qutb al-Din al-Sanbati, one of the authorities of the Shafi‘ite school.
In his esteemed al-Furuq, al-Qarafi emphasizes the bountiful effects of closely studying the jurisprudential maxims: “These maxims are vital in jurisprudence, high in benefit, the degree of their mastery enabling and ennobling the ability of the jurisconsult; they manifest and reveal the splendor of fiqh, and they illustrate and disclose the process of the fatwa. … And whoever turns to address the ancillary legal cases in a disparate fashion, without general maxims, will find them contradict one another and variegate; while one who regulates his jurisprudence with such maxims dispenses with the need to preserve and memorize the multitude of particular cases, due to their hierarchical derivation from the general case. What is contradictory in the hands of another now can be unified.”
Imam al-Suyuti underscored the high importance given the study of the jurisprudential maxims: “Know that the art of similarities and correspondences is magnificent; it yields the truths and insights of the law, its approaches, and its secrets; it elevates and acculturates one’s understanding; it determines one’s ability to grasp and adduce knowledge of rulings not found in the scrolls of old; and (yields the ability to) recognize occurrences and circumstances that are not submerged in the flux of time.”
The teacher Mustafa al-Zarqa likewise emphasized the eminence of the maxims: “Verily, these maxims offer brilliant illustrations illuminating the general legal principles and decisions, revealing their domains and discursive methods, and assessing the ancillary legal rulings with guidelines that discern in every one of their group a single anchor; (they yield) a perspective on their relation that joins one to the other even if their topics and categories differ.”
It is possible to summarize the many and multifaceted advantages achieved through the employ of the maxims as follows: the legal maxims work to coordinate disparate and manifold particulars in a single system, which allows one to perceive the relationships between them. This provides the jurist with a sound conception by which to note their common characteristics. To this effect, Ibn Rajab al-Hanbali observed, “These maxims order disparate questions in a single schema, guiding the errant, and bearing nearer to the jurist every distant matter.”
The legal maxims of each school thus offer a general picture of the school, such that they aid one in understanding its positions and its broader approach. For it is impossible to entirely master the plenitude of legal cases a specific school has addressed; they are quick to forget and difficult to retain, untenably leaving the jurist in every repeated case to exert himself to the utmost in deriving its ruling. In short, the recourse to the maxims is necessary, for they condense these ancillary cases in a single paradigmatic instance. Further, it is well-known that the canonical rule and jurisprudential maxims aid in memorizing the ancillary rulings. Moreover, as observed by Imam al-Qarafi, “Whoever assesses jurisprudence by its maxims does not need to memorize most of the legal particulars, due to their derivation from the general cases. What confounds another in its variegation to him appears a single case; he swiftly deduces what he seeks and his heart rejoices at what radiates there. Between these two are differences far remote; and between (their) two stations lies a strong contrast.”
The jurisprudential maxims further aid in discernment, understanding the mysteries of legislation, and acquiring jurisprudential ability—again by deeply probing every jurisprudential situation incumbent to divide into its variegated categories, narrowing it down to a single case and thereby precluding the jurist from opposing similar cases. The maxims likewise usher students of jurisprudence into the field, advancing them in an ordered and scholastic fashion from the study of particular cases to the study of legal reasoning in order that they might adapt it to every unprecedented situation.
Given the multitude of circumstances, cases, fatwas, and situations in the variegated categories of jurisprudence, and given the territorial expansion of the Islamic state, the jurisconsults constantly found themselves facing unprecedented occurrences that had to be addressed. Thus they ordered them to a single schema, in order to prevent dispersal and loss and make them quicker to understand, easier to regulate, and manageable to memorize.
For all these reasons, the Muslim legal scholars sought to order jurisprudence. Their systematic effort would not have been achieved without, first, the reported differences between the legal cases, or, at least those difficult to enumerate; and, second, the record of what we know as the jurisprudential maxims.
The anarchy resulting from the exceeding variegation of the legal rulings and their dissemination deep in the heart of obscure legal texts discouraged students from seeking knowledge of jurisprudence and impeded even the resolute. Indeed, in the absence of the jurisprudential maxims, the jurist would barely have reached the level of ijtihad, let alone the ability to issue rulings. The jurists of yore perceived such a possibility, and hence could not but (in the midst of their legal reasoning, their weighting of certain positions, their Imams’ guiding instructions) develop categorical jurisprudential theorems that encompassed general legislated rulings on multiple related topics. This is what sufficed them in that juridical plenitude.
Such a systematic collection of the empirical rulings in a coordinated manner, precluding dispersal and loss, is evident in the work of Imam al-Haramayn al-Juwayni Abul-Ma‘ali ‘Abd al-Malik b. ‘Abd Allah b. Yusuf al-Shafi‘i (d. 478 AH), who propounded a number of such maxims in a section devoted to the topic at the end of his book al-Ghiyath: “Surely, the overall intent of this section is to mention of every legal guideline the maxim that will act like the axis of a grinder or the foundation of a building, and which will clarify for us the genesis of what develops from it and from which the multitude depart.”
‘Ala’ al-Din Abu Bakr Ibn Mas‘ud al-Kasani al-Hanafi (d. 587 AH) described the system of this vocation and its guiding function in his book Bada’i‘ al-sana’i‘ fi tartib al-shari‘, as he commented on the established approach to the relationship between legal principles and their application. He there demonstrates his wondrous ability to glean the maxim at work, noting in his introduction: “The original purpose and general aim of classification in every possible scholarly discipline is to facilitate the aim of those who strive in knowledge and the discernment of those who seek to acquire it; and this desire is not met but through an systematic approach in ordering the discipline and attaining wisdom. That is: scrutinizing the kinds of legal issues and their parts, and deriving thereby maxims and principles…”
Imam Abu Zakariyya Muhyi al-Din Yahya b. Sharaf al-Nawawi (d. 676 AH) also alluded to such maxims in his work al-Majmu‘, a commentary on al-Shirazi’s al-Muhadhdhab. He declared that his method of commentary was to write to clarify the rulings in the easiest expressions and to add complementary, empirical cases to theoretical discussions and to include helpful maxims and well-ordered jurisprudential maxims.
Imam Shihab al-Din Ahmad b. Idris al-Qarafi (d. 684 AH), a Maliki jurist, alluded to the systematization of jurisprudence through maxims and encouraged acquiring knowledge of them in his book al-Dhakhira: “Know, you, that when scattered, the wisdom of jurisprudence—despite its sublimity—is impeded, and its elegance is diminished, and people drift from seeking it. But when you see that rulings are derived according to legal maxims, their scope is clarified, one’s vigor in acquiring this knowledge is renewed, and one profoundly marvels at its vestments.”
Badr al-Din Muhammad b. Bahadur b. ‘Abd Allah al-Zarkashi (d. 794 AH) set out a discourse reflecting on the objectives of the maxims in relating to the triad of the legal rule, term, and system. In the introduction to his al-Manthur min al-qawa‘id, he wrote: “For the jurist, these maxims maintain the principles of the school, and spur his striving from the locus of jurisprudence to the sought aim, and methodologically coordinate what is disseminated, and derive what issues fall under their ambit.”
The tenth century AH scholar ‘Allama Zayn al-Din b. Ibrahim Ibn Nujaym al-Hanafi (d. 970 AH) noted in his al-Ashbah wal-naza’ir that attaining the station of ijtihad is fulfilled with knowledge of the maxims.
Our righteous predecessors left such testaments to the eminence of the jurisprudential maxims in the world of jurisprudence and fatwas and judgment. Even so, certain colleges of Islamic law in countries of the Muslim world today do not include the maxims on their core curriculum, restricting them to a later phase of study and even then as electives, though acknowledging their signal features especially in demarcating the realms of agreement and legitimate difference, the absolute and the probable.
The Jurisprudential Maxims: Their Contribution and Probative Value in Issuing Rulings and Judgments
Various arch-jurists have held that it is impermissible to foundationally base a ruling on a maxim, that they are inadmissible as proofs from which to argue a ruling, and inadmissible as the reference of a fatwa—for the maxims are not absolute rules but majoritarian guidelines, and so do not admit recourse as weighty sources of judgment. It is nonsensical, the argument goes, to make what unites and relates the ancillary legal cases a proof among others for legislation—for most of these maxims admit exceptions, and it may be that the legal issue for which a ruling is sought is precisely one such exception. Certain scholars have further explicitly written against issuing fatwas on this basis, including Imam al-Hamawi in his Ghamz ‘uyun al-basa’ir discussing Ibn Nujaym holding the same view and likewise the commentary on the Mejelle for matters without textual precedent.
However, the maxims are evidence for derived rulings’ accommodation to new circumstances. Hence their important work today, in practically addressing the contemporary condition, and for all the benefits listed above. Despite the valid difference of scholarly opinion on their probative value, it behooves one preparing himself for a position of judgment and guidance to deeply familiarize himself with these maxims and indeed to master them, so that he has proficiency in multiple categories of jurisprudence and judgment. They are a resource to be used and cited in the domain of jurisprudence and judgment, even if only as limited to supporting the opinions of jurisconsults and judges as they devise their rulings, and for authors writing on such topics. Imam al-Qarafi wrote something to this effect in his al-Furuq: “Verily, the jurisprudential maxims are not limited to theoretical jurisprudence; the law has a host of maxims as found in the Imams of fatwas and the jurisconsults, not simply in the tomes of legal theory proper.”
Another notable question addressed is whether the judge or mufti may cite one of these jurisprudential maxims on its own, or whether it is permissible only when there already exists a legal text on the matter. However, the latter opinion disconnects the maxims from addressing any new circumstance.
Here we come to another important point: the question of the probative value of the maxim in rulings and fatwas. We may learn from the scholarly precedent on the matter, which differentiated between maxims that were drawn from indications in the Qur’an or the Prophetic practice—which were held to suffice as legal proofs for deriving rulings in their light, their probative value springing from their textual source in the Qur’an or Prophetic practice—and those maxims that were formulated by legal scholars after their careful study of similar legal issues. The weight and value of these maxims in deriving further rulings is disputed by some, but only suggests that certain maxims may be of another order, whether a theoretical proof or a restricting definition. The legal scholars articulated these expressions and used them in their arguments on a host of matters.
The commentary on the Mejelle holds it to be insufficient to determine a ruling based on an abstract reference to one of the maxims, for matters without textual precedent. It is possible to offer this argument with the following three ways, as noted above:
The first proof: that the jurisprudential maxims are based on a majority, not an absolute general rule, and so remain plagued by exceptions. One must thus always consider that the issue under judgment is one such exception, leaving one without solid foundation for basing a ruling on a maxim. It is thus inappropriate to determine legal cases with reference to them.
The second proof: many jurisprudential maxims are inductive; and many of them are not based on satisfactory extrapolations, for they are drawn from concrete legal cases. Thus they leave one discontent, and plant the seeds of doubt. وتكوين الظن الذي بمثله تثبت الأحكام.
The third proof: the articulation of jurisprudential principles is the fruit of varied ancillary cases, being what gathers them together and connects them. It is unintelligible to posit that what gathers and connects these ancillary cases is a legal proof.
This is the argument of those against reasoning with reference to such maxims.
Others hold that arguments based on the jurisprudential maxims do in fact have probative value. The argument that a number of particular legal cases do not fall under the ambit of the jurisprudential maxims, being called exceptions to them, does not affect the validity of rulings in fact based on them.
Imam al-Qarafi frankly opposed the ruling of a judge who contravened the presumption of “soundness before the occasion” in deciding the case of a man who hastily divorced his wife without regard to due process (telling her to treat his pronouncement as though it were three and so sufficient to effect their divorce). In opposing the judgment of the judge, insisting that they remained married and that their divorce had not been achieved, al-Qarafi held that the conditions of a three-fold divorce had not been met and made explicit reference to a legal maxim in justifying his decision.
It is related that Ibn ‘Arafa permitted calling something derived from a jurisprudential maxim the “opinion of the school”. When he was asked the methodological basis of his permitting this conclusion, he answered that one who deeply understands the principles of the school, established opinions, and forms of derivation and analogy is permitted to make such a conclusion after striving his utmost; yet one unable to make such a claim is not permitted to draw such a conclusion.
One of the scholars who inaugurated the formal use of legal maxims to derive rulings is Imam Abu Zahir b. Bashir al-Maliki, who extrapolated ancillary rulings from legal principles and other such matters in his work al-Tanbih.
The five great legal maxims
The first legal maxim: matters are judged by their purposes.
Evidence for this lies in the Prophetic hadith, “Surely actions are by their intentions.” For example, different judgments are incurred by someone who killed another, depending on whether he intended to do so or it was an accident—for the very basis of the action differs in each case.
Secondary principles derived from this maxim:
1- Contractual stipulations are to be understood by their intended meaning, not strictly by their wording or formulation.
2- Intention generalizes the specific, and specifies the general.
3- The intention of the oath-taker determines.
The second legal maxim: certainty is not removed by doubt.
Evidence for this lies in the hadith, “Let not any of you break their prayer [to go ablute] unless he hears a sound or passes wind.” That is, in the case when one is certain he performed ablutions, but then doubted whether he broke those ablutions (by passing wind or the like), then he should cleave to his certainty (i.e., that he remains ritually pure) and dispel himself of his doubts (i.e., that he broke his ablutions). The inverse case likewise obtains.
Secondary principles derived from this maxim:
1- the presumption that a thing remains as it was originally (unless definitely altered)
2- the presumption of innocence
3- the presumption that what is established with certainty is not altered except with certainty
4- the presumption to regard qualities and things depending on whether they are accidental or essential
5- the presumption to attribute an incident to the nearest occasion
6- that the general presumption in matters for the general populace is permissibility
7- that the general presumption in economic transactions is impermissibility
8- give no weight to evidence in the face of explicit testimony
9- do not attribute speech to the silent
10- give no weight to speculation
11- give no weight to suspicions in offenses
12- a habitual prohibition is like a definite prohibition
13- do not dispute the consequences of a proof
The third legal maxim: difficulty must be alleviated
Evidence for this lies in the Qur’anic verse And [He] has not laid any hardship upon you in religion (al-Hajj: 78) and in the Prophetic hadith, “I was appointed to [a prophethood of] primordial generous faith.” An example of this is the dispensation given one who finds it difficult to pray standing, as he may then pray seated.
Secondary principles derived from this maxim:
1- If a matter is difficulty, ease it.
2- If a matter is easy, straiten it.
3- Necessity renders the prohibited permissible.
4- What necessity makes permissible is permitted only to the extent of the necessity.
5- What is permitted with due cause is again prohibited without it.
6- A universal need is a necessity.
7- Necessity does not trump the rights of another.
8- If the principle cannot be satisfied, it falls to its equivalent.
The fourth legal maxim: harm must be removed.
Evidence for this lies in the Prophetic hadith, “There is no inflicting harm (darar) or returning harm (dirar) [in Islam].” The former is done without cause, while the latter is performed with cause. For example, one whose possessions injure a neighbor has a responsibility to remove the source of the injury or hardship.
Secondary principles derived from this maxim:
1- repel harm to the extent possible
2- remove harm.
3- An greater harm is removed with a lesser harm.
4- A particular harm can repel a general harm.
5- Averting what corrupts is more important than generating what benefits.
The fifth legal maxim: custom has the weight of law.
This can be understood with reference to the Prophetic hadith, may peace and blessings be upon him, “What Muslims hold to be excellent is deemed excellent by God.” Al-Suyuti held, in his al-Ashbah wal-naza’ir, that every transmitted but unrestricted legal injunction that cannot be specified with reference to another authority or linguistic analysis should accede to communal custom. Certain other scholars commented: the entirety of the law is based on a single principle, namely, convening what benefits and repelling what corrupts.
Secondary principles derived from this maxim:
1- What is in practice ought to be followed
2- Something becomes custom when it is generally adopted and becomes predominant
3- Weight is given what is predominant and common, not what is rare
4- Writing is considered like an oral expression.
5- A conventional gesture is considered like verbal speech.
6- Custom has the force of a contractual stipulation.
7- Something identified by custom has the force of something identified by a text.
8- The established practice of a community is considered like a stipulation between them.