Al Qawaaid al Fiqhiyyah
2012 Summer Session (August 26 to October 21 2012)
Class taught by Shaikh Jamaal Zarabozo
Course Outline:
A one-quarter, basic introduction to the concept of “Islamic Legal Maxims,” or principles of fiqh that span most of the fields of fiqh.
Basic Outline of the Quarter
1. Definition of terms and difference between al-qawaaid and other topics
2. Benefits of the science of al-Qawaaid
3. The conditions and components of the Qawaaid
4. Sources of the Qawaaid
5. Types and Categorization of al-Qawaaid
6. Extent to which al-Qawaaid can be used
7. History of, development and literature on al-Qawaaid
8. The Major, Universal Qawaaid
9. Other Qawaaid
Required Reading:
Various articles may be e-mailed throughout the course, Allah willing
Recommended Textbook:
Not much is available in English on this subject.
Introduction to this class
This is a class that is not a continuation of any of the previous class. We will discuss qawaa'id al fiqhiyaah
(القواعد الفقهية) and the length of the class can be one quarter or more than one quarter in length. In this class we will discuss the specific legal maxims or principles related to fiqh.
Three stages on this topic.
1. Theoretical issues.
2. Major Qawaa'id.
3. Other Qawaa'id.
We will begin with the theoretical issues and then introduce the major qawaa'id, followed by other qawaa'id, and then discuss them in detail in the future. There are no books in English that discuss this topic, Shaikh will email articles periodically.
We will have to define qawaa'id and then discuss the benefits of this science, and then discuss the sources for these legal maxims. How do we use these Qawaa'id and to what extent can we use these Qawaa’id. There are books dedicated just to these Qawaa’id. A contemporary scholar has 12 volumes on this topic. We will then major Qawaa'id which is about 5 or 6 which is been agreed upon as the major legal principles.
When you look at the shari’ah, it is not just a random collection of laws. In order to understand what the ultimate goals of the Shari’ah are, you need to take a step back.
The Qawaid al Fiqhiyyah is taking a step back and looking at the Sharia as a whole and looking what principles are being used over and over again. When you look at the fiqh of marriage, business or even salaat, there is a consistency with respect to legal reasoning and principles.
These consistent principles and patterns of reasoning are the things we are trying to identify. For someone to become a faqeeh or jurists, this is one of the keys to understanding the Shari’ah as a whole. Sometimes we have two extremes:
Ignore the bigger picture completely, not seeing how a fiqh point fits into a bigger arrangement, this can be a mistake. If there is one issue with Islamic history, sometimes we focus on a single verse or hadith, without looking at other hadith. Fuqaha of the old went into this extreme.
The other extreme is to look at the bigger picture and ignore the details, e.g. “Islam stands for justice” or “Islam is peace”, and you ignore that there are laws that are intended to achieve those goals. Some people look at the bigger picture and not applying the old. This is very much a common modern phenomenon.
We need to avoid both extremes. It requires us to study to study the principles (Qawaid) so we can avoid both extremes. So this class will discover these Qawaid which run through all of Shariah. This will allow a greater appreciation of Shariah and Fiqh and one can even make better ijtihad based on this better understanding of these Qawaid.
Many scholars like Al-Qurafi and Ibn-Nujaim say that it is through these principles that the level of a faqeeh is elevated to the status of performing Ijtihaad.
Maqasid are the ultimate goal of the Shariah (topic of last quarter) while Qawaid are principles regarding particular laws which allows Shariah to achieve the goals which we discussed last quarter. These principles/legal maxims (Qawaid) are basically the “engine” to achieve those major goals (Maqasid).
Meaning of the word Al Qawaa’id
Al Qawaa’id comes from the root Qa 3A Da (قعد) means to sit for a long time and to sit in a firm established way. It is distinct from the other Arabic word ja la sa () which also means to sit.
Al Qawaa’id goes back to the meaning of something which is firmly established. There is some consistency and established stability to it.
Qawaid (قواعد) is the plural from this singular word (قاعدة). It also means foundation or root of something, regardless of whether it is something physical or non-physical, this word can be used. For example, this word is used for foundation of the house (e.g in Quran Allah swt used this word for the foundations of the Ka’ba by Ibrahim (pbuh) and Ismail (pbuh)) and it can also be used for the principles of physics or rules of grammar. So you can use the word qawaa'id for both physical and non physical concepts of a foundation.
(Al-Baqarah: 217) And [mention] when Abraham was raising the foundations of the House and [with him] Ishmael, [saying], "Our Lord, accept [this] from us. Indeed You are the Hearing, the Knowing.
Qawaa'id and qanoon are related to each other. Qanoon are meant for man made or secular laws, and Shariah is used for laws from Allah (swt).
Meaning of the al Fiqhiyaah
Al Qawaa'id al fiqhiyaah means qawaa'id related to fiqh. That is our concern in this class, those qawaa'id related to fiqh.
This word is a compound word. Fiqh originally meant understanding, which is a lexical meaning, that is not what we mean over here. So what do we mean by fiqhi maxims, since we understand qawaa'id to mean maxims.
The field of fiqh deals with the practical (Amaliya) laws of shariah that are derived from their particular evidence. Practical means amaliya. All of the values of actions are considered, you can take any action and categorize it as halaal, haraam, mustahab, etc. Here we are interested in detailed specific laws, and this is the meaning of fiqh. So we remove aqeedah and usool al fiqh from our discussion in this class.
Meaning of the compound word Al Qawaa'id al Fiqhiyaah
The compound word could mean something different as we saw in the maqaasid al shariah. So we have defined qawaa'id and fiqh, now we will try to understand the compound word. Earlier scholars did not precisely define this compound word, because they understood it how it was used but just as usual after a usage for some time there comes a generation of scholars who start to ask the definition of the term.
One of the best definitions is by Ibn Al-Subki (d 771 H). He defined Al-Qawaid is a universal principle which applies to many particulars from which the rulings can be understood.
Another way to say it is: It is a principle which applies to all cases under it’s scope.
Many scholars do not like this last definition, since there are always exceptions to the case. So a better definition is that principle which applies to many cases with possibility of few exceptions.
The burden of proof is upon the one who says why this is an exception. However scholars agree to the idea that there can be exceptions.
Imam Al Hamawi commenting on ibn Al Subki’s principle to say that it was a majority not to all cases (حكم أكثري و ليس كلّي).
Example of a Qawaa'id
One of the famous qa’edah is that there is going to be no inflicting of harm and you have no right to reciprocate harm. It means that you cannot harm somebody and you cannot reciprocate harm if it is done to you. This is derived from the hadith of the prophet (ﷺ). So here the qa’edah already existed and then we derived it based on this hadith and started to see all the cases where it applied.
Al izz ibn Abdi Salaam wrote a book and he said that overall goal of the shariah is to derive benefit and not cause any harm, and he said that it is closer to maqaasid al shariah.
Some of the contemporary scholars wanted to identify something even more specific about the Qawa’id is that they are easy to remember. In English, a “Maxim” is a short saying which is easy to remember and easy to quote.
Mustafa Al Zarqa defined it as: those juristic principles which fall under a precise and concise legal language that touch upon or guide to the rulings for everything that falls under them.
Important attributes of the various definitions of Al Qawaa'id al Fiqhiyaah
Almost everybody who’s written on the topic has defined it since everybody has a slightly different perspective. Shaikh has collected almost 20 different definitions, they are basically tweaking the previous definitions and making small changes to it.
But what you get from all of the definitions is the following:
A principle or maxim that applies to many many cases, sometimes without exception
It is meant to be concise
It gives guidance directly to its conclusion
It is rooted in the texts of the Shari’ah
It will assist in being applied to new events that fall under the scope
They are not the laws themselves, but they are guiding principles relating to the laws.
How is a legal maxim applied?
For example, la darra wa la daraar we know that there is a fiqhi principle and we know that harm is to be removed.
Now if someone builds a house that towers over his neighbour and allows him to see into his affairs. This principle doesn’t tell us that this building is haram, but it does tell us that in this particular case, this action is not acceptable within the Shari’ah. So it is the principle behind the judgement concerning this case.
Distinguishing Qawaa'id from other closely related topics
Shaikh will enumerate them and then define them and discuss their relationship to qawaa'id al fiqhiyaah
Compared with Al-Dawabit al Fiqhiyyah (الضوابط الفقهيّة)
The idea of qawa’id al fiqhiyyah is that it spans different types of fiqh, e.g. in Salaat and Business and Jihad -- the same principle goes across many many different topics.
Dawabit is a principle like qawaa'id, but it is restricted to one particular field for example in case of taharah.
If you have a principle related to tahaarah, such as the famous statement of Imam Malik, if something does not make your clothing impure then it will not make the water impure. This is a Dabita Fiqhiyya (the singular). This is not a qawaa'id al fiqhiyaah since it is relegated just to wudu and hence you cannot apply to hudood or some other field.
Example: Imam Ahmad said if something is permissible for you to sell then it is permissible for you to give it as a gift.
Compare this with the principle of harm -- it applies to extending the prayer for too long, building overshadowing houses etc.
However, most actual collections of qawa’id also usually include dawabit. For example, Ibn Rajab’s 4-volume work of al qawaaid includes dawaabit.
Classroom discussion about the legal maxim of causing no harm. Shaikh explained that if somebody caused you harm, it does not mean that you have the right to go and destroy his property.
Compared with Al-Qawaa’id Al-Usooliyyah
Those principles relate to usool. Definition: to be given next week.
We discussed the definition of the compound word al qawwaaid al fiqhiyyah which revolves around five points, it is a legal maxim that applies to many cases, sometimes even without an exception, it is meant to be concise, it can guide directly to a go a conclusion or a ruling, it is rooted in the text of the shariah, and it will assist to apply to new events that fall into its scope.
An example of a qaeedah fiqhiyaah
The prophet (ﷺ) said that there is no inflicting of harm nor reciprocating of harm.
رسول الله صلى الله عليه وسلم قال : لا ضرر ولا ضرار
This hadith is a very concise statement and it could itself be held as a qaeedah. But a qaeedah that can be derived from it is that harm (daraar) is to be removed.
عن أبي سـعـيـد سعـد بن مالك بن سنان الخدري رضي الله عنه ، أن رسول الله صلى الله عليه وسلم قال : ( لا ضرر ولا ضرار ). حديث حسن ، رواه ابن ماجه [راجع رق : 2341 ] والدارقطني [ رقم : 4/ 228] وغيرهـما مسندا. ورواه مالك [ 2 / 746 ] في (الموطأ) عـن عـمرو بن يحي عـن ابيه عـن النبي صلي الله عـليه وسلم مرسلا ، فـأسـقـط أبا سعـيد ، وله طرق يقوي بعـضها بعـضـًُا .
On the authority of Abu Sa’eed al-Khudree (may Allah be pleased with him), that the Messenger of Allah (peace and blessings of Allah be upon him) said: There should be neither harming (darar) nor reciprocating harm (dirar). A hasan hadeeth related by Ibn Majah, ad-Daraqutnee and others as a musnad hadeeth. It was also related by Malik in al-Muwatta in mursal form from Amr bin Yahya, from his father from the Prophet (ﷺ peace and blessings of Allah be upon him), but leaving Abu Sa’eed from the chain. And it has other chains of narrations that strengthen one another.
Harm or Daraaar could be financial harm, or it could harm or dispute between husband and wife, so harm could be for any situation.
So is there an exception to this principle?
Yes the person being punished for a crime, could try to invoke this principle. So we have to define exceptions in the case of causing of harm when it is necessary.
We can define new applications for situations where not doing something could case harm or doing something could case harm or daraar.
So this is a good example of a legal maxim or qaeedah al fiqhiyaah.
The details of the qaeedah and its derivatives will be discussed later. Daraar has to be defined by shariah and not by the individual’s likes or tastes. In the next quarter we will discuss the five main qaeedahs.
What is the difference between qaaedah al fiqhiyaah and dhabit?
It goes back to the five points that we discussed. A dhabit fiqhiee is for one particular area or topic. An example that we gave from Imam Ahmad, everything is that is permissible to sell is also permissible to be given.
When we define these terms, we can see the difference between the two. In the books that discuss these definitions, and also in lectures on these topics, they are not consistent in these differences. There is a close relationship between a qaeedah and a dhabit (Qaeedah covers many topics and Dhabit does not).
One contemporary scholar mentioned that there are many tangential topics discussed that are not necessarily germane to the topic being discussed, he says that sometimes they cannot be considered to be a legal maxim unless you perform some kind of taweel.
We will discuss later how the legal maxims are derived from the shariah. THere is no doubt that they are rooted in the shariah.
What is the difference between al qawaa'id al faqhiyaah and al qawaa'id al usooliyaah?
We can refer to the two topics as fiqhi qawaa'id and usooli qawaa'id. Fiqh is the study of the value or the judgement of the specific actions based on their particular evidences from Quran and Sunnah (together called Nusoos (texts)), such as which business transactions are allowed or not, what makes salah invalid, what are conditions for salah, etc.
Footnote in response to a question from a student:
Actions of the heart do not fall into fiqhi category, they can be difficult to do so, akhlaq is also not a fiqhi topic. On topics other than fiqh, there has been a void in Ahlusunnah literature, and as a result this is the reason why the Sufis were able to capture this topic for themselves and our scholars focused more on the fiqhi and other topics. Actions of the heart and akhlaq are part of the Shariah or Deen, but it is very difficult to the quantify the actions of the heart and akhlaq.
Continuation of the footnote:
In shariah everything has a judgement about it, you could have a moral or legal bearing, out scholars focused historically more on the legal bearing, since people ask more about what am I supposed to do, rather than how I should behave or feel. In Islam we need to give equal importance to our intention, but for whatever reason, there was a drift, and akhlaq and moral issues were left adrift.
Usooli qawaa'id is related to the usool. Usool can be defined as Islamic legal theory. It states what are the sources of law and the methodology for getting the conclusions of the law. Its topic matter is not fiqh, it deals with what is an acceptable source, such as Quran, sunnah, qiyaas. and it also deals with the methodology and conclusions of the law.
Quran is in the Arabic language, it itself has many rules, for example an imperative statement has a specific meaning, what is the implication of a command or an imperative statement. The implication of a command is an obligation. When Allah swt says akeemus salah, the implication of that statement is that salah is obligatory.
“An imperative implies obligation.”
Is this a precise statement? Is this a broad principle? Does it apply to many cases? So this statement is a qaeedah or a legal maxim that is related to deriving law, not to the application of the law. This is an example of qaeedah usooliyyah,
Some of the scholars did not differentiate between Qawaaid Usooliyah and Qawaid Fiqhiyyah. IN general there are no exceptions to qawaa'id usooliyyah, since a lot of Qawaid Usuliyaah and based on the rules of the language.
Footnote: In response to a question Sh. Jamaal said that one cannot say that Qawaid Usuliya are deductive and Qawaid Fiqhiyaah is inductive.
If we can say that every hadith ahad is qataee and not dhanni, then there should be not any exception to this then in Qawaid Usuliyah, (BTW: Shaykh does not agree that hadith ahad is dhanni but he is just agreeing for the sake of an argument with a student). However, Qawaid Fiqhyyah we can have exceptions.
The main point is that usooli qawaa'id should not have exceptions, and that fiqhii qawaa'id might have exceptions or that is how we approach the qawaa'id from these two different areas. Harm is to be removed, is a fiqhi qaeedah and is not an usooli qaeedah.
Both types of qawaa'id are to be used in order to understand fiqh. For someone to be a mujtahid,he has to know with both types of Qawaid. Qawaid Fiqhiyyah helps him in reaching a conclusion to a certain problem at hand, however the Qawaid Fiqhiyaah will help him to understand the bigger picture?? of the problem at hand.
Who is faqih or someone who knows fiqh?
Historically, the faqih is the one who knows fiqh, he knows for example that there are twelve arqaans for the salah, and he might know the evidences from the Quran and Sunnah for those arqaan. But does he know why?
A practical application from the texts of the Quran and Sunnah is known as fiqh. And we hope that there is a methodology that allows us to do so, and this methodology is known as usool al fiqh.
If someone knows the rules of fiqh, we call him faqih. So does he have to know usool al fiqh in order to understanding the rules of fiqh?
It is possible for someone to not know usool al fiqh and he knows how to pray. We would hope that when we have to apply to new cases, that the person knows usool al fiqh. In historically, there were many people who knew fiqh but did not know usool al fiqh. We hope that a mujtaheed, the one who hase to apply rulings to new cases, they knew usool al fiqh. You could see it in the case of ibn Taymiyyah and others they know usool al fiqh. (I think, we shoudl get a final picture of teh board......? Shaykh added too much to what we have here).
Where does the qawaa'id al fiqhiyyah fit into usool al fiqh????? is this the question being asked????
You could say that qawaa'id al fiqhiyyah are after the fact (after methodology of usool al fiqh and after the practical applications derived from the quran and sunnah). Shaikh mentioned that he is using his words very carefully here.
Below is a diagram is just simplification of the above pictures of the board.
1) In the diagram the texts of the Quran and Sunnah are called the Detailed Evidences.
2) Detailed Rulings
3) Methodology of getting from 1 and 2 above.
4) Al-Qawaaid al Fiqhiyyah.
5) Maqasid al Shairah
Qawaa'id al fiqhiyyah is after the fact, but once it is appreciated then in conjunction with the methodology of how to apply rulings to new cases and the qawaa'id al fiqhiyyah become a tool for usool al fiqh.
Maqaasid al shariah are the higher objectives of shariah, where does qawaa'id al fiqhiyyah fit?
Definitely qawaa'id al fiqhiyyah are going to benefit from understanding the maqaasid al shariah. It is beneficial in new situations, you could also have another branch, since maqaasid is considering a fiqh as a given. One thing is for sure that if you have a deeper understanding of fiqh, usool al fiqh, maqaasid al shariah, then it will help you to understand the qawaa'id al fiqhiyyah.
Majmu al Fiqh or Fiqh Councils
One of the most important councils is OIC, the organization of Islamic Council, it is the largest world organization after the United Nations.
When you read their rulings such as that on organ transplants. There are many different types of transplants such as organ donations from a living person, a deceased person, organs from the same individual (skin grafts) etc. You could have organs donated from the deceased. Is there something wrong here?
There is a hadith that says that breaking the bones of a dead person is the same as breaking the bones of a living person.
You have to discuss the hadith to understand is there a definite ruling that you can derive from it, is this a general ruling or a specific ruling, etc.
You have to consider other evidences such as the life of the person being saved by receiving the donation of the organ, etc.
Some scholars say that it is okay to take organs from a live individual, some say it is okay to take organs from a dead person, some say it is okay to take organs from a dead person who is not a Muslim, etc.
When you see how the scholars discuss the above topic of organ donation, you could see how they consider the five points listed above when deriving the rulings for new cases.
You can have the same qaeedah which is usooli qaeedah or a fiqhi qaeedah and the way you discuss it could have different rulings derived from it whether you consider the legal maxim to be usooli or fiqhi. We will discuss it next time.
We have been discussing the differences between qawaa'id al usooliyah and qawaa'id al fiqhiyaah. We discussed relationships between the various topics.
Differences between qawaa'id al usooliyah and qawaa'id al fiqhiyaah
Qawaid al Fiqhiya is a legal maxim that covers many topics in Fiqh and allows us to understand the interconnection between different fiqh topics.
Qawaid al Usuliya is a principle or maxim which is related to identifying a rule and also tells us on how to derive a rule.
One more difference between them is that one cannot get a fiqh conclusion from Qawaa’id Usuliya however the Qaida Fiqhiya allows us to reach the conclusion directly. An Usuli Qaida has to deal with the methodology of identifying the texts.
For example, the imperative implies obligation is a usooli qaida that does not give us any fiqh conclusion. You will need a text such as “establish the prayer” to derive a fiqh conclusion from an imperative statement of the quran.
For the Fiqhy Qaida, such as “harm is to be removed” can one directly go to the fiqh conclusion from this fiqh qaeeda? You still need an intermediate statement or case, however in reality once the case is there one can go directly from principle to conclusion.
Fiqh needs (Adilla Tafseeliyah) specific evidence and without it you will not be able to derive a conclusion. Even in the fiqh qaeeda such as “harm needs to be removed”, you still need a specific case to derive a conclusion. You have to analyze the case and identify that there is really harm in the case.
You can say that a child does not have to pray, but the legal maxim to establish the prayer still applies.
Other examples of imperative implies obligation, apply to the following statements from the quran, hajj, zakaat, etc.
Another difference between the two is that therre sources are different. For example, Arabic language, Urf (custom), etc. Usooli Qawaid are based on Arabic, Aqeedah, and the texts of Quran and Sunnah and Fiqhi Qawaid are involved based on consistencies of fiqh opinions mostly (but as we will discuss later that they can be based directly on the text of Quran and Sunnah as well).
Classroom exercises:
Shaikh discussed a five examples and asked us to identify the field to which the legal maxim belongs. Identify whether the following are Dhabit Fiqhyah, Qaida Fiqhiyyah or Qaida Usuliyah.
Maxim #1: Default ruling concerning the opposite is that of prohibition
Ans: This is Ad-Dawaabith - It only applies to a specific case of sexual relations with the opposite sex.
Sometimes if there is any doubt about a matter, whether if the marriage is valid or not, the basic ruling is that you have to stay away from them unless it is proven that you are married to this women.
In the above qaeeda, you are not supposed to approach a woman if you are not sure that you are married to her. During the earlier generations, you would get married without looking at your spouse, so when you approach a woman you cannot do so unless you are certain that you are married to her.
Which category does regarding the prohibition of private parts fall in? It belongs to a specific topic, it is Dhabit Fiqhyah since if there is doubt about such a matter for example regarding marriage if confusion arises then the default is to stay away unless marriage is proven.
Maxim #2. What is permissible due to a specific excuse is voided when the excuse is no longer present.
This is Usooli Qaeedah. Because something can become halal under some ruksha, and once that ruksha is removed that this is no more valid. Because Usool al Fiqh also defines what is to be halal, actions to be defined, what are the default cases, and what are the exemption and what are the condition and limits for this exemption.
For example, not traveling is exemption. Does this mean that "if you travel once in life does this mean that you no need fast after that all", this is where we apply this principle.
The above maxim can also be written as follows: if A => Exception, If A (not valid) => Exception (Not Valid)
There were many questions about this example and a lot of students were confused how this is a usooli qaeedah. Shaikh reminded us about the general topic of usool al fiqh and it deals also with how a certain action becomes halaal or haraam etc.
Consider the following exemption that a travelling person does not have to fast. Does it mean that if you travelled at least once in your lifetime, that you no longer have to fast? Of course not, since the exemption for not fasting is only valid until you are travelling and it is no longer valid after you stop travelling.
Shaikh also promised to show how this usooli qaeedah can be converted into a fiqhi qaaedah. If he finds it in his notes, he will send us an email.
Maxim #3. The greater harm is to be removed by lesser harm
This is Qaeedah Fiqhiyaah, since it defines a specific fiqh conclusion and it is not specific to any one category.
Maxim #4. An Ijtihaad is not negated by an Ijtihaad
This is an example of both Qaaedah Fiqhiyaah and Usooliyaah and it depends on the how you apply.
Suppose a judge makes a decision and the same judge for a same case later comes to different conclusion, thus this ruling should effect earlier ijtihaad. In this case it is Qaeedah Fiqhiyaah.
If you talk about the Usool principle, where Ijtihaad is usool principle, where people are allowed to make ijtihaad and this will not negate the ijtihaad of other person.
If someone makes ijtihad, then that ijtihad is not negated by an ijtihad? Q. U and Q. F (it is both dependent on the usage and implementation. Some Qaedah can be both Usuli and Fiqhi).
Maxim #5. Every permissible act that leads its doer to fall into haram is haram. (Sudd al Darai - blocking the means).
This is an example of Qaeedah al Fiqhiyaah. Since you can derive a fiqh conclusion from this maxim.
If we re-state the maxim as follows: Evidence that establishes something to be haram also establish what leads for that thing to being haram. Then this maxim becomes Qaeedah al Usooliyaah.
Ans: Concept is same but the way how you state it will be deriving if this is QF or QU.
Q.U
(note on the sensitivity of the above two examples, rephrasing is needed to make it Q. F or Q. U). The end result in both is Sudd al Darai (blocking the means).
QF: If permissible act A -----> Haram and thus any thing lead to A is also Haram. This is the question of application.
QU: Evidence ------> A being Haram, B, C -----> A is also Haram. If we have evidence A is Haram, B and C will lead to A, thus B and C is also Haram.
Terminology
We will discuss a few more terms related to the subject of legal maxims.
Al Ashbahu wal Nadhair (things which are similar):
The words Mithal (similar), Shibhu (equivalent), Nadheer (similar, proximate) are used to signify that something is very similar to something else.
A number of books have been written on this topic, by the following authors: ibn Al Subki, Ibn Najeem and Suyooti and more. Suyooti has two books with the same name. This literature is very useful for someone who wants to understand fiqh and become a faqih. They discuss cases that are are similar to one another and have similar conclusions. They also discuss two cases that are similar but their rulings are different and they identify why their rulings are different. So these books discuss why cases have similar rulings or the other condition when the cases look similar but have different rulings.
These books don’t just discuss legal maxims, they also discuss where thing are similar looking but are different.
Footnote: Shaikh had once received a catalog of books and he ordered the book asbahu wal nadhair by Suyooti and it was not a discussion about fiqh but it was about the Arabic language, Shaikh was upset first but he really enjoyed reading this book.
Al Furooq (The differences)
Scholars discussed fiqh in great detail, they also discussed when things differ and why. We will discuss examples from this topic next time and see why things differ and why ....
Al Furooq
There are many books on Al Furooq, the most famous one is by Maliki scholar al-Qarafi, titled al-Furooq and it has many things, It has Furooq al Usuliya, Furooq al Fiqhya, it is a five volume book.
The relationship between al Furooq and al Qawaa'id
Al Furooq discusses where things look like that there are similarities between them but in reality are different and why their rulings are to be different. So can you say that al Furooq are opposite of what al Qawaa'id are all about?
With respect to studying al Qawaa'id is there any benefit for studying al Furooq. When we study al Furooq we are identifying key differences between the cases. When we study the hadith of the Prophet ﷺ, we see that he gave different rulings about similar looking cases. Sometimes Prophet (ﷺ) will explain why the differences are there sometimes which makes things clear for scholars.
What would you do if you were outside of Madina and find a strange sheep, it is obvious to you that it is a lost sheep? What would you do if it was a camel?
What if you were to find a purse or wallet?
You would identify it and announce it, and if nobody comes to claim it for one year then it becomes your property or for you to use.
Footnote: Somebody lost a watch, he made a dua that let somebody other than faqih find my watch, and he was asked why, he said that the faqih would find some way to keep my watch. (This was a joke).
Examples of Al Furooq
We will now discuss some examples of Al Furooq to show that the cases might look similar but in fact there are differences and there are different fiqh rulings to be applied to these cases.
Example #1 of Al Furooq - Differences about finding lost camel or lost sheep
Prophet (ﷺ) was asked about a camel. He replied do not touch it, it will find its own food and water. The answer was you do not touch it.
The Prophet ﷺ was also asked about a lost sheep, he replied either it is for you or your brother or the wolf. So there is a difference between a lost camel and a lost sheep. Here we are getting an explanation from Prophet (ﷺ) but there are cases where one does not get clear differences.
Example #2 of Al Furooq - Differences about older and younger men kissing their wives during fasting of month of Ramadan
Prophet (ﷺ) was asked about kissing one’s wife while fasting during the month of Ramadan. Are you allowed to kiss your wife during the fasting of Ramadan?
We have two narrations from the Prophet ﷺ. In one case, the Prophet ﷺ said that there is no harm in doing so. And somebody else asked the prophet ﷺ and he replied him not to do so. The sahabi who narrated the hadith he provided the context, the first person was an old man and the second person was a young man. Why did the prophet ﷺ give two different answers. The older man would be more in control of his desires and the young man might be newly married and he might have found it difficult to control his desires. We see that in this case Prophet (ﷺ) did not explain it but context from narrator gave us the clue to figure it out.
Example #3 of Al Furooq - Differences between the need to purify due infant’s urine
For example, if a new born (who is not eating solid food) if it urinates do we make ghusl or not? Answer is if boy does it then we only sprinkle water but for the girl we make ghusl? Does it apply to father only or mother as well. Even from chemical analysis we know that the urine from boy or a girl is different at that age. It applies both to father and the mother. So in this case no clear difference was given by Prophet (ﷺ). Here Ulema have given rational explanations and in similar situations they look for rational explanations.
Books on al Furooq are meant to explain their differences, sometimes the differences are very clear, while other times the differences are not clear.
Example# 4 of Al Furooq - Differences about spending of wealth of the orphan by the guardian
Witness not required for case use of wealth of an orphan for orphan’s maintenance but witness is required for the case of giving wealth of the orphan to the orphan.
If somebody is a guardian of an orphan, and the orphan has some wealth and let us say that the guardian claims that he gave the wealth to the orphan. He claims that while taking care of the orphan, he had to use the wealth.
If guardian claims that he gave wealth to the orphan then he has to produce witnesses. But if he claims that he used the orphan’s wealth for upbringing of the child, then if he is honest he does not have to produce witnesses. Why are these two cases handled separately by the madhabs?
In case of handing wealth to an orphan is a single event and it is not a hardship for the guardian to bring witnesses but in the other case it is a hardship for every time he has spent money in upbringing of the orphan in his care.
In both cases the guardian is spending the money of the orphan and is explaining why the money of the orphan has been spent. In both cases the guardian is responsible for the wealth, but in handing over of the money to the orphan there is no hardship for him to produce a witness.
Is there any benefit in studying al Furooq in studying the topic of al qawaa'id al fiqhiyyah?
We can understand the differences and have qaeeda that is more generic and fits all of the cases.
Al Furooq al lughawiyyah (الفروق اللغويّة) - Differences due to lexical differences
This is a special category underneath al Furooq. So there are lots of books written with this title and they emphasize the difference between similar words. For example Al Hamd, Al Shukur and Al Sanaa are similar under these circumstances and different under these circumstances.
Books on this topic: many with this title with this title. There is an old book Al Askariy (العسكري) (which is a good book and there is also one from a recent author from Saudi Arabia and Shaykh does not recall his name).
Al Nadhariyya al Fiqhiyyah (النظريّة الفقهيّة): The theory of law of in Islam
Let us discuss an example, the theory of contract law in Islam. This way of categorizing fiqh according to a subject is something new, and the basis was laid down by Egyptian Scholar al-Sunhoori.
A recent scholar Mustafa Zarqa wrote a very important book on Al Qawaid al Fiqhiyyah. In the book he said that there is no difference between Al Nazariyyah al Fiqhiyyah and Al Qawaid al Fiqhiyyah and Shaykh is surprised why he said that, because they are entirely two different topics.
Shaikh even apologized for bringing up this subtopic but for completeness sake or due to some recent events, he had to mention this topic.
History of the Science of Al Qawaid al Fiqhiyyah
The reality of science exists before people write and theorize about it. Similarly for this field, it has concise and deep principles which apply to many different cases.
Was there Qawaid al Fiqhiyyah during the time of Prophet (ﷺ) and the Sahabah?
Are there any hadith on this topic? No. Does that mean that the concept of it wasn’t there.
Was there any time that Usool al Fiqh did not exist? Usool al fiqh was always there, even if it didn’t get labelled as Usool al Fiqh (example: banu Qurayzah)
Did uloom al hadith exist during the time of the Prophet (ﷺ)? Yes it did since the principles were being applied.
Did qawaa'id al fiqhiyyah exist during the time of the Prophet (ﷺ)? In general during the time of the sahaba there was need for more ijtihaad than during the time of the Prophet ﷺ, so we can say that during the time of the sahabah and the tabieen we should be able to find evidences. We know that it existed during the time of the Prophet ﷺ and the sahaba and we will present evidences for it. During the time of the four imaams??? the topic get more developed????
After fiqh becomes developed, then qawaa'id al fiqhiyyah becomes an independent science, since they start writing about it, what are the qawaa'id, what are the cases, what are the rulings etc.
Preliminary stages of the development of al Qawaa'id al Fiqhiyyah
We will discuss it starting with the time of the Prophet ﷺ.
How many times are familiar with the topic al Ijaaz (الإيجاز)?
It is one of the miraculous aspects of the Quran. When the Arabic language specialists discuss the miracles, they are discussing the Arabic language. No one can produce something similar to the Quran with respect to its eloquence, its balaghah. They are talking about al Ijaaz, which is using very few words or any unnecessary words to describe a topic.
The opposite of al Ijaaz is al Al-Itnaab (الإطناب). Sometimes you find many more words to describe or convey something in the Quran, all of those words have a purpose.
Al Ijaaz and al balaghah are the miraculous aspects of the Quran.
The Prophet ﷺ said that I have been given superiority over the other prophets in six ways, the first is jawaamall qalam which is being precise.
رقم الحديث: 239
(حديث مرفوع) قَالَ السَّرَّاجُ : وَثَنَا أَحْمَدُ بْنُ سَعِيدٍ ، ثَنَا سَهْلُ بْنُ بَكَّارٍ ، ثَنَا أَبُو عَوَانَةَ ، عَنْ عُمَرَ بْنِ أَبِي سَلَمَةَ ، عَنْ أَبِيهِ ، عَنْ أَبِي هُرَيْرَةَ ، قَالَ : قَالَ رَسُولُ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ : " فُضِّلْتُ عَلَى النَّبِيِّينَ بِسِتٍّ : أُوتِيتُ جَوَامِعَ الْكَلِمِ ، وَنُصِرْتُ بِالرُّعْبِ ، وَبَيْنَا أَنَا نَائِمٌ أُتِيتُ بِمَفَاتِيحِ خَزَائِنِ الأَرْضِ فَجُعِلَتْ فِي يَدِي ، وَأُرْسِلْتُ إِلَى النَّاسِ كَافَّةً ، وَأُحِلَّتْ لِيَ الْغَنَائِمَ ، وَخُتِمَ بِيَ النَّبِيُّونَ " .
Everyone agrees that Quran is jawaamal qalm, when prophet ﷺ uses the word does he mean just the Quran? No, we know that his speech is also very precise and it is not just referring to the precise speech of the Quran.
But the Qur’an also includes such as Surah al Anam verse 164 which discusses that “no bearer of burdens will bear the burden of another”, what do these words mean, are they general for this life or just for the hereafter?
Sahih International
Say, "Is it other than Allah I should desire as a lord while He is the Lord of all things? And every soul earns not [blame] except against itself, and no bearer of burdens will bear the burden of another. Then to your Lord is your return, and He will inform you concerning that over which you used to differ."
Is that just talking about the hereafter?
It has applications that go beyond what is mentioned in the verse, it can also be used to say that one person cannot be held responsible for the actions of another person in this life.
وَالْوَالِدَاتُ يُرْضِعْنَ أَوْلَادَهُنَّ حَوْلَيْنِ كَامِلَيْنِ ۖ لِمَنْ أَرَادَ أَن يُتِمَّ الرَّضَاعَةَ ۚ وَعَلَى الْمَوْلُودِ لَهُ رِزْقُهُنَّ وَكِسْوَتُهُنَّ بِالْمَعْرُوفِ ۚ لَا تُكَلَّفُ نَفْسٌ إِلَّا وُسْعَهَا ۚ لَا تُضَارَّ وَالِدَةٌ بِوَلَدِهَا وَلَا مَوْلُودٌ لَّهُ بِوَلَدِهِ ۚ وَعَلَى الْوَارِثِ مِثْلُ ذَٰلِكَ ۗ فَإِنْ أَرَادَا فِصَالًا عَن تَرَاضٍ مِّنْهُمَا وَتَشَاوُرٍ فَلَا جُنَاحَ عَلَيْهِمَا ۗ وَإِنْ أَرَدتُّمْ أَن تَسْتَرْضِعُوا أَوْلَادَكُمْ فَلَا جُنَاحَ عَلَيْكُمْ إِذَا سَلَّمْتُم مَّا آتَيْتُم بِالْمَعْرُوفِ ۗ وَاتَّقُوا اللَّهَ وَاعْلَمُوا أَنَّ اللَّهَ بِمَا تَعْمَلُونَ بَصِير
Sahih International
Mothers may breastfeed their children two complete years for whoever wishes to complete the nursing [period]. Upon the father is the mothers' provision and their clothing according to what is acceptable. No person is charged with more than his capacity. No mother should be harmed through her child, and no father through his child. And upon the [father's] heir is [a duty] like that [of the father]. And if they both desire weaning through mutual consent from both of them and consultation, there is no blame upon either of them. And if you wish to have your children nursed by a substitute, there is no blame upon you as long as you give payment according to what is acceptable. And fear Allah and know that Allah is Seeing of what you do.
Can this verse be used to define a qaeedah al fiqhiyyah?
In general the idea is very clear, that a person is no responsible for the actions of another person.
These two verses are examples of ijaaz, where the words are very precise but have very packed meanings.
Similarly the hadith of the Prophet ﷺ, every action is to be judged by their intentions, is an example of al Ijaaz.
Hadith: There is no causing of harm and there is no reciprocating of harm.
عن أبي سعيد سعد بن سنان الخدري رضي الله عنه : أن رسول الله صلى الله عليه وسلم قال : ( لا ضرر ولا ضرار ) ، حديث حسن رواه ابن ماجة والدارقطني وغيرهما مسندا ، ورواه مالك.
These are just five words in Arabic but have very powerful meaning.
Ibn Taymiyyah presents other examples of al Ijaaz.
ما أسكر كثيره فقليله حرام
Hadith: If a large amount of something intoxicates then a small amount of it is haraam.
Ibn Taymiyyah says that the way Prophet ﷺ describes it is an example of al Ijaaz, because he does not describe the way in which the substance causes intoxication.
So from the above examples of the Quran and Sunnah, we know that there were many examples of very precise or few words that could be used to apply to many cases. And that this understanding was present during the time of the Prophet ﷺ, all of them were aware of this nature of al Ijaaz.
They were aware that there were no extraneous words in the Quran and they knew that there was a need for each word. For example ka mithli hi, some say ka is extraneous, some say that mitlihi is extraneous, but there have been tafseer that shows clearly that these words have a purpose. Another example is Nahnu in the ayah 15:9. It is not needed but it is there and is serving a special purpose of stress.
إِنَّا نَحْنُ نَزَّلْنَا الذِّكْرَ وَإِنَّا لَهُ لَحَافِظُونَ
Sahih International
Indeed, it is We who sent down the Qur'an and indeed, We will be its guardian.
Next time we will see examples of recognizing that principles that span many topics from the time of the sahabah. During the time of the sahabah, they did not discuss the principle of dhaabit. So when we discuss the examples, we will try to identify whether some principles are for a specific topic or are general across all topics.
[Footnote: Last week we discussed itnaab -- this is a more detailed discussion
Example: the angels -- Allah says “and they believe in it” -- it’s clear the angels believe.
Another example: Wayl for the Mushrikeen -- those who do not give zakaat. Clearly Mushrikeen don’t need to give zakaat. But this is to emphasize it as an alternative.
Another type of itnaab are words of emphasis or extraneous words.
Example: Inna Ilaykum mursaloon. The inna is not required.
Example: Inna nahnu nazzalna althikr -- this is more than the minimum required to convey the meaning. But when you see it there’s a sign. ]
We were discussing concepts of Eijaz and Itnaab. When we go to the time of Sahabah, then we see that general principles are visible being used across a number of topics. So it should not be surprising if we find statements of Sahabah which are legal maxims. The books (classical) fail to distinguish between the Qawaid Fiqhiyyah and Qawaid Usuliyah that the reader needs to be very careful about.
We find a number of statements from the time of Umar b. Khattab (ra). For example: “There is no pardoning when it comes to hudood when it reaches the imaam/ruler”. He also said: “Rights are given up when so stipulated.” For example, if you put some conditions in a contract, and as a result you give up certain rights. مقاطع الحقوق عند الشروط . This is considered a qa’edah fiqhiyyah because contracts is a very broad area.
There are other examples from Sahabah (including Umar (ra)) which have legal maxims and this trend goes into the time of Tabieen and taba-Tabieen.
Among Tabieen Qadi Shurah said; “There can be no judgement against someone who is absent.” لا يقضي على غائب
He also said that whoever puts a condition on himself voluntarily then we apply that condition to him. Also if “someone puts his money at risk then he is entitled to its profits.” Ali (ra) and Qadi Shuraih said something similar: “Putting money at risk or earning a wage should not go together.” There is also a hadith with similar meaning but it’s authenticity is not agreed upon.
Ibrahim Al-Nakhaee said that “every loan that carries with it some benefit is riba.” This is another example of a thabita fiqhiyya.
As an explanation of this qa’edah, if you loan somebody an amount and then expect him to give you a ride to work as a condition, then you are expecting a benefit from loaning that amount, so this become riba. Similarly, when a bank would give you a toaster to open a checking account, then it is an interest according to the US law, the bank has to report it as interest.
Ibn ‘Abbas said that “everything in the Qur’an that Allah says أو then that is a choice, but where it says فإن لم تجدوا then it is in priority order.” This is an example of qa’edah Usuliyyah.
During the time of the four imams and their students, the number of these statements grows exponentially.
There are lots of such Qawaid found in the Hanafi Madhab. Abu Yusuf (the primary student of Imam Abu Hanifah) wrote a book called Kitaab Al-Khiraaj. He was eventually made the chief judge for the Khilafah. He wrote a book for Harun Al-Rasheed to help guide him through government and dealing with non-Muslims. So it is full of qawa’id.
One example of a qa’idah you can find in the book is the following: (Footnote: In Islam there are two types of punishments, Hadd and Ta’zeer. Hadd is well defined punishment in Quran or Sunnah) Ta’zeer is where the judgment of punishment is left to the discretion of the imam).
The qa’idah is: “Ta’zeer is left to the discretion of the Imaam according to the seriousness of the crime.” This is an example of thaabit since it applies only to hudood.
Another of his statements is: Any Muslim who dies and he does not have an heir, then his wealth goes to the treasury of the state. This is an example of a thaabitah fiqhiyyah.
Another of his statements is: A ruler does not have the right to remove property of anyone except by well established rights. This is an example of a qa’idah fiqhiyyah.
Another of his statements is: No one can do anything to somebody else’s property except with their permission, the owner can do whatever he wants to do with his property. This is an example of thaabitah fiqhiyyah.
Muhammad Hassan Al-Shaibani was the other student of Imam Abu Hanifah.
Statement of Al Shaibani: “Anything for which it is makrooh to eat it or benefit from, then it is also makrooh to buy or sell it. And anything that it is permissible to eat, it is permissible to sell it.” This is clearly a thaabitah fiqhiyyah.
Imam al Shafi in Kitaab ul Umm (this is a much larger work on Fiqh compared to Al Risala which is book on Usul al Fiqh):
Statement from Kitaab ul Umm: “If people are excused of a greater matter then they are also excused from a lesser matter that is part of it.”
As an explanation, he mentioned that if you as a result of kufr (since you are not Muslim) then you have to separate from your wife then that is also excused.
This maxim can be applied to many cases, so it is not a thaabitah.
Statement from Kitaab ul Umm: Rukhas or licenses are limited to the particular context for which it was given. An example he gave, wiping over the socks does not give us permission to wipe over the turban, because the exemption is for a specific case.
So exemptions can be related to many different types of actions, wudu, fasting, prayer etc. So this is definitely not a thaabitah. So this is qaedah usooliyyah.
Statement from Kitaab ul Umm: You cannot attribute a statement to anyone who was silent.
If the matter becomes very restrictive then it should be released. For example, If it becomes difficult for you to pray standing then you should pray sitting.
This is one of the major or comprehensive qaadah al fiqhiyyah.
Statements of Imam Ahmad are discussed in a two volume dissertation. This process of giving succinct principles and rules continued after the time of the Prophet. There is a book on the commentary on sunan abi dawood written in 388 Hijri written by .... and you can find 60 qawaa'id in this book.
Qawaa'id was not an independent field and it did not start until the entrenchments of the madhabs. People started to make taqleed. And then this field came to the attention of the scholars who wrote books on this topic. Why did this field become independent after the entrenchments of the madhabs?
There is a difference on being a mujtahid and being part of the madhab, because your field is no longer limited to the Quran and Sunnah, you are required to study the fiqh of the madhab. They are no longer doing ijtihaad, they are concerned about understanding the fiqh of their madhab and how to apply it. As a scholar of a madhab, you have access to the body of literature of your madhab and that is the reason why this field grew after the entrenchments of the madhab. And it arose specially from the Hanafi madhab, why?
If you are familiar with how Hanafis derive their fiqh you should be aware that Hanafi madhab did not have the principles of deriving fiqh, they basically had statements of Imam Abu Hanifa for various cases.
In Usul al Fiqh historically two approaches are found: Fuqaha (Hanafi) and Mutakalimoon (other three schools). The Mutkalimoon were very theoretical in their basic approach. In Hanafi they started with the statements of Abu Hanfia, Shaibani, and Abu Yusuf and then based on their statements they went back to the Quran and Sunnah. So they started from Hanafi Fiqh and then went back to Quran and Sunnah rather than starting from Quran and Sunnah and then derive fiqh from there. So their Usul al Fiqh is by product of their fiqh.
The discussion of the emailed handout
The Preliminary Era
Book by Abu Tahir al-Dabbaas has seventeen qawaa'id. It is both usooliyyah and fiqhiyyah based on the .... of Abu Hanifa.
Then there is the book Al-Karhi -- 37 Qawaid -- some are usooli and some are fiqhi.
Al-Khushani put out a book called Usool Al-Futya, but he was a Maalki.
The Hanafis did the early works, but then you don’t see much until the work of Ibn Nujaim. The period of taqleed did show lots of decay (e.g. questions of marriage between different madhabs). During this period of stagnation, they developed the field of Al-Alghaaz. These are questions for which the answers -- kind of like fiqh puzzles. And another field called Al-Mutaharaat. Another area was ma’rifat al-afraad. Some madhabs are more muta’assib than others. Al-hiyal or legal stratagems or loopholes.
When the authors write the qa’edah as a question then you know that it is disputed.
[I thought that since we aren’t talking about each of these but ok go ahead]
Seventh Century Contributions
The “Golden Era” (All Published and major references today)
Two secrets to learning about Islam:
You have to learn the reading of the Arabic Language and do not wait for translation, all of these qawa’id documents are in Arabic and haven’t been translated.
The only way that you can increase your intake of knowledge is to learn to read fast with comprehension. If you read an hour a day. If you double your speed of reading, there’s now 25 hours a day. It’s the one thing you can really change.
Shaikh is now highlighting some books.
In Ibn Rajab’s book the qaaedah are arranged completely randomly
Al-Zarkashi in AAl-manthoor fi al qawaid is in alphabetical order -- but you have to know what is the qaedah is ahead of time.
There are some later developments. Then we will get into the different ways of looking at the Qawa’id.
We discussed the works of the various scholars who list various qawaa'id, did they come up with it? At sometime, somebody had to discover the qaeedah, but in general they are collecting them from the books of fiqh. They are enumerated in the books of fiqh, the scholars who compile these books of fiqh would make this qawaa'id. Scholars went to their books of their madhab and find and collate the qawaa'id. So they are not the sources of the qawaa'id but they are putting these qawaa'id and making a collection of those qawaa'id. In general they are collecting the qawaa'id.
The vast majority of the books of qawaa'id are along the lines of madhab. Over time the qaeedah becomes more refined. For example in Umm al .
This statement of his was refined and repeated more and more until it became a Qaedah: “Action of the imam must be in fulfilling the benefit of the (….....) one imam is repsonsible for”. Then over time these become something which people invoke regularly. Some Qawaid had to be polished over time since they were not well understood the first time. One qa’edah used to say: “we cannot reject the idea of changing the ruling due to change of time and circumstances”. So as the qaedah stands, something is missing.
This has been altered and changed to mean “there is no objection to a ruling that has been built upon maslahah or urf (public benefit or custom) to change over time.” Unfortunately, now people use this qa’edah to justify deviations even from the Qur’an and Sunnah. So the second statement captures better the meaning of qaedah so it cannot be abused or misused.
After the 7th century, there was a low in the Usul al Fiqh. Hanafi’s were active in the beginning and then they were active in the later period. Ibn Nujaim’s work brought back the Hanafi fiqh into activity.
The next biggest step took place in the Ottoman Empire there was a majallah published -- مجلّة الأحكام العدليّة
.
One of the major reason for Majjala was the defeat of Ottomans at the hands of the Russians. So lots of Muslims went under the authority of the Russians. The Russia was basically a country of the West and the law books were not statued. So they requested a law book for the Muslims that they can use to settle problems of the Muslims. This started a movement in the Ottomans which started the statutory laws based on the Hanafi school.
One of the Majma’ al-fiqhi was devoted to taqneen al-sharee’ah تقنين الشريعة-- codifying the law in a Western style. This is a controversial topic -- some have rejected it since it enforces a particular interpretation of Islam; others say there is no harm. They reject the first view because effectively this was what happened -- the madhab of the chief Qadi.
Qadi’s in Islamic law have much more freedom in Islamic law. There’s not the same notion as there is in English Common law of precedent.
In the beginning of the Mecelle, they laid down 99 qawaid fiqhiyyah. This work was finished 1882CE. This remained the law of the lands until the Ottoman areas until the time of Attaturk. This was translated from Turkish to English.
Sh sent the index of the book and the 99 qawaa'id mentioned in the majalla.
There have been many commentaries of the majalla. In the translation you will see the translator saying compare and then he will give you some Latin The idea of a legal maxim is not something unique to Islam, every legal system has a legal maxim. In Western law there is a legal maxim that comes from Latin. Unfortunately it is published in Latin and the translation of Latin to English is not presented.
Footnote: There is a humorous newsletter article published by Legal Eagle that makes fun of the translations of the Latin legal maxims. http://www.lawsociety.com.au/idc/groups/public/documents/internetcontent/573328.pdf
There are literally thousands and thousands of legal issues, so every legal system has developed a system of legal maxims in order to guide us
An example of Western Legal Maxim is “That which is necessary is legal”. Does this sound familiar to us?
The work of ulema during the time of the ottomans did not restrict themselves to the Hanafi madhab. Those are the most important qawaa'id that you can study and learn. The translation is very old and the english is not the best.
For example, “With doubt, the certitude does not fade”. This is not how we speak English anymore.
There is an Arabic translation and commentary by Ali Hyder which is very good.
The next major work is Mawsuat Al-Qawaed Al-Fiqhiyyah (موسوعة القواعد الفقهيّة) -- Muhammad Siddiq Al-Burnoo. Has a total of 4,192 different qa’idahs.
Sh sent a handout from this book as well.
An example qaeedah from the book: If somebody is able to attain certainty then it is not removed by doubt.
If you see a question mark next to the qaeedah then it means that the qaedah is not agreed upon by the Ulema.... Then he discusses where he got the qaeeda from, the third section discusses applications of this qaeeda. This is a very comprehensive and important collection
Another collection of qawaa'id called Jamharat al .... جمهرة القواعد الفقهيّة في المعاملات الماليّة by Ali Al Nadwi. His thesis was about qawaa'id al fiqhiyyah and it was used by Sh in preparation for this class.
His book mentioned above has qawaa'id related to financial matters.
This book is 3 volumes in 6 sections. These are:
1. Those coming directly from the Prophet (SAWS) -- 8 in number.
2. Greater comprehensive principles -- 7 in number.
3. Qawaid related to wealth -- 28 in number.
4. Qawaid from Mejelle -- 28 in number.
5. Qawaid that touch on some aspect of finance: 2655.
There are lots of Ph.D. dissertation coming these days which are pulling out the Qawaid from e.g. from Ibn Taymiyyah’s work and other scholars.
The other literature coming out is regarding a particular madhab i.e. Qawaid based on a particular madhab.
Another new topic that is arising is books written about some individual principles or qaeedah (e.g. “certainty is not removed by doubt”, and “the original position on things is permissibility”). They present how to apply it, how it is being abused etc.
There is a book on the qaeedah that actions of the ruler ...... what are some of its contemporary ramifications.
We also have a lots of books written on the theory and history of qawaa'id, the categorization of qawaa'id and how to use them. Ali al Nadwi’s PhD thesis that discusses this topic has been published.
There is another book called al wajees .... which is a summary of the theory.
2012-10-07 Class Notes
Some of the Qawaid are just logic. For example one says that if the base is not solid on argument, then the branches do not matter any more. This is Qaeda #50 in the Mujjala. When we study Qawaid, we are going to see that some Qawaid are more important than the others. So the Qawaid have a hierarchy to them (we can deduce this based on our discussions up to this point). If we look at Qawaid then we can divide them into many categories.
I-Qawaid directly based on Quran and Sunnah
A. Wording of the Qaeda is from the text. For example, “Al Kharaju Bil Daman” = The product is for the one legally responsible (this is based on a Hasan hadith in Musnad Ahmad and Abu Daud). There is story (not as strong as the narration itself) in which someone bought a slave and put him to use where later he found that the slave had a defect (it is not mentioned what defect). So the person wanted to return and the party which sold the slave wanted to get some share in the work which he did while he was employed by the buyer. However, the Prophet (pbuh) mentioned a statement that this Qaedah is based upon. So the product is only for the buyer and the not the original owner since the slave was put to risk only by the buyer.
Qaedah #76 in the translated Mujjala - “Burden of proof is on the plaintiff and the taking of an oath is upon the one who denies the allegation”. This is based on hadith of Prophet (pbuh). So if plaintiff has nothing to prove then the case is dropped.
Qaedah #90 in Mujjala لا ضرر و لا ضرار- “There is no harm or reciprocating of harm”
Qaedah #94 - “Offensive and damage done by animal of their own accord are of no account”. This is assuming no ones fault is involved. If owner’s fault is involved then it is a different case.
What about Qur’anic ones?
Let’s look at At Tauba verse 91:
لَّيْسَ عَلَى الضُّعَفَاءِ وَلَا عَلَى الْمَرْضَىٰ وَلَا عَلَى الَّذِينَ لَا يَجِدُونَ مَا يُنفِقُونَ حَرَجٌ إِذَا نَصَحُوا لِلَّهِ وَرَسُولِهِ ۚ مَا عَلَى الْمُحْسِنِينَ مِن سَبِيلٍ ۚ وَاللَّهُ غَفُورٌ رَّحِيمٌ
Sahih International
There is not upon the weak or upon the ill or upon those who do not find anything to spend any discomfort when they are sincere to Allah and His Messenger. There is not upon the doers of good any cause [for blame]. And Allah is Forgiving and Merciful.
Does sabeel here constitute a worldly injunction, or is it a spiritual injunction? This is a disputed issue. Malikis and Shafi’is take it as a legal qaedah in this world. Example: Someone has the job of Jallad (i.e. job of lashing people and cutting the hands) does his job properly but the person dies so is Jallad responsible for the blood money? According to this Qaeda the Jallad in this case is not responsible, since he was just applying the hadd from Islam. According to the Hanafis the Jallad should pay the blood money. This also applies to to medical treatment where are surgeon is not to pay for blood money (unless it medical malpractice).
Similarly, say someone is trying to defend himself but ends up killing the attacker or destroy someone’s property, is the defender responsible? Hypothetical question where one Muslim trying to defend himself hurts the attacker and attacker get’s $100k medical bill. Is the defender responsible for paying this money? Here again Shafi and Maaliki are on one side and Hanafis on the other.
So the Qawaid based on the Quran and Sunnah, some will be definitive, some will not be defenitive and hence open to different interpretation.
B. The Qaeda is from the Quran and Sunnah but not in wording so the wording in this case is derived. It is called Istanbati -- استنباطي (i.e. something that is derived).
So conclusion is directly from Quran and Sunnah. For example, Al Yaqeenu La Yazulu Bil Shak -- اليقين لا يزول بالشك -- (Certainty is not removed by doubt).
There is not text in Quran and Sunnah stating this directly but this is derived from them. For example, during Salat the pain of stomach is not to be considered breaking of Wudu until one hears or smells something.
Another example would be الأمور بمقاسدها -- very similar to “actions are by their intentions.”
How about working backwards from Qaeda and trying to figure out what is the text they are based on? For example, Qaeda “What can be done with ease is not dropped because of what can be done only with hardship” الميسور لا يسقط بالمعسور
Lets say you have a bad knee, and you cannot make Sajda, then you pray all the other part of the Salat normally, and you only do Sajdah in a manner which is easy with injured knee. This is based on hadith: “ What I forbid you stay away from and what I tell you to do then do it to your best ability”
(حديث مرفوع) (حديث موقوف) وَبِهِ ، وَبِهِ ، حَدَّثَنِي اللَّيْثُ ، عَنْ يَزِيدَ بْنِ عَبْدِ اللَّهِ ، عَنِ ابْنِ شِهَابٍ ، عَنْ سَعِيدِ بْنِ الْمُسَيِّبِ ، عَنْأَبِي هُرَيْرَةَ ، قَالَ : سَمِعْتُ رَسُولَ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ يَقُولُ : " مَا نَهَيْتُكُمْ عَنْهُ فَاجْتَنِبُوهُ ، وَمَا أَمَرْتُكُمْ بِهِ فَافْعَلُوا مِنْهُ مَا اسْتَطَعْتُمْ ، فَإِنَّمَا أَهْلَكَ الَّذِينَ مِنْ قَبْلِكُمْ بِكَثْرَةِ مَسَائِلِهِمْ ، وَاخْتِلافِهِمْ عَلَى أَنْبِيَائِهِمْ "
II-Qawaid due to Ijtihaad via Induction from particular rulings (found in the text of the Quran and Sunnah (Al-Istiqraa -- الاستقراء)
You take different rulings found in the Qur’an and Sunnah and from those you come to a conclusion. For example: “hardship begets facility” -- المشقّة تغلب التيسير.
This Qaeda is not a verse in Quran and Sunnah not is their a text which leads to it. But for example it appears in travel extensively. Or the different prayer during jihaad.
Similarly “harm is to be removed” -- الضرر يزال -- there’s no explicit definition
III - Qawaid extracted from the opinions of ulema
A. Qawa’id mention by a leading Imams.
B. Principles extracted from rulings of an imam
In particular you might go to the founder of a madhab to look at their opinions to derive qawa’id. This last category is Ijtihad based and this is going to create the most difference of opinion. Each scholar many times used his Qawaid even without stating them. So this category is going to be heavily madhab based. If it based on Quran and Sunnah the we move them in the above 2 categories even if we find them in Shafi or Maliki book. However, if we find with no evidence from Quran and Sunnah then we put them in category III. Basically if we fail to link them to Quran and Sunnah then we put them in category III assuming that they had some reason to think of this Qaeda based on Quran and Sunnah. This is done provided that this Madhab based Qaeda does not contradict anything known in the Quran and Sunnah.
We were discussing the categories of Qawaid. However, we should remember that all Qawaid are not of the same strength. Many Qawaid are not agreed upon. Some are based entirely on Quran and Sunnah (either in direct wording or indirect wording), some are Istinbaati in relation to Quran and Sunnah (i.e. deduced from Quran and Sunnah) and some are just statements of the Scholars. So today we discuss how well are Qawaid agreed upon by four madhabs.
When you look at the books of Qawaa'id they are written on a madhab basis, so this is reasonable, though there is no fundamental reason to limit one’s self in this way.
Categorization of Qawaa'id
We can divide Qawaa'id into three major categories: Those which are agreed upon and those which are differed upon, and
Category #1: Qawaa'id which are agreed upon
This category is itself broken down into two categories.
Category #1A: Qawaa'id al Kulliya-al-Kubra القواعد الكلّيّة الكبرى
Five major comprehensive Qawaa'id are called القواعد الكلّيّة الكبرى Qawaa'id al Kulliya-al-Kubra. These are qawaa'id virtually spans the entire fiqh and accepted by everyone.
For example, “All actions are based on intentions” or -- الأمور بمقاصدها “Al-Umuru bi Maqasidiha”.
Another Qaeda which fits into this category is “Al Yaqeenu la Yazoolu bi Shak”. -- certainty is not removed by doubt. اليقين لا يزول بالّشكّ
For example, if you have doubt whether you prayed 2 or 3, and you were certain that you prayed 2 rakat, then this certainty will not be removed by the shak of having prayed 3 rakah, another example is that if you have doubt that you have broken your wudu, then you can say that you still have your wudu.
The interesting this that: you don’t find Al Yaqeenu la Yazoolu bi Shak qaeeda in the Maliki books, with the exception of one Maliki scholar ibn Abdul Barr ابن عبد البرّ, he was a great scholar from Andalus, he wrote on the muwatta of Imam Malik. He was also well known to have some views that were contradicting the Maliki view, he was known to the Shafiee views. In general you don’t find this qa’eda in the Maliki books.
Shaykh Jamaal is not convinced that Imam Malik did not believe in this qaeda. They quote one case from Imam Malik where he is not applying this qaeda (in a case of ihtiyaat), and hence they come to their conclusion.
Many qawaaid have exceptions to them anyways, so maybe Imam Malik might have applied an exception to this qaeeda.
Even the first qaeda Al Umuru bi Maqasidiha; is this agreed upon by all madhabs? The Hanafis have a different view. They express it differently -- they say that there is no reward except with intention (لا ثواب إلّا بالنيّة).
Sh will enumerate the five qawaa'id in the next class and in the next quarter will be a detailed discussion of the qawaa'id al kulliya al kubra.
Most of the books will mention the five qawaa'id in the first category, but in reality the Maliki books will not include all of the five qawaa'id.
Category #1B: Other Agreed upon Qawaa'id
There is a large two volume book by scholar Muhammad al Zuhaili called Qawaa'id fiqhiyaah and their applications in the four madhab. القواعد الفقهيّة و تطبيقها في المذاهب الأربعة
He tried to construct a list of all of the principles agreed upon by the four madhabs.
Suyooti wrote a book called Asbahu al nabair, he is Shafiee scholar who kept nineteen as Hanafi compliant and did not comment on the rest.
Zuhaili has eighty two Qawaa'id that he thinks are agreed upon in the four madhabs. He gives the Qaeda and it’s applications and exceptions to the Qaeda.
Since each madhab has it’s own Qawaa'id, they end up at different conclusions on many points.
Category #2: Qawaa'id which are differed upon by four madhabs but agreed upon within one madhhab
Category #3: Qawaa'id which are differed over within one madhab.
Category #2 and #3 are one of the main differences of opinion amongst fuqaha. There are books are written over the reasons for the differences of the fuqaha. Amazingly Shaykh could not find any book which discusses any differences due to the Qawaid al Fiqhiyyah. Differences of opinion between schools in related to how they understand the Quran and Sunnah. There had been differences of opinion among Sahabah. Ikhtilaaf (differences) has been made acceptable in Fiqh and it is not blameworthy, however it should not bring forth disunity of the Muslims.
In Zuhaili’s book, agreed upon qawaa'id are 31 for hanafis, 34 for Malikis, 35 for Hanbalis and ?? for Shafi’s.
Discussion of category #3: Within one madhab we can find disagreements sometimes.
There is a Qaedah which says that when it comes to contracts, “effect is given to meanings and not to words or forms”. This qaeda is accepted by Hanafi, Maliki and Hanbali but not Shafi. Shafi school has disagreements on it.
As an example of a qaedah where there is differences within the madhab, you can find in the Maliki madhab, there are qawaid upon, e.g. “Does a sin negate the right to exemption or not?”, in other words, does committing an act of sin takes away the advantage of Rukhsah. (Footnote: Since this qaedah is from the Maliki madhab, it is in the form of a question.) According to one opinion if the journey is for haram purposes then the rukhsah is not available. For example, someone journeying for gambling cannot combine or shorten prayers.
Shafi qaedah: Is jumah shortened Dhuhr prayers or an independent prayers? How the question is answered it is going to have fiqh ramifications.
Another example is Al Hawwala -- which is a transfer of debt. There is a difference of opinion in the Shafi’i school or is it a type of fulfilling or selling a debt.
(Examples are in the 20’s for all of the madhabs) as mentioned in Zuhaili’s book.
[Footnote: Note that even within one madhab people differ -- example, in the Hanafi school, Abu Yusuf and Muhammad Al-Shaibaani’s opinions sometimes differ with Iman Abu Hanifah]
Qaedah: A person who is able to do something only by the assistance of others is considered disabled. Based on this qaedah a blind person is not obligated to make Hajj. What is someone is sick, and cannot make Wudu properly, then according to abu Hanifa he just makes tayammum. According to abu Yusuf and Shaibani he is required to get assistance if he can for Wudu. There are 12 cases in the performance of Salaat where Imaam Abu Hanifah disagreed with Abu Yusuf and Muhammad.
Examples of Qawaa'id differed upon between madhabs
الأجر و الضمان لا يجتمعان -- Renting and risk of loss do not go together or Amenity and risk of loss do not go together.
Example: if you pay a rental fee for a car, then you cannot be held accountable for any loss. This is a qaedah accepted amongst the Hanafis and rejected by the others. It leads to its own strange kind of conclusion.
Lets say I rent a car from you to go to LA but instead I go to Portland in that car. The rental contract is violated, then I go from a legal consumer to a person who is misusing or abusing your property (Edit: Violating the contract). Suppose as I am going to Portland and I get into a wreck and car is totalled.
In Hanafi madhab, I have to compensate you for the car but I do not have to pay the rent, this is due to the application of the above qaedah. Since the qaedah says that renting and risk of loss cannot be combined. If I was driving to LA and car is totalled then I just have to pay the rent.
The other madhabs say that I have to pay the rent and damage caused due to the wreck since the madhabs do not agree upon the qaedah.
So there are some qaedah that are agreed upon by all madhabs and some that are not. So when somebody quotes a qaedah, you have to determine who believes and acts upon the qaedah.
In the Islamic finance class, some scholars say that it is permissible to buy stocks, it is based on qawaa'id al fiqhiyaah. And just because it is a qaeedah, it does not mean that it is from the Quran and Sunnah, or it is agreed upon by all scholars.
Some more questions, we have to study are, what is the authority of a qaeedah, can you use Qaedah in of itself to determine a fiqh issue?
ﷺ
صَلّى اللهُ عَلَيْهِ وَسَلّم
سبحانه و تعالى
Now we come to an important question: What is the use of Qawaid with respect to fiqh? One usage that classical scholars gave was (like Qarafi) that one can pass judgement much faster over a legal ruling. The question is that can we use these Qawaid as Hujjah in Fiqh? If they are not Hujjah, then what are they?
In the classical books of Qawaid, very few of these books discuss this question. They do not discuss that is it Hujjah in fiqh? Many contemporary scholars come to the conclusion that Qawaid al Fiqhiya are not Hujjah. They raise number of points:
1. They are majority but not comprehensive in covering all cases (أغلبيّة و ليس كلّيّة). They are applied to the preponderance of the cases and they are not applied to all the cases.
2. They argue that Qawaid are results of Istiqraa (induction) and they are result of incomplete induction. One does not span the entire set of cases, so these Qawaid are definitely not conclusive.
3. There is nothing really to tie these Qawaid to new cases.
The fact there are exceptions to them does not affect the authority of the Qawaid. Sometimes these Qawaid have related Qawaid (corollaries) which deal with exceptions.
We are now discussing the reasons why some scholars do not consider qawaa'id to be a hujjah. We will enumerate each of their reasons and try to understand their reasoning.
Footnote: Are there similarities between analogy (qiyaas) and qawaa'id? And if you do not accept qiyaas as hujjah, then does that make you a dhahiri.
1) Incomplete Istiqraa → non-definitive (Dhanni).
Here they object qawaa'id to be a hujjah, because it is an incomplete istiqraa (deduction from a large number of cases) and they say that because of it, it is non-definitive.
Edit: Definitive proof is qateeah thaboot and non-definitive proof is dhanni thaboot.
We have to answer the following question, what is required in Fiqh for a ruling?
In general all you need is dhann rajih (ظنّ الراجح), a preponderance of the evidence. So to require yaqeen would be very difficult. For example, the scholars accept in hadith Hasan Lighayrihi in fiqh issues since we have reasons to believe in it.
The third argument is that qawaa'id are derived from different branches (furoo’) and to use these to judge it for a different field is problematic. For example, to use a qaeedah from taharah and use to derive a ruling for commerce. But the counter argument is that the qawaa'id is derived specifically to be used across fields and hence we can apply it to a different field.
Majority opinion is that qawaa'id are not a hujjah
The majority view is that it is not a hujjah (e.g. Ibn Nujaim from the Hanafi school, the people who wrote the Majallah). What they mean by Hujjah, that fiqh conclusions cannot be based on the Qaidah. Mustafa Zarqa and Muhammad al Burnoo are among the contemporary scholars who are of this position.
We have seen examples of how certain contemporary scholars who have abused deriving rulings in fiqh of Islamic finance, to use a qawaa'id and come up with new rulings. See the notes for Fiqh of Finance Summer 2012 Notes for an example.
Correct approach to derive rulings based on Qawaa'id
We have to divide the Qawaid into different categories in order to understand how to properly derive rulings based on Qawaa'id. You have to know what are the different types of qawaa'id.
Earlier we discussed the question what are the basis of Qawaid and we saw that some Qawaid come directly from Quran and Sunnah (even if wording is slightly changed the meaning is preserved).
Categories of Qawaa'id based on their source
A. Qawaid are based on the nusoos (e.g. La Darara wa la Darrar): these must be hujjah since they are based on sources.
B. Derived Qawaid: These are looking at the text and deriving the Qaedah. These include virtually directly based on the texts and therefore agreed upon. These are considered hujjah as well. Here we take number of cases and then meaning behind the cases comes out as a clear Qaedah, e.g. al yaqeen la yazulu bi shak.
C. Closely related to the text but differed over by scholars cannot be the hujjah.
D. Based on Imam’s determination??
E. Based on Madhabi fiqh: Some madhab even say that the Qaedah by an imam is even above the fiqh. This is true for those who believe in blind taqleed of the imam.
From the perspective of Usul al Fiqh, D and E are not Hujjah. Whereas A and B are Hujjah. The Qawaid are advantageous for following reasons: They allow us to solve fiqhi problems efficiently and they help us ensure that the new opinions are formulated consistently with the rest of the fiqh.
Qawaa'id can be used in three areas:
الاستنباط -- a new case that does not have any parallel in the cases we know of then you can invoke a qaidah as a kind of partial evidence to support a ruling.
تخريج -- It is similar to Qiyas, here instead of illah, it is the Qaedah which is used
ترجيح -- When there are evidences on both sides of an argument, this can serve to make one side stronger.
Qaedah cannot be invoked if you have a direct nass on the topic, unless nass itself is the Qaedah.
Qawaa'id are beneficial in new cases, they can shed some light, help us determine how they were applied to earlier cases.
Qawaa'id can be used as supporting evidence in the case of tarjeeh when you want to determine which arguments are more compelling.
If you say something is hujjah, then it becomes a final statement, and that is not what a qawaa'id are. It is not a proof on the issue. It is rather used when there is absence of any strong hujjah, it is used as last resort when there is no other hujjah that can be presented as an argument for your ruling.
In the class of fiqh of finance where we are discussing the idea of buying stocks of companies that deal with haraam and halal, they derive their ruling based on a qaeedah. They will present three or four qawaa'id. So you have to determine how strong are their qawaa'id. When we study it we find that one of their qaeedah is not agreed upon, and in some case they have misapplied the qaeedah.
Next quarter we discuss 5 comprehensive Qawaid which are from category A and B above. Imam Ahmad said that foundation of Islam is on 3 hadith: 1) hadith of all actions based on intentions; 2) hadith whoever introduces anything in afair for ours then ti is rejected and 3) Halal is clear and haram is clear and in between are the doubtful matters.
Abu Daud said that I studied the ahadeeth of Prophet (pbuh) and found 4000 hadith and found 4 out of these to be basic and he agrees with 1 (1 of abu Daud) and 3 (2 of abu Daud) above and then adds two to his list 3 of Abu Daud) Allah is pure and he only accepts what is pure and 4 of Abu Daud) from perfection of person’s Islam is that he leaves what does not concern him.
… said? 1) Halal is clear and haram is clear 2) La darara 3) Niyyaat 4) Deen al-naseehah 5) Ma nahaytukum anhu