INTRODUCTION TO THE STUDY OF LEGAL MAXIMS

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1 TABLE OF CONTENTS PREFACE I INTRODUCTION TO THE STUDY OF LEGAL MAXIMS 13 Ch. 1 Introduction The Terms Qā idah and Aṣl in Islamic Law Methods in Uṣūl al-fiqh Attributed to the Jurists The Method of the Ḥanafīs or the Method of the Jurists The Method of the Majority Schools or the Method of the Mutakallimūn Method That Combines the Two Previous Methods The Method of Takhrīj Alā al-uṣūl The Method of Uṣūl Through the Maqāṣid Method of the Ahl Ḥadīth? Our Analysis of the Classification of Methods General Analysis Analysis Relevant for Qawā id Fiqhiyyah 20 Ch. 2 Essential Terminology and the Nature of Rules in Islamic Law The Multiple Meanings of the Term Ḥukm Rules, Principles, Illah, Ḥikmah and Rationale The Nature of a Rule Principle The Rule and its Rationale Presumptions, Propositions and Legal Maxims

2 2 ISLAMIC LEGAL MAXIMS CONTENTS Presumptions Legislative Presumptions Presumptions of General Applicability Presumption of Law Presumption of Fact Maxims Propositions Bāb, Ḍawābiṭ, Qawā id and Naẓariyyah The Bāb Ḍawābiṭ, Qawā id and Naẓariyyah Ch. 3 Understanding the Development of Qawā id Fiqhiyyah as a Discipline The Beginning at Kufa The Separation of the Rules Sample Qawā id Uṣūliyyah Qawā id Fiqhiyyah After al-dabbūsī Qawā id Fiqhiyyah in More Recent Times.. 47 Ch. 4 Ch. 5 The Interpretation of Facts and the Function of the Qawā id Fiqhiyyah Interpreting the Facts The Functions That Principles Perform in Islamic Law Analysis of What has Been Studied so far and the Methodology Followed in This Book Questioning Some Definitions What We Cannot Study in This Subject The Overlap With Uṣūl al-fiqh The Methodology of This Book Advantages for Future Research: Legal Concepts and Associated Theories

3 CONTENTS ISLAMIC LEGAL MAXIMS 3 II LEGAL MAXIMS AND LEGAL CON- CEPTS 65 Ch. 6 The Sharī ah as a Single Bāb Siyāsah Shar iyyah: The Legal and Social Policies of the Sharī ah The Basic Terms of This Topic The Development of the Five Principles and Area of Operation The Content of the Policies Converting Policies into New Law The Role of Intentions Intentions and the Hereafter Intentions and the Law Acts of Worship Marriage, Divorce and Emancipation Contracts in General Criminal Law and Torts Looking at the Consequences Trivialities to be Overlooked Things Occurring Usually to be Assigned the Usual Rule In the Case of Substitution, the Substitution Need Not be Complete When a Part to be Considered the Whole When a Part of the Whole has a Separate Ḥukm A Continuing Act May be Assigned the Rule of the Initial State Ch. 7 The Bāb of Ibāḥah (Permissibility) The Governing Principle of This Bāb Liability of Human Beings in General: The Covenant With the Creator The Nature of the Covenant: The Obligations and the Demand for Performance 102

4 4 ISLAMIC LEGAL MAXIMS CONTENTS Cases in Which Performance is not Required and is Suspended or Extinguished Altogether The Minor Insanity and Idiocy Sleep and Fits of Fainting Forgetfulness and Mistake Menstruation and Slavery The Liability of Non-Muslims How Does the Covenant Deal With the Area of Ibāḥah (Permissibility) Not Covered So Far: al-ḥujaj al- aqliyyah Things That Must Always be Mubāḥ Things That Must Always be Prohibited Things That May Possibly be Permitted, but not Necessarily: Understanding the Main Principle Conclusion Ch. 8 Presumption of Continuity (Istiṣḥāb al- Ḥāl) The Meaning of Istiṣḥāb Types of Istiṣḥāb and Their Legal Validity Doubt and Certainty Istiṣhāb al-ḥāl (Presumption of Continuity) is a Defensive Presumption and Does not Establish a Right Miscellaneous Presumptions Ch. 9 The Bāb of Ibādāt: Acts of Worship 131 Ch. 10 The Bāb of Contracts The Principle of Ribā and Related Presumptions The Principle of Contractual Liability The Link With the Principle of Ribā Passage of Title in Sales and What can be Lawfully Sold

5 CONTENTS ISLAMIC LEGAL MAXIMS Principle of Liability and Business Organization Principle for the Sold Commodity: Ownership and Possession Things not Owned Things not in Possession: Selling Food Before Possession The Exemption in the Case of Salam The Principle of Prohibition of Gharar: The Misunderstood Principle Suspended (Mawqūf ) Contracts and Ratification: The Unauthorized Agent Building the Rules of Ratification Applying the Rules of Suspended Contracts and Ratification Fasād, Conditions and Stipulations Ch. 11 Liability in General Developing a Theory of Liability General Rule for Injuries The Destruction of Property and its Compensation (Ḍamān) Ch. 12 The Bāb of Shubhah The Operation of Shubhah in Crimes Expanding the Operation of Shubhah to Family Law and Other Cases Ch. 13 Legal Necessity, Hardhip, Need, Prohibitions and Permissions Duress Affecting Human Life and Limbs Necessity as General Need Cases of Hardship: Exemptions (Rukhaṣ) Prohibitions and Permissions Ch. 14 Ādah and Urf The Different Meanings of Ādah

6 6 ISLAMIC LEGAL MAXIMS CONTENTS Ādah as a Physical or Scientific Fact Situation Ādah as Commercial or Other Practice Whether Good or Bad Maxims Dealing With Urf (Usage; Customary Practice) Types of Urf : Division into usage and practice Legal Maxims About Urf Ch. 15 Dārs, Jurisdiction and Non-Muslims The Concept of the Dār The Dār al-islām and its Non-Muslim Residents Ch. 16 Legal Rights Rights That Cannot be Transferred or Relinquished Pure Rights of Allah Where the Right of Allah and the Right of the Individual are Both Involved, but the Right of Allah is Predominant Pure Rights of the Individual Rights That Can be Transferred or Relinquished Where the Right of Allah and the Right of the Individual are Both Involved, but the Right of Individual is Predominant Pure Rights of the Individual Rights Linked to the Ayn (Chattel) Rights Linked to the Dayn (Deferred Claim) Pure Rights (Ḥuqūq Mujarradah) Delegating Rights Not Possessed Relinquished Rights Ch. 17 Evidence and Declarations 231

7 CONTENTS ISLAMIC LEGAL MAXIMS General Presumption of Veracity for All Muslims Relevant Facts and Inferences to be Drawn The Prima Facie Position and the Burden of Proof Ch. 18 Ijtihād and Fatwās The Integrity of ijtihād There is no Ijtihād When the Text is Absolutely Clear Appendices 243 A Uṣūl al-karkhī With Translation 245 A.1 Introduction: Imām al-karkhī A.2 Preliminary A.3 The First Principle A.4 The Second Principle A.5 The Third Principle A.6 The Fourth Principle A.7 The Fifth Principle A.8 The Sixth Principle A.9 The Seventh Principle A.10The Eighth Principle A.11The Ninth Principle A.12The Tenth Principle A.13The Eleventh Principle A.14The Twelfth Principle A.15The Thirteenth Principle A.16The Fourteenth Principle A.17The Fifteenth Principle A.18The Sixteenth Principle A.19The Seventeenth Principle A.20The Eighteenth Principle A.21The Nineteenth Principle A.22The Twentieth Principle A.23The Twentyfirst Principle A.24The Twentysecond Principle

8 8 ISLAMIC LEGAL MAXIMS CONTENTS A.25The Twentythird Principle A.26The Twentyfourth Principle A.27The Twentyfifth Principle A.28The Twentysixth Principle A.29The Twentyseventh Principle A.30The Twentyeighth Principle A.31The Twentyninth Principle A.32The Thirtieth Principle A.33The Thirtyfirst Principle A.34The Thirtysecond Principle A.35The Thirtythird Principle A.36The Thirtyfourth Principle A.37The Thirtyfith Principle A.38The Thirtysixth Principle A.39The Thirtyseventh Principle A.40The Thirtyeighth Principle A.41The Thirtyninth Principle B Excerpts From al-dabbūsī s Ta sīs al-naẓar 281 B.1 Abū Zayd Ubayd Allāh ibn Umar Īsā al- Dabbūsī B.2 The Introduction B.3 Disagreement Between Abū Ḥanīfah and the Two Disciples B.4 Disagreement of Abū Ḥanīfah and Abū Yūsuf With Muhammad B.5 Disagreement of Abū Ḥanīfah and Muhammad With Abū Yūsuf B.6 Disagreement Between Abū Yūsuf and Muḥammad B.7 Disagreement of Our Three Jurists With Zufar 296 B.8 Disagreement Between Our Three Jurists and Mālik B.9 Disagreement Between Us and Ibn Abī Laylā 298 B.10 Disagreement Between Us and al-shāfi ī B.11 Miscellaneous Principles That Have Affected Issues

9 CONTENTS ISLAMIC LEGAL MAXIMS 9 C Articles 2 to 100 from Majallat al-aḥkām al- Adliyyah 303 D Maxims From al-ashbāh wa-al-naẓā ir by Ibn Nujaym 311 D.1 The First Six Principles D.2 The Next Nineteen Principles E List of Legal Maxims Discussed in This Book 315 Bibliography 331 Glossary 333

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