Islamic legal maxims

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As legal maxims ( Arabic قواعد فقهية, DMG qawāʿid fiqhīya from sing. qāʿida fiqhīya ) are a number of concise formulas in Islam that summarize the basic principles of the doctrine of norms and are used in the assessment of legal questions. Many of these maxims have a rhythmic form and have alliterations . In general, the guiding principle of a “common good” ( maṣlaḥa ) to be preserved is reflected in them . The legal maxims, which in addition to the Usūl al-fiqh and the legal applications ( furūʿ ) form a separate area of ​​knowledge of Islamic norms, are on the curriculum of almost all Sharia faculties, and their mastery is considered a qualification criterion for qualification for ijjhtihād .

history

Legal maxims were already dealt with in early Fiqh works. The Hanafit Abū l-Hasan ʿUbaidallāh ibn al-Husain al-Karchī (d. 952) compiled such maxims for the first time in a separate book, although he did not designate the individual maxims as qāʿida , but as aṣl ("principle" pl. Uṣūl ) . Accordingly, his work is also handed down under the title Uṣūl al-Karḫī ("The principles of al-Karchīs"). While al-Karchī listed a total of 39 maxims, it is reported from his tranxoxan contemporary, the Hanafi Qādī Abū Tāhir ad-Dabbās, that he reduced the entire rules of the Hanafi Madhhab to 17 basic maxims. The original subsumption of legal maxims under the term uṣūl prompted the later Hanafi scholar Ibn Nujaim (d. 1563) to claim that maxims and Usūl al-fiqh are in truth identical ( fa-hiya uṣūlu l-fiqh fī l-ḥaqīqa ) .

Some of the right maxims were directly from Koran verses or hadiths extracted other by induction ( istiqrā' ) from the previous works on the right applications ( furū' won). The relationship between legal maxims and hadiths was, however, circular in some cases . Joseph Schacht was able to show that various hadiths that were taken over into the canonical collections, such as "No harm and no harmful retribution" ( lā darar wa-lā dirār ), were originally legal maxims and were only subsequently declared to be prophetic words . Even the hadith, which is so important for Islamic criminal law, “Avoid the hadd punishments through uncertainty” ( idraʾū l-ḥudūd bi-š-šubuhāt ) was originally just a legal maxim.

In the 13th century, the Egyptian Shāfiʿit ʿIzz ad-Dīn Ibn ʿAbd as-Salām as-Sulamī (d. 1262) put together a book on legal maxims in which he first used the term qawāʿid for them . This resulted in a scientific differentiation between the two sub-disciplines “legal maxims” and Usūl al-fiqh , which were not clearly separated before. In the 14th century, the Malikit Abū ʿAbdallāh al-Maqqarī (d. 1357) and Hanbalit Ibn Rajab (d. 1393) followed with the writing of their own Qawāʿid works, in which they put together the legal maxims of their teaching traditions. Another work on the Malikite legal maxims was later written by Ahmad al-Wansharīsī (d. 1508). It is entitled "Presentation of the Methods for Attaining the Maxim of the Imam Mālik " ( Īḍāḥ al-masālik ila qawāʿid al-imām Mālik ).

Title page of the Mecelle

While many later legal books with Qawāʿid in the title used this term only in a very imprecise sense, from the 14th century onwards the treatment of legal maxims shifted to another text genre, namely books that use the expression al-Ašbāh wa-n-naẓā „ ir (" Similarities and likenesses ”) in the title. They dealt with legal problems which are similar in appearance, but in the opinion of legal scholars only partially deserve a similar assessment. Those legal problems that were to be judged in the same way were called ašbāh , the others nazāʾir . The legal maxims in these works were derived from the comparison of the ašbāh . The Shafiites Ibn al-Wakīl (d. 1317), Taj ad-Dīn as-Subkī (d. 1370) and Jalāl ad belonged to the Muslim scholars who wrote independent works on the problem of ašbāh and nazāʾir and dealt with the legal maxims therein -Dīn as-Suyūtī (d. 1505) and Hanafit Ibn Nujaim (d. 1563).

When Islamic law was codified in the so-called Mecelle-i Aḥkām-i ʿAdlīye in the Ottoman Empire in the 1870s under the leadership of Ahmed Cevdet Pascha, a section with 99 legal maxims (Articles 2 to 100) was included in the introductory part of this code . This catalog of maxims is essentially based on the list of maxims in Ibn Nujaim's book al-Ašbāh wa-n-naẓāʾir . It was commented on several times in the following decades, including by the Syrian legal scholar Ahmad az-Zarqāʾ (d. 1938).

At the present time, legal maxims play an important role , especially in the development of the rule system for Islamic finance .

Boundaries, overlaps and classifications

Outwardly, the legal maxims ( al-qawāʿid al-fiqhīya ) that apply to all fields of normative theory are replaced by the rules that only apply to one legal field (e.g. marriage law, Tahāra , etc.) and as alsawābiṭ (sing. ḍābiṭa ) are delimited. Content overlaps arise with the concept of the so-called "purposes of Sharia" ( maqāṣid aš-šarīʿa ), which represent a set of few rules to which all other norms of Islam can be traced back.

Within the legal maxims, a distinction is made between general maxims ( qawāʿid kullīya ) and basic maxims ( qawāʿid aġlabīya or akṯarīya ). The difference is that in the case of fundamental maxims it is assumed that in certain exceptional cases they cannot claim validity. The Qawāʿid work of al-Wansharīsī (d. 1508), for example, listed 17 general maxims and 101 probability maxims. Some legal scholars even thought that such maxims always had only a probability value anyway.

Many of the legal maxims are limited in their validity to a specific madhhab . But there are also some maxims that are recognized by all schools. This applies in particular to the so-called five maxims ( al-qawāʿid al-ḫams ), which have been attested as an ensemble since the 14th century and are also referred to as the "great universal maxims" ( al-qawāʿid al-kullīya al-kubrā ). In the Ašbāh-wa-naẓāʾir books, they are usually dealt with right at the beginning. Its great importance is also expressed in the well-known principle that Islamic jurisprudence is based on five things, just as Islam is based on five things ( buniya l-Islāmu ʿalā ḫamsin wa-l-fiqhu ʿalā ḫams )

In total there are several hundred legal maxims, many of them are so close in content that they overlap. This has led some scholars to distinguish between primary and secondary maxims. "Secondary maxims" ( qawāʿid firʿīya ) are those maxims that can be derived from others or that specify them. In the introductory part of the Mecelle, the secondary maxims are listed after the relevant primary maxims.

The five major maxims and their secondary maxims

"Things are to be judged according to their purposes"

The first principle “Things are to be judged according to their purposes” ( al-umūru bi-maqāṣidi-hā ), which roughly corresponds to the Latin maxim Omne actum ab intentione agentis est judicandum , means that the goodness or badness of an action is related does not result from it itself, but can only be measured by taking into account the underlying intention. It is based on the well-known hadith "Actions are to be judged solely according to the intentions" ( innamā l-aʿmāl bi-n-nīyāt ). This maxim, which was taken up in Art. 2 of the Ottoman Mecelle, is applied, for example, to the finder of a thing. If he takes this thing with him with the intention of taking possession of it, he is responsible for the damage caused by the thing. However, if he does not intend to take it away with him, he is not responsible for this damage.

A secondary principle of this maxim is the principle “In contracts, the intentions and meanings are decisive, not the expressions and formulas” ( al-ʿibra fī l-ʿuqūd li-l-maqāṣid wa-l-maʿānī lā li-l-alfāẓ wa-l-mabānī ). It corresponds to Art. 3 of the Ottoman Mecelle.

"Certainty does not disappear with doubt"

The principle “certainty does not wane through doubt” ( al-yaqīnu lā yazūlu bi-š-šakk ), or “certainty is not eliminated by doubt” ( al-yaqīnu lā yuzālu bi-š-šakk ) means that a state of affairs after it has been established, it is assumed to be given, even in the event of a doubt, until the opposite is proven. It corresponds roughly to the Latin maxim Stabit praesumptio donec probetur in contrarium . The textual basis is sura 10 : 36: “See, the conjecture cannot replace the truth in anything.” The maxim that al-Karchī placed at the beginning of his uṣūl collection was included as Article 4 in the Mecelle. With regard to ritual purity , it is deduced from this principle that when a person has performed the little ablution and doubts about the continuation of the state of purity arise, it may take it for granted until the opposite is proven.

Secondary principles of this maxim are the principles "The rule is the continuation of the state in the way it existed" ( al-aṣlu l-baqāʾu mā kāna ʿalā mā kāna ) and "The rule is the acceptance of innocence" ( al- aṣlu barāʾat aḏ-ḏimma ), which make up Articles 5 and 8 of the Mecelle. Some modern Muslim scholars also consider the principle “Permission is the rule in things” ( al-aṣlu fī l-ašyāʾi l-ibāḥa ) as a supplementary principle to this maxim. However, these maxims are restricted by the principle “damage does not generate a precedent” ( aḍ-ḍararu lā yakūnu qadīman ), in Mecelle Article 7. It means that in the case of damage from a longer toleration, the permissibility of this cannot be derived.

In a broader sense, the principle “An ijtihād is not canceled by another ijtihād ” ( al-iǧtihādu lā yunqaḍu bi-miṯli-hī ) also belongs to the scope of this maxim. It is traced back to a saying by Umar ibn al-Chattāb and forms Article 16 of the Mecelle.

"Difficulty brings relief"

The principle “ Difficulty brings relief” ( al-mašaqqatu taǧlubu t-taisīr ) becomes from sura 2 : 185 “God wants to make it easy for you, not difficult” and sura 5 : 6 “God does not want to impose anything that oppresses you “And has been incorporated into the Mecelle as Art. 17. Relief ( taisīr ) should be granted with this maxim in the sense of a ruchsa , which is granted in the presence of a predicament . The types of inconvenience leading to relief have been incapacity ( naqṣ ), ignorance ( ǧahl ), illness ( maraḍ ), travel ( safar ), forgetfulness ( nisyān ), coercion ( ikrāh ), and general distress ( ʿumūm al-balwā ) accepted.

Content overlaps result from the legal maxim “ predicament makes the forbidden things permitted” ( aḍ-ḍarūrāt tubīḥ al-maḥẓūrāt ), which was included as Art. 21 in the Mecelle and roughly the principle “necessity knows no prohibition” or Necessitas non had legem corresponds. It was specified by the principle “necessity is to be assessed according to its extent” ( aḍ-ḍarūra tuqaddar bi-qadri-hā ) and by the principle “What is permissible on the basis of an excuse becomes obsolete when it disappears” ( mā ǧāza li-ʿuḏrin baṭala bi-zawāli-hī ), which form Articles 22 and 23 of the Mecelle. The latter principle entails, for example, that when water is found, substitute abrasion with dust is no longer permitted.

"Damage is to be averted"

The principle "harm is to be averted" ( aḍ-ḍararu yuzāl ), which corresponds to Art. 20 of the Mecelle, was derived from the traditional prophetic word "no harm and no harmful retribution" ( lā darar wa-lā dirār ).

However, this maxim is restricted by the principle “harm cannot be ended by another harm” ( aḍ-ḍarar lā yuzālu bi-ḍarar ), which corresponds to Article 25 of the Mecelle. This principle means that one's own disadvantage must not be averted by harming third parties, for example by taking away food from another person suffering from hunger. The principle is further specified by the legal maxims: “A private disadvantage is to be accepted in order to avert a public disadvantage” ( yutaḥammalu ḍ-ḍararu l-ḫāṣṣu li-dafʿi ḍararin ʿāmm ) and “The damage must be averted with proportionate means” ( aḍ-ḍararu yudfaʿu bi-qadri l-imkān ), which were incorporated into the Mecelle as Articles 26 and 31. If harm and benefit are exactly in balance, the rule should apply: "Defense against evils is preferable to gain" ( darʿ al-mafāsid muqaddam ʿalā ǧalb al-maṣāliḥ ), which corresponds to Art. 30 of the Mecelle.

"Custom has legal authority"

The maxim “ Custom has legal authority” ( al-ʿādatu muḥakkama ) was incorporated into the Mecelle as Article 36. In this principle, habit ( ʿāda ) applies to all rules that are repeatedly applied in a profession, in a social group or in a culture. The maxim was extracted from a longer principle that Abū l-Hasan al-Karchī lists in his Usūl work. It reads: “The norm is that a question or speech should be understood according to what is general and predominant, not according to what is scattered and rare. And the norm is that the answer to the question should be understood according to what is accepted among the people of their place. "; Some Muslim scholars, on the other hand, relate the maxim to the saying "What the Muslims consider good is also good in the eyes of God" ( mā raʾā-hu l-muslimūn ḥasanan fa-hwa ʿinda Llāhi ḥasanun ) by ʿAbdallāh ibn Masʿūd , the also narrated as a hadith.

Content overlaps result from the two principles "The use of the people is an argument to which one must orientate " ( istiʿmālu n-nāsi ḥuǧǧatun yaǧibu l-ʿamalu bi-hā ) and “Determination by ʿUrf is like a determination by sacred textual evidence to be judged ”( At-taʿyīn bi-l-ʿurf ka-t-taʿyīn bi-n-naṣṣ ), which were incorporated into the Mecelle as Articles 37 and 45. Hermeneutically , the principle is supplemented by the maxim “The actual meaning of the words is ignored in favor of the habitual meaning” ( al-ḥaqīqatu tutraku bi-dalālat al-ʿāda ) (Art. 40 of the Mecelle).

Transfer of the concept to Sufik

Based on the model of the legal Qawāʿid books, the North African Schadhiliyya Sheikh Ahmad Zarrūq (d. 1493) put together a work on the principles of the Sufik ( qawāʿid at-taṣauwuf ) in the 15th century . His goal was to reconcile Sharia and mystical "truth" ( ḥaqīqa ). He reduced the entire rules of Sufik to the following five principles:

  1. Fear of God within and within the public ( taqwā Llāh fī sirri wa-l-ʿalānīya )
  2. Following the Sunnah in word and deed ( ittibā' as-sunna fī-aqwāl wa'l-af'āl )
  3. Avoidance of people, both active and passive ( al-iʿrāḍ ʿan al-ḫalq fī l-iqbāl wa-l-idbār )
  4. Satisfaction with God, in little and in many ( ar-riḍā ʿan Allāh fī l-qalīli wa-l-kaṯīr )
  5. Refuge in Him, in happiness and unhappiness ( ar-ruǧūʿ ilai-hi fī s-sarrāʾ wa-ḍ-ḍarrāʾ ).

literature

Arabic legal maxim literature
  • ʿIzz ad-Dīn Ibn ʿAbd as-Salām as-Sulamī: al-Qawāʿid al-kubrā . 4 vols. Digitized
  • Abū ʿAbdallāh al-Maqqarī: al-Qawāʿid . 2 vols. Markaz iḥyāʾ at-turāṯ al-islāmī, Mecca, 1988. Digitized
  • Aḥmad al-Wansarīsī : Īḍāḥ al-masālik ila qawāʿid al-imām Mālik . Digitized
  • Aḥmad ibn Muḥammad al- Zarqā: Šarḥ al-Qawāʿid al-fiqhīya . Ed. ʿAbd as-Sattār Abū Ġudda. Dar al-Qalam, Damascus, 1998. Digitized
Secondary literature
  • Muhamamd Ridhwan Abdul Aziz and Mohd Shahid Mohd Noh: “The Role of Five Major Shari'ah Legal Maxims (Al-Qawaid Al-Kubra) in the Establishment of Maqasid Al-Shari'ah in Islamic Financial Products: A Discussion on Some Cases” in European Journal of Business and Management 6 (2014) 63-70. Digitized
  • Fawzy Shaban Elgariani: Al-Qawāʿid al-Fiqhiyyah (Islamic Legal Maxims): Concept, Functions, History, Classifications and Application to Contemporary Medical Issues . PhD Thesis, University of Exeter, 2012. Digitized
  • W. Heinrichs: "Qawāʿid as a genre of legal literature" in BG Weiss (ed.): Studies in Islamic Legal Theory . Brill, Leiden, 2002. pp. 365-384.
  • WP Heinrichs: Art. "Ḳawāʿid fiḳhiyya" in The Encyclopaedia of Islam. New Edition Vol. XII, pp. 517a-518a.
  • Azman Ismail and Md. Habibur Rahman: Islamic legal maxims: essentials and applications . IBFIM, Kuala Lumpur, 2013.
  • Mawil Izzi Dien: Islamic Law: From Historical Foundations to Contemporary Practice. Edinburgh University Press, Edinburgh, 2004. pp. 113-124.
  • Mohammad Hashim Kamali: “Legal Maxims and other genres of literature in Islamic Jurisprudence” in Arab Law Quarterly 20 (2006) 77-101.
  • Birgit Krawietz: Hierarchy of Legal Sources in Traditional Sunni Islam . Berlin 2002. pp. 237-242.
  • Khaleel Mohammed: “The Islamic Law Maxims” in Islamic Studies 44 (2005) 191-207.
  • Khalid Nazir: Roots of Justice in Shari'ah: Islam legal maxims. Ammar Publications, Islamabad, 2007.
  • Intisar A. Rabb: “Islamic Legal Maxims as Substantive Canons of Constructions: Hudud-Avoidance in Cases of Doubt” in Islamic Law & Society 17 (2010) 63-125.
  • Intisar A. Rabb: “Islamic Legal Minimalism: Legal Maxims and Lawmaking. When Jurists disappear ”in Michael Cook , Najam Haider et al. a. (ed.): Law and tradition in classical Islamic thought. Studies in honor of Professor Hossein Modarressi . Palgrave Macmillan, New York, 2013. pp. 145-166.
  • Joseph Schacht : The Origins of Muhammadan Jurisprudence. Clarendon Press, Oxford, 1950. pp. 180-189.
  • Ayman Shabana: Custom in Islamic law and legal theory: the development of the concepts of ʿurf and ʿādah in the Islamic legal tradition . New York: Palgrave Macmillan 2010. pp. 111-125.
  • Ghulam Shams-ur-Rehman: “Juridical Sufism: Zarrūq's Application of the 'Qawā'id' Genre” in Islamic Studies 49 (2010) 341-356.

Individual evidence

  1. ↑ See Mohammed: "The Islamic Law Maxims". 2005, p. 192.
  2. ↑ See Mohammed: "The Islamic Law Maxims". 2005, p. 191.
  3. ↑ a b See Heinrichs: “Qawāʿid as a genre”. 2002, p. 368.
  4. ↑ a b See Kamali: “Legal Maxims and other genres”. 2006, p. 91.
  5. ↑ See Mohammed: “The Islamic Law Maxims”. 2005, p. 196f.
  6. ↑ See Shams-ur-Rehman: “Juridical Sufism”. 2010, p. 344.
  7. ↑ a b Cf. Krawietz: Hierarchy of Legal Sources . 2002, p. 237.
  8. ↑ a b Cf. Heinrichs: "Ḳawāʿid fiḳhiyya". P. 517b.
  9. ↑ See Schacht: The Origins of Muhammadan Jurisprudence. 1950, pp. 180-189.
  10. ↑ See Rabb: “Islamic Legal Maxims as Nouns Canons of Constructions”. 2010, pp. 63–125.
  11. ↑ See Heinrichs: "Qawāʿid as a genre". 2002, p. 372f.
  12. ↑ See Heinrichs: "Ḳawāʿid fiḳhiyya". P. 517a.
  13. ↑ See the digitized version of Mecelle-i Aḥkām-i ʿAdlīye from 1300h, pp. 22–38.
  14. ↑ a b Cf. Izzi Dien: “Islamic Law”. 2004, p. 115.
  15. ↑ See Abdul Aziz and Noh: “The Role of Five Major Shari'ah Legal Maxims” 2014.
  16. ↑ Kamali: “Legal Maxims and other genres”. 2006, p. 82.
  17. ↑ See Heinrichs: "Qawāʿid as a genre". 2002, p. 375f.
  18. ↑ See Heinrichs: "Qawāʿid as a genre". 2002, p. 367.
  19. ↑ Kamali: “Legal Maxims and other genres”. 2006, p. 94.
  20. ↑ See Mohammed: “The Islamic Law Maxims”. 2005, p. 192.
  21. ↑ See Mohammed: “The Islamic Law Maxims”. 2005, pp. 199f.
  22. ↑ See Izzi Dien: “Islamic Law”. 2004, p. 115f.
  23. ↑ Cf. Krawietz: Hierarchy of Legal Sources . 2002, p. 241f.
  24. ↑ See Mohammed: “The Islamic Law Maxims”. 2005, p. 201.
  25. ↑ Kamali: “Legal Maxims and other genres”. 2006, p. 83.
  26. ↑ Kamali: “Legal Maxims and other genres”. 2006, p. 84.
  27. ↑ See Kamali: “Legal Maxims and other genres”. 2006, p. 85f.
  28. ↑ See Kamali: “Legal Maxims and other genres”. 2006, p. 90.
  29. ↑ See Kamali: “Legal Maxims and other genres”. 2006, p. 87.
  30. ↑ Cf. Krawietz: Hierarchy of Legal Sources . 2002, p. 237f.
  31. ↑ Cf. Krawietz: Hierarchy of Legal Sources . 2002, pp. 239f, 242.
  32. ↑ See Yaḥyā ibn Sharaf al-Nawawī: The Book of Forty Hadiths. Kitāb al-Arbaʿīn with the commentary Ibn Daqīq al-ʿĪd . Translated by Marco Schöller. Frankfurt a. M. 2007. pp. 194-197.
  33. ↑ Cf. Krawietz: Hierarchy of Legal Sources . 2002, pp. 238, 241.
  34. ↑ Kamali: “Legal Maxims and other genres”. 2006, p. 86.
  35. ↑ Cf. Krawietz: Hierarchy of Legal Sources . 2002, p. 238f.
  36. ↑ See Izzi Dien: “Islamic Law”. 2004, p. 118.
  37. ↑ a b quotation after. Mohammed: “The Islamic Law Maxims”. 2005, p. 194.
  38. ↑ a b See Kamali: “Legal Maxims and other genres”. 2006, p. 88.
  39. ↑ See Shams-ur-Rehman: “Juridical Sufism”. 2010, p. 345.
  40. ↑ See Shams-ur-Rehman: “Juridical Sufism”. 2010, p. 346.