52 This is the meaning of the principle that says: “The Bayyina will prove what contradicts the ẓāhir, and the oath is to confirm it.” See al-Zarqā, al-Madkhal al-fiqhī, 2:1056, 1067, 1069-71. We practice respecting the teachings of master lawyers, and we do not have the power to introduce a new rule because we are unable to make an independent interpretation of the law. Should we then give legal advice in accordance with what is written in the books containing the traditional views of the master jurists?102 12 Zayn al-Dīn ibn Nujaym, al-Ashbāh wa al-naẓā`ir, ed. Zakariyyā `Umayrāt (Beirut: Dār al-Kutub al-ʿIlmiyya, 1999), 137; Shihāb al-Dīn al-Ḥamawī, Ghamz `uyūn al-baṣā`ir (Beirut: Dār al-Kutub al-`Ilmiyyah, 1985), 31. Other scientists have confirmed this differentiation. See al-Nadwī, al-Qawaāʿid al-fiqhiyyah, 46-48. Ḍābiţ is also used to refer to qualifiers for other legal maxims or tests. This is an Arabic commentary on the 99 maxims of the Majalla. The author is Shaykh Aḥmad al-Zarqā, one of the greatest Ḥanafī jurists of the 19th century. The book was developed and refined by his son, Sheikh Muṣṭafā al-Zarqā, who was also one of the most renowned jurists of the last century. 74 Al-Zarqā, al-Madkhal al-fiqhī, 2:1004; al-Zuḩaylī, al-Qawaāʿid al-Fiqhiyya, 1:276; Ḥaydar, Durar al-ḥukkām, 1:33. Much can be gained from this recorded debate.
First, al-Shaybānī attempted to prove the error in al-Shafiʿī`s reasoning by claiming that his opinion had led to inconsistency in the decisions. That is, al-Shaybānī, after being informed of al-Shafi`ī`s opinion on the protocol, elaborated a supposedly analogous scenario in order to show that al-Shafi`s opinion on the protocol would produce one of two results: 1) either he would apply his judgment consistently, which would lead to legal absurdity, or 2) he would abandon his legal position and not present a coherent legal principle. Al-Shafi`ī should put all this in a corner so that he admits that his legal opinion did not pass the test of analogy and therefore consistency. Second, when al-Shafi`ī did not transfer his argument from protocol to the fall of the silver thread, spectators interpreted this as a clear sign of defeat. In other words, the failure to apply the legislation consistently was a sign of their mistake. Thirdly, the warning against the use of maxims as a basis for decisions is found above all in the work of later jurists, whose time saw a multitude of legal maxims. Earlier periods may have been more conservative in formulating maxims, limiting maxims to principles generally accepted in all law schools, more precise because they dealt with a particular area of law, were supported by a long series of analogous cases, or were rooted in hadiths or rules of logic.16 Previous works did not deal with Collecting Maxims for Their Own Benefit. As a result, they have probably limited themselves to obvious and apparent maxims that are not controversial or contested. However, when maxims became the subject of study and were researched for themselves, lawyers began to consciously strive to derive maxims from them. These efforts may have produced maxims whose status and validity have been challenged and which have not found broad support among jurists. It would therefore certainly be natural for lawyers not to rush to legal maxims in order to get quick answers.
There are a number of definitions for this genre, but perhaps the most comprehensive is that it is a “comprehensive rule based on precisely written legal evidence in general terms, and includes all or most of the particles, juz`iyat (fiqh-related cases) that fall under it” (Mishkah University, 2013, p. 3). They are often written in short but expressive statements. They sometimes tend to express the aims and objectives of Sharia, and so some scholars treat this subject in the category of maqasid (rules and objectives of Sharia) (Kamali, Qawa`id Al-Fiqh: The Legal Maxims of Islamic Law, p. 1). For example, one of the maxims is “need begets lightness.” In order to ensure relevance to all times and places, Sharia never puts individuals in situations where obligation becomes unbearable or makes life difficult for them (Elgariani, 2012, pp. 238-239). For this reason, Islamic law allows travelers to shorten and combine their prayers, break their fast during Ramadan, and wipe their socks for three days and nights. All this is allowed to fulfill one of the purposes of Sharia, to bring relief to the person, because traveling brings difficulties, stress and difficulties. 45 There is also so-called “definitive circumstantial evidence” (al-qarīna al-qāṭi`a) and “convincing apparent evidence” (al-ẓāhir al-qawī).
They are definitive circumstantial evidence that ends the factual dispute and cannot be refuted by other evidence. For example, a defect in purchased farm animals that certainly existed prior to purchase, such as a birth defect, falls within this type of evidence. Circumstantial evidence leaves no room for the possibility that the defect occurred after purchase, and no other evidence, such as testimony or Nukūl, can prove otherwise. See al-Zarqā, al-Madkhal al-fiqhī, 2:1072. Fiqh or legal maxims of Islamic law (Al-Qawaa`id Al-Fiqhiyyah) is a genre of Islamic sciences that focuses on the general rules of fiqh that can be applied to a variety of specific situations. In fact, a student in Muslim countries cannot obtain a degree in Islamic sciences from an Islamic university without first taking a course on the subject (Mohammed, 2005, p. 191). These maxims have been used for centuries by Muslim jurists to make judgments. They help with ijtihad because they organize fiqh branches and categorize cases, and it is essential for every Muslim jurist to know this (Elgariani, 2012, p.
380). For this reason, some scholars have rightly asserted that “without the maxims of the law, the decisions of fiqh would have remained scattered cases, outwardly discreet with no ideological link between them” (Mohammed, 2005, p. 191). 22 Ṣāleḥ ibn Ghānim al-Sadlān, al-qawāʿid al-fiqhiyya al-kubrā wa mā tafarra`a `anhā (Riyadh: Dār Balansiyya, 1996), 54, 90. 37 Muhammad ibn `Umar Ṣadr al-Dīn ibn al-Wakīl, al-Ashbāh wa al-naẓā`ir fī fiqh al-Shāfiʿī (Beirut: Dār al-Kutub al-`Ilmiyya, 2002), 269; Ibn Nujaym, al-Ashbāh wa al-naẓā`ir, 48; al-Ḥamawī, Ghamz `uyūn al-baṣā`ir, 197; al-Nawawī, Kitāb al-majmū`, 1:238; al-Zarkashī, al-Manthūr, 2:286. Some have suggested that the goals of these maxims are as follows (Mishkah University, 2013, p. 2). Art. 31): No mature body of law can exist without legal principles. Where there is a law, there are principles.
Although the study of Qawaʿid did not appear as an identifiable branch until centuries after the birth of Islam, legal principles essentially existed since the birth of Islamic law during the lifetime of the Prophet Muhammad صلى الله عليه وسلم. Some of the legal maxims of fiqh are actually literal quotations from a prophetic hadith. Although many hadiths record specific decisions on specific incidents recorded by the Prophet Muhammad صلى الله عليه وسلم, the Prophet صلى الله عليه وسلم sometimes explained laws of general application that were supposed to act as cardinal rules. The maxim that says, “The burden of proof is on the plaintiff,”3 is a prophetic hadith, as is the maxim, “There shall be no prejudice or consideration.” 4 The first work devoted to legal maxims and presenting them in a more “mature” form is al-Ashbāh wa-al-naẓāʾir by the shafiʿī jurist Ṣadr al-Dīn ibn al-Wakīl (d. 716/1267). His work is considered the beginning of the branch and genre dedicated to legal maxims. His work was followed by contributions from lawyers from all law schools. In many cases, the books on legal maxims contained only maxims accepted by the law school to which the author belonged, as well as the legal decisions of that school. However, many of the maxims are accepted by some or all law schools. As a result, overlap often occurred. Islamic legal maxims eventually became popular thanks to the codification of ninety-nine maxims in the Ottoman Civil Code, Majallat al-aḥkām al-ʿadliyya, in the late 19th century.