Islamic Jurisprudential Maxims

114 Maxims Expounded and Rendered

Into English

Prof. Abdul Baki As-Safi

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 To
Raja, Mazin, Ma’an & Hamza

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 Table of Contents
Page

Preface
Transliteration
Chapter One : Introduction
1.0. Preliminaries
1.1. Review of Related Literature
1.2. Basic Assumptions
1.3. Significance of the Book
1.4. Purpose of the Book
1.5. Methodology
1.6. Terms Adopted in the Book
Chapter Two: Religio-Legal Translation: Theoretical Perspective
2.0. Preliminaries
2.1. Translation Strategies
2.2. Equivalence
2.3. Language Specificity
2.4. Culture Specificity
2.5. Religio-Legal Specificity
Chapter Three: Jurisprudential Maxims, Fundament-
alitic Maxims and Jurisprudential Canons
3.1 Jurisprudential Maxims: Historical Development
3.2. Significance of Jurisprudential Maxims in Islamic Life

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3.3 Differences between Jurisprudential Maxims and Fundamentalist
Maxims
3.4. Maxims Deemed to be Both Jurisprudential and
Fundamentalistic
3.5. Differences between Jurisprudential Maxims and Canons
3.6. Differences between a Jurisprudential Maxim and a Jurisprudence
Theory

Chapter Four: Arabic Jurisprudential Maxims, Expounded and Rendered

into English

Chapter Five: Concluding Remarks

Glossary

Appendix : Index of Maxims : Alphabetically Arranged

References

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 Transliteration
a "
b h
t w
th y
j
h Short Vowels
kh u dhamm
th a fatha
r i kasra
z
s Long Vowels
sh aa
s oo
dh ee
t ay
z
‘
gh
f
q
k
l
m
n

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 Preface
The present book deals with rules or maxims derived from the Islamic
jurisprudence (fiqh) which subsumes all facets of Muslims’ life: worship,
material affairs and daily transactions. Islamic jurisprudence is the
framework of practical aspects of Islam itself. It is of a hybrid nature as it
is marrying up religion and law, for it stipulates man’s rights and
obligations based on certain jurisprudential maxims. Hence, the maxims
are deemed to be of paramount importance that must be translated to those
who aspire at fathoming the true nature of Islamic jurisprudence on the
one hand, and those who work in the field of translation of law and
religion on the other.
Islamic religion has been revealed through the Arabic language, i.e.
initially to the people of the Arab peninsula. This language is incongruent
to English. Moreover, jurisprudence (fiqh) is replete with concepts which
pose a real challenge to the translator of jurisprudential maxims into
English. The Islamic legal system, philosophy and practice have basically
been the evolution and elaboration of the Islamic law, Shari ah which is
historically a divinely ordained legal system of the Islamic state to control
and regulate the Muslim society.
Since the advent of Islam, jurisprudence has been for many generations
an autonomous and pure science wherein law has appeared as a body of
rules, or preferably legal maxims, which, we may propound, are based on
four categories of sources: (a) the Qur’an, (b) the Prophetic Tradition,

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hadiths (Prophet Mohammad’s sayings), (c) both the Qur’an and the
Prophetic hadiths, and (d) certain renowned jurisprudents.
Perhaps it is worth noting that there has been a controversy and
inconsistency among translators of the Qur'an and Islamic studies into
English as regards the transliterated word Allah or the English equivalent
God. In a random survey of 15 available translators of the Quran, the
author has found 10 translators using 'Allah', namely: Abdulhaqq and
Aisha Bewley, Al-Hayik, Bell, Dawood, Ghali, Hilali and Khan, Kassab,
Khan (Zafrulla), Mushaf Al-Madinah An-Nabawiyah, and Pichthall
compared to 5 using 'God', namely: Ali, Arberry, Asad, Irving, and
Rodwell. The last five translators among others surmise that many
languages have their own terms in reference to Allah. Arabic is not an
exception, where Allah is the name of God among Arabs and Muslims.
Interestingly enough, in Google, under the topic: "About Allah", the word
'God' is used in the verses rendered into English and the sections like
'God's Attributes' and 'The Oneness of God.' The following anecdote may
shed light on their predilection for adopting God: in the Golf War II, few
days prior to the withdrawal of the invading Iraqi troops from Kuwait, an
American pilot of a warplane targeted a school and killed a number of
pupils inside and some people around. When he pressed the button to
launch air-to-ground missile, he said: "Let your Allah save you", thinking
the Allah is like (Gautama) Buddha. Definitely, he would not have dared
to say, "Let (your) God save you".
On the other hand, the proponents of adopting ‘Allah’ instead of ‘God’
refer to the Christian Trinity: God the Father, God the Son and God the

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Holy Ghost, which undermines the fundamental Islamic concept of
monotheism or the oneness of Allah. Unlike ‘Allah’, ‘GOD’, especially in
the spoken and not the written form with capital G, can be pluralized,
‘genderized’ and compounded as in gods, goddess and Godhead
respectively ( e.g. worshipping the Godhead, i.e., God) . Interestingly yet
pertinently enough, the latest revised editions of the Qur’an by Yusuf
‘Abdullah ‘Ali, deemed one of the most renowned and authentic
translators of the Qur’an, has replaced the word ‘God’, adopted in the
earlier editions, by the word ‘Allah’. The author has, therefore, opted for
the transliterated form, ie., Allah rather than the translated equivalent, ie.,
God, since the book deals with the Islamic jurisprudential maxims.

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 Chapter One
Introduction
1.0. Preliminaries
Translation of religious and legal discourses is one of the most
problematic and complicated kinds of translation. This is due to several
reasons:
1. Religious texts in general, and jurisprudence (fiqh) in particular,
are replete with terms which are deeply rooted in Islam. Therefore, the
translator of such texts will encounter many lexical gaps that hinder
the process of smooth translation. Inevitably, the translator finds
himself in a dire need of adopting certain strategies to address problems
engendered from cultural incongruity
2.These texts, particularly jurisprudential ones, deal with a broad
spectrum of many aspects of human life such as conducts and
transactions .
3.The language of these texts is very formal , which aggravates the
problems which the translator encounters . Jurisprudential maxims are
based on the Qur’an, Prophetic Tradition and renowned scholars and
leaders of the jurisprudence schools. Many articles in the contemporary
civil codes in, for example, Syria, Iraq and Jordan lie squarely on Islamic
jurisprudence (fiqh). They also pertain to culture which reflects people’s
ways of life.
4. Due to the above fact that the jurisprudential maxims draw upon
two thorny areas with respect to translation, namely religion and law,

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these two areas have many blind spots that resist translation; that is why
wide gaps float on the surface. In order to bridge these gaps , the
translator should be both bi-lingual, and well-versed in Islamic
Jurisprudence fiqh if he aspires to produce an optimal translation.
5.The fact that the culture of Islam is expressed in Arabic whereas
non-Arabic culture such as English uses a different medium of
expression which requires due recognition, and by corollary a special
treatment is required when translating jurisprudential maxims involving
linguistic/cultural gaps which must be bridged by certain strategies or
techniques. The problem here is that the translator works without having
constant , reliable principles or guidelines so that each translator has to
try his best to find out the proper equivalents, if any.
6. Since Islamic jurisprudential maxims are religion-laden and thus
they are characterized by sanctification which requires utmost fidelity,
accuracy and meticulousness.
7. Finally , Arabic-English dictionaries have contributed to the
complexity of religious translation as they give either inaccurate
equivalents or ones with pejorative connotations. Hans Wehr (1960) is
but one example of such bilingual dictionaries. For instance , this
dictionary cites the meaning of jihad as fight , battle, holy war ( against
the infidels, as a religious duty). Thus, it restricts the deep religious sense
of this term to an exclusively military sense notwithstanding that it has
more than this restricted meaning as in the Prophet’s hadith The true
jihaad (holy fight) is against self-whims : which
indicates self–discipline and combating the soul’s vanity; and ‘The

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 greatest jihad is to utter a just word before a tyrant ruler’
which calls for telling the truth regardless of
consequences.

1.1. Review of Related Literature :

There is a conspicuous dearth of treatises on Islamic
jurisprudence in English . Consequently , our review of literature surveys
the seminal sources in Arabic .
1. The first and perhaps the best to start with is The Mejella
(Magazine): The Ottoman Civil Code compiled in 1877 AD, 1293 AH,
based on the Hanafi juristic school. It remained until the 1950s the Civil
Codes of Syria, Iraq and Jordan.
2. The second important source is the English version of the above
called the Mejella translated by C.R.Tayser, D.G. Demetriades and
Ismail Haqqi Effendi, (Kuala Lumpur: The Other Press,2003).
3. Third is a course book for students of Islamic law shari ah titled
(Al-Wajeez fi Sharh Al-Qawa id Al-Fiqhiyah fi Al-Shari ah Al-
Islamiyah) by Abdul Kareem Zeidan .
4. The fourth source is An-Nadwi's AL-Qawa id al-Fiqhiyah (The
Jurisprudential Maxims) based on an M.A thesis conducted at Umm AL-
Qura in Mecca in the early 1980s .
An-Nadwi's research comprises two main parts and seven
chapters: part one contains chapter one which includes seven sections
which give the meaning and significance of the jurisprudential
maxims, the difference between the jurisprudential maxims and

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jurisprudential holistic (comprehensive) maxims, the difference
between the jurisprudential maxims and the jurisprudence theory, the
difference between the jurisprudential maxims and the fundamentalistic
maxims, the similarities (ashbaah ) and counterparts
(nadhaa"ir ) in language and terminology. Chapter two provides a
historical glimpse about the creation and recording of jurisprudential
maxims covering three phases (1) creation and formation ,(2) growth
and recording, and (3) stability and arrangement. Chapter three
presents a general view of the sources of jurisprudential maxims
comprising four sections in which An-Nadwi presents the sources
according to the four common schools in Islam : Hanafism,
Malikism , Shafism and Hanbalism . Part two covers three chapters:
Chapter one deals with the most significant maxims and furnishes an
introduction and two sections. In the introduction he classifies the
maxims according to proofs. In section one, he presents the maxims
derived from the Prophetic hadith and in section two the maxims taken
from the reasoned, legislative texts. These maxims are eight in
number.
Chapter two addresses the function and position of the
jurisprudential maxims in iftaa" , religio-legal judgments, and
jurisdiction. It comprises three sections :
(1) The function of jurisprudential maxims,
(2) Can a jurisprudential maxim be a proof from which judgment is
inferred?

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(3) The reliability of jurisprudential maxims on Iftaa" and
jurisdiction .
Chapter three explicates certain significant maxims with
application and comprises an introduction and five sections, all of which
deal with fifty-five maxims. An-Nadwi's treatise ends with significant
results .
The fifth important source dealing with jurisprudential maxims is AL-
Zarqa’s AL-Qawaa'id AL-Fiqhiya (Jurisprudential Maxims ).
Interestingly, AL-Zarqa has written an introduction to An-Nadwi's book
on jurisprudential maxims.
The sixth and partially contributive source is Nasir's The Islamic Law
of the Personal Status. He devotes the first chapter, 'introduction', to
Islamic jurisprudence, especially the subsection titled 'Islamic legal rules
and practices' (pp.24-28) where maxims are grouped under five headings:
intention, proof, flexibility, injury and custom.
Needless to say there are other books written on the same subject, but
the present author thinks he has cited only the ones which he has access
to, and which he thinks the most significant ones.

1.2. Basic Assumptions:

The present book sets the following basic assumptions:
1. Jurisprudential maxims are an autonomous, sub-variety of language
which may be called religio-legal, as it depends on both religion and law.
2. Jurisprudential maxims exhibit some sort of culture-specificity, i.e.
many terms are culture-bound that resist natural translation.

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 3. The corollary of the above is that there is no perfect one-to-one
equivalence between jurisprudence (fiqh) lexical items and their English
counterparts.
4. Transliteration and explicatory translation, among others, are the
main important strategies that will be resorted to when translating
jurisprudential maxims.
5. Translating the Arabic cultural terms of the jurisprudence (fiqh)
discourse into English involves a kind of semantic loss which may require
some sort of compensation.
6. The rendition of maxims must convey the two dimensions: religion
and law in addition to the linguistic/rhetorical one.

1.3. Significance of the Book:

The significance of the present book emerges from the fact that it
tackles a vitally significant subject in both Islamic law and religion, i.e.,
jurisprudential maxims .
1. The maxims will be explicated and analyzed from the linguistic
perspective before being translated into English.
2. The book also provides proposed English equivalent jurisprudential
maxims for the Arabic ones, which will furnish the foundations for further
research in this field.
3. It will furnish reliable guidelines and principles in addition to
strategies in dealing with translation of jurisprudential maxims from
Arabic into English.

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 4. The significance of jurisprudential maxims stems from the fact that
they form the foundation of the articles of the codes of the personal status
in the Arab and Islamic world.

1.4. Purpose of the Book

The present book aims at the following:
1. Explicating the nature of Islamic jurisprudential maxims, for the
English-speaking readership in order to understand Islamic
jurisprudential maxims and usool (fundaments, principles, roots, origins,
bases) in their genuine characters.
2. Exhibiting differences between jurisprudential maxims, and
fundamentalistic (usool) maxims.
3. Drawing attention of Islamic scholars and linguists to this field, i.e.
religio-legal translation, to give it its due merit and to deal with it in a
more rigorous way.
4. Finally, the study will shed some light on the connotations or implicit
meanings of these maxims in order to provide those who work in the
field of jurisprudence and/or translation with the proper rendition of
those maxims.
This book, we hope, will provide the proper translation together with
the analysis and explication of the jurisprudential maxims.

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 1.5 .Methodology
The procedure of this book is descriptive, analytic and explicative in
rendering the jurisprudential maxims into English. The book covers the
following procedural aspects:
1.5.1. Adequate explication and analysis of Islamic jurisprudential
maxims and their closest counterparts in English .
1.5.2. The data of this book consist of 114 representative Islamic
jurisprudential maxims drawn from the four categories of Islamic
jurisprudence: acts of worship (baabu al'iIbaadaat), transactions among
people (baab-al-mu'aamalaat), consummation of marriage (baab
almunaakahaat) and penalties (baab al- ooqubaat).
The maxims are extracted from the following main references of
Islamic jurisprudence (fiqh) :
i. Law-Book called al-Mejella (2 vols) lit. (Journal of
Juristic Provisions).
ii. Al-Wajeez fi al-Qawaa id al-Fiqhiya (Concise Jurisprudential
Maxims) by: Zeidan.
iii. Al-Qawa id Al-Fiqhiyah ( Jurisprudential Maxims )by: An-Nadwi.
1.5.3. Due to the complicated phraseology and conceptual intricacy of
the maxims, the process of translation has mainly opted for the strategies
of transliteration and explicatory translation, which involve some
compensatory strategies wherever needed.
It will be clear later on that the tendency to adopt particular strategies
is governed by the nature of every single Islamic jurisprudential maxim.

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 1.5.4. It is worth mentioning that the author has adopted an
interpretative/explicatory rendition of the Qur’an, since it is
untranslatable, after having surveyed the available, common translations
of the Qur’an, which are referred to whenever necessary.
Furthermore, in his explication of the maxims, the author has not
treated the jurisprudential maxims in an even manner as regards their
size. In other words, some maxims have been elaborated, whereas others
have been presented briefly. This is due to the nature of the maxims, the
references available about them and their significance.

1.7. Terms adopted in the book

The term qa'ida in jurisprudence (fiqh) has been translated by many into
English as 'rule', while in this book the term maxim has been adopted for
the following reasons:
Contrary to 'rule', maxim according to Concise Oxford Dictionary has
only one sense, namely. "A general truth or rule of conduct expressed in a
sentence", whereas rule in (ibid) is given eight senses or entries, so the
former term is more specific than the latter. For example, the phrase "rule
of the road" refers to the custom or law regulating which side of the road
is to be taken by vehicles meeting or passing each other. And the phrase
"rule of thumb" refers to the maxim for general guidance, based on
experience or practice rather than theory.
Finally 'rule 43' (in the UK) refers to a prison regulation whereby
offenders can be isolated or segregated for their own protection.

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 Canon means: (a) a general law, rule, principle, or criterion (b) a
Church decree or law.
Maxim: a general truth or rule of conduct expressed in a sentence.
Cambridge Learner’s Dictionary states:
p. 176: Canon (standard): a rule, principle or law, especially in the
Christian Church; canonical: (adj);
p.784: maxim a brief statement and a general truth, principle or rule for
behavior.
Furthermore, the author has adopted Nasir's (1986:24) choice of
‘maxim’ instead of 'rule'. They are simply yardsticks for the deduction of
particular precepts. He employs the term maxim instead of rule which is
adopted in the Mejella.
For the Arabic term dhaabit fiqhi, the study has adopted the term
jurisprudential canon; which acts as a constraint or controller of the
particulars within the general rule or maxim.
There are certain terms which have been used exclusively in this book
as exemplified by the following specimen:
The term (iqraar) has been rendered as acknowledgement,
admission or confession: the first term has the sense of declaration with
a slight legal dimension, whereas the term admission has a wider scope
of senses, and term confession is usually restricted to crimes and sins.
The term (halaal)has usually the English equivalent lawful, which
has no sense of religious connotation. The author has realized that it is
mandatory to modify the adjective (lawful) by the adverb (religiously) to
restore the religious connotation. The term (dharar) is used as

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equivalent to harm rather than injury or damage which are adopted by
others.
The term (bayina) has been rendered into evidence instead of
proof which is the equivalent to (hujja) and (burhaan) because
they are almost synonymous, and for (daleel) the equivalent clue has
been used. The author has noticed confusion in the use of the above
terms by dictionaries and has noticed confusion in the use of the above
terms by even specialized dictionaries and jurisprudential references. The
above distinction serves to avoid such confusion.
The term (wilaaya) is confused with (wisaaya). The author
has tried to avoid this confusion in dictionaries and jurisprudence books
and adopted the term ‘jurisdiction’ for (wilaaya) so as
(wisaaya) is guardianship. This distinction has been necessitated by
two types of (wilaaya) whereby (wilaaya) khaasa)
exclusive jurisdiction and (wilaaya ‘aama) public jurisdiction
have been adopted in this book.

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 Chapter Two
Religio-Legal Translation:
A Theoretical Perspective

2.0. Preliminaries
The chapter endeavours to serve as a broad perspective on the
translation of the religio-legal texts. The term ‘religio-legal’ is coined
instead of the compound adjective religious-legal. This kind of
compounding is very common in contemporary English as in Anglo-
Saxon, Anglo-American, Afro-Asian, Afro-Indian, lexico-statistics, and
Indo-European.
Prior to our choice of the approach to be adopted in translating religio-
legal texts, namely Islamic jurisprudential maxims, a swift survey of the
strategies is conducted below.

2 .1. Translation Strategies

Translation strategy is a procedure for solving a problem encountered
in translating a text or a segment of it (Baker, 2005:188). Translation
strategies can be categorized into general and specific strategies. The
former deal with different text types; the latter tackle a certain text type,
readership and skopos, i.e. the function or purpose of translation. These
strategies are of four sub-categories :
2.1.1. Domestication strategy
It is also called normalization or naturalization strategy,and it is employed
to bridge cultural gaps and to achieve intelligibility in line with the

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hermeneutic approach which focuses on interpretation and grants the
translator the right to manipulate the text so as to make it comprehensible
and readable, an approach which is believed to be indispensable to
translating religio-legal texts exemplified in jurisprudential maxims. The
original text undergoes adaptation so as to be re-created to comply with
the target linguistic and cultural conventions and to fulfill the function or
purpose of translation, i.e. – skopos.

2.1.2. Foreignization Atrategy

Quite contrary to domestication strategy, this strategy is ogten adopted in
dealing with culture-specific terms, particularly religio-legal wherein the
translator finds himself obliged to deliberately infringe the target
conventions by retaining something of the foreignness of original.

2.1.3. Compensation strategy

Compensation is the technique of making up for the translation loss of
significant features of the source text (henceforth ST) approximating their
effects in the target text (henceforth TT) through means other than those
used in the ST, that is making up for ST effects achieved by one means
through using another means in the TL. In translating most of the
jurisprudential maxims, loss is apparently inevitable ; hence this strategy
has been maximally utilized. This strategy can be categorized into four
sub-strategies .

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a. Compensation in Kind
Compensating for a particular type of a textual effect deemed to be
untranslatable into the TT by using a textual effect of a different type in
the TT . An example for that is the Arabic emphatic devices such as the
lam and noon as in linabluwnnakum (Surely We will try you),
compensated by lexical items such as truly ,verily, surely.. etc., as in the
Qur’anic aya 155 of surat Al-Baqara (the Cow).

b. Compensation in Place
Compensating for the loss of a particular textual effect occurring at a
given place in the ST, by creating a corresponding effect at a different
place in the TT. An instance for this compensatory strategy is employed to
make up for an inevitable loss such as figures of speech pertaining to
schemes or tropes. Islamic Jurisprudential maxims are replete with
rhetorical devices which cannot readily be translated into English;
consequently some compensation is very necessary so as to be
communicative.
c. Compensation by Merging
Condensing the features carried over a relatively longer stretch of the ST
into a relatively shorter stretch of TT, as in translating the phrase [jabara
khaatirahu] into one single lexical item, the English verb
consoled, comforted or certain jurisprudential terms such as ijtihad and
qiyas.

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d. Compensation by Splitting
Distributing the features carried in a relatively shorter ST stretch over a
relatively longer TT stretch; as in translating the word(ijtihad )
which literally means diligence, but in religio-legal context it is translated
into a long trench of words such as: “reasoned inference or independent
religious opinion.” Another example is the translation of the Islamic term
(al-ihraam ) into English as “a state in which one is prohibited to
practice certain deeds and practices that are religiously permitted at
another state or circumstance.”

2.1.4. Trnsliteratioin / Explication Strategy

Closely related to the compensation strategy is the
transliteratioin/explication strategy to which the transaltor resorts when
there is no TL equivalent to an SL term. Two cases in point are the
terms ijtihaad in maxims 58 and 92, and qiyaas in maxim 100 below.
(For a detaileddiscussion of strategies, see As-Safi, 2011:59-69)

2.2. Translation Equivalence

Ideally, equivalence is a bilingual synonymy or sameness based on
lexical universals and cultural overlaps (As-Safi, 1996:11). Baker
(2005:77) rightly maintains that equivalence is a central concept in
translation theory, albeit certain miner controversies about this concept.
Proponents define equivalence as relationship between ST and TT that
allows the TT to be considered a translation of the ST in the first place.

23
 Equivalence relationships are also believed to hold between parts of
STs and parts of TTs. Many theorists think that translation is based on
some kind of equivalence depending on the rank (word, sentence or text
level). It must be acknowledged here that this equivalence in Arabic and
English is in many cases unattainable on all the above levels.
On the word level too, Hann (1992)in Baker (2005:78) categorizes
equivalence relationships into four, to which the author propounds a fifth
one (2.2.5 below):
2.2.1. One-to-one equivalence where there is a single expression in the
TL for a single SL expression, which is bilingually very rare;
2.2.2. One-to-part-of-one equivalence wherein a TL expression covers
part of the concept designated by a single SL expression such as the
equivalent to the term zakat into English as alms or charity, which reveals
part, but not the whole concept which denotes a regular , obligatory
charity or more elaborately a certain fixed proportion of the wealth(2.5%)
of every Muslim to be paid yearly for the benefit of the needy in the
Islamic community as some sort of a welfare tax .
2.2.3. One-to-many equivalence wherein more than one TL expression
for a single SL expression as in the English words of kinship, i.e. uncle
which denotes paternal or maternal uncle, spouse for either husband or
wife , cousin for the son or daughter of the uncle or aunt.
2.2.4. Many-to-one wherein more than one TL lexical item for a single
SL expression or lexical item, which reverses the above type and which is
rare in translating Islamic jurisprudential maxims.

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2.2.5. Nil or zero equivalence wherein there is no TL expression for
an SL expression, such as the word ijtihaad or mujtaahid and qiyaas
and many other Islamic concepts which have no equivalents in
English. . This kind of non-equivalence has conduced to the
phenomenon of borrowing among languages as is found in many
words in English and Arabic, such as Television, Vedio in Arabic and
Algebra in English among many examples.
The main types of equivalence propounded by Baker that are
pertinent to the present book are pragmatic, lexical (as exemplified
above) and grammatical, the last of which requires further elaboration
due to its relevance to jurisprudential maxims. In Arabic, these maxims
are expressed by either nominal (verbless) sentences or by verbal
sentences. The tenses used are either present (i.e., imperfect) or past (i.e.,
perfect). The English counterparts, on the other hand, assume one
sentence type, i.e. verbal. The equivalent English tenses are either simple
present to express factuality or main verb preceded by the modal shall for
legal obligation, as in the following example:
The life insured shall pay to the insurance company every subsequent
premium in due time.
.
Yadfa u ash-shasus al-muamanu 'alayhi ila sharikat al-ta meen kul qust taali fi
maw'idihi al-mustahiq.
Here are some Arabic jurisprudential maxims translated into English by
way of explication:
.

25
 al-umooru bimaqaasidiha
Matters are judged by intentions.

al-kharaaju bi-l-dhamaan
Yield is guaranteed.

jinaayatu-l- ujmaa jubaar

The beast’s injure is squander.
The above Arabic sentences are nominal (verbless). When the Arabic
sentences contain verbs , be they present or past, the English equivalent
tense is either present or a main verb plus ‘shall’. It should be noted that
the Arabic past tense does not necessarily denote past time; in fact it is
timeless, as is elaborated in maxims 50, 70, 105, and 108 below.

al-amru ithaa dhaaqa itasa

Anything narrowed shall be broadened.
.
man ista jala ash-shaya qabla awaanihi ooqiba bi-hirmaanihi
Whoever hastily acquires a think before its due time shall be penalized by
being proscribed of it .

al-mashaqatu tajulbu al-tayseer

Hardship begets ease.

utahamalu al-dhararu al-khaasu li-daf i al-dharari al- aam

26
 Private harm shall be tolerated to dispel public harm.

1. Language-Specificity
The discrepancies between Arabic and English languages have
significant bearing on translation from Arabic into English and may
entail inevitable losses. These discrepancies pertain to the systems of
person, number and gender, word order or sentence patterns, passivity
and other grammatical categories in the two languages. The Arabic verb,
for example, expresses first person, second person and third person both
singular and plural, such as the verb (Jalasa) he sat, (Jalastu) I sat,
(Jalasti) you sat for second person feminine, (Jalasat) she sat – past
feminine, (Jalasta) second person masculine, (Jalsana) they sat: plural,
feminine, (Jalastum) you sat for masculine plural, (Jalasnaa) we sat for
the first plural pronoun. The pronouns are annexed to the verbs whereas
in English the pronouns are separate.
Besides, the English number system dichotomizes nouns into
either singular or plural, whereas Arabic is a tri-system: singular, dual
and plural. Likewise, all nouns and pronouns are classified in Arabic
into feminine and masculine with very few nouns/adjectives of common
gender such as (saboor) ,(patient), (shakoor),( thankful).
English, on the other hand, has four genders; masculine, feminine,
neuter and common. Speaking of concord, there is also an agreement
between the noun and the adjective that follows it in number and gender,

27
 such as the adjective (kareem) which can be (kareema) for feminine
singular, (kareemat) for feminine plural as in (walaadun kareemun) a
generous boy, (bintun kareematun) a generous girl and (banaatun
kareemaatun) generous girls and (awlaadun kuramaa un) generous
boys.
Explicitly , the English adjective is unchanged in form, unlike the
above four forms in Arabic. The definite and indefinite articles are also
different in usage in the two languages. Arabic , for instance, has no
indefinite article. Instead tanween is used at the end of the singular
noun. The definite article the is not commonly used before abstract
nouns like , treatment, doubt, suspicion , certainty, illness, compulsion ,
necessities , harm, custom, evidence etc., unless followed by a
structure of modification. Normally, equivalents to the English
indefinite, abstract nouns are definite in Arabic as in the equivalents of
the above nouns which occur in Islamic jurisprudential maxims namely:

Al-mu aamalah, ash-shakk, al-zann, alyaqeen, al-maradh, al-ikraah, al-

dharooraat, al-dharar, al- aadah, al-bayinah, etc.
The common Arabic word order is verb-subject-object (v.s.o)or verb-
subject-complements (v.s.comp) corresponding to subject-verb-
complement (s.v.comp). For example, the verbal sentences in Arabic in
the seven maxims, namely: 108, 109, 110, 112, 113, and 114 are
translated into English sentences beginning with noun. The English
nominal sentences sometimes convey some sense of obligation as in the
first eleven maxims (1-11). Many maxims in Arabic which express

28
 factual or probable implicit condition, albeit beginning the temporal
conjunction idhaa (i.e..if) but equivalent to when, contain Arabic verbs in
the past tense which cannot be translated into English past tense because
the implicit condition will be unlikely to happen, contravening the
intentionality or the essence of the maxims.

ithaa ta aaragha al-maani wal-muqtadhi yuqadam al-maani

When the preclusive and the necessitated conflict, the preclusive shall
have the precedence (Maxim 6).
The implicit condition is deemed to be factual here, but conveying an
obligation by using the modal shall , e.g.

ithaa batala al-asl yusaaru ila al-badal.

“When the original becomes worthless, its value shall be sought" (Maxim 4).
The tense system reveals serious discrepancies and poses problems in
translation from Arabic into English as there are more tenses in English
than in Arabic. A very explicit example of language-specificity is the past
tense in Arabic which can be considered timeless and can express past,
present and future times as explicated bellow.
"
(61. . ) "..
Arberry renders Arabic past tense into its English counterpart:
“And abasement and poverty were pitched upon them , and they were laden
with the burden of God’s anger, that because they had disbelieved the signs
of God” (Arberry, 1955:8).

29
 Another example wherein Arberry renders the Arabic past into present: ( 50
" "
“Those who believe, and do deeds of righteousness – theirs shall be given
forgiveness and generous provision” Arberry (1955:339)
A third example:

(71: ).
“Then the unbelievers shall be driven in companies into Gehenna till, when
they have come thither, then its gates will be opened and its keepers will say to
them : “Did not Messengers come to you from among yourselves, reciting to
you the signs of your Lord and warning you against the encounter of this your
day? “ Arberry (1955:479).
The Arabic past verbs are rendered into English future tense. In other words
the Arabic past tense indicates futurity.

2.4. Culture-Specificity
Closely related to language-specificity is culture-specificity .Sapir,
Whorf, Lotman among others rightly maintain that no language can exist unless
it is steeped in the context of culture, and similarly no culture can exist which
does not have at its center the structure of language . Language is therefore the
heart within the body of culture, it is the bond between the two that results in the
continuation of life and human communication ( In Bassnett, 2005:22). Sapir,
in fact, asserts that language is the guide to social reality. Human experience is
largely determined by the language habits of the community, and each separate
structure represents a separate reality:

30
 No two languages are ever sufficiently similar
to be considered as representing the same
reality. The world in which different societies
live are distinct worlds, not merely the same
world with different labels attached.”
(Sapir in Bassnett: 2005: 2)
4.1. Ecological Culture
There are many words that pertain to certain environments or geographical
places which have their own specificity. These words are often borrowed from
one language to another, as in wadi (valley). Other examples can be cited in
words of fruit or plants like mango, ginger, of animals like python.
2.4.20. Material Culture
Food terms furnish good examples of culture-specificity, as in omlet, kabab
and mansaf, (a popular meal in Jordan made of rice, dried yogurt, and meat );
and in terms denoting clothes such as sari, dishdaasha, and ‘iqaal. In deed,
articles of clothing provide perspicuous instances of material culture that differ
from one culture to another and may lead to translation difficulties (Catford,
1965: 100), as evinced in the following Qur’anic aya :
(31: )
“Let them (the believing women) draw their head-coverings over their bosoms”
(Asad, 1980:538). The word khumoor (head-coverings) in the above
translation which is the plural of the singular noun khimaar has no
equivalent in English and thus exhibits an interesting example of the limits of
cultural translatability in the Qur’anic discourse. The Qur’anic aya expresses an
injunction, i.e., an Islamic legal ruling, regarding the head-covering that a

31
Muslim woman is enjoined to wear in such a way as to cover the bosom. Many
translators such as Yusuf Ali, Pickthall, Irving, Hilali and Khan, and Arberry
among others seem to have misunderstood the above verse when they have
opted for ‘veil’, following perchance the strategy of domestication . Yet, the
English equivalent ‘veil’ neither provides comprehensive denotation nor does it
give the English reader a mental image similar to that conjured by the Arabic
word , because the ‘veil’ is equivalent to hijaab, which commonly denotes
covering up or hiding the woman’s hair in addition to decent dressing, wheras
khimaar denotes face-veil.

2.4.3. Social Culture

Due to discrepant societies, there exist differences particularly in the
connotative meanings of terms expressing the cultural emotivity. Differently but
more accurately stated, the denotative meaning of some culture-laden words
may be identical in a pair of cultures, but their connotative meaning can be
completely distinct, because this sort of meaning is sometimes too illusive to be
accurately rendered due to the inherently indefinable nature of such words. The
problem of the SL connotative meaning can also be highlighted by citing in the
Arabic language words like kelb (dog), himaar (donkey) and booma (owl)
which have derogative connotation and designate a great insult when dubbing an
Arab a dog , donkey or owl. In English, on the other hand, these words have
neutral connotative associations or at least no pejorative meaning : the dog is
man’s best friend , a symbol of loyalty; the donkey is an animal symbolizing
endurance and arduous work as in ‘donkey work’, and the owl is the logo of the
Leeds Metropolitan University and Leeds City Council (a symbol of wisdom).

32
 In Arabic, however, the dog is deemed a filthy animal ; under the Islamic
law, shari ah, no one can perform his/her prayer if he/she touches a dog or the
latter touches his/her clothes. The word kelb (dog) also appears in an Arabic
vulgar swear expression ibn al-kelb (literally: son of a dog ) whose near, but not
exact, equivalent in English is ‘son of a bitch’. The owl in Arabic has also the
pejorative connotation of stupidity, bad omen or pessimism. And the donkey
reflects the derogative sense of utter stupidity, thick-mindedness and
stubbornness.
Besides, there are certain common words in the two languages, called ‘false
friends’, which pose a serious problem to the translator as in the word ‘casino’
which echoes in English a negative connotative associations, whereas the
transliterated, borrowed, equivalent in Arabic, i.e. kazeeno has a neutral
connotation , culturally equivalent to a café or coffee-shop, i.e. maqha in some
Arab countries.

2.4.4. Religio-Legal Culture

Terms and concepts under this category pertain to both law and religion,
which vary from one culture to another. For instance, ‘alimony’ in English
denotes allowance that a court may order a man to pay to his wife before or after
a legal separation or divorce. The condition, i.e. legal separation, for alimony in
the English culture is deemed a binding condition., which is not necessarily the
case in Arabic. There are three causes of providing maintenance, (necessary
things for the support of living such as money, food, clothes and lodging)
established by law: marriage, kinship and property.

33
 The words ‘dower’ and ‘dowry’ provide another example. The former means,
according to Collins dictionary, “widow’s share for life of husband’s estate,”
whereas ‘dowry’ denotes “property wife brings to husband at marriage.” In
Arabic, on the other hand, the equivalent mahr means the property, especially
money, given by the bridegroom to the bride before consummation of
marriage. It is worth noting that a specialized dictionary like Mu jamu Lughati
al-Fuqahaa by M.R. Qal’aji, to cite but one example, gives ‘dower’ as
equivalent for mahr which in English denotes a different meaning as cited above
by Collins.
2.4.5. Religio-Legal Specificity
A salient example for the religio-legal specificity is perhaps the concept of
endowment which evinces the discrepancies in the two cultures. In Muslim
countries, there is a ministry that deals with awqaaf customarily translated into
‘endowments’. According to Hans Wehr’s Arabic-English Dictionary,
endowments are restricted to being religious, and the Arabic word has the sense
of bequest for charitable reasons, whereas the English word does not necessarily
have a religious connotation. Longman Dictionary of Contemporary English
(2003:516) offers two meanings : a sum of money given to a college, hospital,
etc to provide it with income, or the act of giving the money; and secondly, a
natural quality, talent or ability. It can be easily inferred from the above
definitions that the term ‘endowment' is not as restricted as the Arabic equivalent
waqf, nor does it convey the religious connotation which the Arabic counterpart
does, the property assigned for the service of Allah.
The translation strategy needs to be adopted in translating religio-legal
discourse especially when encountering cultural words is to abandon literal

34
rendering and adopt instead cultural transposition wherever possible, which
allows transferring the underlying connotative, cultural or emotive associations
of the SL words to the TL culture. In many cases the translator resorts to
transliteration accompanied by explication and adopting translation strategies of
compensation as already been discussed .

35
 Chapter Three
Jurisprudential Maxims, Fundamentalistic Maxims and
Jurisprudential Canons

3.1. Jurisprudential Maxims: Historical Development

In his M.A. thesis on Al-Qawaa i-dul-Fiqhiyah (Jurisprudential Maxims), An-
Nadwi traces the history of jurisprudential maxims and their development in
three phases.
3.1.1. Phase One: Creation and Formation
This phase refers to the message era or legislation era in which jurisprudential
maxims subsume many derivative ones and represent what is called 'holistic
maxims', . For example, there are certain Prophetic sayings
hadiths that have become later jurisprudential maxims, such as: la dharara
walaa dhiraar " ", '' Lit: No harm and no counter harm", the
Prophetic saying: al- ujmaa"u jarhuha jubaar " ", "The beast's
injury is squander", al-kharaaju bi-l-dhamaan " ", "Yield is
guaranteed", and al-bayinatu alaa man id aa wa-l-yameenu alaa man ankar
''" ", " Evidence is for him who claims and the
oath for him who denies" among other sayings in ( all-inclusive, concise
expressions) of Prophet Mohammad. These and other maxims will be
later elaborately discussed. This phase stretched over three centuries, then came
phase two.

3.1.2. Phase Two: Growth and Recording

36
Jurisprudential maxims began to be treated within an autonomous discipline in
the fourth century of Hijra, especially after the prevalence of taqleed ( ),
imitation phenomenon and abatement of ijtihaad ( ), independent religio-
legal judgment. We find now the maxims rely on and are derived from the four
schools of jurisprudence. Historically, jurisprudents of Hanafi school were the
first pioneers in this field. Imam Ad-Dabbas, one of the A.H. fourth century
renowned jurisprudents had collected seventeen holistic jurisprudential maxims
by Imam Abu-Hanifa.
The most famous basic maxims are :
1.1. Matters are judged by intentions. al- umooru bimqaasidiha.

2- Certainty shall not be warded off by doubt.

" "
"al-yaqeenu la yazoolu bi-l-shak".
3- Hardship begets ease: " "
"al-mashaqqaatu tajlubu al-tayseer".
4- Harm shall be dispelled: “ "
" al-dhararu yuzaal".
5- Custom is an arbitrator: “ "
"al-'Aadatu Muhakkama".
These maxims will be fully discussed later on.
3.1.3. Phase Three: Stability and Organization
Albeit the numerous efforts exerted in the previous two phases, jurisprudential
maxims scattered until they had been stabilized and organized in a law-book
called al-Mejella (Juristic Provisions Journal),

37
 "Mejelatu Al-ahkaami Al- adliyah" by a committee of eminent jurisprudents
in the reign of Ottoman Sultan Abdul-Aziz Khan, and started to be operative in
the courts.
For example, one of the maxims in the law-book is the following famous
one:
al-tasarufu alaa al-ra iyeeti manootun bl-l-maslaha.
" "
"Disposition of people is contingent on interest"
Another maxim is " The change of provisions shall not be denied by the
change of the times" " " la yunkaru taghyeeru al-
ahkaami bi-taghyeeri az-zamaan, which means that the change of provisions
due to the change of times shall not be denied.
A final maxim is: "No one shall not be permitted to dispose with someone's
property without the latter's permission."
la yajoozu li-ahadin ann yatasarafa fi muliki ghayrhi bilaa ithnihi.
" "

3..2. Significance of Jurisprudential Maxims in Islamic life .

An-Nadwi (2000:327) delineates the significance of jurisprudential maxims
through the following merits:
1) Jurisprudential maxims play a remarkable role in facilitating and integrating
Islamic jurisprudence so as to organize many derivatives under one maxim
without which provisions become scattered and which might be ostensibly
contradictory.

38
2) The study of jurisprudential maxims helps to present and control many similar
issues so that the maxims become a means to arrive at provisions.
3) Jurisprudential maxims create in the interested person what might be called
(jurisprudence faculty) to enable him to be well-acquainted with the maxims of
his own jurisprudence school.
4) They facilitate his pursuit of particulars and his aptitude to deduce them
from different topics then limit them in one topic without excluding the
exceptions of every maxim; thus he averts the contradiction of similar
provisions.
5) Linking scattered provisions in one thread which denotes that these
provisions are employed to achieve a closer or greater interest .
6) The attainable knowledge of the maxims paves the way for one to be well-
versed in different branches of jurisprudence.

3.3. Differences between Jurisprudential Maxims and Fundamentalistic

Maxims
Fundamentalistic maxims are holistic maxims applicable to all particulars and
topics, whereas jurisprudential maxims are applicable to the majority of the
particulars. These maxims have their own exceptions. Besides, fundamentalistic
maxims can generate practical religious judgments, since they constitute a group
of similar judgments based on one cause. The purpose of these maxims is to
explicate jurisprudential issues and make them easy to understand. These
maxims deal with issues that have different sources of detailed proofs from
which legislation is deduced , which differ from jurisprudential maxims that are
concerned with issues subsuming jurisprudential judgments. Contrary to

39
 jurisprudential maxims, fundamentalistic holistic maxims serve the general and
special religious purposes and pave the way to arrive at the underlying principles
of the judgments. For further details about the differences, see An-Nadwi,
(2004:67-71) .
An example of fundamentalistic maxims is (Command denotes obligation and
the forbidden denotes prohibition )
al-"amru yufeedu-l-wujoob wa an-nahyu yufeedu al-tahreem.

Such maxims will not be elaborated because they lie beyond the scope of the
present book.

3.4. Maxims Deemed to be Both Jurisprudential and Fundamentalistic

Despite differences between jurisprudential maxims and fundamentalistic
maxims, there are certain maxims that can be classified under both of them, since
the fundamentalistic maxim is looked upon as a comprehensive proof from
which a holistic judgment is derived, whereas a jurisprudential maxim is
looked upon as a partial judgment on a certain act, for example:
al-ijtihaadu la yunqadhu bi-mithlihi.

The Ijtihaad shall not be revoked by a similitude.(Maxim 58)

al-asl baqaa "u maa kaana ‘alaa maa kaan.

The original state is what has once existed is(deemed) as persisted.

(Maxim 63).(asl ,plural usool, denotes origin, root, essence, basis, principle, or
fundament.)

40
 la yunsabu ilaa saaktiin qawlunl wa-laakna as-sukoot fi ma radhi-l-haajati
bayaan.

"No utterance shall be imputed to a silent person, but silence in case of necessity
is pronouncement." (Maxim 94)

3.5 Differences between Jurisprudential Maxims and Canons

A Jurisprudential maxim differs from a jurisprudential canon in that the
scope of the latter is narrower than that of the former . The maxim deals with
one jurisprudential topic as AL-Borno in An-Nadwi ( 2004:46) puts it : (The
maxim is not restricted to one category, contrary to canon ) . Likewise, Zeidan
succinctly elucidates the difference between them as follows:
“The maxim comprehends derivatives from various categories,
whereas the canon covers them as related to one topic .”
For example, the canon in the Prophetic Tradition (Any skin tanned is purified):
"ayima ihaabin dubigh faqad tahur.
.
Another example is: “The prayer of the one praying after imam is dependent
on the imam s prayer”, which means if the imam s prayer is nullified so shall be
the one who prays after him as a follower . inna salaata al-muqtadi
muta liqutun bi-salaati al-imaam.
.
An-Nadwi (2004:51) gives four differences between maxims and canons as
follows:

41
1) Maxims are more general and comprehensive than canons as regards
derivations and comprehensiveness of meaning.
2) Although some scholars do not distinguish between maxim and canon, Ibn
Nujaim As–Siyuti and others distinguish one from the other .
3) Maxims have more exceptions than canons, because canons
govern one topic that allows no exception .
4) The Arabic term qa'ida ( maxim,lit:rule) has become very common to
jurisprudents and authors in the Islamic jurisprudence, and there are
differences between them in the jurisprudence domains

3.6. Differences between a Jurisprudential Maxim and a Jurisprudence

Theory
An-Nadwi (2004: 64) sums up the differences between the two as follows:
1) The jurisprudential maxim includes in itself a jurisprudential judgment and
that this judgment applies to the derivatives as in the maxim L Certainty shall
not be warded off by doubt ) which includes jurisprudential judgments in every
issue in which certainty and doubt co-occur , contrary to jurisprudence theory
which does not include jurisprudential judgment in itself as in the theory of
ownership and annulment.
2) The jurisprudential maxim does not subsume assumptions and conditions,
contrary to jurisprudence theory which must include them Nevertheless, there
are some jurisprudential maxims which share common characteristics with the
jurisprudence theory, or their general topics can be subsumed under a certain
theory such as :
la yunkaru taghyeeru-l-ahkaami bi-taghyeeri az-zamaan.

42
"Change of judgements shall not be denied by change of times." (Maxim 94) .
It means that judgments are based on conventions and customs, not on the text
and evidence , which change with the change of conventions and customs on
which they are based :
"inama tu tabaru-l- aadatu ithaa atradat aw ghalabat

Custom shall be deemed effective only when it is constant and predominant.

(Maxim 77)
al-ma roofu urfan ka-l-mashrooti shartan.

What is commonly practiced is deemed as a stipulated condition.

(Maxim 53)
al-ma roofu bayna-l-tujaari ka-l-mashrooti baynahum.
.
What is commonly practiced by merchants is deemed a stipulated
condition. (Maxim 52)
al-ta yeenu bi-l- urfi ka-l-ta yeen bi-n-nass.
.
What is stipulated by convention is as stipulated by text (23)
al- aadatu muhakima

Custom is an arbitrator. (Maxim 40)

ist maalu an-naasi hujatun yajubu-l- amlu bi-haa.
.

43
 ‘People’s common usage is an operative proof.’(Maxim 12)
Irrespective of different derivatives and particulars under each of them, the
above commonly known jurisprudential maxims can all be subsumed under the
topic of ‘convention theory’, simply because ‘convention’ is the general trait
which comprehends all the aforesaid maxims.

44
 Chapter Four

114 Jurisprudential Maxims

The majority of jurisprudential maxims are based on the Qur'an and/or the Prophetic
Tradition hadith. The Qur'an, which literally means reading or recitation, is the sacred word
of Allah communicated by angel Gabriel to Prophet Muhammad. The Qur'an is the only
divine Book received by Prophet Muhammad directly, thus it differs from the Torah, the
Gospel and the other Books which were received by the respective prophets in the form of
ideas, which later expressed their own words. For this reason, the heavenly books except the
Qur'an do not proclaim inimitability besides being also a miracle given to Prophet
Muhammad. The fact that Prophet Mohammad received the Qur'an directly, in its literal
form, is attested by the Qur'an which declares in sura 75(Al-qiyaama, resurrection,
addressing Prophet Muhammad), verses ( ayas 16,17,18). "Do not set your tongue in motion
to make haste with (the revelation of the Qur'an) it is up to Us,(i.e. Almighty Allah) to
collect it and (to know how) to recite it. The Qur'an is a treasure of learning, wisdom, and
knowledge which lead to magnify the human thought: it contains the shari'ah, the principles
of law and state administration. The Qur'an is also called Al-Furqan which means the
criterion or distinguisher of truth from falsehood . On the principles of fiqh (jurisprudence),
the Qur'an is fundamentally concerned with the reform of humanity for human welfare, and
man's betterment in this life and the Hereafter. The Book contains maxims, principles,
canons, indications and fundamental methods or approaches towards human conduct in
general. The basic principles of law in Islam are derived from the fundamental outlines of
the Qur'an.
The Qur'an was revealed to the Prophet in Mecca and Medina over a period of 23 years, as
pronouncements of precepts or replies to questions. It consists of 114 suras (chapters) of
6342 ayas (verses), of which only 500 verses deal with legal or jurisprudential matters (al-
ayaatu sh- shar'iyah ); the remainder deal with beliefs and moral conduct. The

45
Mecca suras, brief and concise, tackle cosmology, faith and moral education, whereas the
Madina suras, long and detailed, concern legislation (Nasir,1990:20).
The wording of a Qur'anic ruling is of two kinds (1) conclusive and binding (qat'i
) allowing only one meaning as exemplified in the word "sixth" in the verse: "and to
his parents a sixth share of the inheritance (An-Nisa:11)
(11: )" "
(2) Contingent (zanni ) as in the verse: "And divorced women shall wait (as regards
their marriage) for three courses or menstrual periods" (Al-Baqara:228) .
(228: )" "
Herein the Arabic word Quroo' means either "courses", i.e, menstrual periods or periods of
menstrual purity. The Quranic text may be taken literally or interpreted metaphorically:
literal interpretation is again divided into detailed (mufasal ) and general (mujmal
). The detailed enunciations are either perennial (muhkam ) or abrogated, i.e.,
cancelled,(mansookh ) The process of abrogating an earlier verse is called nasikh
. By these means jurists and jurisprudents in particular can solve some of the divergences
in the Qur'anic precepts, the later abrogating the earlier. (Nasir, 1990).
The hadiths constitute the bulk of the Prophetic Tradition or Sunna which is, after the
Qur'an, the second most authoritative source of Islamic legislation. The sunna ,
etymologically, denotes the path trodden, beaten and made conspicuous by the forefathers, it
is the precedent of normative custom which the Arabs were bound to observe and imitate.
As a source of Islamic legal standards, the sunna is restricted to that of the Prophet (sunnatu-
n-Nabi), which is classified into three kinds: (1)) sunna quawliya or hadith denoting the
verbal utterances of the Prophet; (2) sunna fi'lyia referring to the acts and practices of the
Prophet; and (3) sunna taqririyya indicating the tacit assent of the Prophet, i.e., his
refraining from expressing disapproval on hearing or observing certain things said or done (
Nasir, 1990: 20-21).
Unlike the Qur'an, whose wording is binding, inimitable and immutable, the wording of
the Prophet's sayings (hadiths) may change , and binding in content only. Pertinently, the

46
content or subject of a hadith must be differentiated from its authenticity, i.e., the source
from which it derives its authority through the chain of transmission. Islamic jurists
categorize the Prophet's tradition in general and hadiths in particular into three ranks of
certitude (ibid):
1. Mutawaatir denoting a hadith which is handed down through an uninterrupted
chain of trustworthy witnesses. This kind of traditions recurs more in the Prophetic acts or
practices sunna fi'liiya than in the verbal sayings hadiths. An example of such hadiths is:
"Whoever deliberately tells a lie about me shall occupy (lit: let him occupy) his place in
Hell(Fire)".
man kathaba 'alya muta'amidan fa-li-yatba"a maq'adahu min an-naar.
.
2. Mash-hoor meaning "widespread" or "well-known" which differs from the above
said handed down is missing. An evident example is a hadith narrated by the second
mutawaatir in that a link in the chain of transmission by which it is Rashidi Caliph 'Umar
ibn al-Khattaab and later cited as such by a chain of narrators:
Acts are judged by intentions, and each person shall have according to his intentions.
"inamaa a-'amaalu bi-n-niyaati wa-inamaa li-kuli imra"in maa nawaa.
.
On the above hadith, Maxim No. 72 is based.
3. Khabar Al-Ahaad signifying a hadith which is attributed to the Prophet by a
single witness, often designated as a one-source hadith.
As regards narrators or transmitters, there are ten kinds; the first three of which are the
commonly known:
i. Sahih authentic or sound hadith related by narrators who had been men of
pious lives, abstentious in habits, endowed with good memory, free from blemish and
had lived in peace with neighbours. The best examples of sahih hadiths are those
narrated by Bukhari and Muslim.

47
ii. Hasan fair or good hadith narrated by a reliable chain of transmitters, but not
reaching the grade of sahih hadith .
iii. Da'eef weak or doubtful hadith narrated by persons whose memory was bad and
whose narration is thus so inaccurate that it does not qualitfy to be either sahih or
hasan, and by corollary it cannot be used as a basis of an Islamic opinion or in
jurisprudence.
iv. Ghareeb unfamiliar or rare hadith denoting a version reported by one reliable
or unreliable narrator, which differs in context with another version reported by a
group of reliable narrators. A ghariib hadith can be sahih or da'iif.
v. Majhool or unknown hadith when there is an unknown narrator in the cahin of
transmitters of a hadith.
vi. Muqtu' Munqati' : disconnected hadith which is incomplete as regards
the chain of narrators.
vii. Marfoo' or traceable hadith which is referred to the Prophet, be it mutwaasil
(connected), munqata' (disconnected) or mursal (disreferred).
viii. Mauqoof or untraceable hadith which indicates a report or information given
by a companion of the Prophet (sahabi). A mauquf is also called an athar (trace )
Mutdhaarib or confounding hadith wherein the narrators disagree on a
particular source or on any other aspect with equally strong grounds and with no
possibility of preponderating one opinion against the other. The disagreement could be
either on the chain of narrators or on the text.
xi. Mursal or disreferred hadith wherein the chain of narrators ending at a taabi'i,
i.e. a person who has met or accompanied any companion of the Prophet, without
reference to the companion quoting from the Prophet.

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 Maxim 1
ithaa ijta a al-halaal wa-l-haraam ghalaba al-haraam.
.
When the religiously lawful and unlawful coincide,
the unlawful shall be dominant.
This maxim is based on the following Prophetic hadith: "That which is religiously lawful
is manifest and that which is prohibited is manifest too, and between the two of them are
doubtful matters unknown to many people. Hence, whoever avoids these doubtful matters
salvages his religion and his honor. And whoever indulges in these doubtful matters falls
into that which is prohibited. Like a shepherded who grazes (his cattle) around a sanctuary,
and he is about to graze therein. Truly, every king has a sanctuary and Allah's sanctuary on
the earth is His prohibition. Truly, there is a piece of flesh in the body, if it is sound the
whole body is sound; but if it is diseased the whole body is diseased, and that (piece) is the
heart”.
There is another pertinent Prophetic hadith related by Al-Tarmadhi in which the Prophet
said: “Set aside the thing that causes doubt for that which does not. For truth is reassuring
and lying is disturbing”.
Maxim 2
ithaa ijtama a al-mubaashir wa-l-mutasbib yudhaaf al-hukum ila al-
mubaashir
.
When a perpetrator and a ‘causer’ coincide,

the judgment shall fall on the perpetrator.

49
 In a case in which there are both a perpetrator, i.e., a proximate agent: someone who in
person does a thing, and a remote agent or a 'causer', i.e., the one who is the indirect cause of
the action e (muttesbbib), the judgment falls on the actual perpetrator the actual doer.

The perpetrator is the principal cause of an action since the presumption in law is to
annex an action to its principal cause rather than its incidental cause. Examples of this: a
person who steers another’s animal into a well is liable and not the person who originally
dug the well. In simpler words, when there is a case between a proximate agent, i.e., doer,
and a remote agent, the indirect cause, the decision shall go against the former, i.e., the
proximate agent who perpetrates the action. Thereupon, in the case of a person who has dug
a well in a public road and another person who has thrown an animal not belonging to him
into the well, the responsibility will be that of the person who thrown the animal in and not
that of the person who has dug thewwell. Also, if one opens the door of another’s home
whereupon someone manages to steal from the property, the liability falls on the thief, the
perpetrator, and not on the one who opens the door whose involvement is merely incidental
(Cf. Art. 90, The Mejella).

Maxim 3
ithaa ijtama a amraan min jinsin waahidin walam yakhtalifa
maqsadihumaa dakhala ahaduhmaa fi-l-aakhar
.
When two matters of one sort and coincide
with similar intents coincide, one suffices.
An obvious example can be seen when two matters co-occur, i.e., happen at the
same time, such as a major impurity (janaaba) and menstruation (haydh) bathing the
whole body (ghusul: purification bath) suffices.

50
 Maxim 4
ithaa batala al-aslu yuasaaru ilaa al-badal
.
When the root becomes void,
a substitute shall be sought.
This maxim can be explained as follows: when the origin or root asl becomes worthless,
its value shall be sought. The Mejella (2003:9) illustrates that when the giving of the
original thing has not been possible, its price is given. (The Mejella, 2003:9)
When it becomes impossible to return the thing usurped being destroyed, the usurper is liable
to give a like thing or its value at the time of usurping. Article 489 in the Mejella stipulates if it
is conditional that the rent payment is for one single month and some days of the month have
elapsed, the month is deemed 30 days, because if it is impossible to pay the monthly rate
depending on the crescent which is the origin, it shall be resorted to counting 30 days.
Likewise. Article 890 in the Mejella stipulates that “It is obligatory to restore the usurped thing
as it is”. And if it is impossible to remove it, being lost or destroyed, then it is binding to pay
its value. This is reinforced in Article 891 in the Mejella which stipulates: The usurper shall be
liable to pay the usurped property being consumed, destroyed or lost with or without his
transgression. And if it is of value the usurper shall be obligated to pay its value at the time and
place of the act of usurping. In case of matchable things, a similar thing shall be given.

Maxim 5
ithaa batala ash-shay"u batala maa fi dhimnahu
.
When something is void what is within shall be void.
This maxim means when something inclusive is void or invalidated anything within shall
be void or invalidated, i.e., when a thing becomes void, everything encompassed within it
also becomes void.. For instance, if there are several clauses on a certain disposition whose
provision has been validated by the validation of disposition , provision shall be null and
void, ie., if the disposition provision which includes it is nullified. For instance, the

51
ettlement or the sale is invalidated, the embedded acknowledgement and acquaintance
between the contractors shall be null and void.
Another example, if someone says to another “I sell you my blood for 1000 and thereof he
kills him, the killer shall be liable to retaliation (Qasaas) on the grounds that the permission
for killing is originated by the sale of his blood, which is null and void, so is the permission
which implies it.

Maxim 6
ithaa ta aaradha al-maani u wa-l-muqtadhi yuqadamu al-maani
.
When the preclusive and the necessitated conflict,
preference shall be given to the preclusive.

This maxim can also be rendered as follows: ‘when the preclusion or the
impediment and the requirement co-occur, the preclusion shall have the
precedence.’ It can be explained as follows: when there is conflict between abar
or derrent to certain action and the necessity for such action, the bar or derrent
will preevail.A mortgagor, for example, may not sell the mortgaged property so
long as it is in the mortgagee’s possession. This is based on the Prophetic hadith:
Maa nahaytukum anhu fa-ijtanibuh wa-maa amrtukum bihi fa-atoo minhu maa
istat atum
( )
Related by Muslim, the Prophet said, “Whatever I have forbidden you from committing
avert it, and whatever I enjoined you to do, do it as far as possible”. In the Mejelle (English
Version, p.8) Art 47 expresses the above maxim as: “when an obstacle and a want have
presented themselves, the obstacle is given precedence”. The Mejelle cites the following
instance: A man cannot sell to another his property which is pledged in the hands of his

52
creditor. Article (1192) speaks of the right of disposition by the owner as follows: Every
person has the right of disposition of his property as he wishes, yet if the right of another
person is attached to it, it prevents the owner from making any disposition of his property.
For example, in a building wherein the upper storey is the property of one, and the lower
storey is the property of another, the owner of the upper storey has the right to use the floor
which is at the same time the ceiling of the lower storey, and the owner of the lower storey
has the right to benefit from it. Hence, no one has the right to do anything without the
other’s permission.

Maxim 7
ithaa ta’aaradhat mafsadataani roo’iya a’dhamhumaa dhararan bi-irtikaabi
akhafahumaa.
.
When greater and lesser banes are incompatible,
the lesser shall be committed.
The maxim stipulates that when two unlawful things occur in a contradictory manner,
the lesser may be committed to avert the greater. It is found in Articles 46 and 41 in the
Iraqi Civil Code. By way of exemplification, if a wounded man, while performing his
prayer prostrates and this prostration will open his wound then he may perform his prayer
sitting and using gestures because abandoning prostration makes his prayer easily
performed. Another example, if a woman performs her prayer standing which entails
revealing any part of her body that nullities the prayer and if she performs her prayer sitting
which entails no revealing anything of her body, then she shall perform her prayer sitting .
This maxim is also cited in the Mejella (The English Version,p.6): “When two wrongful
acts (fesaad) meet, the remedy of the greater is sought by the doing of the less.”

Maxim 8
ithaa ta athara a maalu al-kalaami yuhmal
.

53
 When it is impossible to give effect to a word,
it shall be neglected.
That is to say when it is impossible to give effect to a word in either its literal or
metaphorical meaning it shall be neglected and deemed as idle on which no judgment or the
emphasis can be based. An example of this is: if someone claims that another who is older
than him is his son. Such a claim can neither be understood literally or metaphorically.

Maxim 9
ithaa ta atharat al-haqeeqatu yusaaru ila al-majaaz

When it is impossible to understand a word lineally,

it shall be understood metaphorically.
When the literal meaning is impossible, the metaphorical meaning sense shall be sought
(resorted to). For example, if an heir less inheritor acknowledges to one who is not of his
kinship or older than him is his son and thereupon his heir and that man is deceased, his
words cannot be taken literally, but metaphorically, is meant by the will. The one who is
acknowledged to shall have the right of inheriting all the bequeathed property of the
deceased.

Maxim 10
ithaa saqata al-aslu saqata al-far

When the origin is invalid, the derivative shall be invalid too.

Literally, when the root no longer exists, the branch also ceases to exist. The maxim
shows that the derivative means that whatever does not exist independently is dependent on

54
another thing. The latter shall be deemed the root for it, and if the root is invalid, the
derivative shall be invalid too. Some examples for this maxim are: If the debtor is remitted
from the debt by the creditor, the guarantor shall be acquitted. If the client dies or becomes
incurably insane, the power of attorney shall be invalid unless it concerns someone else’s
right. Another example cited in the Mejelle, (3003:9) “If someone says ‘Zeid has to receive
from Omer 1000 pieces and I am the guarantor’, and Omar denies the debt the guarantor is
bound by what he has said, if Zeid claims the 1000 pieces”.

Maxim 11
ithaa zaala al-maani u aada al-mamnoo
.
When the preclusion no longer exists,
the precluded shall return.
This maxim literally means that when a bar or deterrent is removed, the thing which was
barred or deterred is revived; it signifies anything that is invalidated for a forbidden reason
when thereafter does not exist, the forbidden shall be effective. . For instance, someone
makes a will for his brother then he has a baby before he dies, the will shall be effective,
because the son prohibits a fellow man from bequest and the will becomes valid because it
belongs to a non-inheritor. Here are some applications of this maxim:
a- The contradiction in Article 1647 in the Mejella is deemed a sort of forbidden of
ownership in the legal proceeding, but if contradiction is non-existent by believing the
litigant or giving a lie to justice, the legal proceeding shall be effective. Article 1653 in the
Mejella stipulates that: "Contradiction shall be dispelled by believing the litigant"; for
instance, someone claims 1000 regarding a loan then he claims regarding a bail, hence the
defendant is believed, contradiction shall be dispelled.

55
b- Increasing the grant for the granted forbids the granter to return the grant, but if the
increase is non-existent, the right of returning shall be effective to the granter.
c- If the purchaser has found an old fault in his goods which he has bought, he can return
the goods to the seller, but if the goods at the buyer and a fault occurs, here as a result of
fault returning is refused. If the occurrence of fault is non-existent, the right of returning
shall not be effective.

Maxim 12
ist maalu an-naasi hujatun yajubu al- amal bi-haa.

People's usage shall be an operative proof.

The maxim can be deemed a derivative of Maxim 40: "Custom is an arbitrator". The
customary use of men is evidence according to which it is necessary to act. For instance, if
someone seeks the assistance of someone else to sell his property and after the sale the latter
demands a recompense, the case will be considered in accordance with the customary
transactions in the market: if the custom dictates recompense, it shall be given to him.

Maxim 13
ishaaratu al-akhrasi al-ma hoodi ka al-bayaani bi-l-lisaan.

The known sign of a dumb person is tantamount to verbal utterance.

This maxim denotes that the recognised dumb-signs are equivalent to speech by tongue.
The dumb person's known signs are deemed verbal utterances, in order not to lose his civil

56
rights. The judge is required to know the signs of the dumb person so that he can build on
them the legal consequences, whether the dumb person is a plaintiff or defendant.
If the judge is unfamiliar with the dumb person’s signs he should ask friends, neighbors
and brothers of the dumb person, i.e., those who know the meaning of the signs can translate
them to the judge to make him knowledgeable of their meanings. It is conditional the
translator must be just and competent. The sign of the dumb person shall be taken into
consideration even if he can write because both acts constitute adequate evidence.
The dumb signs shall also substitute his utterance in all contracts and conducts except in
testimony and prescribed punishments, because prescribed punishments are warded off by
suspicion and the testimony is not actualized. With regard to the tied-tongued person (the
one whose tongue is tied from talking and cannot speak). His signs shall not be accepted
unless the state of being tongue-tied is extended for a long time, which some Hanafi jurists
estimate the span of time for one year.
If the dumb person is obliged to swear an oath , the judge shall say as follows: “swear by
Allah’s pledge and covenant if it is so”. If the dumb person nods his head to mean yes, he
shall be deemed as swearing.
As an application of the maxim, Article 174 in the Mejella stipulates: the sale shall be
concluded by the known sign of the dumb person whereas the sign of the articulating person
shall not conclude the sale on the grounds that the sign shall not be interpreted for his
interest. In other words, the dumb person’s oath and refusal by using his known signs shall
be acceptable.

Maxim 14
maalu-l-kalaami awlaa min ihmaalihi.

Giving effect to a word has priority over negligence.

57
 This maxim demonstrates that as long as it is possible for a word to have a meaning, it
must not be regarded as meaningless. This maxim is based on the Qur’an and hadith, as
illustrated bellow:
2. (18: : )
'Not a word does a man utter but there is an observer by him ready (to record it).'
b- (3: )
"And those who turn away from idle talk”.
c- ( 55 : )
“And when they hear idle talk they turn away from it”.
3. The Prophetic hadith which is narrated by Mu’adh bn Jabal who asked the Prophet
“Messenger of Allah! Tell me of something I do which makes me enter paradise and
keep me away from Hell-fire, the Prophet said, ”You asked me of a great thing, but it is
easy for me by Allah’s help: 'worship Allah, do not set partners with him, perform
prayers, give zakat, fast Ramadhan, and make pilgrimage to Allah’s House” then he said,
“Shall I guide you to the gates of good ? Shall I tell you to possess all these things?
Mu'adh said, “Yes, indeed”. So, he held his tongue and said beware this(tongue). Mu'adh
said, "Are we accountable for what we speak?" The Prophet said, “May your mother be
bereaved of you, Mu'adh ! Shall people not be thrown on their faces or noses, but
because of their tongues?"

Maxim 15
al-baqaa" u ashalu min al-ibtidaa".

Continuance is easier than commencement.

This maxim can be explicated as follows: for any state of affairs, it is easier to persist than
to start. It echoes Articles 4 and 75 of Jordanian Civil Code and Article 447 of Iraqi Civil
Code : ‘A state of affairs known to have once persisted is regarded as having persisted
unless the contrary can be proven.’

58
 For example if Ahmed has granted Ali a house, afterwards he has taken back half of it,
thus the house becomes jointly owned by them, the coming into existence of the joint
ownership shall not prevent the continuation of the gift.
Another example, if someone has two houses on both sides of the road and he wants to
construct a bridge connecting them, he shall be initially prevented. But once the bridge is
constructed it shall not be demolished unless the existence of the bridge poses some harm
for the passers-by.

Maxim 16
al-baynitu hujatun muta adiyayun wa-iqraaru hujatun qaasira.

Evidence is an adequate proof and

admission is an inadequate proof.
This maxim means that evidence has positive force, i.e., sufficient, whereas admission is
deficient in force. It is related to the ones concerning the concept of evidence. It
demonstrates that admission or acknowledgement is restricted only to the one who admits
or acknowledges, and his judgment is not applicable to another. As for evidence, it is a proof
against the concerned person as well as others. Admission is a proof only in so far as the
person who admits is concerned, since it is based on his allegation, and his allegation is not a
proof against others. Here are some examples for this maxim:
a- If a person buys something and an obligation arises towards another based on Islamic
law, and if it is his entitlement based on the admission of the vendee then the vendee
shall not resort to the seller regarding the value, because his admission does not apply to
the seller; but if it is his entitlement based on evidence then the seller is referred to
insofar as the value is concerned because the principle, i.e., evidence, applies to him.
b- If the mortgager admits what is mortgaged for a man, then his admission does not apply
to the mortgaged; in fact, the one in whose favor admission is made shall establish a
proof for the mortgager and the beneficiary of the mortgage.

59
 Maxim 17
al-bayinatu alaa al-muda i wa-l-yameenu ala man ankar.

Evidence is for him who claims, and oath is for him who denies.
This maxim can be literally yet more succinctly expressed as:”Evidence is on the
claimant; oath on him who denies”. It simply means, “Evidence must be presented by the
person who claims and the oath must be taken by the person who denies”. The root of the
above maxim is a Prophetic tradition narrated by Muslim in his Sahih on the authority of bn
Abbas that the Prophet said:
." "
." "
"If people were granted what they claim some would claim the blood and the property of
certain people, but taking an oath is on the part of the defendant." In explication of the above
hadith, Al- Baihaqi narrated a sound or sahih Prophetic hadith on the authority of Ibn Abbas
that the Prophet had said “But the evidence is by the claimant and the oath is by the denier”.
This maxim has become a standard maxim in law which can be reworded as “the claimant
must present evidence and the one who denies the charge must swear an oath”. This maxim
is cited in Jordanian Civil Code and Iraqi Civil Code: “The object of evidence is to prove
what is contrary to appearance; the object of the oath is to ensure the continuance of the
original state", Art: 78 Jordanian and 448/2 Iraqi. (Nasir: 25).

Maxim 18
al-bayinatu li-ithbaati khilaafi al-dhaahiri wa-l-yameenu li-ibqaa" i al-asl

Evidence is to prove what is not evident and

an oath to affirm the original state.

60
 This maxim means: evidence is to establishe what is contrary of appearance; oath to
maintain the original state, i.e., the basis asl. It is another maxim of evidence; it means what
is intended by what is evident is the original, since evidence is established to prove what is
different from the original. Swearing an oath, for example, has become established (in
Islamic law) in order to maintain the original state, either as non-existence or existence, so
that if one of the litigants adheres to what is original and the other fails to establish evidence
for his allegation, which is different from that original state, the decisive position is that of
the one who adheres to that original state with his oath. This is because the one who claims
what is different from the evident shall not be believed without evidence attesting his
allegation. As for the one who adheres to what is evident, he adheres to a legitimate origin
and so he is believed for his oath to maintain his origin. For example, if he claims a debt
from another he shall prove it with evidence because he alleges what is different from the
evident, that is what is different from the original which is a release of deed. As for the
defendant who denies, he adheres to his principle, for the evident attests to him, and his oath
is believed to maintain this principle (the original state is freedom of liability). As an
application to the maxim, here are some examples: when a woman claims that she has not
received the alimony and clothing that have been designated for a prolonged period of time:
the say is hers, because the origin is: these two lay with the husband's liability, just like the
debtor, if he claims to have paid the debt while the creditor denies, then the say is the
creditor’s.
Another example is if one (of the two litigants) claims compulsion, then the evidence is on
the one claiming compulsion, because the original principle is voluntary choice. The claim of
compulsion conflicts with what is evident, and it is not obligatory for the one claiming
voluntarily to swear an oath in order to affirm this evidence – the original – namely,
voluntary, for it is the foundation of contracts and acknowledgement. There are some
exceptions of this maxim: if the depositor claims returning the deposit or its loss then his
statement is valid, although the basic principle is that it remains with him. Both returning and
loss are incidental, that is of the contingent attributes, while the basis is non-existence.
Pertinently, Nasir (1990:25) refers to the article cited by Jordanian Civil Code 78 and Iraqi

61
Civil Code 448/2 which state: "The object of evidence is to prove what is contrary to
appearance; the object of the oath is to ensure the continuance of the original state".

62
 Maxim 19
al-taabi u taabi un

The appurtenant is deemed appurtenant.

This maxim means that whatever belongs to a certain thing goes with that thing to which
it belongs. It can be explained as follows: That which follows a thing in reality, follows it in
law. In other words, when a pregnant animal is sold its embryo is sold as well. The maxim
is based on the Prophetic hadith " ". (The slaughtering of the animal embryo
is slaughtering its mother).

Maxim 20
al-tabi u laa yufradu bi-l-hukumi

The appurtenant shall not be judged separately.

This maxim is closely related to the previous one and can be rephrased as: “Judgment
cannot be given separately for a thing that follows another”, or simply a thing which belongs
to another thing cannot be dealt with separately from the thing to which it belongs. It is
illustrated in the following example: the embryo of an animal cannot be sold separately.

Maxim 21
al-tabru u laa yatumu ilaa bi-l-qabdhi

No Donation unless received

This maxim can be explaiuned as follows: a free voluntary gift is not complete without
transafer of possession. i.e., a gifi is not complete unless possession of the thing gifted is
made to the donee. Donation in Arabic means (tamleek: possessing or owning something
freely), i.e., transfer of property to others lawfully with nothing in return; it includes the
gift, present and charity. The act of donation is conditional on execution and completion

63
when the donee actually receives the donated thing, otherwise it shall be a breach of an
established maxim in the Islamic jurisprudence which is "No one shall be entitled to transfer
property into someone else's property without prior consent".
In other simpler words, no one shall be permitted to pass property to another unless the
latter is willing to do so, or it can be rephrased as: nothing shall be transferred to another's
property compulsively with exception to bequest. Likewise, if the donation contract is
concluded but not received, the donee shall have the right to demand delivery from the
donor, thereupon the donation contract shall become a guarantee contract, which is
impermissble. Accordingly, if donation is not executed as in the case of the donor’s or
donee’s death, donation shall be null and void.
This maxim is based on Malik's narration in Al-Muwatta' on the authority of ‘Aisha that
Abu Bakr said in his final illness: "I have gifted you palm trees, and if you had reaped the
dates they would have been yours, but today they shall belong to the heirs". The will is an
exception of this maxim, albeit it is a form of donation though it may be concluded without
actual receipt.

Maxim 22
al-tasarfu alaa al-ra eeyati manootun bi-l-maslaha.

Disposition of people is contingent upon interest.

This maxim denotes that power in respect of the people’s property must be exercised for
the public benefit. It is based on a number of Prophetic hadiths such as :
" "
“Any servant, upon whom Allah has bestowed authority of ruling over people and does not
deal with them in an honest manner will never smell the aroma of Paradise”. Another
Prophetic hadith produced by Al-Bukhari on the authority of Ma'qal bn Yusar that he heard
the Messenger of Allah say
.

64
If a ruler who has an authority to rule Muslim subjects dies while he is cheating them, Allah
will deny him Paradise. A third hadith is on the authority of Omar’s son, that the Prophet
said:

"

."
‘All of you are guardians and responsible for your subjects, the Amir (ruler) who has an
authority over people is a guardian and he is responsible for them, a man is a guardian of his
family and is responsible for them, a woman is a guardian in her husband's house and
children, she is responsible for them, a servant is a guardian of his master’s property and
responsible for it. So, you are all guardians and all of you are responsible for your charges.’
Here is a fourth supportive Prophetic hadith:
.( ).
"Whoever is placed in authority over anything pertaining to Muslims' affairs, Allah will not
fulfill his needs until he fulfills their needs," ( narrated by Al-Tibrani on the authority of Ibn
Omar).

Maxim 23
al-ta yeenu bi-l- urfi ka-l-ta yeeni bi-n-nass.

What is stipulated by convention

is as stipulated by text.
This maxim points out that specification by common practice which has become an
established convention equivalent to stipulation by text. The maxim is rendered by Nasir
(1990:28) as: "A matter established by custom is like a matter established by law".
An example of this is the authorization for unconditional sale and deposit which the
convention dictates that the deposit shall be preserved intact, even though the depositor may
be stated as a condition. Another example is the one who hires a shop in a drapery market,

65
but uses it for blacksmithing which entails the use of fire. The tenant should use it pursuant
to convention in this market. The maxim is: "the common usage acts as stipulated by a text."

Maxim 24
al-thaabitu bi-l-burhaani ka-l-thaabiti bi-l- ayaani.

What is established by a proof is as that established by seeing.

This maxim shows that anything which is establihed by a proof is equivalent to anything
which is actually seen. It is related to maxims of “evidence”, which refers anything on which
a lawsuit is legally established. This reminds the author of the common English proverb
“Seeing is believing”. For instance, the defendant is deemed accountable by his own
admission made before the judge; likewise if it is proven that he has made an admission of the
claim which is documented by fair evidence or a deed showing signature and free from
suspicion of forgery, in which case the judgment is based on admission is a manifest evidence
.

Maxim 25
al-jawaazu ash-shar i yunaafi al-dhamaan.

Religious permissibility excludes liability for compensation.

This maxim means that what is permissible in law cannot be a cause for liability. It goes
under the maxims of "compensation” ,i.e., one is not responsible for what he does as long as
it is religiously permissible or impermissible to do. For example, there shall be no
compensation for the harm that has befallen another as a consequence of what he has done
or has not done, as long as the Islamic law (shari ah) permits to perform or not to perform
this action. Another example: if a person digs a well in his property and an animal belonging
to another person falls in the well, and dies, then the well digger shall not be liable to pay
any compensation. Also, the custodian shall return the deposit personally or through a

66
 trustworthy person if the custodian returns it or sends it by the trustworthy person and it
perishes or lost before reaching the depositor without an infringement or negligence, then
there shall be no compensation. The example of non-liability is what may be left undone
from a religious standpoint. As for what is religiously permissible not to do, if a proxy in
sale or purchase refrains from doing what he has been entrusted to do, in anticipation of a
better sale or purchase, until such time when the goods for sale and the value has perished in
his possession, in which case he is not liable to pay compensation. Or if a speculator retrains
from working with the capital designated for speculation, after receiving it, in order to take
his time and in anticipation of a favorable opportunity, and it perishes in his possession, then
there shall be no liability incumbent on the proxy and the speculator because their refraining
to do what they were entrusted to do is religiously permissible, and what is religiously
permissible negates compensation. But if something perishes during passage in a public
road, or in case one’s animal damages something on the public road whilst he is riding or
leading it, he then shall be liable to compensation because of his passage. Hence, albeit it is
religiously permissible, it is restricted by the condition of safety.

Maxim 26
al-haajatu tanzilu manzilata al-dharoora aamatan aw khaasa.

Need is ranked as necessity, be it public or private.

This maxim can be restated as follows: a need whether public or private assumes the
character of a necessity. By "need" is meant anything that is below necessity in rank. The
ranks, according to Islamic law, are of three kinds:
4. Necessity indicating that unless the prohibited thing is committed death occurs, as
explicated in Maxim 38.
2. Need meaning that when it is not met no serious sequence like death is caused. For
example, a man is not going to die if he does not eat, albeit hardship, in which case the
prohibited is not permitted. There are some exceptions, like permission in breaking fast in
Ramadhan.

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 The maxim can be traced in the National Civil Code of Syria, Iraq, and Jordan. These codes
are still existing nowadays, and the jurisdiction in the above mentioned countries still depends
on many of them.
3. Luxuries denoting things that are pleasant to have but not necessary; they provide
comfort and an easy way of living. Among the applications of the maxim is the permissibility
of wearing silk by a man to meet a hygienic need, as in the case of a mangy man.
Another example is the controversial permission of translation of the meanings of the
Qur'an into foreign languages because of the people's need to know the Quranic provisions and
commandments among other things. Explicitly, the meanings of the Qur'an are subject to
different interpretations and various exegeses, which makes it mandatory to translate the
particular exegist's interpretation.

Maxim 27
al-hudoodu tudra"u bi-l-shubuhaat.

Punishments shall be averted by doubtful matters.

Al-Hadd ( pl. hudud ) is a punishment specified by the Shari ah, such as the punishments
of adultery, fornication, theft, and drinking intoxicants (e.g., alcoholic drinking ) The root
of this maxim is Prophetic hadith related by Al-Tarmadhi on the authority of ‘Aisha who
said: the Messenger of Allah said “Avert punishments from Muslims as far as you can, and
if you find a way out release the Muslim”.
": : – –
".

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 Maxim 28
al-haqeeqatu tutraku bi-dalaalati al- aada.

Literality shall be bypassed in favor of customary signification

The maxim is simply rendered by Nasir (ibid) as: "In the presence of custom no attention
is paid to the literal meaning of a thing".
For example, one gives as an endowment his orchard to the jurists of his country, then
includes amongst them would-be scholars of law who are not qualified to undertake
independent reasoning since it is understood customarily, regardless of the literal sense of
the word. Another example is: when one were to say, 'By Allah, I will not step foot into my
house', but he breaks his oath by entering his house riding. This is so since the expression 'to
step foot into' is not understood literally in custom, rather it is taken to be synonymous with
'to enter'.

Maxim 29
al-kharaaju bi-l-dhamaan.

Yield is guaranteed.
Kharaj literally means ‘land-tax’ or ‘duty’; yet we prefer to render it as ‘yield’ meaning
return benefit or the amount produced. This maxim denotes that whatever you guarantee in
case of damage you shall have its benefit or profit in return, i.e., when the thing used is
damaged or destroyed while it is in the possession of the user thereof, compensation for use
shall be included in the compensation for its value. The Mejelle explicates the above
jurisprudential maxim as follows: (p.14) “The benefit of a thing is a return for the liability
for loss from that thing”. In other words, when the thing is damaged or destroyed, the person
is liable for it, i.e. as regards the guarantee of it, on whomsoever the loss may fall, is a return
for the benefit obtained from that thing. The Mejella cites the following example: if an

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animal is returned due to a defect which gives a legal option, the seller cannot take the fee
for hire by reason of the purchaser who has used it for a time, before the return, in which
case it has been at the charge of the purchaser.

Maxim 30
al-khurooju min al-khilaafi mustahab.

Settlement of discord is desirable.

This maxim is based on following Qur'anic a'ya :
.(105 )" "
And do not be like those who have divided among themselves and have taken to conflicting
views after all evidence has come to them.
It is also based on the following hadiths:
- – "
."
It is related by Abdullah bn Mas'ood: "I heard a man reciting an a'ya of the Qur’an, but I
had heard a different recitation by the Prophet; so I took the man to the Messenger of Allah
who said: "Both of you are right. Do not differ, for nations before you differed and thus
perished (due to their discord)".
Another Prophetic hadith:
: " ": :
( ) ." ":
On the authority of Abu Darda’: The Messenger of Allah said: "Shall I inform you of
something better than fasting, praying and giving charity?", They replied, ‘Yes, indeed.’
"The Prophet said, "Reconciling people; for discord among people is destructive". (narrated
by Tirmidhi).

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 An example for the above maxim can be stemmed from an anecdote which goes as
follows: while traveling, Abdulla bn Mas'ood disagreed with Uthman bn Affan over
shortening the obligatory prayer from four rak'as (prostrations) into two rak'as.
Nevertheless, bn Mas'ood follows Uthman's manner in performing the prayer in full,
saying "discord is evil".
Maxim 31
as-saaqitu laa ya oodu ka-maa ann al-ma dooma laa ya ood.
.
What is waived cannot be restored, nor can a non-existent.
This maxim indicates that if a right is waived, it shall not be restored, because it has
become non-existent and has no entity or power. In other words, a right which has been lost
does not return; just as that whose existence is annihilated does not return. Here are some
applications of the maxim:
a- If someone has the right of passage in someone else’s land, and he has waived his right or
has permitted the landowner to build something on the passage land, the right of passage
shall be waived and his lawsuit shall not be heard.
b. If the creditor releases his debtor from debt, the debt shall be dropped and the lawsuit
shall not henceforth be heard; and if the debtor acknowledges the debt after equittal being
described in the safekeeping and being waived, the debt shall not be restored due to
acknowledgement.
c. If the price of something sold is not delayed and the seller delivered it to the vendee
before paying the price, his right of lien shall be waived and shall not have the right to
restore henceforth, nor have the right of lien to receive the price. The same judgment applies
to the vendee who receives the price in the presence of the seller who does not forbid the
sale.

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 Maxim 32
al-su" aalu mu aadun fi al-jawaab.

The question is reiterated in the reply.

This maxim means that a question is reflected in the answer thereof, i.e., the content of an
honest question has the quality of an honest acknowledgemnt or admission in reply. It shows
whatever said in the verified question is as though the verified replier had acknowledged it.
If someone asks another "Have you divorced your wife?" and the other one replies "yes", he
shall acknowledge what he has been questioned for. Another example of this maxim : If the
judge says to the defendant, "The plaintiff claims that you owe him 1000 dinars for
so-and-so, what do you say?". If the defendant says "yes" then he has acknowledged the
1000 dinars. But, if the judge says to the defendant "Are you not indebted with what the
plaintiff claims on you?". If the answer is "yes", this shall not be a confession, because if the
answer of the negative question is "indeed", it means positive, but if the answer is "yes" it
means negative as though he said I have nothing for the plaintiff. Others say if the
defendant's reply is "yes", then it shall be confession too, because confession is interpreted
on convention, not on niceties of the Arabic language (In Zeidan, 2001:205).

Maxim 33
al-dhararu al-ashadu yuzaalu bi-l-adhara al-akhaf.

A severe harm shall be removed by a lesser harm.

This maxim is also deemed as a derivative of Maxim 88 below, which is based on
Prophetic hadith: "No harm shall be met by harm". It indicates that when two harms co-
occur, one is greater than the other, the greater harm shall be warded off by the lesser harm.
There are some cases for application:

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1. A person usurps some timber and uses it in his construction; if the construction values
more than the timber, the usurper may keep it after paying its worth. But if the value of the
timber is more than that of the construction, the timber-owner shall have the right to claim
its value.
2. If a hen swallows a pearl, the more valuable shall be taken into consideration, so as the
higher worth shall secure the lower.
3. The permissibility to cut open the abdomen of a dead pregnant in order to save the life of
a foetus if its life is hoped to be saved.
4. The preemptor may possess anything that the vendor has made in the premises for its due
value and he shall not remove it off.
Articles 27 and 65 of the Jordanian Civil Code and Articles 23/1 and 214/1 of the Iraqi
Civil Code contain that maxim as follows:
“Severe injury is removed by lesser injury.”

Maxim 34
al-dhararu laa yuzaalu bi-mithilihi

Harm shall not be warded off by a similitude .

This maxim simply means any harm or wrong-doing shall not be averted by another harm
or wrong-doing, and acts as an illustrative specification and limitation of the maxim ‘Harm
shall be warded off’, because it is a kind of injustice, wrong-doing, evil and mischief.
Nevertheless, it must not be dispelled by causing another harm in return for the dispelled
harm. It is cited in Article 25 of the Jordanian Civil Code : "An injury cannot be removed by
the commission of a similar injury" (Nasir, 1990: 27) .
Here are three cases for application as furnished by the Mejella:
1. If the vendor discovers a defect is found to be an old one, the vendor has no right to return
it with that old defect, instead he may demand only reduction of the price, simply because
incurring harm to the seller is not permissible as a means of dispelling harm from the vendor

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by causing another harm to the seller. This is because harm shall be dispelled as much as
possible, as will be explained in the next maxim bellow.
2. A starving person shall not be permitted to eat the food of another starving person under
the circumstance of necessity.
3. If setting up a shop causes reduction or loss of the profit of an adjacent shop-keeper, the
new shop may not be closed because harm shall not be warded by a similar harm.

Maxim 35
al-dhararu laa yakonu qadeeman.

Harm is not justified by being old.

This maxim is related to the maxims concerning harm. Zarar denotes harm, damage,
injury or wrong and demonstrates that there shall be no attention given to anything old or
ancient, i.e., from time immemorial that contravenes the Islamic law. Harm can take the
form of nuisances as in the example of damage done to a passer-by like the balconies that
are above a public road which must be removed if they cause harm even if they are old. This
maxim, which affirms that an injury or wrong is injury or wrong albeit being old, seems to
be a restriction of the maxim “The old shall be deemed old.”(cf. the examples provided in
that maxim.)

Maxim 36
al-dhararu yudfa u bi-qadar al-imkaan.

Harm shall be warded off as much as possible.

This maxim demonstrates that harm or injury is to be pushed off or resisated to any
possible extent ; it is like Maxims 35 and 37 are derived from the Prophetic hadith, i.e.

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Maxim 88: "No harm shall be met by harm." The maxim requires dispelling harm in its
entirety, which is indicated by the Maxim 37 below: (Harm shall be warded off) in its
generality. But if it is not possible to dispel and remove it completely, it must be removed as
much as possible, which is better than leaving it with the possibility of mitigating, as
explicated in the application of Maxim No.35 to Article 345 of the Mejelle: if the purchaser
finds out an old defect in a linen cloth which he has bought and cut it into garments he
cannot return it because of the new defect of cutting it into clothes . But by reason of the old
defect he shall take a reduction in the price.
In addition to that, Article (1202) in the Mejella stipulates that if someone constructs a
new window overlooking a private place of neighboring women he shall be ordered to dispel
harm so as not to contravene his neighbor's privacy by walling up or screening the opening
in order to block the sight of overlooking, but not to entirely block the window.

Maxim 37
al-dhararau yuzaal.

Harm shall be warded off.

The maxim is a derivative of the previous one ; it stipulates that removal of harm is
obligatory, because as in the case of previous maxim, harm is a kind of wrong-doing and
prohibited in religion. Being so, it is binding to forbid it so as not to be incurred. This maxim
is found in Articles 20 and 62, of the Jordanian Civil Code: “Injury is removed”
(Nasir:1990:27). As in matters pertaining to return-for-defect items and all kinds of options
and interdiction as well as preemption where the preemptor can ward off harm of division, in
addition to just retaliation, penalties, expiatory deeds and the guarantee for the damaged
properties. In law, it can be applied to legal separation of spouses to dispel the harm.
Another example is selling the debtor's property in case of vexatious delay mumaatalah
.

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Also the removal of a tannery that causes some harm to the neighbor is an act of warding off
harm.

Maxim 38
al-dharooraatu tubeehu al-mahzooraat.

Necessities render prohibited things permissible.

Literally: necessities permit prohibitions, i.e., necessity justifies that which is religiously
unlawful or prohibited. This maxim can be seen in an English proverb. "Necessity knows no
law" or "necessity knows no limits". This maxim is based on the following Quranic ayas:
(173: ).
He (Allah) has forbidden dead meat or carrion, blood, the flesh of swine, and that which is
slaughtered on which Allah's name is not mentioned, but if someone is forced by necessity
without willful disobedience nor transgressing due to limits then there is no sin on him. The
second Aya is:

(106: ).
‘Anyone who (after believing) utters unbelief except under compulsion, his heart still
remains firm in his belief, but whosoever's chest is open to unbelief, on them falls the wrath
of Allah, and there awaits them severe chastisement.’
The exception refers to a case like that of Ammar, whose father Yaser and mother
Sumayya, were subjected to unspeakable tortures for their belief in Islam, but never
recanted, Ammar suffering under tortures himself and his mind acted by the sufferings of
his parents, uttered a word construed as recantations though his heart never wavered and he
came back at once to the Prophet, who consoled him for his pain and confirmed his faith.
(Ali, 1991:665; note:2145) This explicates that uttering unbelief under the necessity of
compulsion is permissible to avert death or torture.

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 Another example: telling lies is strictly forbidden in Islam and when it is in the case of
swearing an oath it is deemed strict prohibition. Nevertheless it is permissible under
necessity of rescuing an innocent soul from death or a woman from fornication.
If, for example, an unjust transgressor chasing an innocent person with the intention of
killing him or desiring to commit fornication with a woman and the chased person or the
woman took hiding in someone's premises, the latter is permitted to deny their hiding and
even to swear on that.
The very same jurisprudential maxim is cited in the Iraqi (Art .212) and Jordanian (Art.
222) civil codes.

Maxim 39
al-dharooraatu tuqadaru bi-qadarihaa.

Necessity shall be estimated by the extent thereof.

This maxim, which indicates that the extent of necessities limits any act thereunder, is an
illustration and restriction to the above maxim (No.38). As an application of the maxim if
someone opens a window in the wall of his house overlooking the place where neighbour
women frequent, he shall be obliged to remove this damage on his neighbour in such a way
that the vision on them is blocked, but he shall not be obliged to wall up the whole window.

Maxim 40
al- aadatu muhakimatun.

Custom is an Arbitrator.
Custom aadah) whether it is public or private acts as an arbitrator to validate a legal
religious judgment. It is a significant source of judical decision to establish the ruke of law.
It denotes the repetition of something so as to be deeply rooted in man’s soul and be
acceptable to it . Pertinent to custom is convention (urf), but in case there is a textual

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stipulation, the latter must not be abandoned so as to adopt the custom instead. (Effandi in
Zaidan:100). The root of this maxim is what is narrated on the authority of Abdulla bn
Masood of the Prophetic Hadith: “Whatever is deemed good by Muslims is good to Allah”.
People’s words are interpreted pursuant to their conventions. Here are some examples: The
one who sends his garment to a tailor or laundry or goes aboard a ship whose owner is
known of taking certain fares, the tailor or laundry man who is known to take fares from all
those deserve the fares based on convention. Another instance is what is conventionally
known as parts of the sold premises shall be deemed as part of the sale albeit not stipulated,
such as the garden of the house which shall be included in the sale contract because it is
conventionally accepted as such by people.
According to Nasir (1990:27-28), custom denotes the current common usage among
people in their transactions where jurists permit conventional conditions in contracts, even if
they are not explicitly stated, on condition that the custom in question does not contravene
or conflict with the shari ah (the Islamic law). The maxim is also cited in the expiratory
memorandum of he Jordanian Civil Code in commenting on article 2/3 dealing with custom
and the guidelines to be pursued by courts in the absence of a legal text and a shari ah
stipulation. Nasir (ibid) presents several maxims which are based or derived from the
maxim "custom is an arbitrator", as demonstrated below :
-“Public usage is conclusive evidence which must be observed in action” (Art 38);
-“No doubt that judgments shall vary with the change in the items”. (Art 39; Art. 5 Iraqi);
-“In the presence of custom no regard is paid to the literal meaning of a thing”. (Art. 40);
-“Effect is only given to custom where it is of regular occurrence or when universally
prevailing”(Art. 41);
-“Effect is given to what is of common occurrence, not to what happens infrequently”.
(Art.42);
-"A matter recognized by custom is regarded as though it were a contractual obligation”
(Art.34; Art. 100, Jordanian; 186, Iraqi;95; Egyptian, Libyan; and Syrian);
-"A matter recognized by merchants is regarded as being a contractual obligation between
them”(Art.44);

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 Maxim 41
al- ibratu fi-l- qoodi li-l-maqaasidi wa-l-ma aani laa lil-alfaaz wa-l-mabaani.

In contracts, intentions and meanings, not words and structures,

shall be taken into consideration.
This maxim means: in concluding the contract the words used by contractors shall not be
taken into consideration, but the real intentions shall, because the real intention is the
meaning and not the form or the word used, for words are no more than moulds of
meanings.In other words, contracts are to be understood in relation to their intention and
substance, not by the words and phrases used. The application of this maxim can be
expounded in the following cases:
a) A return-stipulated gift is an act of sale. For instance, he who gifts a horse for 100
Dinars to another person and the latter accepts it, this contract shall be an act of sale, albeit
the word gift is uttered.
b) Return-stipulated lending is an act of hire.
For instance, the one who says to another "I have lent you my car for 50 Dinars to use for
the whole day" and the other accepts it, the contract shall be an act of hire rather than an act
of lending, despite the offer is uttered as "I have lent you". This maxim is expressed in
Article(3) of the Mejella (2003:3) as
"In contracts, attention is given to the objects and meanings, and not to the words and
forms".
It is also translated by Nasir (`1990: 25) as:
"In contracts, effect is given to intention and meaning, and not to words and phrases".
The Mejelle cites an example that a contract for sale which is subject to the right of
redemption shall have the force of a pledge.

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 Maxim 42
al ibratu li-l-ghaalibi ash-shaa" i laa li-l-naadir

Consideration shall be given to the commonly

preponderant, not to the rare.
This maxim can be rephrased as: reliance or credence is to be given to that is common,
i.e., publically and generally operative, and not to what is rare.r The rendition by the
Majella is: That is esteemed preponderant which is commonly known, not that which rarely
happens".
And by Nasir (28): "Effect is given to what is of common occurrence not to what happens
infrequently".
It is also worded in Article 100 in the Jordanian Civil Code; Article 186 in the Iraqi Civil
Code; Article 95 in the Egyptian & Libyan Civil Codes; and 96 in the Syrian Civil Code as
"a matter recognized by custom is regarded as though it were a contractual obligation".
This is another custom-related maxim which means that whatever is predominant, i.e.
commonly known, is more esteemed than the thing which rarely happens. This is differently
worded by Nasir (1990: 28) as: “Effect is only given to custom where it is of regular
occurrence or when universally prevailing”, in reference to (Art.42) of the Mejella.

Maxim 43
al-ghurmu bi-l-ghunmi

Loss entails gain.

This maxim means that damage and benefit go together; for instance, he who derives
benefit from a thing must also bear any damage from it. It is differently worded in the
Mejelle page(14) “The detriment is as a return for the benefit”, which indicates that benefit
brings liability which clearly means that the person who obtains the benefit of something

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shall take upon himself also the loss from it. This maxim is contrary to Maxim 29: “Yield is
guaranteed”.
An example of this maxim is that : the partners in a company shall bear the loss and gain
in proportion to their shares in the capital at the company.

Maxim 44
al-qadeemu yutraku alaa qidamihi.

The old shall be deemed old.

What is old denotes anything whose starting-point is unknown. This maxim can be
simply stated as: let what is old rest on its age. It is based on the certainty maxim. As an
application of the maxim is the following instances:
The old state of a thing which is under dispute shall be judged as old and shall be left in
its old state no less no more, nor entailing any change, unless an evidence emerges contrary
to it. The second instance is cited in Art.1224 of the Mejella:
“Whereby consideration shall be given, the ‘oldness’ of the thing as regards the right of
passage over another man’s property, the right of having a water channel and the right to
discharge water; that means these shall be left as they are, and shall continue in the way
they have emerged from time immemorial. For example, when someone has a right of
passage over the building-site of another, the owner of the building-site cannot prevent him
from passing. It is worth mentioning that the maxim is applicable provided no harm must be
incurred. According to it, the dirty water of a house which has customarily flowed from
time immemorial on a public road and there is damage to the passers-by, no attention shall
be paid to its ‘oldness’ , and the damage must be warded off.

Maxim 45

81
 al-kitaabu ka-l-khitaab.

Writing is deemed verbal discourse.

This maxim simply means that writing is equivalent to speaking. It refers to the
acknowledgement or admission in writing, which is just like an acknowledgement by word
of mouth. The act of writing can be either made by the person himself or by giving an order
to another one to write. For example, when someone has written or asked a clerk to write an
acknowledgement of debt which has been given to another whether it is signed, thumb-
printed or sealed, if it is written in accordance with practice and custom, it is then an
acknowledgement in writing and shall be deemed verbal acknowledgement. (The Mejella:
900)

Maxim 46
al-mubaashiru dhaaminun wa-in lam yata amd.

The perpetrator is liable albeit no premediation

This maxim evinces that the perpetrator or the proximate agent is legaly resposible even
in absence of premediation. In other words, a person, who does an act, even if he does not
act intentionally, is responsible. (The Mejella, 2003:15)

This means the doer is the one who commits an act. Thereupon he shall be liable for the
loss caused by himself, whether intentional or unintentional. For example, the one who
shoots a hunted animal by an arrow, but he hits an innocent man and causes his death, the
doer shall be liable to pay the blood money, because the fault abrogates the guilt of loss, but
does not abrogate the compensation, as committing the act is a sound cause and an
independent reason to that loss. Thereupon, unintentionality shall not be deemed a cause for

82
waiving the judgment. Article (912) cited in the Mejella stipulates: ‘If someone destroys
someone else’s money whether in his hand or in a trustworthy hand, intentionally or
unintentionally, he shall be liable.’
Likewise, Article (913) in the Mejella states: If someone stumbles to fall and wastes
someone else’s property, he shall be liable, even if his stumble is against his will, for the
waste occurs by the doer’s act and he shall be liable even if unintentionally committed.
Another example is provided by Article (914) in the Mejella which stipulates: If someone
wastes another’s property thinking that it is his, he shall be liable, because ignorance may
acquit him of guilt, but not of liability, since it is a man’s right and does not depend on
intentionality or purposefulness.
Finally Article (916) in the Mejella stipulates if a boy wastes someone else’s property, the
boy shall be liable for compensation from his own money; if he does not have it, he shall be
waited for until he has it, in which case his guardian shall not be liable. The liability for
compensation shall not be correlated with the boy being a minor or a major.

Maxim 47
al-muttesebbibu laa yudhmanu ilaa bi-l-ta mud.

The remote agent, 'the causer', shall not be liable unless in premediation
The remote agent or ‘the causer’ is the person who does an act on one thing which leads
naturally to the destruction of another thing (Muttesebbib) is not legally responsible as long
as he does not act intentionally . It refers to someone’s liability which indirectly causes loss.
The ‘causer’ is the person who does an act on one particular thing which leads to destruction
or loss of another thing, he shall not be liable as long as he acts unintentionally.
When someone’s animal is scared and takes fright at another person and flees and
thereupon it is lost, the person shall not be liable. But if he frightens it, intentionally, he shall
be liable. Likewise, when a hunter fires his gun at a game and thus causes frightening an
animal of another person which causes the animal to flee, be killed or hurt, he shall not be
liable. But if he fires the gun with intention of frightening the animal, he shall be liable.

Maxim 48

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 aal-majhoolu fi ash-sharee ati ka-l- ma doomi wa-l-ma joozi anhu.

The unknown in al-shari ah (the Islamic law) is as the

non-existent and the impossible to know.
This maxim is related to dispelling the narrowness and hardship whereby religion
aspires at easing the burden on Muslims in performing their duties. It means that if we are
incapable of recognizing something or realizing its existence it shall be deemed non-
existent. The maxim is based on both the Qur'an and the Prophetic hadith as follows:
" :(1)
(101: ) "
Allah addresses believers saying, ‘Do not ask about matters which, if they were to be made
plain to you, may cause you hardship; for, if you should ask about them while Qur'an is
being revealed, they will be made plain to you. Allah has absolved (you from any
obligation) in this respect. And Allah is Forgiving and Most Merciful.’ (Qur’an, 5:6)
This maxim is also based on the Prophetic hadith quoted by Muslim on the authority of
Abu Huraira: "In one of his sermons the Prophet says: "O people! Allah has ordained the
pilgrimage (Hajj) for you, therefore perform it". Thereupon, somebody asked: "every year,
Messenger of Allah?". The Prophet remains silent; the man repeated his question twice.
Then the Prophet said:, "Have I said ‘yes', it would have become incumbent on you (to
perform the pilgrimage every year), and in deed, it would have been beyond your ability to
do so. Do not ask me about matters which I leave unspoken; for there were people before
you who went to their doom because they have put many questions to their prophets and
thereupon disagreed. Therefore, if I command you anything, do it as much as you are able to
do; and if I forbid you anything, abstain from it. Here are two applications of the maxim:
A- If an heirless inheritor spends his wealth on the Muslim public interest then an unknown
heir emerges and is proven to be so, the latter shall inherit him.
B- Any property whose owner is unknown shall not be spent but on the Muslim public
interest. This property includes all the usurped things and the deposits.

Maxim 49

84
 al-mara" u moo"akhun bi-iqraarihi.

One is bound by his admission

This maxim simply means that admission binds the peerson who makes it . It is based on
the following Quranic a'ya:
"
)" :
.(81 /
"When Allah took the covenant of the prophets; saying: " I have given you a Book and
wisdom then an apostle came to you, confirming what is with you, so that you might surely
believe in him and succuor him". Allah said: "Have you acknowledged and taken my
covenant as binding on you"? They replied: "We do acknowledge it". He said: "Then bear
witness and I am with you among the witnesses". (Qur'an,3:81)
This maxim demonstrates that the one who acknowledges shall be liable for his
acknowledgement and shall be questioned for what he has acknowledged for, if the
conditions of valid acknowledgements are available. 'Acknowledgement' by definition is
confession, and according to jurisprudents, acknowledgement is confirmation of another's
right against the one who makes the acknowledgement, even if it will be concluded in the
future. So that if a woman acknowledges marriage to someone "with no legislative obstacles,
the acknowledgement shall be valid, and marriage shall be approved with its provisions
despite absence of witnesses at the time of acknowledgement on grounds that it is
announced, and this interpretation is most acceptable as in the example. And if it is deemed
a consummation it shall not be valid, because marriage without witnesses is void. If
someone acknowledges in death illness that he owes to one of his heirs, it shall be deemed a
donation and a will, albeit no heir shall have a will.
The proof of acknowledgement is confirmed against the confessor according to the
Qur'an, Prophetic Traditions, consensus and reason. Man's testimony against himself is an

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acknowledgement of the other's right. Scholars unanimously agree that acknowledgement is
a proof against the confessor. As regards reason, no rational person shall acknowledge
against himself of anything committed by another unless being truthful in his
acknowledgement.
The acknowledgement has certain conditions so as to be valid, they are: the confessor is
conditional on being adult, rational, and percipient who is not suspect in his
acknowledgement. The acknowledged thing is conditional on not being impossible either
rationally or legislatively (lawfully). Here are some examples of mental impossibility: when
someone acknowledges that a person has lent him some money on a specific date, and it
becomes known, this person has died long time before that specific date; or when someone
acknowledges he is the father of somebody and it becomes known that the beneficiary of the
acknowledgement is older than the confessor. Other examples of legislative impossibility
when someone dies and leaves behind him a son and a daughter, if the son acknowledges
that the bequest is fifty-fifty with his sister, this acknowledgement is null because it breaches
the maxims of legislation. The beneficiary of the acknowledgement is conditional on ahliyat
al- wujoob ( ) capacity of execution. Accordingly, an acknowledgement of a debt
for an animal shall not be valid. It is also provided that the beneficiary shall not believe the
confessor in his acknowledgement. Likewise, the judge shall not believe the confessor's
acknowledgement.
The Mejella furnishes the following instances: "Everyone is judged by his admission"
according to Art. 79. But if it is made false by the decision of the judge, the admission is
without effect, so that, if a person turns up who has a right to something, which is in the
possession of another, who has bought it, in case the latter person has said at trial the
purpose of claiming it , "This thing is the property of such a one, he has sold it to me," when
the former person has proved his claim, and the judge also has given his judgment, the
purchaser, by recourse to the seller, can recover from him the price of the thing sold. And
although, at the trial he has opposed the action of the person, who has a right to the thing, by
admitting that thing is the property of the seller, he is not prevented from going back from

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that because the effect of the admission does not remain by reason of its having been found
to be false by the judgment of the judge". (The Mejella, 2003: 267).

Maxim 50
al-mashaqatu tajilbu al-tayseer.

Hardship begets ease.

This maxim means it is mandatory to make easy that which is difficult to bear,i.e., to
soften a hardship and to relax that which is too strict. It is also rendered by Nasir (1990:26)
as: “Difficulty begets facility”. This maxim is based on the following Qur’anic aya :
(185 : )( )
(Allah intends ease for you, and does not desire any hardship for you) (Al-Baqara.185). It is
and also based on the following Prophetic hadith.
( )
(Religion is ease, and whoever overburdens himself in religion, but will be overpowered by
it).
This maxim is cited in the Mejella under Art.17 which is translated as “Hardship causes
the giving of facilities”,[sic]. On this maxim, a wide spectrum of the jurisprudential maxims
dealing with the religious permissions and mitigations are based, especially those related to
debt, transfer of obligations, restraint on competency, etc., by which lessening of burdens in
compliance eith the sahri a (of transactions mu amatat ) has been brought about by the jurist
. The same maxim is worded differently in (Art. 18) as “Latitude should be afforded in the
case of difficulty” (Nasir’ ibid).

Maxim 51

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 al-mutlaqu yajree alaa itlaaqihi maa lam yaqum daleelu al-taqyadi nasan aw
dalaalatan.

What is absolute (ie. Unrestricted) shall remain absolute unless

there is a restricting proof by text or a deduced argument.
The unconditional runs with an unconditional effect, unless by law or by indication there
is proof of its having a restricted effect. (The Mejella, 2003:11)
‘What is absolute’ refers to a common noun, unrestricted by a modifier as in saying man or
men for the whole species or a horse as a common noun for its species. What is restricted,
whether stipulated by text or indicated by deduced argument dalalah, on the other hand, can
be exemplified by noun modified, i.e., restricted, by a modifier, e.g,. ‘a Yemeni man,’ ‘a
good man’ or ‘a white horse’ where the modifiers, good, Yemeni and white restrict the nouns
to quality , nationality and color respectively.
This maxim is based on the following Quranic Aya: (AL-Baqarah: aya :234)
" "
‘And those of you who die and leave wives behind them, they (the wives) shall wait (as
regards their marriage) four months and ten days .’ The noun wives is unrestricted as general
for all wives whether young or old.
Another example is the man who has authorized another to buy a car or a horse and he
has bought it of a red or white color but the authorizer says, "I want it black", he should
abide by what the authorized person has bought, because his utterance, i.e. the car, is
unrestricted by color.
The following Quranic aya also exhibits a case of restriction:
(23 ) ." "
‘Your step-daughters who are under your guardianship (since their mothers are) wives of
yours with whom you have consummated your marriage.’(Qur’an, 4:23) Accordingly, the
marriage to the daughter is restricted by the marriage of her mother. Another Quranic Aya is
:

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 "
(6 : ) ."
‘You who believe, whenever you intend to perform your prayer, wash your faces and your
hands up to the elbows and wipe (with wet hands) your heads and (wash) your feet up to the
ankles.’ (Qur’an, 5:6) The aya restricts the act of washing of the arms up to the elbows and
the feet up to the ankles.

Maxim 52
al-ma roofu bayna al-tujaari ka-l-mashrooti baynahum.

What is commonly practised by merchants is deemed

a stipulated condition
It means that what is commonly practised by merchants has the same effec as an express
condition. Itis also rendered by the Majella as :
"A thing known amongst merchants is as though fixed by stipulation among them". For
instance, if some one purchases something from the market for a known price albeit not
explicitly stated, and it is conventional that the vendor receives every Friday or every month
all the price or some of it he shall act so, needless of any explicit statement, as it is
conventionally known amongst traders as if they had agreed upon it. This maxim is
manifested in the Jordanian Civil Code (Art. 44): “A matter recognized by merchants is
regarded as being a contractual obligation between them” (Nasir,1990:28).

Maxim 53

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 al-ma roofu urfan ka-l-mashrooti shartan.
.
What is known by convention is deemed as conditional.
This maxim illustrates that any matter of common practice has the same effect as an
express condition. It is derived from Maxim 40: ‘Custom is an arbitrator’. It
means that convention is observed by people in their contracts with no need to be stipulated
as conditional. Simply stated, a general practice of the people acquires legal force and must
be acted upon. For example, bathing in public baths, eating in restaurants, and sleeping in
hotels…etc. which all prerequisite paying the fare because convention requires so, even
though it is not mentioned by contractors.

Maxim 54
al-mu aliqu bi-sh-sharti yajubu thubootuhu inda thubooti ash-sharti.

What is dependent on a condition must be

fulfilled once that condition is fulfilled.
This maxim means that the thing whose existence is dependent on a condition must
be established once the condition itself is establihed. In other words, with the
performance of the condition the performance of the thing which is dependent on it
becomes necessary. (The Mejella, 2003:13)
For example, if someone says to another: “I guarantee your property if so-and-so steals it,
and when the condition is fulfilled, i.e., the theft occurs, what is dependent on it, i.e., the
guarantee shall be fulfilled.

Maxim 55
al-mumtai u aadatan ka-l-mumtani I haqeeqatan.

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 What is precluded by custom is precluded in truth.
This maxim, like some others, lies within the scope of custom. For instance, if a man
known to be destitute claims that he has lent a wealthy man a large sum of money as one
payment, his claim shall not be heard because it is impossible customarily to be believed.

Maxim 56
al-mawaa eedu ithaa iktasat bi-soowari al-zta aaleeqi takoonu laazima.

When promises take a conditional form they shall be binding.

Simply stated, any promise which is subject to a consition shall be binding. For instance, if
someone says: 'You sell this property to such a person, if he does not give the money I will
give it,’ and the person who buys the property does not give the money, the payment of the
money by the person who has made the promise is necessary; there is a distinction made
between a mere promise which does not carry with it the obligation to deliver as when a
person promises to pay the debt of another and then desists, and the promise made as part of
a condition. The former is not legally binding. We can simplify the above example as
follows: if Ahmed says to Ali “sell this thing to Zaki, and if Zaki does not does not pay the
price, I wil pay it”, then if Zaki should fail to pay the price, Ahmed is bound to pay it in
fulfillment of his conditional promise.
Another case in point is the surety, which is a guarantee that a person is bound to pay his
debts, made also by a promise dependent on a condition. For example, if someone says, 'If
such a one does not pay you what you have to receive from him, I will pay you', it becomes
a guarantee. And if the debtor does not pay when the lender makes a demand for what he has
to receive, he claims it from surety (Cf. Art. 623, the Mejella).

Maxim 57
al-maysooru laa yasqutu bi-l-ma soori.

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 The easy thing shall not be waived by the difficult thing
The maxim refers to performance of religious duties and obligations when the person is
able to do some of them yet unable to do others, in which case he shall perform what he is
capable of performing. But what he is unable to do, shall be waived from him, in
compliance with the following aya.
(286 : )" "
‘Allah does not burden any soul except what it is capable of ’ (Qur’an,1:286). It is also refers
to the Prophetic hadith: " " ‘When I order you to perform
something, you shall perform only what you are capable of.’ Another Prophetic hadith:
" "
Perform such deeds which you are capable of.
Another prophetic hadith is:
" " ‘Whoever
sees anything evil or wrong, let him change it with his hand; if he is unable to do so, then
with his tongue; and if he is still unable to do so, then in his heart and that is the weakest of
faith.’
An example for this maxim is: the following Prophetic hadith narrated by Al-Bukhari on
the authority of Umran bn Hussein the Prophet said:
" "
‘Perform your obligatory prayer standing, if you are unable to do so, then per- form it sitting
and if you are unable to do so perform it on your side.’

Maxim 58
al-ijtihaadu laa yunqadhu bi-mithilihi.

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 The ijtihad shall not be revoked by a similitude.
The maxim means that ijtihad, which is a reasoned inference in an attempt to form a
correct opinion or judgment in lawsuits and religious matters, cannot be revoked or
abrogated by another ijtihad.
For example, if a judge adjudicates on a lawsuit based on ijtihad then he changes his
ijtihad, he shall not be entitled to revoke his first adjudication so as to adjudicate on a
lawsuit based on his second ijtihad, which is similar in being a permissible ijtihad.
Moreover, it is not permissible for another judge to revoke (by his ijtihad) another judge's
ijtihad, since the second judge's ijtihad has no privilege over the first judge's ijtihad as long
as they are both acceptable, permissible ijtihads.
The evidence of his maxim is derived from the consensus and what Omar bn Al-khataab
has adopted. Historically, Abu Bakr gave a judgment on certain cases but Omar gave a
contrary judgment, yet Abu Bakr's judgment was not revoked on the grounds that Omar's
ijtihad is not stronger than Abu Bakr's .
Nevertheless, the previous ijtihad shall not restrict the mujtahid (the one who employs
ijtihad) in the future as he is entitled to adjudicate by his new ijtihad which differs from the
previous one on a similitude to the first case – on this base Omar bn Al-khattaab judged in a
famous case of inheritance known as a joint case, the interdiction case or Al-Omariya case,
named after Omer's adjudication, which goes as follows: Omar has adjudicated for full
brothers to share the half brothers their inheritance, which is one third since the legal heirs
were entitled to have the statutory shares of the inheritance, nothing was left for the full-
brothers as they were deemed agnates who take what is left of the inheritance after the legal
inheritors take their statutory shares. If there is nothing left of the inheritance, they take
nothing. This occurred in this case wherein a husband, a mother, half-brother and full-
brothers were involved. The husband takes the half, the mother takes one sixth, the half-
brother takes one third and the full-brothers take nothing.
Later, a similitude to the first case occurred, when it was raised to Omar, he indented to
adjudicate by the same previous adjudication on this similar case. One of the full-brothers

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objected: "Oh, Commander of Faithful, has our father considered us a stone in the sea? Has
not our mother inherited while we do not? We all have the same mother yet we are credited
over them by the father.’ Omar here accepted their plea and gave them shares in the
inheritance of the half-brothers. The fundament of Omar's adjudication upon giving shares
of inheritance to the half-brothers is that they all share the same mother who is the reason for
their inheritance, therewith to the full-brothers' privilege of close kinship to the deceased
whom they declared as their father. If their close kinship to the deceased does not increase
their inheritance nor puts them ahead of the other, it is not permitted to be a reason for
depriving them from the inheritance and for being unequal to their half-brothers. When the
full-brothers in the first case heard Omar's new adjudication they came back to him
objecting and demanding to make them inherit by giving them shares in their half-brother’s
inheritance by the same way he adjudicated in the second case. Omar uttered his words
which have become a fundament to this maxim "That is what we have already adjudicated in
the former case, and this is what we are adjudicating now in the latter".

Maxim 59
al-ajru wa-l-dhamaanu laa yajtimi aan.

Payment of hire and liability to compensation

are mutually exclusive.
This maxim means that payment for the use of a thing cannot be combined with
compensation for the thing itself. It tackles the concept of compensation, which can be
explained as follows : if the renter goes beyond the terms and conditions in such a way that
necessities guarantee, he is not committed to pay the rent, as when somebody rents a car to
go for certain destination, but he goes beyond that place and the car is broken, he shall be
liable to compensate, but not to pay the payment of the hire.

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 Maxim 60
al-islaamu yajubu maa qablahu.

Islam obliterates all (wrong doings) prior to it.

This maxim is based on the following Quranic ya:
(38 )" "
“Say to those who disbelieve, if (now) they desist (from unbelief, ie, denying the truth), all
they have done in the past shall be forgiven ” (Qur’an,8:38). This ya addresses Prophet
Muhammad to tell the unbelievers to give over their belief and cease fighting the Prophet by
embracing Islam; Allah will forgive them what is passed.
In point of fact, the maxim is a verbatim Prophetic hadith narrated by Imam Ahmed on
the Authority of Ibn Mas’oud that the Messenger of Allah said “Islam obliterates whatever
has existed prior to it, just as repentance obliterates whatever is prior to it” (referring to the
sins committed before embracing Islam, .

Maxim 61
al-aslu idhaafatu al-haadithi ilaa aqrabi awqaatihi.

The basic principle is to ascribe the event

to the nearest time of occurrence.
The Arabic word asl (pl.usuul) denotes the basic principle, essence, origin, the original
state, fundament, source, foundation, base, or root. This maxim indicates that every
occurrence is prsumed to belong to a recent date; so that when there is a dispute as to time,
an occurrence will be related to the nearest date, unless it is proved to be of earlier date. In
other words when a dispute or difference occurs over the time of occurrence, it shall be
attributed to the nearest time of occurrence, unless it is proven that the occurrence is
attributed to a distant time. The reason is: when two adversaries have agreed on certain
occurrence but they have disagreed on its time: one of them claims that the occurrence

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pertains to a certain time, whereas the other claims the occurrence belongs to a more distant
time. Implicitly, they are in full agreement that it has actually existed but differ on the closer
time. The say shall be for the one who claims the closer time of occurrence.
Here are some applications:
a. When someone acknowledges a debt to one of his heirs and then he dies, the other heirs
claim that this acknowledgement of the debt has occurred at the final illness, and the person
acknowledged to claims that the inheritor has been in good health, in this case the judgment
shall be attributed to the nearest time, i.e., the time of death or final illness. Because the time
of the illness is nearer to the death time than the time of good health, unless the claim is
proven to pertain to the time of good health, and the say shall be to the heirs’, but the one
acknowledged to must show evidence and swear an oath to verify his claim.
b. If an interdicted man says to someone else “I have sold you this” after the
interdiction and the buyer says “I have accepted it” here the say shall be to the
interdicted person, because the origin is ascribed to the nearest time, that is the
interdiction time.
c. If someone has divorced his wife irrevocably, after that he dies before the end of her
prescribed period iddah: the woman’s waiting period after divorce or after her
husband’s death ), then she claims that he has divorced her irrevocably during his death
illness, thereupon his divorce entitles her to inherit him; but the heirs would say that he
has divorced here irrevocably while he has been in good health, thereupon his divorce
does not entitle her to inherit him, this case, the say shall be the wife’s and the heirs must
submit evidence to verify their claim, because the wife ascribes the occurrence, i.e.,
divorce, to the nearest time which is the time of the death illness.
d. A Muslim has died and left a Christian wife, who has said after his death: “I have been
converted to Islam and I shall be an heir”. The other heirs say: “You have been converted
to Islam after his death, so you are not entitled to inherit him due to the difference in
religion at the death time. The say shall be the heirs’ and wife must give evidence to
verify her claim.

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e. Someone has purchased something with the right of choice for a certain period, after
which he returns it to the seller claiming that he has annulled the sale within that period.
But the seller say, “You have annulled it after the elapse of the period of choice, in
which case your annulment, is void”. Hence the say is the seller’s because the occurrence
of annulment time is nearer to the present one which is after the elapse of the choice
period.
Here are two exceptional cases to this maxim:
a- A Christian has died and his wife says “I have been converted to Islam before his
death”, whereas the heirs say she has been converted to Islam after his death. The say is
the heirs, albeit the maxim stipulates that the say is hers. The exception is made to
validate the contemporariety of the occurrence and that is the deprivation from
inheritance due to the difference in religion is proven at the present time , and by
corollary in the past.
b- Someone has purchased something then he has returned it to the seller on he grounds
of the right of choice, the seller says, “You have accepted the sold thing after you have
seen it, thus you have no such choice”. But the purchaser says, “I have accepted if before
I have seen it, thus I still have the right of choice”. The say shall be the purchaser’s .

Maxim 62
al-aslu baraa"tu al-thiimati.

The original state is freedom from liability.

Or: The basic principle is freedom form obligation
This maxim is closely pertinent to Maxim 17 and based on the following hadith: on the
authority of Ibn Abbas the Prophet said, "If people were given what they claim, some would
claim the lives (lit; blood) and property of others, but evidence lies on the claimant and the

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oath must be taken by the one who denies". Legally, it can be translated as follows:
Evidence shall be by the claimant and oath shall be by the defendant.
The Prophetic hadith has served as a root for Article 8 of "The Mejella", (2003:3)
translated as “ Freedom from indebtedness is to be presumed’ and Article 77 of Jordanian
Civil Code and Article 448/1 of the Iraqi Civil Code: Evidence is for him who affirms; the
oath for him who denies" as rendered by Nasir (1990:25), a provision which forms Articles
73, Jordanian and 444, Iraqi as ‘Freedom from obligation shall be deemed the original state
of things”. This principle is further elaborated in Article 77 of Jordanian Civil Code and
488/2 of Iraqi Civil Code: "The object of evidence is to prove what is contrary to
appearance; the object of the oath is to ensure the continuance of the original state (ibid).
The maxim is vastly operative nowadays in the courts especially in dealing with civil and
criminal lawsuits. Some instances in the contemporary jurisdiction can be seen in some legal
provisions such as:

Defendant is deemed innocent until proven convicted.

2. Doubt shall be interpreted for the defendant's interest, , which

stipulates that the judge must give the accused the benefit of the doubt, because the root or
essence is the defendant is innocent of committing crime unless proven otherwise. Some
other applications in our daily life especially in transactions can be cited as follows:
1. When the creditor and debtor differ on the amount of the loan, the say is the debtor's, and
the creditor's who claims accretion has to present a proof or evidence.
2. When the seller and the vendor differ as regards the sale price of a sold item when it is
damaged or no longer possessed, the say is the vendor's .
3. When the lessee and the lessor differ in the amount of the rent of the rented house, the say
is the lessee's, and has to present an evidence to verify the amount of the claimed extra
money.
Maxim 63

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 al-aslu baqaa" u maa kaana alaa maa kaan.

The original state is what has once existed is (deemed) as persisted

This maxim simply means: it is a commonly accepted principle that a thing remains as it
is. It is subsumed in the maxim: “Certainty shall not be warded off by doubt”. It is cited in
the Mejella, Article 8 and translated as follows: “”The remaining of a thing in the state in
which it was found is presumption”.[sic]. A case in point of this maxim is the one who has
been absent for a long, un- interrupted period of time whereby neither death nor life is
known of him shall be deemed alive at the present; in other words his life which is known
for certainty before his absence is deemed alive at present until death is ascertained. Hence
his property shall not be divided among his heirs.
Another example: the wife who claims that she has not received the estimated alimony
from her husband, whereas the husband claims he has given the alimony to his wife; so
the judgment is left to her to take an oath because the origin is that alimony remains after
it has been under his liability until evidence proves otherwise.
Likewise a debtor claims refutation of the debt and the creditor denies, the saying is
the creditor's. And the debtor has to prove the refutation of the debt. If the loanee claims
the repayment of the debt to the loaner, the vendee claims repayment to the seller, or the
lessee claims refutation of the rent to the lessor; then the loaner, seller, and lessor all
have denied receiving the money then the right is theirs because the origin is the loan, the
rent and the price are to remain after being proven under liability.
Finally, the woman under 'iddah (a woman that cannot remarry until she has passed
certain period of time) claims continuation of purity, and iddah (period during which a
widow or divorcee may not remarry) so the say is hers under oath and she has the iddah
alimony because the base is the 'iddah remains after it has started.
The proof of istishaab or presumption of continuity:

Presumption of continuity istishaab (legally means to keep things as they are due to the
non-existence of the requirement of change) is an evidence for refutation not for

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deservingness, thereupon, the missing person’s property shall not be distributed among his
heirs and his rent contract shall not be abrogated because he is deemed to be alive, for his
life is certain by presumption of continuity. So this certainty is not to be changed by anyone,
therefore, it shall not be changed until he is proven to be dead in reality or by verdict.

The missing person’s property which has been deposited with somebody shall not be
distributed until his death or life is known; thereupon, Article 785 of the Mejella stipulates
that if the owner of the deposit is in a remote or disconnected absence that his death or life is
not known, the trustee shall keep the deposit until the death of the property owner is known.
Also the missing person cannot inherit from another, nor does he deserve what has been
bequeathed to him because the inheritance is conditional on the legatee being alive and the
legator’s death and the life of the missing person by presumption of continuity which cannot
be deemed an evidence for deservingness; thereby the presumption of continuity cannot be
used as an evidence to benefit from any new right which has not existed for the missing
person before being missed. But because of the probability of being still alive, his status
becomes evident, so if he appears alive he shall take his suspended share. If he appears to be
deceased after his legator’s death he shall be entitled to his share, but if it is known to be
dead before his legator’s death, his share shall be returned to the other heirs.
To sum up, the missing person whose life is proven by for presumption of continuity shall
be deemed alive in his own right and his property which shall not be inherited from him, and
he is deemed dead as regards deservingness from the other, so he shall not inherit from this
other person but his share shall be suspended until his status becomes evident. In other
words, it has become evident that his death or life is proven certain, and thereupon the
contracts shall be annulled ‘in reality’ , which means that the judge’s verdict deems
the person dead if his years of life time are far more than those of his peers.
Some examples of the presumption of continuity is evidence and its kinds: If a Christian
suddenly dies, his wife declares that she has become Muslim after his death and claims the
legacy but the inheritors say that she has become Muslim before his death, then the right
shall be the heirs’, unless she proves what she claims by evidence.

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 If a Muslim husband is leaving behind him a Christian wife who becomes Muslim after
his death and declares that she has become Muslim before his death, whereas the heirs say
that she has become Muslim after his death, the right shall be the heirs’ unless she proves
what she claims by evidence.
Following is the clarification of the wife who does not deserve the legacy from her
husband in the above cases: The woman who claims that she has become Muslim after her
Christian husband’s death claims that she is entitled to bequeath her husband according to
the real presumption of continuity which is the continuation of following her husband’s
religion until after his death, therefore, she deserves to inherit him, but the presumption of
continuity or which becomes certain by it shall not be an evidence to deserve anything, and
the heirs refuse her claim that she deserves what she claims by adherence to the invested
presumption of continuity, that is deeming the present situation still existent in the past,
which means her being Muslim has existed before the death of the husband by the evidence
of her being Muslim at present and the presumption of continuity shall be an adequate proof
for refutation; so the right is the heirs’ and she has to prove otherwise.
But in the second case, the case of the Muslim man’s death who has a Christian wife who
she claims that she has become Muslim before his death, thereupon, she deserves to inherit,
but the heirs say she has become Muslim after his death, so she shall not have the right to
inherit based on the inversed presumption of continuity or any other proof shall be an
evidence to deservingness, so the right shall be the heirs’ by adhering to the real
presumption of continuity that is, she sticks to her religion until after the death of her
husband. They are also supported by the maxim which stipulates (The Case shall be
associated to its latest occurrence) wherein they refer her Islam to the latest occurrence
which is after her husband’s death.
Here are some exceptions of the maxim :
If the trustee claims returning the deposit to its owner claims it has been destroyed
without trespass or negligence, and the owner denies, the right is the trustee’s even
though the origin is that it is kept with him because the trustee is trustworthy, and if the

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trustworthy claims the returning of the deposit to its owner, the say is his under the oath
because the root is acquaintance of non-trespass and negligence.
If a woman claims the lapse of her time of ‘iddah, the say is hers under the oath,
albeit the root is keeping the iddah after being certain to exist because the lapse of the
iddah is something that cannot be known but from her, so if her say is not accepted
about the continuation of her ‘iddah, the ‘iddah continuation cannot be proven
originally, and her say is accepted because of necessity.

Maxim 64
al-aslu fi-l-kalaami al-haqeeqa.

The original state of words is the literal sense.

This maxim simply state that is presumed that what is said is true. The maxim can also
be rendered as ‘The essence is the literal sense of the words.’ By ‘literal sense’ is meant the
meaning or truth of the word as in the word 'lion' to refer to the known animal, and by
metaphor is meant using the word in another meaning, which has not put on condition of
relation between the true and metaphorical meaning with the existence of turning
presumption away from the true meaning, like giving the word ‘illumination’ on Islam or
science. It is cited in the Mejelle (2003:4, Article: 12) and translated as “In the case of a
word, the sense in which it is presumed to be used, is the literal sense”. (2003:4).
This maxim means that it is likely to hold the speech on the true meaning not the
metaphorical wherever it is possible, so upon this maxim people's contracts and manners are
interpreted, hence whoever says “I entail my house on my children then on poor people”, the
entailment here goes to the offspring children and it does not include grandchildren because
his saying “my children” is true in the offspring children, so the word ‘my children goes for
them only, and the grandchildren of the entailing person are not included if they exist. An
application of this maxim is:

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a- If someone says: “This house is for Zeid”. This is confirmation of possession to him even
if he says “I meant that Zeid lives in it”. This will not be accepted from him.
b- If he says “I entail my house to the Glorious Qur’an by heart reciters in my country”, this
will not include the one who has recited Qur’an by heat but has forgotten it, because he
will not be called as the “Qur’an by-heart reciter”.

Maxim 65
al-aslu fi-l-ibdhaa i al-tahreem.
.
Pudenda are essentially prohibited.
This maxim can also be worded as: 'The essence is prohibition of pudenda.' It prohibits
committing any kind of sexual intercourse with any woman except under a valid contract of
marriage or with possessed maids. The latter case rarely, if ever, exists.
The Arabic plural noun (ibdha') denotes pudenda , the plural of pudendum which
means in Arabic Farj, used figuratively as a metonymy for women or for fornication,
which is generally prohibited except under a valid marriage bond. The maxim is based on
the following Quranic Aya.
" "
(5: )
"And those who abstain from sex (lit: guard their private parts) except with those joined to
them in the marriage bond or those i.e. (captives) whom they possess" (Qur’an,23:5). 'Ali
(1991:844, Note No. 2867) illustrates the above aya stating that Muslims must guard against
every kind of sex abuse or sex perversion. Freud, the famous psychologist, traces many of
our hidden motives to sex, and it is common knowledge that our refinement or degradation

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may be measured by the hidden workings of our sex instincts. But even the natural and
lawful exercise of sex is strictly restricted to the marriage bond, under which the rights of
both parties are duly regulated and maintained. Another Quranic aya supporting the maxim
goes as follows:
(31: )" "
"And say to the believing women that they avert their glances and to abstain from sex by
guarding their private parts" (Qur’an, 24:31).

Maxim 66
al-aslu fi-al-ashyaa"i al-ibaaha.
.
Permissibility is the original state.
The maxim can be rendered as: ‘ The essence is permissibility of things’. In this maxim,
permissibility is restricted to the concept of utilization of things, unless limited by a religions
proof.
The maxim is based on the following Quranic Ayas and Prophetic Hadiths:
(29 : )
"He is the One Who has created for you all that is on earth" (Qur’an, 2:29).
The phrase. "for you" is explicated by Zeidan (2001:178) as what "has created" for
yourselves of benefit to you of plants, animals, minerals…etc. and the emphatic word " "
"all" is an explicit evidence for that . Another aya is:
(32: )" "
"Say (addressing Muhammad) who has forbidden the beautiful and good, pure things
brought forth by Allah to His worshippers from His provision?" (Qur’an,7:32). The phrase
"things brought forth by Allah to His worshippers" denotes plants such as
cotton, wool from animals and shields from metals. As for the good pure things from His
provision ( ),they denote the tasty food and drinks.

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 The maxim is also based on the Prophetic Tradition, hadith, related by Al-Tarmadi:
) " "
(
"What is religiously lawful is that which is deemed so by Allah in His Book, and what is
religiously prohibited is that which is prohibited by Allah in His Book, but what is not
mentioned is allowed to you by Him". "What is religiously allowed" here denotes 'permitted'
provided it is relevant to benefits rather than to harms, because the latter is stipulated as
prohibited. Another Prophetic saying is:
"
(19509/10) ".
. (7114/16)
"Allah has ordained certain duties which you should not miss, and He has forbidden
certain things which you should not do, and He has set certain boundaries which you should
not trespass, but when He has not mentioned many things, do not look for them ", narrated
by AL-Bayhaqi and Al-Tibrani.

Maxim 67
al-aslu fi as-sifaati al- aaridhati al- adam.

The original state of accidental attributes is non-existence.

This maxim states that when incorporeal or non-existent matters which do not prove
themselves the presunption is that they do not exist. It related to maxims concerning
evidence, as seen by the example given in the Mejella (1305.H:23), if someone buys
something described with desirable attributes by the seller, and the purchaser and the seller
dispute concerning the existence or non-existence of these attributes, the dispute shall be
settled pursuant to the original state as follows: if the description during the sale is
conditional on the accidental attributes, evidence must be presented by the seller for reasons
of validity and purchaser must take an oath if the conditional attribute is one of the original

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attributes. In other words, evidence is by the purchaser, and the seller must take an oath to
validate his claim. This maxim has the following exceptions:
a- A husband makes use of his wife’s yield, then she is dead, thereupon he claims that he
has had her permission to do so but the heirs have denied, so the say is his by swearing an
oath, albeit the origin is not to have the permission from his wife.
b- If the speculator brings a sum of money, claiming that it is the main capital with profit.
And the property owner claims that this sum of money is the main capital so the say is
the speculator’s even though the non-existent profit is the origin.
c- If a woman asks for her young children alimony after the judge has assigned this alimony
to them and the father claims that he has spent money on them, the say is hers y swearing
an oath, albeit the origin is not to spend money on them.

Maxim 68
al-aslu fi-l-madhaari al-tahreem.

The Basic Principle: whatever is harmful is prohibited

The maxim can be translated as: ‘The essence oe the basic principle asl is the prohibition
of harm’. Many Muslim jurisprudents and jurists judge that whatever is conducive to
prohibition, haraam, such as harm is itself prohibited. In the Qur’an there are many ayas
which forbid inflicting harm or damage to others, such as:
(231 )" "
“But do not retain them against their will in order to hurt them; and whoever does that, he
has indeed wronged himself ” (Qur’an, 2: 231)
Another example:
(6 )" "
“Do not harass them so as to make life difficult for them” (Qur'an,65: 6). This
maxim is also related to the maxims dealing with harm, such as Maxim 88 “No harm shall
be met by harm”; Maxim 37 “Harm shall be warded off”, among others.

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 Maxim 69
al-idhtiraaru laa yubtilu haqq al-ghayr.

Pressing necessity shall not annul the right of another

This maxim denotes that the pressing nescessity or exigency does no destroy the rights
of others. The Mejella renders the above maxim as: "Constraint (iztirar) does not destroy
the right of another". And by Nasir (1990:26): "Necessity does not invalidate the right
of another".
This maxim is cited in Article 63 of the Jordanian Civil Code and 213/1 of the Iraqi
Civil Code. It is related to the previous maxims of necessity, whereby someone who is
under the constraints of exigency, i.e. a pressing necessity, shall blot out the sin if he is
obliged to commit what is religiously prohibited as in eating the meat of a dead animal to
ward off death caused by hunger. Nevertheless, such exigency shall not annul the right of
the others if this exigency obliges the exigent man to damage others’ property. Likewise,
if a hungry man eats someone’s bread, he shall pay its value; in other words, the person
who is compelled to to eat the food of another is still liable to pay the cost..
Article 480 in the Mejella states, by way of exemplification, that if someone hires a
boat for a time which expires during the voyage, he shall continue paying the rent until
the boat approaches the shore. In other words, the hirer shall pay an equivalent rent for
the additional time.
Maxim 70
al-"amru ithaa dhaaqa itasa .

Anything narrowed shall be broadened.

This maxim points out that when a hardship needs to be broadened, it shall become
necessarily so broad as to accommodate permission and facilitation for the purpose of
riddance of the hardship. But once the hardship necessitates broadening the matter and

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adopting permission and mitigation, that matter assumes its prior state, and this is worded
differently as "once a matter is broadened it shall be narrowed", that’s to say, when anything
is broadened due to narrowness it shall assume its prior state, which means it is no longer
necessary to be broadened.
According to As-Siyooti, this maxim has been said by Ash-Shafi’i which gives the same
meaning as the maxim "difficulty begets facility", Ash-Shafi’i gives the following three
cases in propounding that maxim;
a. When a women loses her guardian during travel and asks someone else to be a guardian,
he shall act in pursuance of the maxim: "Anything narrowed shall be broadened".
b. Is ablution permissible from a pottery made of dung ? Ash-Shafi’i replies: "Anything
narrowed shall be broadened". The maxim can be deemed a derivative of Maxim 38:
‘Necessity renders prohibited permissible’ or proverbially expressed: ‘Necessity knows no
law’ .
c. Once Ash-Shafi’i has been asked about a fly that stands on feces, then falls on a garment,
he replies, "Its legs must be dried while flying, otherwise anything narrowed shall be
broadened".
In the English version of the Mejella, it is translated as:
"When a matter is narrow it becomes wide". Here are some applications:
a. Whoever suffers distress then seeks relief as in the case of the poor debtor who has no
guarantor of the debt may repay his debt when money is available, otherwise installment of
payment is permissible, when the debtor is unable to repay the whole debt in one payment.
b. Article (916) in the Mejella stipulates that if a minor destroys someone else’s property,
he shall be liable to pay from his own money, but if he does not have that money he shall
pay when money is available and his guardian shall not be liable to pay.
c. It is permissible to accept the testimony of the most fungible witness in the case of
absence or rarity of justice, because adherence to the condition of justice of the witness with
the absence of justice among people is the hardship and distress. Both entail permission.
d. It is permissible for the debtor, assailant, thief or oppressor to ward off their evil even
by committing homicide, because if this legal prevention is not permitted, people will suffer

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a burden of a massive hardship and severe distress, and will succumb to oppressors and
wrong- doers.

Maxim 71
al-"amru bi-l-tasarfi fi mulki al-ghyari baatil.

Order to dispose of the property of another is null and void.

Just as it is not permissible to use and dispose of another's wealth without his permission
being made an agent or guardian, it is impermissible to instruct another with the disposition
of someone's property without permission, agency or guardianship. The compensation rests
solely on the one carrying out the instruction unless coerced. This is because the instruction
carries no legally binding effect.
For example, if a person preparing to pay back a debt to a creditor is instructed by the
same creditor to destroy the money and then does so, he shall not be absolved of his debt,
since the instruction is not binding.

Maxim 72
al-"umooru bi-maqaasidiha.

Matters are judged by intentions

This maxim can be rephrased as follows: the basis of every act or order is the intention
thereof, i.e., a judgement based on a n act or order should follow the intention and purpose
of that act or order. It based on a renowned Prophetic hadith :
On the authority of Umar Ibn Al-Khattaab who said "I heard the messenger of Allah say:
"Deeds are judged only by intentions, and everyone shall have what he only has intended;
thus he whose migration is for Allah and His messenger, his migration is for Allah and His

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messenger and he whose migration is to achieve some worldly benefit or to take a women in
marriage, his migration is for that for which he has migrated, " related by Al-Bukhari and
Muslim.

( ).
This maxim denotes the religious provisions dealing with people's matters and
transactions which should conform to their purposes, i.e. intentions. A man may perform an
act with a certain intention which accordingly entails a certain judgment. Likewise, he may
perform that very same act with another (different) intention which accordingly entails
another (different) judgment. By way of application, the man who picks up a trove, i.e. lost
property, should be trustworthy, but he shall not be a guarantor if the trove is damaged
unintentionally or negligently provided that his intention of picking up the trove is to
preserve and return it to its owner. Otherwise , he shall be deemed usurper if he takes it with
the intention of possession, in which case he shall guarantee it in case of loss or damage,
albeit the loss or damage is unintentional or negligent, because he is a usurper. "The usurper
shall absolutely guarantee the damage of the usurped", is Article 769 of the Mejella. Article
(2) asseverates the maxim in stating: "A matter is determined according to intention, that’s
to say, the effect to be given to any particular transaction must conform to the object of
such transaction", (Nasir, 1990:25) .

Maxim 73
al-ithaaru fi-l-qurbi makroohun wafi ghayriha mahboobun.

Altruism in pious deeds (or worship) is undesirable,

elsewhere desirable.
This maxim is cited exclusively in Zeidan's maxims. It is founded on the following
Quranic aya: .(9 )"

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"They show altruism (i.e. give others preference) over themselves, albeit their need "
(Qur'an, 15: 9) . This maxim signifies altruism as preferring others over yourself in what you
need or get benefits. The reference here to the altruist Muslim who prefers someone else
over himself in any act of worship which will be rewarded by Allah. This kind of altruism is
undesirable. The reason lies in the fact that the purpose of getting close to Allah (Al-
qurubaat) , such as acts of worship and their causes and means, is to glorify the Lord.
Nevertheless, altruism is permissible and desirable in getting worldly interests. By way of
application, AL-Siyooti quoting Al- Qaraafi in Zeidan (2001:197) that when the prayer time
is due for the one who has some water barely sufficient for his purification and there is
someone else who is in need of water for purification, the former may not be altruist,
wherein altruism is impermissible.
On the other hand, if someone prefers others over himself in a matter of food, this sort of
altruism is permissible. The difference between the two cases is that the right of purification
is Allah's, but the right in the case of the needy altruist, altruism is permissible.

Maxim 74
al-wasfu fi al-haadhir laghoon wafi al-ghaaib mu'tabar

Description in presence (of a visible thing) is vain, but in absence is valid.

The maxim can be rephrtaed as follows: descripton of any thiung which is visibly present
is otious or superfluous, whereas the description of a thing which is not visible (seen there)
is binding. The heading of this maxim in the English version of the Mejella acts as a good
paraphrase "The description which is given while the thing is present is of no account, but
description given in the absence of the thing is to be considered". When the subject of a
contract is existent in the place of the contract, it shall have adequate definition by pointing
at it, in which case description is needless.
For example, when a vendor wants to sell a white horse which is present at the place of
the sale ( on the spot) and he says, "I sell this black horse" pointing at it and the vendee
accepts the sale. The sale shall be valid (binding) and the description of the horse as black

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shall have no effect. But if the vender sells a horse not present at the sale place, saying it is
white whereas in actuality is black, the sale shall be void. In this case the vendee has the
right of choice, either accept the horse or reject it.

Maxim 75
al-wilaayatu al-khaasatu aqwaa min al-wilaaya al-'aama.
.
Exclusive jurisdiction (wilaya) is of greater power than public jurisdiction .
This maxim means the jurisdiction of almutawali (an entrusted, commissioned or person
in charge) is stronger than the jurisdiction of a public figure, such as the qadi (judge).
Jurisdiction refers to the possession of another's executioner powers. The closer the
connection the guardian has with the one over whom he has responsibility the stronger is the
capacity of jurisdiction. Therefore, a judge's jurisdiction, for example, is not of a stronger
qualification than a person's specific wali . Public jurisdiction refers to that of the caliph over
his citizenry and includes also the jurisdiction of his deputies, district judges and others of
similar status. Specific jurisdiction is like that of a father over his young son; such a man has
responsibility for his son's person and wealth.
An example in practice: a judge is not permitted to act as wali for an orphan intending
marriage when the orphan already has an appointed wali.

Maxim 76
al-ni'matu bi-qadari al-niqma wa-l-niqamatu bi-qadari al-ni'ma.

A good turn is in proportion to a bad turn,

and a bad turn is in proportion to a good turn.
The maxim denotes that the blessings of a thing are in proportion to the evils thereof, and
vice ersa. It can also be rendered as: ‘An advantage shall be in proportion to a
disadvantage, likewise a disadvantage shall be in proportion to an advantage.’

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 The burden is in proportion to the benefit, and the benefit is in proportion to the burden.
The maxim means: An advantage shall be in proportion to a disadvantage, likewise a
disadvantage shall be in proportion to an advantage.
It regulates rewards and recompenses to those who deserve them. For instance: when
there is need for repair of property held in common the owners shall make the repairs, by a
common action, in proportion to their shares.

Another example is when an illegitimate or abandoned child is in need of alimony or

someone who has killed another that entails blood money, the alimony and the blood money
shall be paid by the public treasury because when he dies his property shall be given to the
public treasury.

Maxim 77
inamaa tu'tabaru al- aada ithaa idhtaradat aw ghalabat

Custom shall be deemed effective only

when it is constant and predominant.
This maxim signifies that the custom which is widely prevalent and operative is to be
relied on. The Mejella renders this maxim as: "Custom is only given effect to when it is
continuous or preponderant"; and Nasir (1990:28) as: "Effect is only given to custom where
it is of regular occurrence or when universally prevailing". This maxim is related to (Custom
is an arbitrator). Here are some applications of the maxim:
If a tailor is hired, the needle and the thread are to be provided by him in execution of the
preponderant convention. In case of hiring a clerk, the pen and the ink shall be on his
account. Likewise, the forage of the beast shall be provided by the beast's owner, even
though, it is deprived of food by the hirer, which may cause death due to starving, in which
case he shall not be liable even if the beast's forage is conditional on the hirer. It is contrary
to the case of hiring a wet nurse, who has to be provided with food and clothing in
pursuance of convention.

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 Maxim 78
al-yaqeenu laa yazoolu bi-sh-shakk.

Certainty shall not be warded off by doubt.

The meaning of this maxim is that the thing of certitude shall not be dispelled by
accidental doubt, but by congruous certitude. Simply stated, any belief that amounts to
conviction cannot be made to disappear by a doubt. This maxim is based on certain Quranic
ayas and a Prophetic hadith as demonstrated below:
a- (21 : )"
"And he (referring to Satan) held no authority at all over them – except that We might
distinguish the one who believes in the Hereafter from the one who is in doubt about it"
(Qur’an, saba’:21). Certainty in this aya is represented by belief .
b- (157 : )" "

Those who disagree concerning him (referring to Jesus Christ) are in doubt; they have no
certain knowledge of him except following conjecture; for they did not of certainty kill him.
(Women:157)
c- :
.( ).
"If anyone of you is in doubt concerning his prayer not knowing how many bowings
(raka's) he has performed whether three or four, he must set doubt aside and rely on what he
is certain of, he should then prostrate twice before ending the prayer." This denotes very
explicitly setting down aside doubt and relying instead on certainty.

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 This maxim is found in the Iraqi and Jordanian Civil Codes,(Art,4). In the Mejelle, it is
translated as: “With doubt, certitude does not fade”. The translation seems inaccurate hence
Nasir (1990:25) furnishes another one closer to the author’s as “Certainty is not dispelled by
doubt”. This appears to be the general principle of proof or evidence and has become Article
74 of Jordanian Civil Code and 445/1 of the Iraqi Civil Code. Besides, Islamic jurists have
derived the principle of istishaab ( ) from this general maxim as follows:
“A state of affairs known to have once existed is regarded as having persisted unless the
contrary can be proven” (Articles,4,75, Jordanian and 448,Iraqi), which explicitly appears in
Maxim 79 below.

Maxim 79
tabadulu sababi al-mulki qa"imun maqaama tabadali al-thaat.

A change in the cause of ownership of a thing

entails a change of that thing.
The meaning of this maxim is: a change in the nature of proprietorship of a thing is
equivalent to a change in the thing itself., i.e., if the cause of anything changes, that thing is
deemed definitely changed, even if it does not change in reality. The root of this maxim is a
sound Prophetic hadith related by Muslim and Al-Bukhari on the authority of Anas bn
Malik who said, “A women called Barera gave the Prophet some meat which had been
given to her as a charity; the Prophet said, “This meat is a charity for her and a gift for us”.
( )" "
An example of the above maxim is that if a poor person receives zakat (obligatory
charity or welfare tax) and then he grants it to a wealthy person or a Hashimite person, this
property becomes religiously lawful due to the change of the nature of the property.

Maxim 80
jinaayatu al- jmaa"i jubaar.

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 The beast’s injury is squander.
This maxim demonstrates that any harm or injury caused by a dumb animal is not a
crime, but a sort of waste jubaar It refers to the damage caused by animals, where ( )
literally means "offence" which includes the damage or harm done by animals. This maxim
is based on a Prophetic hadith related by Muslim on the authority of Abu Huraira who
narrated that the messenger of Allah said, “There is no compensation for the one who is
killed or wounded by an animal or by falling in a well, or because of working in mines”
(Sahih Muslim: 524)

Maxim 81
dar"u l-mafaasidi awlaa min jalbi al-manaaf

Repelling banes is better than securing benefits.

This maxim asserts that unlawful things are to be prevented, irrespective of benefits,which
can be demonstrated that if a bane and a benefit are incompatible, repelling the bane has the
priority, because religion is more concerned with prohibitions than with obligations based on
the Prophetic hadith: "If I order you to do anything do it as much as you can, but if I forbid
you from doing anything you must avert it " narrated by Al-Bukhari and Muslim) .
( )" "
Here are some applications of the maxim :
1) A person is forbidden to dispose of his property if this disposition harms his neighbour,
because repelling such banes from his neighbour is preferable to securing benefits to
himself.
2) Imposing interdiction on prodigal person.
3) A person must not open a window overlooking private places of his neighbour nor must
he make anything in his property which can cause a bane to his neighbour.

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The maxim is cited in Articles 30 and 64 in Jordanian Civil Code and Article 6 in Iraqi Civil
Code.
Maxim 82
daleelu ash-shay""i fi-l-imoori al-baatinati yaqoomu maqaamahu.

In indiscernible matters, the clue of the thing stands in for it

In matters which do not appear, evidence of the thing stands in place of that thing. (The
Mejella, 2003:11) Differently phrased, in indevernible or invisible matters, inference of a
thing has validity, i.e., one can judge by appearance where it is difficult to ascertain tha fact.
The maxim demonstrates that evidence which points to the existence of something which
is otherwise indiscernible shall stand in place of that thing. The Islamic law (shari'ah)
connects those legal precepts which are based on causes and indiscernible attributes to
perceptible causes which, if found to exist, are considered to be a sufficient evidence that the
indiscernible attribute exists. In explication of this maxim, in the law of retaliation (qisaas)
relating to intentional killing, the presence of intention - which is an indiscernible attribute-
is considered to exist if the instrument used on the killed is a tool which, in normal
circumstances, is used to cause death. When this is found to be the case, the killer shall face
the consequences of the law of retaliation (Cf. Art. 68, Mejella).
An application of this maxim is the discernment of consent on the part of a purchase vis-
à-vis an old fault by the fact that he uses the goods freely whilst it is in his possession. The
consequence is that he loses the option to return the goods (cf. Art. 344, The Mejella).

Similarly, with respect to the payment of dowry – a requirement on the husband after
consummation – the husband is obligated to pay the dowry the moment he and his bride are
in complete isolation together, since isolation becomes the causal factor in place of intimacy
which is not a discernible event.

Maxim 83
thikru ba dh maa laa yatajaz " ka-thikri kulihi.

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 `
Mention of part of an indivisible thing is as mention of the whole.
This maxim is deemed as a derivative or an application of Maxim 14 :
Giving effect to a word has priority over neglecting it. As an .
application of this maxim is: if the blood heir waives half of the retaliation (qasaas), the
other half shall be waived because retaliation is inseparable. Likewise, if one of the blood
heirs forgives the killer, the retaliation is waived and the right of the blood heirs (the
guardians of the killed person) shall turn to blood money.

Maxim 84
qad yathbitu al-far wa-in lam yathbit al-asl.

The derivative may be validated though the root is invalidated.

This maxim can be differently phrased: albeit the root or the base may not be established,
the derivative, i.e., the thing that artises therefrom may be established. It is an exception to
the previous maxim wherein the derivative shall be validated albeit the root is invalid or
non-existent. Here are some examples: if someone says: Zaid has given Amr 1000 dinars
and I am the guarantor, but Amr denies the debt, the sayer, who is the guarantor too, shall be
obligated to what he has guaranteed, if Zeid claims the sum mentioned and admitted by this
person on the grounds that one is judged by one’s admission . Herein, the root has not been
validated, but albeit its invalidation, the derivative has been validated, that is, the guarantor’s
guarantee and the debt are proven. Another example is: if a husband claims monetary
repudiation on his wife and the latter denies it, repudiation for monetary compensation shall
be valid even though money has not been confirmed as a return of Khal repudiation,
which is the root for it. So albeit the root has not been proven, the derivative has, i.e.,
divorce occurs between them.

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 Maxim 85
alaa al-yadi maa akhathat hataa tu" adeehi.

What has been taken shall be handed .

This maxim is a verbatim Prophetic hadith, narrated by Imam Ahmed is his Musnad, as
well as by the four Imams. It means, whoever takes something unlawfully he shall be liable
to hand it back or pay its value if it is destroyed whether because of transgression,
negligence or none of them, and he shall be free from liability until he hands it to the owner.
Application of this maxim, whoever takes compensation for conciliation, but thereafter he
admits he has no right to possess it, then he must hand it to the compensation payer. Another
example, if someone pays another a sum of money, thinking that he is indebted to him, but
thereafter he discovers that he is not indebted, the payee must hand that money to the payer,

Maxim 86
laa hujata ma al-ihtimaali al-naashi" i an daleel.

There is no convincing argument with a possibility based on evidence

This maxim is like the other maxims of “evidence”. It demonstrates that any argument
shall have force if there is a possibility resting of a priif or evidence. There are two
instances:
If someone admits that he owes a certain debt to one of his heirs, if he is in his death illness,
this admission shall not be a proof, i.e., shall be of no effect, unless validated, i.e.,
supported, by the remianing heirs. Because the sick person might have intended to deprive
the other heirs. In this case, the evidence here is based on death illness. Conversely, when

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the admission is made at the time of health, it shall be valid because the legator has possibly
intended to deprive the inheritors, which is a mere possibility and a sort of delusion,
imagination or supposition, which has no force as against the admission, i. e., it shall not
deny the validity of the admission. Another instance is if someone on his death illness has
granted a gift to one of his heirs, and after his death the heirs have not acknowledged the
gift, it shall be invalid. i. e., it shall have no force.

Maxim 87
laa hujata ma a al-tanaaqdh wa-laakin laa yakhtalu ma ahu hukm al-haakm.

There is no convincing argument in case of contradiction,

but the ruling of the judge shall not be undermined.
This maxim evinces that no force is left when two things contradict each other, but such
contradictio shall not impair a judicial decision The maxim also pertains to the maxims of
“evidence” to which the Mejella ( 2003:13, Article 80) provides a rather paraphrasal
rendition as follows: “With contradiction, proof does not stand but does not injure the
judgment given against the contradiction”. For example, in case the two witnesses retract
their testimonies, then their testimonies cease to be an evidence. However, if the judge's
decision is based on what they have initially testified, the decision shall not be abrogated,
but the two witnesses shall endorse the ruling. It is clear that the retraction of two witnesses’
testimonies invalidates their evidence, in the presence of contradiction. However, if they are
linked to the decision of the judge, then the latter is applicable. But the two witnesses would
bear responsibility for changing their testimony whether the responsibility is financial due to
the damage caused to the sentenced person, or a penal liability if they admit that their
testimony is false and they have retracted it. The above example can be simplified as
follows: if two eye-witnesses should retract or withdraw their statements, these statements
will lose their legel force, but should the judge make a judgement in compliance with their

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statements, that judgement shall be valid, and the two witnesses shall be bound to comply
with the judgement
Maxim 88
laa dharara walaa dhiraar.

No harm shall be met by harm.

Literally: "No harm and no counter-harm ". This maxim, like Maxim 85 above, is an
absolute Hadith in terms of form and content. This authentic Prophetic hadith expounds a
Qura’nic ruling as evinced in the following aya:
(40 : )" "
" The recompense for an evil act must be an evil act proportionate to it. Yet anyone who
forgives and becomes reconciled, his reward is due from Allah ",
(Qur’an, 42:40). In his translation, Asad ( 1980: 746) interpretatively renders the above aya
as follows: ‘But (remember that an attempt at) requiting evil may (lit: is), too, become an
evil: hence, whoever pardons (his foes) and makes peace, his reward rests with God’. ‘Ali
(1991; Note: 4581; p.1257) asserts: ‘You must not seek a compensation greater than the
injury suffered. The most you can do is to redress, i.e., a harm equivalent to the harm done
to you.’
The maxim comprises two provisions: first, "No harm" denotes no one shall cause any
harm to himself, to his kinship, to his property and to others, because this harm is a kind of
wrong-doing which is prohibited in Islam. An example is: someone who constructs a wall
adjacent to his neighbour which will entirely block the light to his neighbour. His act in his
own house is permissible but in so far as not to incur serious harm to his neighbour. Second,
"no counter harm" states that no harm shall be in return for a harm. Instead, the recipient of
the harm shall resort to courts to demand recompense for the harm incurred on him. Hence,
the one whose property is damaged by someone else must not damage the latter's in return;
instead he must sue him for the damage. Article (19) of Mejella (the English version,p.6)

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states: “Damage and retaliation by damage is not allowed”, which can be succinctly stated
as: "No harm shall be caused nor shall be met by harm ".
Ideally, there should be no harm; but should any harm be caused, it shall entail
compensation equal in degree to the harm caused. This is adopted in Article 216 of the Iraqi
Civil Code, Article 62 of the Jordanian Civil Code and Article 19 in the Mejella: “No
injury shall be committed nor shall be met by injury” (Nasir,1990:27).

Maxim 89
laa ibrata bi-l-zanni al-bayni khata" uhu.

The apparently erroneous supposition

is not to be taken into consideration.
This maxim means that there is no reliance on any supposition which is apparently
defective. It is related to maxims concerning “certainty and doubt”. It means that the
apparently erroneous suspicion must not be depended upon; rather it shall be overlooked and
deemed non-existent. Any judgment based on it shall be void. Here are some applications:
a- When a man thinks that he has owed a debt, then the contrary is proven, he shall be
entitled to recover the money he has paid.
b- A man says to another, “You owe me 1000 dinars”. The other says, “If you swear that I
owe you that sum of money, I will pay you”. The first takes an oath and the second pays
it to him, thinking that he is committed by the oath. Then he shall have the right to take it
back.
c- If a man pays something he is not bound to pay, he can take it back, unless it is given as a
gift, and the payee has spent the money.

Maxim 90
laa ibrata f-l-dalaalati fi muqaabalti al-tasreeh.

Indication is not taken into consideration

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 in collation with explicitness.
It means that no reliance is to be placed on mere inference as against actual expression
or no weight is given to implied signification or denotation when there is explicit statement.
It is stipulated in the Mejela, (2003:4; Article 13 ) as: “No weight is given to arguments
where there is a clear statement opposed to them” (2003:4). Differently worded by Nasir
(1990:26) as follows: "No attention shall be paid to inferences in the face of obvious facts.
For example, when someone donates something to someone else who takes hold of it in the
place where the gift is given, the act of taking hold shall be valid, albeit the donor has not
permitted the act of taking; his/her offer shall be an indicative permission for grasping.
However, if the donor inhibits the given person from grasping, the act of taking hold shall
not be proper because signification shall not be taken into consideration in collation with
explicit utterance. The Mejella (2003:117) stipulates in Article 772 that: “permission by
indication is the same as permission explicitly given." But, if there is an explicit prohibition,
permission by indication cannot be considered. Another example: when a person has entered
the house of another with his leave, he has by indication the leave to drink water from a
tumbler standing openly. And while the person is drinking, if the glass in his hand falls by
accident and is broken, compensation does not become necessary. But when the owner of
the house says: “do not touch that tumbler” and makes a prohibition; if the person takes it in
his hand, and it falls and is broken, he shall be responsible.”

Maxim 91
laa ibrata li-l-tawahum.

Delusion is of no consideration.
It means “no attention must be given to delusion” or simply stated: there is no reliance
on nere imagination or delusion. This maxim is related to the maxims of “certainty and
doubt”. Delusion lies at the lowest rank of doubt. The Mejela, (2003:12) uses the word
‘imagination’ as equivalent to tawahum in rendering the maxim as :”To imagination
without foundation on fact, no weight is given’; whereas Nasir (1990:26) uses the word

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supposition instead of delusion, where the maxim is worded as follows: “No weight is given
to mere supposition”. Supposition here is deemed weaker than doubt.
Following is the example cited in the Mejella (2003:13): if a man appears out of a house
with a knife in his hand, he being stained with blood, moving fast, and with symptoms of
fear, and on this people enter the house and find a man slain, and there is no one else except
the man who has gone out of the house, the man will be taken by this evidence, because no
one doubts that he is the murderer. Hence, the supposition that someone else has killed the
man and jumped over the wall, or, that he himself has committed suicide, is a remote
chance, and cannot be taken into consideration, because there is no proof of it.

Maxim 92
laa masaagha li-l-ijtihaadi fi mawridi an-nass.

There is no room for ijtihad where there is a (decisive) text.

By ijtihad is meant “an individual, independent judgment based on reasoned inference”.
The maxim is worded as follows in Article 14; Article 215, of Jordanian Civil Code and
Article 2 of Iraqi Civil Code “Where the text is clear there is no room for interpretation”.
Nasir(1990:26) surveys other civil codes in the Arab world where the same maxim is
adopted albeit in different forms, in the Civil Codes of Egypt, Syria, Libya, Kuwait and
Algeria (Articles: 150,151,152,193,111 respectively).
The maxim reads as follows: “When the wording of a contract is clear, it cannot be
deviated, so as to be ascertained by means of interpretation of the intention of the contractual
parties. This maxim is based on the Qur an and hadith as explicated bellow: a.
a. "Follow what has been lent down to you from your Lord and do not follow protectors
and helpers (who order you to associate partners in worship with Allah) beside Him”.[The
Qur’an, 7:3]
(3 : )" "

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 b. “The judgment is Allah’s alone. He declares the truth and he is the best of Judges”. (
57- )" "
c. Whatsoever the Messenger gives you, take it and whatsoever he forbids you abstain from
it". (7: )" "
The Prophetic hadith: ( ) “No one shall have a say as regards the
messenger’s tradition (sunnah)”.

Maxim 93
laa yajoozu li-ahadin ann yatasaraf fi mulk ghayrihi balaa ithnihi.

No one may dispose of the property of another

without the latter's permission
The property of another in Islamic Law shari'ah is considered sacrosanct. Thus it is
impermissible to infringe on his property by expending it without permission. Similarly, it is
not permissible for a joint owner of a company to make any disposition with respect to the
share of another until permission is granted (cf. Art. 1075, the Mejella). Permission may be
given expressly or by indication: an example of the former is where a person appoints
another as an agent to sell his house; an example of the latter is in the case of a shepherd
who takes the decision to slaughter a sheep which is on the verge of dying (the impending
death is tantamount to a grant of permission). If, then, a person expends the property of
another without permission, the transaction is legally void.
A corollary of this maxim is that which is stipulated in Art. 446 of the Mejelle: The lessor
who makes a contract of a lease must be the absolute owner of the property, or the agent of
the owner, or his natural or legal wali.
Here are some applications of this part:
A- The silence of a virgin female whose wali is in command of her marriage shall be
deemed consent.

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 B- When someone takes something as a gift or charity from an appropriator, the latter's
consent shall be deemed permission of possession for the former.
C- The preemptor's silence being aware of the act of selling shall be deemed evidence of
consent and his preemption right shall be waived.
D- When a wife delivers a child, the husband's silence and acceptance of congratulations
on that child, shall be deemed admission of the child and its kinship. Thereupon the husband
shall have no right of denying that child.
E- The silence of the authorized person, proxy and the trustee shall be deemed acceptance,
unless otherwise openly stated, because when the reply is openly stated no consideration
shall be taken vis-à-vis explicit saying.
F- The vendee's silence, when he has been informed of a defect in merchandise before
purchase, shall be deemed acceptance of that defect.
The Article (341) in the Mejella stipulates: when the vendor mentions that a merchandise
has a certain defect and the vendee accepts that defect, being aware of the sale the latter shall
have no right of choice in returning that merchandise because of the defect. However, if the
vendee detects another defect, which is different from the previous one, the vendee shall
have then the right to return that merchandise.
G- When a judge demands an oath from a defendant, who remains silent without an
excuse, the defendant’s silence shall be deemed a refusal of swearing the oath.

Maxim 94
laa yunsbu ilaa saakitin qawlun wa-laakna as-skoota fi ma radhi al-haajati byaan.

No utterance shall be imputed to a silent person,

but silence in case of necessity is pronouncement.

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 "No utterance shall be imputed to a silent person". This expression, which is the first part
of the maxim said by Ash-Shafi’i, means it is not permitted to put into someone's mouth
words that have never been uttered by him/her, i.e., he/she has said this or that. The maxim
can also be expressed as follows: silence must not be construed as speech, but silence is to
be construed as speech when there is an occasion for speech.. In other words, no statement
can be attributed to a peerson who remains silent, but to keep silent where speech is required
amounts to a spoken acknowlredgement or sdmission. Here are some illustrations:
A. When someone sees someone else selling the former's property and remains silent, his
silence shall not be deemed permission or authorization.
B. When someone sees someone else destroying the former's property, his silence shall
not be deemed permission.
C. The silence of an impotent person's wife shall not be deemed consent even when she
stays with him for years.
D. The lender's silence shall not be deemed an acceptance.
For example, when someone asks another to borrow something from him, and the owner
of that thing remains silent and the borrower takes it, the borrower shall be deemed a
usurper, which entails the application of the usurpation provisions on him. One of these
provisions is the usurper shall be liable to return it or pay its value.
The second part of the maxim is "but silence, in case of necessity, is a pronouncement.”
This means, the silence in case of necessity shall be deemed admission and declaration.

Maxim 95
laa yunkaru taghyeeru al-ahkaami bi-taghyeeri az-zamaan.

Change of judgements shall not be denied by change of times.

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 The maxim, which avers that any change of conditions through passage of time will not
alter any judical decision, is related to the previous ones dealing with custom and
convention. This maxim can be explained (in the Mejelle, Art.39) as that there should be no
denial of the fact that with the change of times the judgments, provisions or requirements of
the law may change. For example, in the past the door(s) of the mosque should not be closed
while nowadays it is permitted to close the door(s) at the mosque when it is not the prayer
time to prevent theft among other things. It also cited in Iraqi Civil Code, Article 5. as: “No
doubt that judgments shall vary with the change in the times” (Nasir,1990:28).

Maxim 96
li-l-akthari hukmu al-kuli.

The most is (ranked) as the whole

The maxim is applicable to all cases where ease or facility is meant or intended, unless
stipulated in Islamic law shari'ah where the most cannot stand for the whole as in fasting
most of the days of Ramadhan so as to suffice the whole month. Another example as an
application of the maxim is : Taqie Al-Deen Al-Hasani in reply to the question of wearing
silk for men, when silk is blended with a permissible material such as cotton. He said, “If
most of the cloth is made of silk, it shall be prohibited, otherwise it is permissible.

Maxim 97
laysa li-ahadin ann ya" khutha maala ghayrihi illaa bi-sababin shar i.

No one shall be permitted to take another's

property except for a lawful reason

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 According to Islamic law shari'ah, it is impermissible for anyone to take the property of
another without a legal cause, which permits him to do so, even though he may have taken it
thinking that the property is his, in which case, he has to return it as corporal property,
otherwise he is liable to pay its value or give a similitude; this is because oblivion is not an
excuse in matters concerning people's rights. covertly unlawful because 'religiously
speaking' it is impermissible to take others' property even if the judge adjudicates the
permissibility.
The impermissibility is based on the following Prophetic hadith:
The reason for impermissibility of taking another's property is based on lawful grounds
both overtly or covertly. In case that the cause is only overtly lawful, but covertly unlawful
because ‘religiously speaking’ it is imperimissible to take others’ property even if the judge
adjudicates the permissibilty. The impermissibilty is based on the following Prohetic hadith:
“ I am but a human being, and you bring your disputes to me; perchance one of you may
err in presenting his argument against another, thereupon I adjudicate in pursuance of what I
hear. If I adjudicate for one at cost of another’s right, it shall be a piece of fire wherein he
has either to take it or leave it.”
"
88 : ) ".

Maxim 98
laysa li- irkin dhaalimin haqq.

No unjust planter has right.

This maxim has been derived from the Prophetic hadith related by Al-Nasa'i and Al-
Tirmidhi that: “Whosoever gives life to a dead land it shall belong to him, but an unjust
planter shall not have any right in it”. 'The unjust planter' denotes the person who cultivates

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a land to which life has been given by another person, and not the cultivator through
usurpation.

Maxim 99.

maa thabuta bi-zamaanin bi-hukm baqaa" ihi ma lam yaqm al0daleelu alaa khilaafihi.

What is proven at one time shall perpetuate,

unless there is a contrary clue.
This maxim is related to maxims dealing with an ancient or immemorial time (Al-
qadeem)
It means that anything once proved remains proved, until the contrary is established, i.e.,
what is validated at a certain time remains valid unless evidence proves otherwise By way of
exemplification, if someone is proved to have been the owner of anything, his ownership
will be decreed unless something is found which has caused it to be removed. It is a kind of
presumption of continuity, so it is incorporated with the Maxim 63, which is:
The original state is: what has once existed is deemed as persisted.

Maxim 100
maa thabata alaa khilaafi al-qiyaasi fa-ghayruhu laa yuqaasu alayhi.

What is established contrary to qiyas (analogy)

shall not be used as qiyas
This maxim can be worded as follows: what is proved not to comply or correspond to
the juristic reasoning, i.e., inference or deduction by analogy, cannot be a juristic reasoning
or inference for other cases.

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 An example of the maxim is the allowance of nine wives for the Prophet, which cannot
be taken as a rule or example for others. In other words, this was allowed only to the Prophet
as a special honor but not to others.

Maxim 101
maa jaaza li- uthrin batala bi-zawaalihi.

What is permitted for a reason is annulled

once that reason is non-existent.
A thing permitted on account of a reason or excuse (Uzr) becomes lawful on the cessation
of such reason or excuse. The maxim means that if what is lawfully prohibited is permitted
for a lawful excuse, like unjustified compulsion and necessity which press for prohibited
things, this permission for the prohibited is restricted to the existence and duration of the
permitting excuse, and if the excuse is to exist then there is no lawful reason to the
permitted prohibition. So what is lawful is no more valid, and the prohibited thing assumes
its prior state, that is, prohibition; thereupon it is not permissible.
An application to the maxim is ablution tayamum permission shall be annulled if there is
possibility of using water, but if ablution (tayamum) is a result of lack of water; it shall be
null and void as soon as water is available; and if it is a result of sickness tayamum shall be
null at recovery; and when it is very cold it shall be null by the end of that condition.
Likewise, the one who is unable to pray because of illness can pray while sitting, but he
shall perform it standing at recovery of health. Article 997 of the Mejella stipulates that if an
incompetent person who is under guardianship becomes competent, the judge shall release
him, because his interdiction is due to his foolishness, and if the reason which requires
interdiction ceases to exit, interdiction shall be waived. His interdiction is because of a
lawful excuse that is incompetence, so if this is annulled, interdiction shall also be nullified,
and the judge shall nullify his interdiction. Article 517 of the Mejella states, if the lessor
eliminates the defect before the tenant revokes the contract, no more has the tenant the right

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of revoking, because the excuse which causes revoking the contract is terminated, as the
contract is recurrent hourly, so the defect no more exists.

Maxim 102
maa huruma akhthuhu huruma i taa"uhu.

What is prohibited to take, is prohibited to give.

This maxim could be differently, yet succinctly, worded as “What is haram to take is
haram to give, i.e., what is prohibitedly taken shall be prohibitedly given.” " It is based on
the following Qur’anic ya:
) " "
.(188:
‘Do not eat up one another's property unjustly (= illegally, e.g. stealing, robbing, deceiving,
etc) nor try to bribe the rulers ( or judges before presenting your cases) that you may
knowingly eat up a part of the property of others sinfully’ (Qur’an,2:188). It is also based
on the following Prophetic hadith:
‘Allah curses the one who gives a bribe, who takes it and the mediator.’

Maxim 103
maa hurima fi luhu hurima talabuhu.

What is prohibited to do is prohibited to demand .

It can also be differently yet succinctly worded as ‘What is prohibitedly done (haram)
shall be prohibitedly requested. The maxim is similar to the previous one.
Fraud, deception or infringements on others properties and rights are unlawful in Islam;
hence it is not permissible to ask others to commit any act pertaining to the above.

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 Maxim 104
maa laa yatumu al-waajibu illaa bihi fa-hoowa waajib.

Anything that fulfills an obligation is an obligation.

This maxim is deemed both jurisprudential and fundamentalistic. It is based on the
following Quranic aya: "
.(6 )"
"O You who believe ! When you intend to perform your prayer, wash your faces, your
hands and arms up to elbows, and wipe (with wet hands) your heads and (wash) your feet up
to the ankles" (Qur’an, 5: 6).
According to the above aya " washing faces, hands, feet and wiping heads, i.e. performing
the act of ablution, is deemed a binding obligation as a prerequisite for performing prayers.
In other words, the latter obligation is indispensable for the former.
Performing prayers is already established as an obligation on every Muslim in surat Al-
Baqqara (The Cow). (43 )" "(perform prayers). The maxim affirms that
the foundation of the maxim affirms that the obligation of performing prayers shall only be
fully fulfilled by a prior obligation, i.e. ablution.

Maxim 105
man ista jala ash-shay"a qabla awaanihi ooqiba bi-hirmaanihi.

Whoever hastily acquires a thing before its

due time shall be penalized by being proscribed of it.
This maxim can also be interpreted as: he who hastens an event in order to acquire a
thing before its due time will be punished by being debied that thing. The basis for this
maxim is the principle of 'blocking the means'. Whosoever hastily usurps something that has

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not yet become his due - whether by illicit means or by means which appear licit but with
illicit intentions - shall be punished for his action by having the thing subsequently
proscribed of him. For example, if one who is to inherit kills the person leaving the
inheritance, he shall be deprived of his share of inheritance. Differently put, whoever
hastens to prematurely acquire anything shall be punished by being deprived of it.
This maxim means that whoever hastens to acquire anything prior to its due lawful time
by pursuing illicit means or ostensibly lawful means but for an unlawful intent, he shall be
deprived of acquiring it as a punishment
Here are some applications:
A. When the heir kills his inheritor, he shall be deprived of inheritance on the grounds of
hastening the bequest by using illicit means, i.e., the homicide of the legator. This is based
on the Prophetic Hadith "The killer shall not inherit".
B- The homicide of the one who bequeaths an heir in a will deprives the latter of the bequest
by analogy to the deprivation of the heir from the inheritance if he kills his legator.
C- When a women has been divorced irrevocably without her consent at the time of her
husband's final illness, he shall not deprive her of inheritance, that is, her husband has
divorced her with the intent of depriving her of inheritance, wherein such divorce is called
an evasive divorce (Talaaq Al-Faar). Albeit her irrevocable divorce, she shall be entitled to
inherit as an answer to his malevolent intent which he has concealed in divorcing her, which
is overtly lawful but covertly unlawful.
Nevertheless, she shall inherit if her husband dies during the prescribed period iddah)
according to Hauafi's opinion, but if he dies after the lapse of the prescribed period
according to Hanbli's' opinion, or if such as not got married according to Maliki's opinion;
because it is meant to deprive her of inheritance despite separation between them.
Thereupon, it becomes meaningless to make his death conditional on the prescribed period
or not getting married after his death for the purpose of inheriting her.

Maxim 106
man sa aa fi naqdhi maa tamma min jihatihi fa-sa yuhu mardoodun alayhi.

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 Whoever endeavors to invalidate what has been enacted at his instigation,
his endeavor shall recoil on him
It means : the attempt of a person to undo what has benn finalised by his own doing will
recoil on him. It is rendered by The Mejella (2003: 15) as: the attempt of everyone, who tries
to destroy a thing done by himself, is rejected . The reason for this is that a contradiction
sometimes arises between the person’s latest efforts and what he has executed in the past.
This contradiction, in turn, shall be an obstacle to the hearing of the lawsuit.
The corollary of this maxim is: Article 79 of the Mejella: by his admission one is
condemned. This is confirmed by Article 1587: everyone is judged by his admission. Also,
if an inheritor hastily agrees to the distribution of an estate, after the distribution he has no
right to request a re-distribution if he finds that an item apportioned to him has actually been
a property of his in the first instance. Article 1656 of the Mejella affirms this: The
beginning of a division of the estate of a deceased person is an admission of the divided
thing being held in common. Therefore, after the division, to bring an action, saying, ‘The
thing belongs to me’ is a contradictory statement destroying that action.

Maxim 107
man malaka shay"an malaka maa hoowa min dharooratihi.
.
Whoever owns a thing shall own what is indispensable to it
This maxim denotes that the owner of the property owns also whatever necessarily
belongs to it, i.e., the owner shall have all rights necessary for its enjoyment. It is not
different from the previous maxims concerning the concept of “what follows”. Here are
some examples:

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a- The person who purchases a house shall shall acquire the means of access thereto., e.g.,
shall be the owner of the road that leads to it.
b- The purchaser of a lock shall be the owner of its key.
c- The purchaser of a cow for a purpose of milking it shall be the owner of its calf.

Maxim 108
yutahamlu al-dhararu al-khaasu li-daf i al-dharari al- aam.

Private harm shall be tolerated to dispel public harm.

This maxim means: to avert public harm or injury, a private harm or injury may be
suffered, and signifies that the public harm inflicts people in general as being all exposed to
it, whereas the private harm inflicts a particular person or a small group of people. The
public harm is more effective than the private harm. For this reason, it requires dispelling it
by tolerating the private harm. Here are some applications to this maxim:
Demolishing a wall slanting in the direction of the public road; deposing an impudent mufti
or an unqualified physician; the interdiction of prodigal person, and forbidding a person
establishing a kitchen in a drapers’ market-place, among others. This maxim is also cited in
Article 26 in the Jordanian Civil Code .

Maxim 109
yukhtaaru ahwana ash-sharayani.

The lesser of two evils shall be chosen.

This maxim is similar to the previous ones. It indicates when someone is inflicted with
two calamities or misfortunes that are equal, he may take any of them; but if they are not
equal he may choose the lesser. An example of the former case is for the person who is
aboard a burning ship, in which case if he stays on board he is burnt to death and if he

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throws himself into water he drowns as he does not know how to swim; here the man has the
right to choose the way of death. In the latter case if the unbelievers siege some Muslims
who cannot repel them, they may pay a certain amount of money which would lead to end
the siege, in which case paying money is deemed as a lesser evil.
Maxim 110
yudhaafu al-fi lu ilaa al-faa ili laa aamri maa lam yakun mujabaran.

An action shall be ascribed to its 'actant'

not to the commander, unless coerced.
The maxim simply means : the actual doer or the agent is responsible for his action and
not the person under whose order he acts, unless there is some sort of compulsion,.i.e., the
judgment for an act is made to fall on the person who does it, but it does not fall on the
person who gives the order, as long as he does not complete the doing of the act (The
Mejella 2003:14). It means that ascription of an action shall be to its subject rather than the
one instructing unless he is coerced.
An action is judged to have been committed by its subject in the Islamic law shari'sh,
because the subject is the agent of that action. The action is not ascribed to the one who
instructed the action based on the maxim, ‘Instruction to use and dispose of the property of
another is not valid’ (Cf. Maxim 22). Since the instruction is invalid, compensation is not
due from the one instructing. If, however, the one instructing the subject of an action does
so, using coercion, in that instance the subject is no more than an instrument in the hand of
the instructor, thus ascription of the action shall be to the instructor in this case.

For example, if person A instructs another, B, to destroy the wealth of someone else, C, or
to kill C, and B complies with the instruction, then compensation or retribution is the lot of
B. The exception is when A has coerced B to transgress against C: in this case, A is held
responsible.

Maxim 111

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 yughtafaru fi-l-baqaa" i maa laa yughtafaru fi-l-ibtdaa" .

What shall be absolved in continuance

shall not be absolved in commencement.
This maxim can simply be worded as anything that is not permitted in the beginning may
be permitted in its continuance, which means “what may be done, may be permitted to
remain". ( The Mejella 2001:9)
The following example is cited in (ibid): It is impermissible to make a gift of an undivided
share, except when someone is entitled to claim an undivided share or property that has been
given, the gift thereupon shall become void, and the remaining share shall be the property of
the donee.

Maxim 112
yughtatfaru fi-l-taabi maa laa yughtafaru fi-l-matboo .

The appurtenant of a thing shall be absolved,

though the thing itself shall not.
Or: What is remitted in a sequential thing may not be remitted in the thing itself.
The maxim can be rephrased as follows: A thing which s not lawful in itself may be lawful
as a consequence (The Mejella; 2003:9).
For example, it is not permissible for the buyer to authorize the seller to receive the thing
sold. But if he gives a sack to the seller in order that he may measure and put the food (such
as corn) in it , and the seller puts that thing in the sack, this act shall be an act of receiving it
from the buyer as a consequence.

Maxim 113
yuqbalu qawlu al-mutarjumi mutlaqan.

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 The interpreter's words shall
be absolutely acceptable.
The oral translator’s (interpreter’s) words shall be absolutely accepted in lawsuits. He
should be just and well-versed in the two languages. This will be taken into consideration
only if the judge does not know one language of the litigants and witnesses. Besides being
just, the translator should not be blind.

Maxim 114
yulzamu muraa aatu ash-sharti bi-qadari al-imkaan.

Conformity to a condition shall be binding as far as possible.

It is necessary that there should be conformity with a condition, as far as it is possible.
(The Mejella, 2003:14) The maxim simply means that a condition must be observed as far as
possible.
As explication of this maxim, a condition that is inserted in a safe-keeping contract shall
be observed if it is possible to be observed. Otherwise it shall be void.
Here is an example:
When an agreement for the safe keeping of a property has been made with a condition that it
must be kept in the house of the person entrusted, and it has become necessary to remove it
to another place because of fire, that condition shall not be taken into consideration. In this
case when a thing entrusted is removed to another place and is destroyed or wasted not due
to fault or negligence, compensation shall not be binding.

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 Chapter Five

Concluding Remarks

Following are some sigfnificant, pertinent remarks about the foregoing

jurisprudential maxims and their rendition into English:

1. The translator of jurisprudential maxims performs an assiduous task of

providing the most accurate English equivalent for certain terms and concepts,
albeit divergence from the common or established ones. For example

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 (qaa’da) is commonly rendered into rule, yet in this book maxim is believed
to be more accurate in so far as Islamic jurisprudence is concerned. For the term
(dhaabut fiqhi) we have opted for the term jurisprudential canon
instead of maxim which is equivalent to rule as mentioned above.

2. Being religio-legal jurisprudential maxims can easily lend themselves to

confusion in the rendition into English. Simply, put, there are certain closely
related terms where distinction is often blurred. A case in point is the confusion
between (bayinna), (hujja), (daleel) and (burhaan). The above
have terms usually two equivalents, namely: evidence and proof. Some sort of
inconsistency, is detected in their English equivalents, the confusion is resolved
in this book as follows: (bayinna) here is always rendered into evidence;
(hujja) and (burhan) which are almost synonymous have been rendered
as proof; and finally (daleel) as a clue. This can be seen in maxims:
16,17,18,24,82,86,87, and 100.

3. The translator of maxims often finds himself unable to get the right and most
accurate English equivalent. By corollary, he is obliged to resort to neologisms
or new coinages, utilisting the rules of morphology. Again, a good case in point
is the coinage of words like ‘causer’ for (mutasabib) as the agent or doer
from the base cause: (maxims,2 and 46) and ‘actant’ for (faa il) instead of
doer or actor; (maxim 110).

4. There are certain terms in the original maxims which reveal what might be
called concept-specificity and which have no precise equivalents in English.
Here the translator has to resort to the strategy of transliteration rather than
translation besides explication. For example, the jurisprudential concept ijtihad is
used exclusively in Islamic jurisprudence and judiciary, for this reason the
concept has been fully expounded immediately after the occurrence of the term
in the maxim concerned. The same holds true for terms like qiyas and wilaaya,
among others.

5. The term “religio-legal” has been coined because Islamic jurisprudential

maxims exhibit two dimensions: religious and legal. In other words, the maxims
are not entirely related to Islamic religion nor are they exclusively legal; for this
reason the maxims have no archiasms which are a common feature of legal
variety.

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6. Since any translator has to adopt a certain method or approach in this
painstaking task, the translator of religio-legal discourse must adopt an eclectic
approach, but excluding at the same time the literal method which results in
awkward, unintelligible and unnatural translation. Among the approaches he may
opt for are the hermeneutic approach which grants the translator the right to
manipulate the text so as to make it comprehensible and readable in addition to
the skopos approach which focuses on the purpose of translation and its
acceptability in the TL.

7. The translator of any serious text in general, and religio-legal one in

particular, should be cognizant of the difference between Arabic and English
language systems. In other words, he should be wary of the aspects of language-
specificity of each of them. For example, the tense systems are quite discrepant
in Arabic and English: the Arabic past tense does not always refer to past time.
In point of fact, past in Arabic is timeless as it may refer to past, present and
future time, which can be seen in the translation of the Qur’an wherein the verb
(Kaana) (was/were) is always rendered into present in English wherever it
refers to God as in the case of all translations of the Qur’an. The translator would
have committed a blunder had he rendered the past tense in the nineteen maxims
which contain the Arabic past tense into English past; rather, he has rendered it
into present for factuality or shall plus the verb to convey the obligation implicit
in the maxims. The problem is aggravated when the past form in Arabic is used
in conditional sentences indicating factuality or probability when it is rendered
into past tense in English. This is just one of the linguistic problems facing the
translator of religio-legal texts, for the condition will be either improbable or
impossible which contravenes the intent of the maxim to express a probable or a
factual condition.

8. It has been discovered in the rendition of the maxims that all verbs in the
present expressing simultaneously passivity are rendered into phrasal verbs
containing shall +be+ past participle of the verb. This without exception applies
to 25 maxims out of 114, in each of which there is a present passive verb . The
past tense in the all of the Arabic114 maxims that has not been rendered into
past because as it has been stated above past tense does not necessarily indicate
past time, i.e., timeless. Past tense is rendered into present when there is no sense
of obligation as in the rendition of maxims:

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(1,2,3,4,5,6,7,8,9,10,11,63,77,99,101,105,106 and 107.). Past verbs also convey
obligation as can be seen in maxims (4,6,10 and 70 ). Obligation is not only
expressed by the present passive, but also by the present active (shall+base) as in
the rendition of maxims (4,21,47,51, and 70). Therefore, the translator of religio-
legal discourse should have a sense of detecting obligation in Arabic so as to use
shall expressing modality of obligation, because it can be expressed in the two
types of the verbs active and passive and even in the nominal sentences as in
maxims (41,88 and 106). This requires the translator to fathom the implicit
passivity in these maxims.

9. Related to the above finding the eleven maxims in the study may superficially
classified as explicit conditional sentences for they commence with the particle
(idha) if. The author has found the condition is implicit in the maxims which
reveal conditionality embedded in temporality, that is why (idha) is rendered
into when instead of if in the eleven maxims. This choice of the particle when is
supported by the Qur’anic style where all occurrences, to the best of author’s
knowledge, of (idha) support the above conclusion. By corollary, all
translators of the Qur’an have used when instead of if as equivalent to (idha)
and the condition in the Qur’an and in maxim 49 is expressed by (inn).

10. In addition to the religious and legal dimensions, the translator of maxims
should be cognizant of the rhetorical dimension. These maxims, like eloquent
sayings, have to be aesthetically well-structured, as manifested in parallelism
or balance, a salient feature of maxims as it is of the Qur’anic style. Thus, the
translator should be aware of the three dimensions: religious, legal and
rhetorical.
The present author has faced the painstaking task of balancing the two parts of
the maxim in such away has to convey parallelism. For example: maxim 17,
among many others, which is based on the Prophetic hadith and used in lawsuits
shows a semi- parallel structures where the first part is made of three words and
the second of four, rendered into English into two oven parts, each of which
consists of six words, thus preserving the identical parts of speech as well as the
word order. Another figure of speech usually employed in literally, religious and
religio-legal texts is repetition. For reasons of rhythm and emphaticness Arabic
utilises this rhetorical device much more than English. This can be seen in
maxim 63 in the repetition of ( ) and its rendition into English by avoiding
repetition, but simultaneously, preserving parallelism. Maxim 102 has two

143
rhetorical devises besides parallelism namely, repetition and paradox. These
three rhetorical devices have been successfully rendered into English.
The three rhetorical devises are also found in maxim 76 and have been
rendered into English by preserving them.

11. In addition to the figures of speech or rhetorical devices, three of which

mentioned above namely: fronting, parallelism and antithesis or paradox, the
maxims contain other figures of speech such as : alliteration, assonance,
consonance, similie, metaphor, mytonomy and functional repetition. These
figures can be seen in no less than fifty maxims. This requires the translator to be
well-versed in rhetoric in both languages, so as to render them accurately as far
as possible". It is beyond the scope of this book to deal with these devices in
depth and detail.

12. It may be worth mentioning that the 114 maxims have no flagrant culture-
bound terms with exception to ijtihad and qiyas. This is because the maxims tend
towards universality. That does not mean that there is no culture-specificity in
religio-legal discourse. The application and exemplification of the maxims are
not free from culture-specificity due to their relevance to people's ways of life
and daily transactions in the Islamic Arab communities.
13. The translator of religio-legal discourse should be wary of the two types of
meaning: denotative and connotative, the first refers to the referential, objective
and cognative meaning; the second refers to associational subjective and
affective meaning which can be either appreciative or pejorative or pejorative.
The latter is more vital than the former. In maxim (19) the denotative meaning of
(taabi') that which follows, which refers to its denotative meaning only. The
researcher has opted for the equivalent appurtenant for its legal association. The
connotation in maxim (43) has been conveyed into English by the antonyms loss
and gain. Likewise, the denotative meaning of (hudood) in maxim (27 is
boundaries, but it has a pejorative meaning referring to punishments for
committing sins or wrong-doings. The translator should shun using a term which
has a pejorative impact in English. A case in point, the word ('abd) which
occurs in the religions discourse is sometimes translated into slave and
bondsman; both words have very pejorative connotation in English which
undermines the purpose or skopos. The researcher thinks the best equivalent to
('abd) is worshipper as derived from the verb (abada) which means worship or
serve.

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14. As the author has depended on three main sources of jurisprndential maxims
namely, the Mejella (Legal Provisions Journal), Zeidan's (Al-Wajeez fee sharh
Al-Qawaid Al-Fighiya and An-Nadwi's Al-Qawa'id Al- Fighiya)
(Jurisprudcatial Maxims). These three sources have been found wanting in three
things: (1) no criterion of sequencing, (2) inconsistent wording, and (3) no
arrangement of relevant maxims. The first, deficiency pertains to then subjective
way of sequencing. The second, the same maxim has been sometimes worded
differently. Third, the maxims have been scattered haphazardly instead of being
arranged alphabetically . The Index shows these three deficiencies.

15.Aspects of language pertaining mainly to culture subsume the main type,

i..e., religion and sub-types of culture, namely ecological, material, social and
ideological; the last of which covers concepts. A new sub-type has been added in
this study namely religio-legal. As religion forms the main constituents of
culture, there are certain religious words which can be called culture-specific.
This can be seen clearly in the examples, applications and explications of the
maxims.
Due to the fact that Islamic jurisprudence stems from religion but at the same
time it has a legal dimension, the maxims have rarely, if ever, purely culture-
specific words as they have the legality which aims at universality rather than
specificity. Simply put, the jurisprudential maxims have originally intended to
regulate all matters of life like transactions and treatment of people in general of
different cultures rather than Muslims exclusively. It is worth noting that the
Mejella has tended to be more legal than religious in its ninety-nine maxims
called ‘rules’. Whereas the maxims cited only in Zeidan’s, but not in the Mejella
tend to be more religious than legal (see maxim 1, maxim,27, maxim 30, maxim
60, maxim 65, maxim 73, maxim 98, maxim 103 and maxim 104.) .
Nevertheless, there are certain concepts that may be called religio-legal specific
which can be given bellow according to the sequence of their occurrence. The
glossary following this chapter furnishes more religio-legal lexical itmes.
i. ( tahreem): prohibition, or rendering something into (haraam )
prohibited that is religiously unlawful, i.e., forbidden and punishable from the
viewpoint of religion. (Maxim 1)

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ii. (ibaaha): derived from the verb (abaaha) which means permit,
legitimize or make lawful, the noun refers to permissibility that is whatever is
permissible. (maxim 66)
iii. (halaal): religiously lawful or permitted by Islamic statutory law
(sharee’a). It is contrary to the concept of haraam. (maxim 1)
iv. (hudood) singular: (had) lit. limit, prescribed punishment.
Stipulated in the Qur’an and prophetic hadith. Some of these punishments are:
(had az-zina) punishment for fornication or committing aduletry,
stoning to death for married person and one hundred lashes for unmarried
person.
(had al-qathef). Punishment of eighty lashes for slander, for the false
accusation of a married person with adultery.
(had al-riddah). Punishment by death for apostasy. (maxim 27)
(had al-shurb). Punishment with eighty lashes for drinking
intoxicates.
(had al-sariqa). Theft, punishment for theft by cutting off the right
hand, because of robbery. (maxim 27)
Shubuhaat( the singular form of Shubha), denotes doubtful or
dubious matters, whether objectively in a contracts or circumstances, or
subjectively in the mind of the person, i.e., semblance or doubt. Any shubha
(doubtful matter) regarding the ownership of the property concerned prevents
the infliction of (had) punishment for theft or any shubha with regards to a
man’s right to a sexual intercourse with a woman prevents the punishment
of (zina) punishment for fornication or committing adultery. Shubah
has been variously defined as what resembles something firm (thaabit)
although, in fact, it is not firm, as what falls between what is prohibited and
what is permitted; and as what causes a man to be in doubt about something.
There are some several types of shubha such as:
a- (shubhat al-mahal) suspicion of place;
b- (shubhat al-a qid) suspicion of contract;
c- (shubhat al-fi l) suspicion of practice;
d- (shubhat al-a md) : Quasi-deliberate. (Khadrawi, 1995, 211-
212), maxim 27.

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 -i(Sharee a): Islamic law, lit. the right way of religion; it denotes the
law, including the teachings of the Qur’an and of the Prophetic sayings
(hadith). Sharee’a occurs in the Qur’an surat Al-Jathiya 45, ya 18.
.(18: )" "
(Addressing Prophet Muhammad) We have put you on the right way of religion.
It can be also called the divine law or canonical law of Islam. (cf Khadhrawi)
(Maxim 48).
1. (ijtihad) lit. means exertion or diligence, but jurisprudentially, it
is the effort a jurist makes in order to deduce the judgement based on
inferred reasoning. It is resorted to when the jurist cannot find an evident
support for his judgement in the Qur’an, Prophetic hadiths, ijmaa
(consensus) and qiyaas (analogy). This independent reasoning
becomes a judgement in legal questions based on the interpretation and
application of the above four fundaments (Usool) of Islam. This
approach in jurisprudence is sanctioned by the following Tradition: the
Prophet wished to send a companion named Mu’adt to Yamen as a
judge. On appointing him he said “O Mu’adh, by what rule will you act?
He replied, by the laws of the Qur’an the Prophet asks, “But if you find
no direction therein?” He replied, “Then I will act according to the
Prophetic Tradition (sunna).” The Prophet asks, ”But what if that
fails?” Mu’adh replied, “Then I will practice ijtihad. The Prophet raised
his hands and said, “Praise be to Allah who guides the messenger of His
Prophet in what He pleased.” Related to ijtihad, the person who practices
it is called (mujtahid) (Khadhrawi: 1995:75) (maxim 92).
2. The concept of (wilaaya) refers to jurisdiction which is: authority
to carry out justice and to interpret and apply laws: right to exercise legal
authority. It is of two kinds ( ) (wilaaya khaassa) exclusive
jurisdiction which concerns particular persons and (wilaaya
‘aamma), public jurisdiction which applies to people in general such as:
(wilaayat al-qaadhi) judge’s jurisdiction. The author has
shunned the commonly used English equivalent “guardianship” which
means (wisaaya) rather than (wilaaya). Explicitly, the
difference between the two concepts is very subtle.
(wisaaya): guardianship (of minors and lunatics); (wasi) is the
guardian that is the person who has the responsibility for another person, as

147
differentiated from (wali) as the person who practices jurisdiction over
others. (maxim 75).
3. (qiyas): analogy referring to the process of reasoning based on
partial or total similarity between two things. It refers to verdicts or
judgments given by jurists. It is one of the four fundaments or legislation
in Islam. It is of two types:
a. (qiyas jali): Evident analogy.
b. (qiyas khafi): hidden analogy. (maxim 100)

Glossary

A
Absolve : (v) acquit, free from, clear from guilt, remit , ,
Absolution: (n) acquittal, pardon ,
Adjudicate (v) judge and give a decision; try ; act as a judge ( ) ,
,
Adjudication: (n) judgment ,
Ahkam : (n; pl of hukum) legal status or judgments. Accoding Islamic law
shari a , there are five kinds of ahkam :

148
 1. Compulsory (wajib )
2. Desirable but not compulsory (Mustahabb )
3. Prohibited or forbidden (Muharram )
4. Undesirable or disliked but not prohibited (Makrooh )
5. Religiously permittede, i. e. lawful and allowed (Halaal )
Alimoney : money or allowance given to a wife from a legally separated husband

Altruism : principle of acting good for others before one’s own; unselfishness

:
Altruist : unselfish person
Annul : (v) abolish ; cancel; nullify , ,
Appurtenance: privilege or right that goes with the ownership of property
Appurtenant : a minor thing that goes with the major as complementary
Appropriate : (v) take (sth) for one’s own, esp. without permission or illegally

Apportion : (v) divide out in shares ,

Ascribe : (v) attribute; impute

149
 Index

Alphabetical Classification of Jurisprudential Maxims

Maxim Maxims in Arabic and English Page
No
.
ithaa ijta a al-halaalu wa-l-haraamu ghalaba al-haraam.
1.
When the religiously lawful and the prohibited coincide,
the prohibited shall be dominant.
.
ithaa ijtama a al-mubaashiru wa-l-mutasbibu
2. yudhaafu al-hukumu ila al-mubaashir
When a perpetrator and a causer (person involved as an indirect
cause) coincide, the judgment shall fall on the perpetrator.
.
ithaa ijtama a amraan min jinsin waahidin walam yakhtalif
3. maqsadihuma dakhal ahaduhma fi al-aakhar
When two matters of one sort and with similar intents coincide, one
suffices.
.
ithaa batala aslu yuasaaru ilaa al-far
4.
When the root becomes void, a substitue shall be sought.
.
ithaa batala ash-shay" u batala maa fi dhimnahi
5.
When something is void that which is implied within shall be void.
.
ithaa ta aaradha al-maani u wa-l-muqtadhi yuqadamu al-maani
6. When the preclusive and the necessitated conflict,
preference shall be given to the preclusive.

ithaa ta’aaradhat mafsadataani roo’iya a’dhamhumaa

7.
dhararan bi-irtikaabi akhafahumaa
When greater and lesser banes are in incompatibility,
the lesser shall be committed.
150
 ithaa ta’aaradhat mafsadataan roo’iya a’dhamhuma dhararan
8.
bi-irtikaab akhafahuma
When it is impossible to give an effect to a word, it shall be neglected.
.
ithaa ta athara a maalu al-kalaam yuhmal
9.
When it is impossible to understand a word literally, it can be
understood metaphorically.
.
ithaa ta athara a maalu al-kalaam yuhmal
10.
When the origin is invalid, the derivative shall be invalid too.
.
ithaa saqata al-asl saqata al-far
11.
When what forbids no longer exists,
What is forbidden shall return.
.
12. ist maalu an-naas hujatin yajubu al- amal bi-ha
People's usage shall be an operative proof.
.
13. ist maalu an-naas hujatin yajubu al- amal bi-ha
The known sign of a dumb person is tantamount to verbal utterance.
.

14. maal al-kalaam awlaa min ihmaalihi

Giving effect to a word has priority over neglecting it.
.
15. maal al-kalaam awlaa min ihmaalihi
Continuance is easier than commencement.
.
al-baqaa ashalu min al-ibtidaa.
16.
Evidence is an adequate proof and admission
is an inadequate proof

151
 .
17. al-baynitu hujatun muta adiya wa -iqraaru hujatun qaasira
Evidence is for him who claims, the oath is for him who denies.
.
al-baynitu li-ithbati khilaaf al-dhaahir
wa-l-yameenu li-ibqaa al-asl
18.
Evidence is to prove what is not evident
and an oath to affirm the original state.
.
al-taabi u taabi un
19. The appurtenant is deemed appurtenant.
(Lit: What follows shall follow.)
.
20. al-tabi u laa yufradu bi-l-hukumi
What follows shall not be judged separately.
.
21. al-tabru u laa yatumu ilaa bi-l-qabdhi
No donation unless received.
.
22. al-tasarfu alaa al-ra eeya manootun bi-l-maslaha.
Disposition of people is contingent upon interest.
.
al-ta yeenu bi-l- urfi ka-l-ta yeeni bi-l-nass
23. What is stipulated by convention is
as stipulated by text.
.
24. al-thaabitu bi-l-burhaani ka-l-thaabiti bi-l- ayaani
What is established by evidence is like that established by seeing.

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 .
25. al-jawaaz ash-shar I yunaafi al-dhamaan
Religious permissibility excludes liability for compensation.
.
al-haajatu tanzilu manzilata al-dharoora aamatan aw
khaasa.
26. Need is ranked as necessity, be it public or private
-

.
27. al-hudoodu tudrau bi-l-shubuhaat.
Punishments are averted by doubtful matters.

.
28. al-haqeeqa tanzulu bi-dalaalati al- aada
Literality is bypassed in favor of customary signification.
.
al-kharaaju bi-l-dhamaan
29.
Yield is guaranteed.
.
al-khurooju min al-khilaafi mustahab.
30.
Settlement of discord is desirable.

laa ya ood ka-maa ann al-ma dooma laa

31. ya ood.alsaaqitu
What is waived cannot be restored, nor can a non-existent.
Al-suaalu mu aadun fi al-jawaab.
32.
The question is reiterated in the reply
.
al-suaalu mu aadun fi al-jawaab
33. A severe harm shall be removed by a lesser harm.

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34 .
al-dhararu laa yuzaal bi-thilihi
Harm is not justified by being old.
35 .

. Harm shall not be warded off by similitude harm.

36 .
al-dhararu laa yakonu qadeeman.
Harm shall be warded off as much as possible.
37 .
al-dhararu yudfa u bi-qadar al-imkaan
Harm shall be warded off.
38 .
al-dhararau yuzaal,
Necessities render prohibited things permissible.
39 .
al-dharooraatu tubeeh al-mahz
Necessities are estimated by the extent thereof.
40 .
al-dharooraatu tuqadar bi-qadariha
Custom is an Arbitrator.
41 .
al-dharooraatu tuqadar bi-qadariha.
In contracts, intentions and meanings, not words and structures,
shall be taken into consideration.
42 .
al ibratu li-l-ghaalibi ash-shaa" laa li-l-naadir
Consideration shall be given to the commonly
preponderant, not to the rare.
Consideration is given to the commonly predominant, not to the rare.
43 .
al-ghurmu bi-l-ghunmi
Gain entails loss.

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44 .
al-qadeemu yutraku alaa qidamihi
The old shall be deemed old.
45 .
al-kitaabu ka-l-khitaab.
Writing is deemed as speech.
46 .
al-mubaashiru dhaaminun wa-in lam yata amd.
The perpetrator is liable albeit no premediation
47 .
al-mutaswabibu laa yudhmanu ilaa bi-l-ta mud
The remote agent, ‘the causer', shall not be liable unless in premediation
48 .
aal-majhoolu fi ash-sharee ati ka-l- ma doomi
wa-l-ma joozi anhu
The unknown in Islamic law is as the
Non-existent and the impossible to know.
49- .
al-marau moo"akhun bi-iqraahi.
One is judged by his acknowledgement.
50 .
al-mashaqatu tajilbu al-tayseer
Hardship begets ease.
51 .
al-mutlaqu yajree alaa itlaaqihi maa lam
yaqum daleelu al-taqyadi nasan aw dalaalatan
What is absolute shall be deemed as such unless
there is a restricting proof by text or deduced argument.
52 .
al-ma roofu bayna al-tujaari ka-l-mashrooti baynahum
What is commonly practised by merchants
is deemed a stipulated condition.
53 .
al-ma roofu urfan ka-l-mashrooti shartan
What is known by convention is deemed as conditional.

54 .

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 al-muta aliqu bi-sh-sharti yajubu thubootuhu inda thubooti ash-sharti
What is dependent on a condition must be fulfilled
once that condition is fulfilled.
55 .
al-mumtai u aadatan ka-l-mumtani I haqeeqatan.
What is impossible by custom is impossible in truth.
56 .
al-mawaa eedu ithaa iktasat bi-soorati
When promises take a conditional form, they shall be binding.
57 .
al-maysooru laa yasqutu bi-l-ma soori
The easy thing shall not be waived by the difficult thing.
58 .
al-ijtihaadu laa yunqadhu bi-mithilihi
The ijtihad shall not be revoked by a similitude.
59 .
a l-ajru wa-l-dhamaanu laa yajtimi aan
Payment of hire and liability to compensation
are mutually exclusive.
60 .
al-islaamu yajubu maa qablahu.
Islam obliterates all (wrong doings) prior to it.
61 .
al-aslu idhaafatu al-haadithi ilaa aqrabi awqaatihi
The basic principle is to ascribe the event to the nearest time of
occurrence.
62
al-aslu baraa"tu al-thiimati.
The basic principle is freedom from liability.
63 .
al-aslu baqaa maa kaana alaa kaan.
The basic principle is what has once existed is (deemed) as persisted.
64

156
 al-aslu fi-l-kalaami al-haqeeqa
The original state of words is the literal sense.
65
al-a slu fi-l-ib dhaa i al-tahreem
Pudenda is essentially prohibited.
66 . .
al-aslu fi-al-ashyaa" al-ibaaha.
Permissibility is the original state.
67 .
al-aslu fi as-sifaati al- aaridhati al- adam.
The original state of accidental attributes is non-existence.
68
al-aslu fi-l-madhaari al-tahreem.
The Basic Principle: whatever is harmful is prohibited.

69 .
al-idhtiraaru laa yubtilu haqq al-ghayr
Pressing necessity shall not annul the right of another.

70 .
al-"amru ithaa dhaaqa itasa
Anything narrowed shall be broadened.
71 .
al-"amru bi-l-tasarfi fi mulki al-ghyari baatil
Order to dispose of the property of another is null and void.
72 .
al-"umooru bi-maqaa sidiha
Matters are judged by intentions.
73
al-ithaaru fi-l-qurbi makroohun wafi ghayriha ma hboobun
Altruism in pious deeds (or worship) is undesirable,
elsewhere desirable
74 .
al-wasf fi al-haadhir laghoon wafi al-ghaaib mu'tabar

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 Description in presence (of a visible thing) is vain
but in absence is valid.
75 .
al-wilaayatu al-khaasatu aqwaa min al-wilaaya al-'aama.
Exclusive jurisdiction is of greater strength
than public jurisdiction.
76 .
al-ni'matu bi-qadari al-niqma wa-l-niqamatu bi-qadari al-ni'ma.
A good turn is in proportion to a bad turn,
and a bad turn is in proportion to a good turn.
77 .
Custom is deemed effective only
when it is constant and predominant

78 .
al-yaqeenu laa yazoolu bi-sh-shakk
Certainty shall not be warded off by doubt.

79 .
tabadulu sababa al-mulk qa"imun maqaama tabadali al-thaat.
A change in the cause of ownership of a thing
entails a change of that thing.
80 .
jinaayatu al- jmaa"i jubaar.
The beast’s harm is squander.
81 .
dar"u l-mafaasidi awlaa min jalbi al-manaaf
Repelling banes is better than securing benefits.

82 .
daleelu ash-shay"i fi-l-"imoori al-baatinati yaqoomu maqaamahu
In indiscernible matters, evidence of the thing stands in for it.

158
83 .
thikru ba dh maa laa yatajaz " ka-thikri kulihi.
Mention of psrt of an indivisible thtng is as mention of the whole.
84 .
qad yathbitu al-far wa-in lam yathbit al-asl.
The derivative may be validated though the origin is invalidated.
85 .
alaa al-yadi maa akhathat hataa tu" adeehi.
What has been taken must be handed.
86 .
laa hujata ma al-ihtimaali al-naashi" an daleel.
There is no convincing argument with a possibility based on evidence.
87 .
laa hujata ma al-tanaaqdh wa-laakin laa yakh talu ma ahu hukm al-
haakm
There is no convincing argument in case of contradiction,
but the ruling of the judge shall not be undermined.
88 .
laa dharara walaa dhiraar
No harm shall be met by harm.
89 .
laa ibrata bi-l-zanni al-bayni khata" uhu.
The apparently erroneous suspposition
is not to be taken into consideration.
90 .
Indication shall not be taken into consideration.
in collation with explicitness.
91 .
laa ibrata li-l-tawahum.
Delusion is of no consideration.

159
92
laa masaagha li-l-ijtihaadi fi mawridi an-nass
There is no room for ijtihad where there is a (decisive) text.
93
laa yajoozu li-ahadin ann yatasaraf fi mulk ghayrihi balaa ithnihi
No one may dispose of the property of another
without the latter’s permission.
94
laa yunsbu ilaa saakitin qawlun wa-laakna as-skoota fi ma radhi al-
haajati byaan
No utterance shall be imputed to a silent person,
but silence in case of necessity is pronouncement.
95 .
laa yunkaru taghyeeru al-ahkaami bi-taghyeeri az-zamaan
Change of judgements shall not be denied
by change of times.

96
.
li-l-akthari hukmu al-kuli.
The most is (ranked) as the whole.
97

laysa li-ahadin ann ya" khutha maala ghayrihi illaa bi-sababin shar i.
No one shall be permitted to take another's property
without a lawful reason
98 .
laysa li- irkin dhaalimin haqq.
No unjust planter has right.
99 .
maa thabuta bi-zamaanin bi-hukm baqaa" ihi ma lam yaqm al0daleelu
alaa khilaafihi

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 What is proven at one time shall continue
unless there is a contrary clue.
100 .
maa thabata alaa kh ilaafi al-qiyaasi fa-ghayruhu laa yuqaasu alayhi
What is established contrary to qiyas (analogy)
shall not be used as qiyas.
101 .
maa jaaza li- u thrin batala bi-zawaalihi
What is permitted for a reason is annulled
once that reason is non–existent.
102 .
maa haruma akhthuhu haruma I taa"uhu.
What is prohibited to take, is prohibited to give.
103 .
maa hurima fi luhu hurima talabuhu.
What is prohibited to do is prohibited to demand .
104 .
maa laa yatumu al-waajibi illaa bihi fa-hoowa waajib.
Anything fulfilling an obligation is an obligation.
105 .
man ista jala ash-shay"a qabla awaanihi ooqiba bi-hirmaanihi.
Whoever hastily acquires a thing before its due time
is penalized by being proscribed of itf.
106 .
man sa aa fi naqdhi maa tama min jihatihi fa-sa yuhu mardoodun
alayhi.
Whoever endeavors to invalidate what has been enacted
at his instigation, his endeavor shall recoil on him
107 .
man malaka shay"an malaka maa hoowa min dharooratihi.
The owner of a thing shall be the owner of what

161
 is indispensable for that thing.
108 .
yutahamlu al-dhararu al-khaasi li-daf i al-dharari al- aam.
Private harm shall be tolerated to dispel public harm.
109 .
yukhtaaru ahwana ash-sharayani.
The lesser of two evils shall be chosen.
110 .
yudhaafu al-fi lu ilaa al-faa ili laa aamri maa lam yakun mujabaran
An action shall be ascribed to its 'actant'.
not to the commander unless coerced.
111 .
maa laa yughtafaru fi-l-ibtdaa"yughtafaru fi-l-baqaa
What shall be absolved in continuance
shall not be absolved in commencement.
112 .
yughtatfaru fi-l-taabi maa laa yughtafaru fi-l-matboo .
Which is remitted in a sequential action, may not
be remitted in the action itself.
113 .
yuqbalu qawlu al-mutarjumu mutlaqan
The interpreter’s words shall be absolutely acceptable.
114 .
yulzamu muraa aatu ash-sharti bi-qadari al-imkaan.
Conformity to a condition shall be binding
as far as possible.

162
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2. ‘Ali, ‘Abdulah Yusuf. 1992. The Meaning of The Holy Qur’an. Maryland: Amana
Corporation.
3. Al-Khudrawi, Deeb. 2004. Dictionary of Islamic Terms.
Damascus: Al-Yamamah for Printing and Publishing.
4. Al-Zarqa Ahmed. 2001. Sharh Al-Qawa’id Al-Fiqhiyah.
Damascus: Dar Al-Qalam, 7th ed.
5. An-Nadwi, Ali Ahmed. 2004. Al-Qawa’id Al-Fiqhiyah.
Damascus: Dar Al-Qalam , 6th ed..
6. Arberry, J. Arthur. 1964.The Koran: terpreted.London:
Oxford University Press.
7. Asad, Mohammad. 1980. The Message of the Qur’an. Gibraltar: Dar Al-Andalus.
8. As-Safi, A.B., 1996. ‘Toward An Objective Assessment
of Literary/Belletristic Translation.’ Translatio. Sint-Amandsberg (Belgique), Vol. xv,
No.1, pp.5-19.

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9. Baker, Mona. (ed) 2005. Routledge Encyclopedia of Translation Studies .London:
Routledge.
10. -----------------. In Other Words. 2006 (1992). Oxon: Routledge.
11. Bassnet, Susan. 2005 (1980). Translation Studies.
London: Methuen & Co.
12. Bell, Richard. 1960 (1937). The Qur’an. Edinburgh.
13. Catford, J.C. 1965. A Linguistic Theory of Translation. London: Oxford University
Press.
14. Dawood, N J. 1973 (1956). The Koran Translated with Notes. London: Penguin.
15. Faruqi, H. Suleiman.2003. Faruqi’s Law Dictionary : Arabic – Emglish. Beirut:
Librairie Du Liban.
16. Ghali, M. Mahmud. 2002. Towards Understanding the Ever-Glorious Qur’an.
Cairo: Dar An-Nashr Liljami’at.
17. http://forum.fmot.com/viewtopic.php?f=37&t=3624
18. Irving, Thomas B. (Al-Hajj Ta’lim ‘Ali). 1992.The Noble Qur’an. Vermont: Amana
Books.
19. Kasab, Rashid. 1994. The Translation of the Meanings of the Glorious Qur’an.
Amman: Kilani and Sakkur Publishing.
20. Khan, Muhammad Zafrulla. 1971. The Qur’an. London.
21. Malik bn Anas. 2004. Al-Muwatta.Cairo: Dar Al-Hadith.
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Printing Complex.
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Trotman.
24. Pickthall, M. Marmaduke. 1980 (1930). The Glorious Koran. London: George Allen
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25. Qal’aji, M. Rawwas. 1996. Mu’jam Lughat al-Fuqaha’. Beirut: Dar An-Nafaes.
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Haqqi.(trans). 2003. The Mejella. Kuala Lampur: The Other Press.
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Shari’ah Al-Islamiyah. Beirut: Muasasat Al-Risalah.

Back Cover

114

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 114 Islamic Jurisprudential Maxims

Jurisprudential maxims play a vital role in the Islamic way of life, serve
as a source for legislation and regulate daily transactions. This book
expounds and renders 114 maxims into English It also furnishes a
theoretical perspective of religio-legal translation and sheds light on

166
distintions among related terms, namely jurisprudential maxims,
fundamentalistic maxims and jurisprudential canons.

Professor Abdul Baki As-Safi is a translation theorist and practitioner .

He has written two books on translation such as ‘Translation:Theory
and Practice (1974) and ‘Translation Theories, Strategies and Basic
Theoretical Issues (2011). He has also translated into English: ‘Taha
Hussein: Du a Al_Karawan (The Call of Curlew, published by
E.J.Brill,1980), Iraq: 30 Years of Progress ( published by Iraqi Ministry
of Information and Culture, 1998); and into Arabic: Catford’s ‘A
Linguistic Theory of Translation (1983). He holds B.A. (Hons) from
Baghdad Univeristy in Iraq, M.A. in teaching of English from the
American University of Beirut (AUB) in Lebanon, and Ph.D. in
Literary Translation from Lancaster University in Britain. In addition to
teaching, he has occupied several academic posts as head of English
Department (Basrah University, Iraq) and Translation Department (Al-
Mustansriyh University, Iraq), preesident of Iraqi Translators’
Association and dean of the Faculty of Arts (Al-Zaytoonah University,
Jordan). He has supervised more than twenty M.A. and ten Ph.D.
theses, and published twenty-five papers in Belgium, Britain, Holand,
Iraq, Jordan and Morocco. He is currently lecturing on translation at
postgraduate level at Petra Univeristy in Jordan. (email:
abdulbaki30@yahoo.com)

167