LEGAL MAXIMS AND OTHER GENRES OF LITERATURE IN ISLAMIC JURISPRUDENCE

Mohammad Hashim Kamali*

Introductory Remarks This essay introduces the legal maxims of qh (qaw'id kulliyya qhiyya) as a distinctive genre of qh literature side by side with three other related areas of development, namely al-dawbi (rules controlling specic themes), al-furq (distinctions and contrasts), and al-naariyyt al-qhiyya (general theories of qh). Developed at a later stage, these genres of qh literature seek, on the whole, to consolidate the vast and sometimes unmanageable juris corpus of qh into brief theoretical statements. They provide concise entries into their respective themes that help to facilitate the task of both the students and practioners of Islamic law. Legal maxims are on the whole inter-scholastic, and disagreement among the legal schools is negligible on them. Legal maxims also closely relate to the maqid, and provide useful insights into the goals and purposes of Shar'a (maqid al-shar 'a), so much so that some authors have subsumed them under the maqid. Yet, for reasons that will presently be explained, legal maxims represent a late development in the history of Islamic jurisprudence. The discussion which follows begins with introductory information on the basic concept and scope of legal maxims. This is followed by a more detailed account of the leading ve maxims which the jurists have seen as representative of the entire eld, saying that all the other maxims can be seen as a commentary on these ve. The discussion continues by looking into the history of legal maxims, and then provides an account of their subsidiary themes, namely the awbit, the furq, the resemblances and similitudes (al-ashbh wal na"ir), and nally the naariyyt. There is a lacuna in the available English literature on Islamic law that cries to be lled. Except for a few cursory references in the works
* The author is currently Professor of Islamic law and jurisprudence at the International Islamic University Malaysia. His numerous works on Islamic law include Principles of Islamic Jurisprudence (Cambridge, 1991; 3rd enhanced edn. 2003).
Koninklijke Brill NV, Leiden, 2006 Also available online www.brill.nl Arab Law Quarterly 20,1

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of Joseph Schacht and three other articles,1 the present writer has not seen any substantive coverage of legal maxims in the English language. Unlike the existing works in English that tend to be historical, the present essay focuses on a juridical coverage of legal maxims, and traces salient developments of its allied genres of literature. No one has, to the best of the present writers knowledge, placed the legal theories of Islamic law (naariyyt) and the qh encyclopedias in context with the legal maxims. There is also a certain ambiguity and convergence in some of the existing works between qaw'id and the goals and objectives (maqid ) of Shar'a, both in the Arabic and English works, which call for clarication. This has also been attempted in our discussion below. Legal maxims as a distinctive area of qh studies has gained considerable recognition, in recent decades, in the legal studies programmes of Islamic universities and institutions of higher learning. Many traditional Arabic texts on the subject have been published for the rst time, and a number of modern works added, for basically two reasons. One is the somewhat excessive attention to detail in the qh texts and diculty of access due to poor classication, and the refreshing contrast one nds in the synoptic summaries of legal principles in the qaw'id, especially for purposes of teaching. The other reason is that, unlike the wider qh literature that bears the vestiges of the imitative tradition of taqld, legal maxims are not hampered by that factor as much. Taqld nds its foothold mainly in concretised detail, but, since legal maxims consist mainly of abstract ideas, they are not particularly aected by the legacy of taqld, and can thus be more readily utilised as aids in the renewal of qh and contemporary ijtihd (independent reasoning). The renewed interest in legal maxims is also informed by a parallel revival of interest, among teachers and researchers of Shar'a, in the maqid al-Shar'a, goals and objectives of Islamic law. Since legal maxims bear close anity to the maqid, they tend to provide an ecient entry into the understanding of the maqid al-Shar'a.

1 Joseph Schacht, An Introduction to Islamic Law, Oxford: Clarendon Press, 1964, mentions Qaw'id Fiqhiyya in passing and refers to them in his glossary as rules, the technical principles of positive law, subject of special works (p. 114, 300); Wolfhart Heinrichs, Structuring the Law: Remarks on the Furuq literature in Ian Richard Netton (ed.), Studies in Honour of Cliord Edmund Bosworth. Vol. I: Hunter for the East: Arabic and Semetic Studies, Leiden: Brill, 2000, 332-344; Idem, Qaw'id as a Genre of Legal Literature in Bernard Weiss, ed., Studies in Islamic Legal Theory, Leiden: Brill 2002, 364-385. This last article is useful on bibliographic information, related Arabic terminology, as well as classication of legal maxims. A more recent addition is

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The upsurge of interest in both the maqid and legal maxims is underscored, in turn, by a certain awareness that the legal theory of ul alqh has somehow fallen short of meeting the demands of contemporary ijtihd. Ever since Jamal al-Dn al-Afghanni (d. 1898) and his disciple Muhammad 'Abduhs (d. 1905) clarion call for the revival of ijtihd, Muslim scholars have continued to emphasise the need for re-interpretation and reform of aspects of Shar'a through ijtihd. The twentieth century marked a general disaection with taqld, and witnessed the revival of ijtihd through statutory legislation, fatw and juristic research by individuals, committees and institutions. Codication and partial reforms of the Islamic law of transactions in the renowned Ottoman Mejelle (1876) was followed, in the twentieth century, by legislative reforms of Shar'a family law, and the revival in recent decades of the Shar'a law of transactions (mu'malt) in Islamic banking and nance. Yet, despite these achievements, and the rich experiences they have generated, Muslim scholars have spoken at length that the legal theory of ul al-qh has not adequately responded to the demands of renewal and ijtihd in the era of statutory legislation. Questions have arisen, and explanations oered, yet the decades of Islamic resurgence and Islamisation of law and government have left Muslims with the impression that ijtihd has not become an engaging theme of legislation. The present writer has elsewhere addressed some of these issues, and it is not his purpose to delve into them here.2 The point to be made, however, is that the legal theory of ul al-qh is now studied mainly as an academic discipline that falls short of meeting the demands of ijtihd, or of neo-ijtihd, as per the late Noel Coulson, in the era of statutory legislation. Muslim scholars have consequently taken greater interest in the study of the maqid al-Shar 'a, a somewhat neglected chapter that was not even included in the conventional coverage of ul alqh, but which is now seen as a more dynamic tool of greater relevance to the concerns of ijtihd. This endorses further the renewed interest in the qaw'id, which bear a close anity to the maqid al-Shar 'a.

Khaleel Mohammed, The Islamic Law Maxims, Islamic Studies 44, no. 2 (1426/2005), 191-209. 2 See Mohammad Hashim Kamali, Shar'ah and the Challenge of Modernity, Journal of the Institute of Islamic Understanding Malaysia (Kuala Lumpur) vol. I (1994), 1-27, reprinted in the Islamic University Quarterly (London) Vol. 2, no. 1 (1995), 10-37; Idem, Fiqh and Adaptation to Social Reality, The Muslim World, 86 (1996), 62-85; Methodological Issues in Islamic Jurisprudence, ALQ 11 (1996) 62-85; and Issues in the Legal Theory of Usul and Prospects for Reform, Islamic Studies 41 (2001), 1-21.

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Legal maxims are theoretical abstractions in the form, usually, of short epithetical statements that are expressive, often in a few words, of the goals and objectives of Shar'a. They consist mainly of statements of principles that are derived from the detailed reading of the rules of qh on various themes. The qh has generally been developed by individual jurists in relationship to particular themes and issues in the course of history, and diers, in this sense, from modern statutory law rules, which are concise and devoid of detail. The detailed expositions of qh in turn enabled the jurists, at a later stage of development, to reduce them into abstract statements of principles. Legal maxims represent the culmination, in many ways, of cumulative progress which could not have been expected to take place at the formative stages of the development of qh. The actual wording of the maxims is occasionally taken from the Qur"n or hadith, but are more often the work of leading jurists, that have subsequently been rened by other writers throughout the ages. It has often been a matter of currency and usage that the wording of certain maxims have been taken to greater renement and perfection. Unless they arm and reiterate a ruling of the Qur"n or Sunna, legal maxims as such do not bind the judge and jurist, but they do provide a persuasive source of inuence in the formulation of judicial decisions and ijtihd. Legal maxims, like legal theories, are designed primarily for better understanding of their subject matter, rather than for enforcement. A legal maxim diers, however, from a legal theory in that the former is limited in scope, and does not seek to establish a theoretically self-contained framework over an entire discipline of learning. A theory of contract, or a constitutional theory, for example, is expected to oer a broad, coherent, and comprehensive entry into its theme. We may have, on the other hand, numerous legal maxims in each of these areas. Legal maxims are of two types. Firstly, those which rehash or reiterate a particular text of the Qur"n or Sunna, in which case they carry greater authority. Hardship is to be alleviatedal-mashaqqa tajlub al-tasysr, for example, is a legal maxim of qh which merely paraphrases parallel Qur"nic dicta on the theme of removal of hardship (raf 'al-araj ). Another legal maxim which provides: actions are judged by their underlying intentions (innama al-a'ml bi al-niyyt) reiterates the exact wording of a renowned adth. In his Kitb al-Ashbh wal-Na"ir (resemblances and similitudes), which is a collection of legal maxims, Jall al-Din al-Suyi (d. 911/1505) has, in numerous instances, identied the origin, whether the Qur"n, Sunna or the precedent of Companions, of the legal maxims he has recorded.

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The second variety of legal maxims are those which are formulated by the jurists. Despite the general tendency in legal maxims to be interscholastic, jurists and schools are not unanimous, and there are some on which the madhhib have disagreed. Legal maxims such as certainty may not be overruled by doubt or ijtihd does not apply in the presence of na, or preventing an evil takes priority over securing a benet, or absence of liability (i.e. innocence) is the normative state are among the well-known maxims on which there is general agreement. Legal maxims represent an important area of qh literature, as their study imparts strategic knowledge of their subject matter, and helps the reader gain insight into the general character and attributes of the Shar'a. They are particularly useful and inspiring in the vision they impart for the search particularly of new solutions through ijtihd. Legal maxims are dierent from ul al-qh (sources of qh) in that the maxims are based on the qh itself and represent rules and principles that are derived from the reading of the detailed rules of qh on various themes. The ul al-qh is concerned, on the other hand, with the sources of law, rules of interpretation, methodology of legal reasoning, meaning and implication of command and prohibition, and so forth. A maxim is dened as a general rule which applies to all or most of its related particulars.3 This denition is attributed to Tj al-Dn al-Subki (d. 771/1370), which is generally adopted and followed by subsequent authors. Legal maxims are usually articulated in incisive literary style. It is due partly to the abstract and generalised terms of their language that legal maxims are hardly without some exception to which they do not apply even if their wording might suggest otherwise. Some would even say that legal maxims are in the nature of probabilities (aghlabiyya) that may or may not apply to cases to which they apparently apply. According to al-Shibi (d. 790/1388), exceptions do not invalidate a general rule, because the stray particulars do not form a second general rule in opposition to the rst.4 Some writers have noted, however, that in the legal eld, a maxim is only predominantly valid, whereas in certain other elds, such as grammar and ul al-qh, it is said to be generally valid almost as a matter of certainty. We shall presently note, however, that this is rather a weak opinion.
3 Cf. Tj al-Dn 'Abd al-Wahhb al-Subki, Al-Ashbah Wal-Nazir, ed. 'Ali Ahmad Ibn 'Abd al-Mawjd and 'Ali Muhammad 'Iwad. 2 Vol. Beirut: Dar al-Kutub al'Ilmiyya, 1411/1999, 1,11. Subhi Mahmassani, Falsafat al-Tashri' l-Islam: The Philosophy of Jurisprudence in Islam. Eng. Trans. Farhat J. Ziadeh, Leiden: E.J. Brill 1961, p. 151; Shaykh Muhammad al-Zarqa, Sharh al-Qaw'id al-Fiqhiyya, 3rd edn. Damacus: Dar alQalam, 1414/1993, p. 33. 4 Abu Ishaq Ibrahim al-Shatbi, al-Muwafaqat Usul-Akm, 11, 83-84.

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It is due to their versatility and comprehensive language that legal maxims tend to encapsulate the broader concepts and characteristics of the Shar"a. They tend to provide a birds-eye-view of their subject matter in imaginative ways without engaging in burdensome details. A legal maxim is reective, in the meantime, of a consolidated reading of qh, and it is in this sense dierent from what is known as al-bia (lit. a controller), which is somewhat limited in scope, and controls the particulars of a single theme or chapter of qh. bia is thus conned to individual topics such as cleanliness (ahra), maintenance (nafaqa), paternity, and fosterage (al-ri' ), and as such does not apply to other subjects. An example of a bia is: marriage does not carry suspension; and, with reference to cleanliness: when the water reaches two feet, it does not carry dirt.5 An example of a legal maxim, on the other hand, is the aairs of imam concerning his people are judged by reference to malaa (amr al-imam shu"n al-ra'iyya man bil-malaa), as the theme here is more general, without any specication of the aairs of the people or the activities of the imam. Similarly, when it is said, in another maxim, that acts are judged by their underlying intentions, the subject is not specied, and it is, as such, a maxim (q'ida), and not a abia of a specied import. Having drawn a distinction between abia and q'ida, we note, however, that legal maxims also vary in respect of the level of abstraction, and the scope which they cover. Some legal maxims are of general import, whereas others might apply to a particular area of qh, such as the 'ibdt, the mu'malat, contracts, litigation, court proceeding, and so forth. Some of the more specic maxims may qualify as a abia rather than as a maxim proper, as the distinction between them is not always clear, nor regularly observed.

The Five Leading Maxims The most comprehensive and broadly-based of all maxims are placed under the heading of al-qaw"id al-qhiyya al-aliyya or the normative legal maxims that apply to the entire range of qh without any specication, and the madhhib are generally in agreement over them. Maxims such as harm must be eliminated (al-araru yuzl ) (The Mejelle, Art. 20) and acts

5 Cf. 'Abd al-Ramn al-bni, et al., al-Madkhal al-Fiqhi wa Trkh al-Tashri' alIslami, Cairo: Maktaba Wahba, 1402/1982, p. 389.

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are judged by their goals and purposes (al-umr bi-maqidih) (The Mejelle, Art. 2), belong to this category of maxims. The early ulama have singled out ve legal maxims as the most comprehensive of all, in that they encompass the essence of the Shar 'a as a whole, and the rest are said to be simply an elaboration of these. Two of these have just been quoted. The other three: Certainty is not overruled by doubt (al-yaqn l yazlu bil-shakk) (The Mejelle, Art. 4); hardship begets facility (al-mashaqqatu tajlub al-taysyr) (The Mejelle, Art. 17); custom is the basis of judgment (al-'adatu muakkamtun) (The Mejelle, Art. 36). Each of these will be discussed in some detail in the following pages. Yet, it will be noted in passing that reducing the number of legal maxims to a minimum has invoked criticism from al-Subki, who said that this cannot be done without engaging in articiality and compromise. In this connection al-Subki is noted to have been particularly critical of 'Izz al-Din 'Abd al-Salms (d. 660/1262) attempt to reduce the whole of the law to almost one principle, namely that prevention of harm takes priority over securing of benetsdar" al-mafsid awl min jalb al-man. This kind of approach, according to al-Subki, simply ignores the specicity and character of the qaw'id.6 The rst of the leading ve maxims may be illustrated with reference to the state of ritual purity (ahra). If a person has taken ablution (wu"), and knows that with certainty, but doubt occurs to him later as to the continuity of his wu", the certainty prevails over doubt, and his wu" is deemed to be intact. According to another, but similar maxim, knowledge that is based in certainty is to be dierentiated from manifest knowledge that is based on probability onlyyufarraqu bayn al-'ilmi idh thabata hiran we baynahu idh thabata yaqnan. For example, when the judge adjudicates on the basis of certainty, but later it appears that he might have erred in his judgment, if his initial decision is based on clear text and consensus, it would not be subjected to review on the basis of a mere probability.7 Similarly, a missing person (mafqd ) of unknown whereabouts is presumed to be alive, as this is the certainty that is known about him
Cf. Heinrichs Qaw'id as a Genre of Legal Literature, n. 1, 372. Muhammad 'Amm al-Ihsan al-Barikati. Qaw'id al-Fiqh, Dacca (Bangladesh): Zeeco Press, 1381/1961, pp. 142-143.
7 6

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before his disappearance. The certainty here shall prevail, and no claim of his death would validate distribution of his assets among his heirs until his death is proven by clear evidence. A doubtful claim of his death is thus not allowed to overrule what is deemed to be certain.8 Other supplementary maxims of a more specied scope that are subsumed by the maxim under review include the following: The norm (of Shar'a) is that of non-liability (al-alu bar"at al-dhimma). This is an equivalent, although perhaps a more general one, to what is known as the presumption of innocence. This latter expression implies that it relates primarily to criminal procedure, whereas the non-liability maxim of qh also extends to civil litigation, and to religious matters generally. The normative state, or the state of certainty, for that matter, is that people are not liable, unless it is proven that they are, and until this proof is forthcoming, to attribute guilt to anyone is treated as doubtful. Certainty can, in other words, only be overruled by certainty, not by doubt. Another supplementary maxim here is the norm that presumes the continued validity of the status quo ante until we know there is a change: The norm is that the status quo remains as it was before (al-alu baq" m kna 'al m kna), and it would be presumed to continue unless it is proven to have changed. An example of this is the wifes right to maintenance which the Shar'a has determined; when she claims that her husband failed to maintain her, her claim will command credibility. For the norm here is her continued entitlement to maintenance for as long as she remains married to him. Similarly, when one of the contracting parties claims that the contract was concluded under duress, and the other denies this, this latter claim will be upheld because absence of duress is the normal state, or status quo, which can only be rebutted by evidence.9 According to yet another supplementary maxim: The norm in regard to things is that of permissibility (al-alu l-ashy" al-ibah). Permissibility is, in other words, the natural state and will therefore prevail until there is evidence to warrant a departure from that position. This maxim is also based on the general reading of the relevant evidence of the Qur"n and Sunna. Thus, when we read in the Qur"n that God Most High has created all that is in the earth for your benet (2:29), and also the hadith: whatever God has made all is all and whatever that He rendered aram is aram, and whatever concerning which He has remained silent is forgiventhe

8 9

Cf. Zarq, Shar al-Qaw'id, n. 1, p. 382. bni, al-Madkhal, n. 5, p. 389.

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conclusion is drawn that we are allowed to utilize the resources of the earth for our benet and, unless something is specically declared forbidden, it is presumed to be permissible. Al-araru yuzlharm must be eliminated is a derivative, in turn, of the renowned hadith la arara wa l irrlet there be no iniction of harm nor its reciprocation. This hadith has also been adopted into a legal maxim in precisely the same words as the hadith itself.10 A practical illustration of this hadith-cum-legal maxim is as follows: Suppose that someone opens a window in his house which violates the privacy of his neighbour, especially that of its female inhabitants. This is a harmful act which should not have been attempted in the rst place, and may call for legal action and remedy. But, it would be contrary to the maxim under review for the neighbour to reciprocate the harmful act by opening a window in his own property that similarly violates the privacy of the rst neighbour. A similar manifestation of the maxim al-araru yuzlharm must be eliminated is the validation of the option of defect (khiyr al-'ayb) in Islamic law, which is designed to protect the buyer against harm. Thus, when a person buys a car and then discovers that it is substantially defective, he has the option to revoke the contract. For there is a legal presumption under the Shar'a that the buyer concluded the contract on condition that the object of the sale was not defective. The hadith of l arar has given rise to a number of additional maxims on the subject of arar. To quote but a few, it is provided in a maxim: A greater arar is eliminated by (tolerating) a lesser oneal-arar al-ashadd yuzlu bil-arar al-akha. For example, the law permits compelling the debtor, or one who is responsible to support a close relative, to fulll their obligations, and give what they must, even if it means inicting some hardship on them. According to another maxim, harm may not be eliminated by its equivalental-arar la yuzlu bi-mithilih (The Mejelle, Art. 25). This may also be illustrated by the example we just gave of la arara wa l irr. Another maxim on arar has it that harm cannot establish a precedental-araru l yaknu qadman. Lapse of time, in other words, cannot justify tolerance of a arar. For example, waste disposal that pollutes a public passage should be stopped regardless as to how long it has been

10 The Mejelle: Being an English Translation of Majallah el-Ahkam el-Adliya, trans. C.R. Tyser, reprint, Lahore, Law Publishing Co. 1967, Art. (19).

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tolerated. And then, also, that harm is to be eliminated within reasonable boundsal-arar yudfa'u bi-qadr al-imkn. For example, if a thief can be stopped by the blow of a stick, striking him with a sword should not be used to attempt to obstruct him. According to yet another maxim, harm to an individual is tolerated in order to prevent a harm to the public yuta ammalu al-arar al-kh li-daf ' al-arar al-'m (The Mejelle, Art. 26).11 For example, the law permits interdiction on an adult and competent person, including an ignorant physician, or a fraudulent lawyer, in order to protect the public, notwithstanding the harm this might inict on such individuals. It is stated in the Mejelle that legal maxims are designed to facilitate a better understanding of the Shar'a, and the judge may not base his judgment on them unless the maxim in question is derived from the Qur"n or Hadith, or supported by other evidence.12 This is in contrast, however, with the view of Shihb al-Dn al-Qar (d. 682/1281), who held that a judicial decision is reversible if it violates a generally accepted maxim.13 The ulama have generally considered the maxims of qh to be signicantly conducive to ijtihd, and they may naturally be utilized by the judge and mujtahid as persuasive evidence; it is just that they are broad guidelines, whereas judicial orders need to be founded in specic evidence that is directly relevant to the subject of adjudication. Since most of the legal maxims are expounded in the form of generalised statements, they hardly apply in an exclusive sense, and often admit exceptions and particularisation. Instances of this were often noted by the jurists, especially in cases where a particular legal maxim failed to apply to a situation that evidently fell within its ambit, who then sometimes attempted to formulate a subsidiary maxim to cover those particular cases. Legal maxims were developed gradually, and the history of their development in a general sense is parallel with that of the qh itself. More specically, however, these were developed mainly during the era of imitation (taqld ), as they are in the nature of an extraction (takhrj ) of guidelines from the detailed literature of qh that were contributed during the rst three centuries of Islamic scholarship, known as the era of ijtihd.14

See also 'Amm al-Barikati, Qaw'id al-Fiqh n. 7, p. 88 and 139. Cf. Mahmassani, Falsafat, n. 1, p. 152; Zarq n. 1, Shar al-Qaw'id, p. 34. 13 Shihb al-Dn al-Qar, Kitab al-Furuq, Cairo: Maba'a Dar al-Ihy" al-Kutub al'Arabiyyam 1386H, vol. 4, p. 40; see also Jamal al-Dn 'Aiyya, al-Tanr al-Fiqhi, Doha (Qatar) n.d., 1407/1989, p. 208. 14 Cf. bni, al-Madkhal, n. 5 p. 398.
12

11

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The hadith of l arr has also been used as the basic authority for legal maxims on the subject of necessity (arra). I refer here to only two, the rst of which proclaims that necessity makes the unlawful lawful (al-arrt tub al-mart).15 It is on this basis that the jurists validate the demolition of an intervening house in order to prevent the spread of re to adjacent buildings, just as they validate dumping of the cargo of an overloaded ship in order to prevent danger (or arar) to the lives of its passengers. Another maxim on necessity declares that necessity is measured in accordance with its true proportions (al-darrat tuqdaru bi-qadrih). Thus, if the court orders the sale of the assets of a negligent debtor in order to pay his creditors, it must begin with the sale of his movable goodsif this would suce to clear the debtsbefore ordering the sale of his real property.16 The maxim hardship begets facility (al-mashaqqatu tajlub al-taysr) is, in turn, a rehash of the Qur"nic yt: God intends for you ease and He does not intend to put you in hardship (2:185), and God does not intend to inict hardship on you (5:6), a theme which also occurs in a number of hadiths. The jurists have utilised this evidence in support of the many concessions that are granted to the disabled and the sick in the sphere of religious duties, as well as civil transactions. With reference to the option of stipulation (khiyr al-shar), for example, there is a hadith which validates such an option for three days, that is, if the buyer wishes to reserve for himself this amount of time before ratifying a sale. The jurists have then reasoned that this period may be extended to weeks, or even months, depending on the type of goods that are bought, and the need of the buyer, who may need a longer period for investigation. According to another, but still related, legal maxim idh q al-amru ittasa'aan opening must be found when matters become exceedingly dicult. For example, a debtor who accedes to his obligation, but is unable to pay, must be given time, if this would enable him to clear his debt. The same logic would validate, on the other hand, killing a violent thief if a lesser threat or action is not likely to put a stop to his evil. The judge may likewise admit the best available witnesses, even if some doubt as to their uprightness ('adlah) persists, if this is deemed to facilitate justice in stressful situations. The maxim under review is also related to the

15 16

The Mejelle n. 10, (Art. 17); see also Zarq, Shar al-Qaw'id, n. 3, p. 157. Cf. al-bni, al-Madkhal, n. 5 p. 100.

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subject of necessity, and its leading maxim, as quoted above, that necessity makes the unlawful lawful.17 The maxim al-umr bi-maqidihacts are judged by their goals and purposes is also a rehash of the renowned hadith acts are valued in accordance with their underlying intentions (innama al-a'ml bil-niyyt). This is a comprehensive maxim with wide implications that the ulama have discussed in various areas, including devotional matters, commercial transactions, and crimes. The element of intent often plays a crucial role in dierentiating, for example, a murder from an erroneous killing, theft from an inculpable appropriation of property, and the gurative words that a husband may utter in order to conclude the occurrence, or otherwise, of a divorce. To give another example, when someone takes possession of the lost property of another (al-luqa), he could qualify either as a trustee (amn) if he intends to return it to its owner, or as a usurper ( ghib) if he intends to unlawfully keep it. Similarly, when a person lays a net, or digs a pit, in his own property, and a bird or animal is consequently caught, the game would belong to him if he intended to hunt, but if the net was laid in order to prevent entry, or the pit was intended for some drainage purposes, then the game caught therein is not presumed to have fallen into his ownership, and it would consequently be lawful for others to take.18 The maxim custom is the basis of judgment is again based on the statement of the Companion, Abdullah Ibn Mas'd: what the Muslims deem to be good is good in the eyes of God. This is sometimes identied as an elevated (marfu' ) hadith, as the Prophet had, himself, on numerous occasions upheld customary practices of the Arabian society. The court is accordingly authorised to base its judgment on custom in matters which are not regulated by the text, provided, that the custom at issue is current, predominant among people, and is not in conict with the principles of Shar'a. A custom which runs contrary to Shar'a, and reason, is therefore precluded. Several other subsidiary maxims have been derived from this, including the one which proclaims what is determined by custom is tantamount to a contractual stipulation (al-ma'ruf 'urfan kal-mashr sharan) (The Mejelle, Art. 42). Thus, when the contract does not regulate a matter which is otherwise regulated by custom, the customary rule would be presumed to apply. Similarly, when someone rents a house or

17 18

Cf. Zarq, Shar al-Qaw'id, n. 3, pp. 163-64. Id., p. 49.

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a car, he should use it according to what is customary and familiar, even if the detailed manner of its use is not regulated in the contract. To give yet another example, when the father of a bride gives her a wedding gift of, say, a set of furniture, and later claims that it was a temporary loan ('riya), and not a gift (hibba), and there is no evidence to prove the claim, credibility would be given to the prevailing custom. If it is found that the father customarily gave such items as gifts on such occasions, it would be counted as a gift, even if the father claimed otherwise.19 A general custom of unrestricted application qualies as a basis of judgment and many jurists have accorded the same value to customs that are conned to a particular area and locality. Technically, however, only the general custom has the strength to take priority over normal rules, or the rulings of analogy (qiys).20 Custom has thus validated the plucking of ripened fruit that is likely to go to waste, should there be no impediment, and no one is there to collect it. This is contrary to normal rules, which do not permit taking the property of others. Similarly, people tend to weigh and measure goods and commodities dierently in dierent places, and customary practices concerning them will be recognised by the courts in the locality concerned, even if such practices happen to be contrary to normal rules.21 According to a parallel, although slightly dierently worded, legal maxim, the usage of people is a proof that must be followedisti'ml al-nsi ujjatun yajib al-amalu bih.22 The word isti'ml in this maxim is synonymous with 'dah and this maxim is said to contemplate linguistic usages that concern the meaning of words, whether literal, methaphorical, judicial, etc. Which of these meanings, if any, should prevail in the event of a conict arising between them is of concern to this maxim. The rst of the two maxims under review, (i.e., al-'datu muakkamatun), is thus concerned with actual practices, whereas the second mainly relates to the linguistic usages of words and their meanings. According to yet another supplementary maxim, the literal is abandoned in favour of the customaryal-aqqatu tutraku bi-dallat al-'dah (The Mejelle, Art. 40). For example, when someone takes an oath that he will never set foot in so-and-sos house, but then he only technically sets his foot in that house

Cf. Zarq, Shar al-Qaw'id, n. 3, p. 238; al-Barikati, Qaw'id, n. 7, p. 125. See for detail M.H. Kamali, Principles of Islamic Jurisprudence, Cambridge: The Islamic Text Society, 3rd revised and enlarged ed., 2003. Ch. 14 on Custom, 369-384. 21 Cf. Zarq, Shar al-Qaw'id, n. 1, p. 221. 22 The Mejelle, n. 10, (Art. 37).
20

19

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without entering into it, he will not be liable to an expiation (kara) for breaking an oath. This is because, customarily, the expression means entering the house, and not the literal meaning that it conveys.23 The maxim which declares prot follows responsibility (al-kharj bilamn)24 is a direct rendering of a hadith in those identical words. Thus, the yield of trees and animals, etc., belongs to those who are responsible for their upkeep and maintenance. Suppose that person A, who has bought a machine, decides to return it to the seller when he nds it to be defective. Suppose, also, that the machine has yielded prot during the interval when it was with A. Does A have to return to the seller the prot he made through the use of the machine? By applying the legal maxim before us, the answer is that A may keep the prot, as the machine was his responsibility during the interval, and he would have been responsible for its destruction and loss before he returned it to the seller.25 The maxim that a ruling of ijtihd is not reversed by its equivalent (al-ijtihd la yunqa bi-mithlih)26 has, in turn, been attributed to a statement of the Caliph 'Umar Ibn al-Khab, which is also upheld by the consensus of the Companions. Supposing a judge has adjudicated a dispute on the basis of his own ijtihd, that is, in the absence of a clear text to determine the issue. Then he retires, and another judge, whether of the same rank or at the appellate level, looks into the case, and the latters ijtihd leads him to a dierent conclusion on the same issue. Provided that the initial decision does not violate any of the rules that govern the propriety of ijtihd a mere dierence of opinion on the part of the new judge, or a dierent ijtihd he might have attempted, does not aect the authority of the initial ijtihd, simply because one ruling of ijtihd is not reversible by another ruling of ijtihd. It is further noted that the Caliph Umar had ruled, in one or two similar cases, contrary to what his predecessor Abu Bakr had done, but he did not attempt to declare Abu Bakrs ruling invalid, on the analysis that his own ijtihd was not necessarily better than that of Abu Bakr.27

Cf. Kamali, Jurisprudence, p. 373. The Mejelle, n. 10, (Art. 85). Another substantially similar maxim, albeit in dierent words, is al-ghanamu bil-gharam-liability for loss proceeds from ones entitlement to prot. Cf. al-Barikati, Qaw'id al-Fiqh, n. 7, p. 94. 25 Cf. Zarq, Shar al-Qaw'id, n. 3, p. 429. 26 The Mejelle no. 10, (Art. 16). 27 Cf. al-Barikati, Qaw'id al-Fiqh, n. 7, p. 56.
24

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legal maxims and other genres of literature A Brief History of Legal Maxims

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Historically, the Hana jurists were the rst to formulate legal maxims. An early Iraqi jurist, Sufyn Ibn hir al-Dabbs al-Qi, a contemporary of al-Karkhi, collated the rst seventeen maxims, and Abu al-assan 'Ubayd Allah Ibn al-Husayn al-Karkhi (d. 340/952) increased this to 39. Al-Karkhis work, entitled Ul al-Karkhi, is regarded as an authoritative precursor on the subject among the Hanas, although some scholars regard it as a work in the genre of ul al-qhas might have been suggested by its title. A more relevant explanation for that title was probably the fact that every one of the 39 legal maxims in it was identied as an al (pl. ul ). To avoid ambiguity in the use of this term, it will be noted that al carries three meanings: 1) a source of law; 2) a legal principle that covers numerous individual cases; 3) an act that has already been determined and now serves as a model for similar cases. Whereas the basic corpus of qh and ul al-qh were developed in roughly the rst four centuries of Islam, a marked resurgence of interest in the qaw'id is noted from the eight century A.H. onward, which ushered in the ulama eorts to extract general rules by way of induction from the legal manuals of the madhhib. Al-Karkhis collection began by recording the rst al (norm): What is proven with certainty may not be overruled by doubt, and it ended with the al that explanation to a speech is credible for as long as it is given at a time when it can be considered valid, but not otherwise (al-alu annl-bayn yu'tabaru bil-ibtid", in saa al-ibtid", wa ill fa-l). This may be illustrated as follows: suppose a man divorces two of his wives in a single pronouncement and address such as: you are both divorced. Later, he elaborates that he only meant that one of them be divorced by triple alq. This explanation will be credible only during the probation period of 'idda, but it will not carry any weight if it is given after that period.28 Some of the early maxims that were compiled also included the following: The norm is that the aairs of Muslims are presumed to be upright and good unless the opposite emerges to be the case. What it means is that acts, transactions, and relations among people should not be given a negative interpretation that verges on suspicion and mistrust, unless there is evidence to suggest the opposite.

28 Al-Barikati, Qaw'id al-Fiqh, n. 7, p. 65; see also Abd al-Wahhab Ibrahim Abu Sylayman. Kitbat al-Bahth al-'Ilmi Wa Madir al-Dirasat al-Fiqhiyya, Jeddah: Dar alShuruq, 1403/1983, vol. 2, p. 652.

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Another maxim has it that question and answer proceed on that which is widespread and common and not on what is unfamiliar and rare. Once again, if we were to interpret a speech and enquire into its implications, we should proceed on that which is widespread and commonly understood, as opposed to what might be said to be a rare understanding and interpretation. Another maxim, to which a reference has already been made, has it that prevention of harm takes priority over the attraction of benet (dur " al-mafsid awl min jalb al-man' ). The earliest collection of maxims also included the ve leading maxims that were discussed above.29 Al-Karkhis collection, which is one of the earliest on record, is not necessarily articulated in the incisive and eloquent style that is typically associated with maxims.30 Many scholars from various schools added to these over time, and the total number of qaw'id and awbit eventually exceeded 1200. Next to the Hanas, the Sh'is, and then following them, the Hanbalis, then the Mlikis, in this order, as al-Zarq has noted, added their contributions to the literature on legal maxims. The leading Sh'i scholar, 'Izz al-Dn 'Abd al-Sulamis (d. 660/1262), Qaw'id al-Ahkm Mali alAnm, is noted as one of the salient contributions to this eld, and so is 'Abd al-Ramn ibn Rajab al-Hanbalis (d. 795/1393) work Taqrr AlQaw'id wa Tarr al-Faw"id, both of which have been highly acclaimed. Yet, in terms of conciseness and style, the Mejelle Ahkam Adliyye, an Islamic law code, written by a group of Turkish scholars under the supervision of Ahmed Cevdet Pasha (d. 1895) the then Minister of Justice in the 1870s, is said to represent the most advanced stage in the compilation of legal maxims. The introductory section of the Mejelle only records ninetynine legal maxims, which have in turn been elaborated in many other works. One such work was authored by Muhammad al-Zarq, bearing the title Shar al-Qaw'id al-Fiqhiyya (1403/1983). The son of this author, and also his commentator, Mutaf al-Zarq, has noted, however, that the Mejelle selection does not necessarily represent a self-contained collection of all the leading maxims. Whereas many fall in that category, there are some which are decidedly subsidiary. The Mejelle selection is also not systematic, in that maxims which relate to one another do not appear in clusters, but tend to appear on a stand-alone kind of arrangement.31
29 30 31

Cf. al-Brikati, Qaw'id al-Fiqh, n. 7, p. 56. Cf. 'Atiyya, al-Tanr, n. 13, p. 18; sabuni, al-Madkhal, n. 2, p. 387. Cf. Zarq, Shar al-Qaw'id, n. 3, pp. 43-44.

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The development of this branch of qh is in many ways related to the general awareness of the ulama over the somewhat piecemeal and fragmented style of the qh literature which, somewhat like the Roman juristic writings, is on the whole issue-oriented, and short of theoretical exposition of the governing principles. This is related, in turn, to the fact that qh was mainly developed by private jurists who were not acting on behalf of governments and institutions that might have exerted a unifying inuence. They wrote often in response to issues as and when encountered, and we consequently note that theoretical abstraction was not a well-developed feature of their works. The legal maxims lled that gap to some extent, and provided a set of general guidelines in an otherwise diverse discipline that combined an impressive variety of schools and inuences into its fold. Islamic jurisprudence is also textualist, as it is guided by the textual injunctions of the Qur"n and Sunnah. In developing the law, the jurists have shown the tendency to conne the range of their expositions to the given terms of the text. The theoretical generalisation of ideas was generally viewed with caution vis--vis the overriding authority of the text, and attention was focused on the correct interpretation of the text, rather than on developing general theories. Questions are being asked to this day whether Islamic law has a constitutional theory, a theory of contract, or a theory of ownership. It is only in recent times that Muslim scholars began to write concise, yet self-contained, expositions of the law in these areas, as I shall presently explain, but rst, I turn to al-ashbh wal-na"ir.

Resemblances and Similitudes (al-Ashbh wal-Na"ir) This genre of literature emerged in the writings of the ulama well after the formation of the madhhib. The term evidently originated in the renowned letter of the Caliph 'Umar al-Khab addressed to judge Ab Msa al-Ash'ari of Bara in which the latter was instructed to ascertain resemblances and similitudes and adduce matters to their likes in giving judgment. The term al-ashbh wal-na"ir was later chosen by Tj alDn al-Subki, who wrote an important work on legal maxims, as the title of that book. Jall al-Dn al-Suyui (d. 911/1505) and Zayn al-'bidin Ibn Nujaym al-Hana (d. 970/1563) also wrote works that closely resembled one another, both bearing the title al-ashbh wal-na"ir; they relied mainly

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on al-Subkis writings, with certain modications that were reective, perhaps, of their respective scholastic orientations. At the beginning of every maxim that he discussed, Al-Suyui identied the source evidence from which the maxim was derived and then added illustration and analysis. Al-Suyui devoted the rst chapter of his al-Ashbh wal-Na"ir to the ve leading maxims, and the qhi issues to which they applied. Then he discussed, in the second chapter, forty other maxims of a more specic type that are derived from the rst ve. Another chapter in that work is devoted to a selection of the most useful and recurrent maxims in the works of qh, and yet another chapter discussed maxims on which the jurists were in disagreement. The next two chapters in al-Suyuis work put together clusters of maxims that related to one another, and those that resembled one another in some way. The last chapter added miscellaneous maxims that are not classied in any manner.32 Some of the leading maxims that al-Suyui recorded were: private authority is stronger than public authority (al-wilya al-kha aqwa min al-wilya al-'amma),33 which evidently means that the authority, for example, of the parent and guardian over the child is stronger than that of the ruler and the judge; another maxim thus declared no speech is attributed to one who has remained silent (l-yunasb lil-skit qawl ).34 And, we read in yet another maxim the attachment follows the principal (al-tbi' tbi' ), which obviously means that, in reference, for example, to contracts and transactions, things which belong to one another may not be separated: one does not sell a yet-to-be born animal separately from its mother, or a living room separately from the house.35 Ibn Nujaym divided the legal maxims into two categories of normative or leading maxims, and subsidiary maxims. He only placed six under the former, and nineteen under the latter, but discussed a number of other subsidiary rules and maxims of qh in his detailed elaboration and analysis. The sixth leading maxim of Ibn Nujaym that he added to the familiar ve, as reviewed above, was that no spiritual reward accrues without intention (l thawb ill bil-niyya), which is why the ritual prayer, and most other acts of devotion, are preceded by a statement of intention, or niyya.36 The introductory part of the Ottoman Mejelle, compiled
Cf. Abu-Sulaymn, Kitbat al-Bath al-'Ilmi, n. 28, vol. 2, p. 677. The Mejelle n. 10, (Art. 58). 34 Id., (Art. 66). 35 Id., (Art. 47). See also Zarq, Shar al-Qaw'id. n. 3, p. 253. 36 Zayn al-'Abidin Ibrahim Ibn Nujaym, al-Ashbh wal-Na"ir, ed. 'Abd al-'Aziz Muhammad al-Wakil, Cairo: Mu"assasa al-Halabi lil-Nashr wal-Tawzi', 1387/1968, p. 67f.
33 32

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in the 1870s, which contains ninety-nine legal maxims, was mainly derived from Al-Ashbh Wal-Na"ir of Ibn Nujaym. Despite the general tendency in legal maxims to be inter-scholastic, jurists and schools are not unanimous on all of them, but the dierences between schools in this area are not very wide. The Ja'fari school of Sh'a has its own collection of legal maxims, yet, notwithstanding some dierences of style, the thematic arrangement of the Shi'i collection resembles closely to those of their Sunni counterparts. The rst Shi'i work on maxims was that of 'Allma Ibn Muahhar al-illi (d. 771/1369), entitled Al-Qaw'id, followed by al-Shahd al-Awwal Shams al-Din al-'milis (d. 782/1389) Al-Qaw'id wal-Faw"id, which compiled over 300 maxims, and many more works that elaborated and enhanced the earlier ones. The more recent work of Muhammad al-Husayn Kshif al-Ghi", bearing the title Tarr al-Mujalla, is an abridgment and commentary on the Ottoman Mejelle. In this work, the author has commented on the rst 99 articles of the Mejelle, out of which he selected 45 as being the most important in the range, and the rest he found to be overlapping and convergent or obscure, but he added 82 others to make up a total 127 maxims of current application and relevance, especially to transactions and contracts. Al-Ghi" went on to say, however, that if we were to recount all the maxims that are referred to in the various chapters of qh, we can add up to ve hundred or more.37

The Discordances (al-Furq) Other developments of interest in the qh literature that relate to the qaw'id are the discordances (al-furq), which occur in almost the opposite direction to that of al-ashbh wa"-na"ir. As the word indicates, the furq highlights dierences between seemingly similar concepts, or those which have an aspect in common. The attempt to highlight such dierences in the substantive juris corpus of qh was also extended to the maxims, in that the furq literature specied the dierences between some of the maxims that resembled one another, but could subtly be distinguished in some respect. The Mliki jurist Shihb al-Dn Ahmad b. Idrs al-Qaras (d. 682/1281) Kitb al-Furq has discussed 548 maxims, and 274 dierences

37 Muhammad al-Husayn Kshif al-Ghi, Tarr al-Mujalla, Najaf, 1359, p. 63; Jamal al-Din 'Atiyya, al-Tanr al-Fiqhi, n. 13, p. 1407/1987, p. 75; buni, Madkhal, n. 5, p. 39.

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( furq) in this light, and it focuses on distinctions and dierences between similar themes and ideas. Occasionally the word qaw'id is used in reference to what is a bia or even a specic ruling of qh. Al-Qar often poses questions as to the dierences between two maxims that address similar themes but which involve subtle variations. He also explains the subjects of his enquiry by referring to their opposites, as he believes that this is often a very eective way of highlighting the merits or demerits of particular ideas and maxims. His work is generally regarded as one of the best in the eld.38 Al-Zarq has noted, however, that al-Furq is not, strictly speaking, conned to legal maxims. This is because the book is dominated by comparisons and contrasts, and engages in the explanation of basic qh themes and issues in a way that almost puts the work in the general category of qh, rather than the maxims of qh, which is a separate branch of qh in its own right.39 Examples of the furq includes the distinctions between ijrah and sale, between custody (anah) and guardianship (wilyah), between testimony (shahda) and narration (riwyah), between verbal custom and actual custom (al-'urf al-qawli, al-'urf al-'li ) and so forth; these are often expressed in rule-like statements that generally resemble bias, as they apply to specic themes, but named al-furq, as they usually compare similar themes, and highlight the dierences between them. Al-Qaras approach represented a new development in the qaw'id literature. He has also discussed legal maxims in his other works, namely Al-Dhakhra, but more specically in Al-Ikm Tamyz al-Fatwa 'an al-Akm. This title itself is, it may be noted, furq-oriented, as it refers to dierences between fatwa and judicial decisions. Ibn al-Sh Qsim bin 'Abd Allah al-Anaris (d. 723/1323) work, Idrr al-Shurq 'al Anwr al-Furq is also a work on furq, and smaller works of similar kind were also written by some S'i scholars.40

Theories of Fiqh (Naariyyt al-Fiqhiyya) and Encyclopedias The next development that may briey be explained is relatively recent, and appears in the modern writings of qh under the general designation al-naariyyt al-qhhiyya, or legal theories of qh. Naariyya in this context implies a self-contained and comprehensive treatment of an important
38 39 40

Cf. Abu-Sulaymn, Kitbat al-Bath, n. 8, vol. II, p. 660. Zarq, Shar al-Qaw'id, n. 3, p. 42. See for details 'Atiyya, al-Tanr, n. 13, pp. 131-32.

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area of the law, such as naariyyat al-arra (theory of necessity), naariyyat al-milkiyyah (theory of ownership), naariyyat al-'aqd (theory of contract), and so forth. This level of theoretical development marks a departure from the earlier style of juristic writing in qh, where topics were poorly classied, and themes pertaining to a particular area were scattered in dierent places. The naariyyt literature seeks to overcome that, and oer a systematic treatment of its subject matter that aims to be self-contained and convenient to use. The naariyyt literature draws upon the combined resources of qh in all areas, including the qaw'id, the awbi and the furq. Yet, the naariyyt are usually not expected to reproduce the detailed formulation of these related branches, as theory-oriented works generally seek to be concise, and clear of repetition and unnecessary detail; it also incorporates new methods of writing and research which are more eective and less timeconsuming. The naariyyt literature not only aims at improved forms and methods of writing, but often seeks to advance and develop some of the substantive aspects of the qh doctrines. With regard to the law of contract, for example, 'Abd al-Razzq al-Sanhri (d. 1969) has observed that the qh literature in this area is focused on the detailed exposition of a number of nominate contracts, and treats each contract separately. The Hana jurist 'Alauddn al-Ksni (d. 589/1198) has thus dealt with nineteen nominate contracts, many of which have aspects in common, and, of course, they also dier in other respects. A perusal of the relevant literature of qh on contracts, al-Sanhuri noted, leaves the reader questioning (a), whether these could all be consolidated in order to highlight the features they all have in common; (b), whether the qh validates contracts other than these; and (c), whether the qh recognises the basic freedom of contract on the basis merely of an agreement which does not violate morality and public interest.41 Questions of this nature are likely to be addressed in the naariyyt literature, which is better consolidated, and encompasses salient developments of interest to the subject. The naariyyt literature is not entirely without precedent in the qh works. With reference to the theory of contract, for example, we may note that signicant progress had been made by the Hanbali ulama, Ibn Taymiyya (d. 728/1348) and his disciple, Ibn Qayyim al-Jawziyya, whose

41 'Abd al-Razzaq al-Sanhuri, Madir al-aq l Fiqh al-Islami, Cairo: Ma'had alButh wal Dirst al-'Arabiyya, 167, vol. 1, p. 78. see also buni, Madkhal, n. 5, p. 380.

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contributions are widely acknowledged. Ibn Taymiyya eectively departed from the earlier strictures over the nominate contracts, and advanced a convincing discourse, through his own reading of the source evidence, that contracts need not be conned to a particular prototype or number.42 The essence of all contracts is manifested in the agreement of the contracting parties, who may create new contracts, within or outside the ones that are already known, provided that they serve a lawful benet and do not violate public policy and morals. It may be noted, however, that Ibn Taymiyyas contribution to the theory of contract represented rather a late development and a departure, in many ways, from the majority position on this theme, which is why al-Sanhuris critique may still be considered relevant. Ibn Taymiyya also wrote a book on legal maxims entitled, al-Qaw'id al-Nurniyya, which treats the subject in an interesting way by looking at the legal maxims under the main chapters of qh. The book thus devotes sections to cleanliness (al-ahra), prayers, zakah, fasting, the hajj, and then to contracts and nancial transactions, followed by sections on matrimony, etc., and discusses the relevant legal maxims under each heading. These are followed in each part by subsidiary rules (dawbi) and disagreements, if any, that may exist concerning them, as well as the authors own views and suggested solutions to such disagreements.43 To pursue our discussion of the naariyyt, it may be added that considerable progress has been made, in the sphere of naariyyt literature, not only in al-Sanhuris writings, but by numerous other scholars, both Arab and non-Arab, who have written widely on contracts and other major themes of qh. Many works in this category are now available on various topics of qh, bearing such titles as Naariyyat al-Ithbt l-Fiqh al-Islami (standards of proof, or the theory of proof, in Islamic law), Naariyyat al-Milkiyya (theory of ownership), Naariyyat al-'Aqd (theory of contract), and so forth. Works of recent origin on the constitutional theory that oer self-contained expositions of the subject bear such alternative titles as Niam alukm l-Islam (the Islamic system of government), and Ul al-ukm l-Islam (principles of government in Islam), which are, in fact, the more recent variations of the genre of literature that appeared under the general heading al-Akam al-Sulniyya. The choice and wording of title usually gives some indication as to the scope and relevance of the work to naariyyt.
42 Much to his credit, the manual that Ibn Taymiyya wrote on the subject actually bore the title Naariyyat al-'Aqd (Theory of Contract). 43 Cf. Abu-Sulaymn, Kitbat al-Bath, n. 28, vol. II, p. 678.

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One should also note, in this context, the emergence of the encyclopedias of qh in the latter part of the twentieth century, which marked a milestone of development, and succeeded in producing consolidated and reliable works of reference on qh, and these eorts are still continuing. A number of qh encyclopedias have been published bearing the familiar title al-mawsu'a al-qhiyya. Egypt, Kuwait, Syria and other countries embarked on compiling encyclopedic works on qh during the latter part of the 20th Century. The Kuwait Encyclopedia of qh started in late 1970s, has to date been published in over 40 volumes, and is nearing completion. The Egyptian counterpart on this started earlier, in the 1950s, and that, too, has appeared in over 30 volumes. Syrias started at around the same time as Egypts, but it was not as extensive. The one that is published by the Ministry of Awqaf of Kuwait is more systematic, and easier to use. Almost all the alphabetical qh titles are treated under the doctrines, not only of the four Sunni schools, but also of the Sh'ah, the Zahiriyya, the Ibdiyya, and others. Numerous other qh encyclopedias, of more limited scope, have been published by private institutions and individuals. The encyclopedia coverage of qh subjects and titles bears similarity to the naariyyt format in most cases, although the approach here diers in some ways from that of self-contained theoretical works of textbook orientation . To give an example, the article on aqq (right) in the qh encyclopedia of Kuwait is extensive, and in itself provides a condensed exposition of the theory of aqq in Islamic law. This can also be said of wilya (guardianship), nik (matrimony), and so many other entries. Yet, it will be noted that the encyclopedia coverage of qh themes can be somewhat atomistic, in that the overall focus tends to be on individual topics, rather than a progressive and coherent development of particular areas of qh. As a distinctive genre of qh literature, the legal maxims are likely to remain an inuential area of the legacy of qh. This is perhaps borne out by the fact that the Turkish ulama who drafted the Ottoman Mejelle, in 1850 articles, decided to begin their impressive, and in many ways, original, work on the Islamic law of transactions with a selection of the most important of these maxims.

Conclusion It is the abstract and synoptic character of legal maxims that gives them a degree of versatility and timelessness that is not hampered by burdensome detail. The inherent objectivity of legal maxims contributes to their

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continuity, which would account for the fact that there have been no signicant additions to the early compilations of legal maxims. Having said this, one may agree that substantive reforms of the qh, or major developments of concern to ul al-qh, may also, to some extent, have to be reected in the legal maxims. On the subject of ijtihd, for example, the basic idea of statutory legislation whereby the elected assembly and parliament, rather than the mujtahid, or the general consensus (ijm' ) of mujtahids, has become the principal mode of law making in the present day Muslim countries. This development has not been contemplated with all its ramications in the legal theory of ul al-qh. Now that the statute book has assumed a near-total control of legislation in the Muslim counties, some aspects of the theory of ijtihd may also need to be reviewed. For instance, ijtihd used to be seen as a preserve of the individual scholar and mujtahid, but the view has gained ground nowadays that collective ijtihd (ijtihd jam'i) should now be recognised. Some of the legal maxims concerning ijtihd may consequently call for adjustment. The present writer has elsewhere discussed this in detail, but we may note here a legal maxim, for example, that ijtihd is not valid in the presence of na (clear injunction). Yet, there may be a na that can hardly be implemented without substantial ijtihd concerning it. The issue one faces may be such that a na, such as the ones concerning the punishments of adultery and theft, could either be marginalized or read side by side with ijtihd to ascertain how best they can be implemented. Without wishing to enter details, one can imagine that ijtihd may well operate in the presence of a na so as to explain the na in the light of new realities. Moreover, the ijtihd that is now undertaken may be guided, not so much by the specicity of na, but by the overall purpose of that na within the wider framework of the goals and purposes, or maqid, of Shar'a. This can also be said with regard to another maxim on ijtihd, which provides that ijtihd may not be overruled by its equivalent.44 Some of the legal maxims concerning evidence and proof, especially relating to circumstantial evidence, may also call for adjustment as a result of the availability of reliable methods of proof, such as photography and sound recording, DNA analysis and the like, which did not exist in earlier times. Yet, notwithstanding all of these developments, one still notes a remarkable degree of continuity in the substantive themes of legal maxims.
44 See for further detail Mohammad Hashim Kamali. Punishment in Islamic Law: An Enquiry into the Hudud Bill of Kelantan, Kuala Lumpur, 'Ilmiah Publishers, 2000, 23.

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Further related to our discussion on the prevalence of statutory legislation, it will be noted that statutory codes have now partially assumed the role that was earlier played by legal maxims. The language and style of statutory legislation show a striking similarity to that of legal maxims, as both tend to be concise, devoid of details, illustration, and ratiocination. What could earlier be said in a legal maxim can now be said in the text of a constitution, a civil code, or other statutes. Yet, it still remains to be said that legal maxims and statutes are not substitutes for one another. Legal maxims can play a supplementary role to substantiate legislation in the Shar'a-dominated elds, such as personal law and civil transactions. The Shar'a law of personal status continues to be the applied law of most Muslim countries, and the development, more recently, of Islamic banking and nance has also witnessed a revival of the Shar'a law of mu'malt. For purposes of better understanding and consolidation of important qh concepts with statutory laws, we may propose that legal maxims which relate to these and other applied areas of the Shar'a should be clustered together and added as an appendix, introduction, or explanatory memorandum to the relevant statutes, and thus given a role in matters of interpretation and enforcement in the courts of justice. This will help to provide judges and lawyers with a convenient reference to relevant legal maximsjust as it can give the readers a convenient lead into important qh concepts. What is proposed here is also likely, in the long run, to contribute toward greater harmonisation and uniformity of the Shar'a and civil law, itself an objective which is actively pursued in many Muslim countries, including Malaysia.45

45 For further details on harmonisation, see M.H. Kamali, Harmonisation of Shar'ah and Civil Law: The Framework and Modus Operandi, IIUM Law Journal 11 (2003), 149-169; Idem, Shar'ah and Civil Law: Toward a Methodology of Harmonisation, Islamic Law and Society (forthcoming).