Kamali expressed it perfectly when he said that these maxims.” the culmination of cumulative progress” (Kamali, Qawa`id Al-Fiqh: The Legal Maxims of Islamic Law, p. 1), while others have stated that they „embrace the secrets and wisdom of Sharia” (Mishkah University, 2013, p. 43) and contribute to a good understanding of the purposes of Sharia (Mohammed, 2005, p. 191). In this context, the jurists of the early period sometimes created maxims to represent what they believed to be cardinal rules. Abu Ḥanīfa`s disciple, Abu Yusuf, derived and wrote a number of legal principles in his book al-Kharāj. Among the maxims he formulated were: „The Imām must prescribe a punishment proportionate to the crime” and „The Imām must not remove property from the hand of a person who does not have a known and established right to do so.” 8 The work of contemporary jurists is replete with similar formulations relating to various areas of law.9 At that time, jurists did not devote their work to legal maxims, but their works contain passing references to legal principles. All this means that it cannot be said unreservedly that legal maxims can or cannot serve as a basis for legal decisions. Lawyers` statements and practices support both views. This is not a contradiction. On the contrary, it simply supports what has been said before, namely that maxims are not created immediately. Depending on the maxim and the question of law, recourse to a legal maxim may or may not be justified. Maxims are deliberately expressed in precise words in order to make them easy to remember and make decisions without having to dive deep into the texts.
They are a kind of shortcut to the same rules that can be given and applied in many situations. For example, the above maxim that actions are judged based on intent can be applied to many circumstances related to worship, business transactions, and criminal law. Similarly, the maxim concerning the things of the world, which states that „in general, all things are permitted” can be applied to almost every situation in life. Scientists have done an excellent job of forming these maxims by conducting a „detailed study of several related decisions to extrapolate common factors that could be applied to similar issues” (Mohammed, 2005, p. 192). For this reason, some describe a maxim as „a general rule that applies to all details relating to it. reflects a consolidated reading of fiqh” (Kamali, Qawa`id Al-Fiqh: The Legal Maxims of Islamic Law, p. 1).
Some legal scholars have stated that maxims should not be used as a basis for legal decisions.15 In their view, maxims are descriptive, not prescriptive. These jurists consider maxims as the title of a series of decisions linked by a common thread. The maxim is simply used to help a student, lawyer or judge organize and file legal decisions. At best, maxims can serve as ex post certificates (shawāhid) for the validity of a court judgment. This maxim establishes the principle of the burden of proof in judicial proceedings. It is assumed that persons are exempt from liability until proven otherwise. As such, the plaintiff in a dispute has the burden of proving the facts necessary to establish the defendant`s liability. The judicial evidence presented to prove responsibility is called bayyina.
If the plaintiff does not meet the burden of proof, the defendant does not automatically escape liability. On the contrary, the defendant must take an oath (yamīn) at that time rejecting the plaintiff`s claim. For the oath to be valid, it must be requested by the applicant and taken by the judge.124 If the defendant refuses to take this oath (nukūl), this is a sign of his guilt and the judge will therefore rule in favour of the plaintiff. However, the defendant is not required to take this oath if he refutes the plaintiff`s assertion with evidence to the contrary.125 There are also cases where certain fiqh maxims are not applied: the reason for this aversion is that the principles enshrined in these maxims often contain exceptions. By blindly applying maxims, a lawyer may be making a mistake by applying a maxim to a point of law that, in reality, falls within one of the exceptions. Many maxims not only have exceptions, but in some cases, as already mentioned, are not ready for application, since they are accompanied by qualifiers and legal tests. If the lawyer focuses on determining the legal content of the contract, once the lawyer has determined that the parties intend to enter into a purchase agreement, the lawyer will stop there and go no further. For such a lawyer, the role of intention is to determine the rights and obligations conferred by the contract and, on this basis, whether the contract is valid or invalid. Such a lawyer does not deal with the ultimate goal or motivation behind entering into the contract. However, another lawyer may expand the role of intention and consider the economic motivation behind entering into the contract.
Such a lawyer may invalidate an otherwise valid contract because it was entered into for the purpose of obtaining a prohibited economic result, such as a loan of usury. All this boils down to the question of letter vs. spirit of law and is closely related to the question of legal strategies (ḥiyal). These maxims are usually extracted from Sharia sources, both primary (Qur`an, Sunnah, ijmaa, qiyaas) and secondary (ijtihad methods: istislaah, istishaab, etc.). (Elgariani, 2012, p. 379). As for their formulations, they may be excerpts from the Qur`an or hadiths, but in most cases „they reflect the phraseology of eminent jurists and have been refined over time” (Mohammed, 2005, pp. 193-194). Because of this change over time, the final formulations of each maxim are difficult to trace back to the first individual who uttered them (Elgariani, 2012, p.
60). For example, the maxim „actions are judged by intent” is derived from the famous hadith on intention, in which Prophet Muhammad said, „Actions are judged according to their intentions,” meaning that actions in Sharia are to be judged by the intentions of the actor behind the actions (Mohammed, 2005, pp. 199-200). Thus, if a person commits murder, his punishment in Sharia law is decided on the basis of the murderer`s intent. If his intention was to kill the victim, then his punishment is different from one who accidentally kills a person or did so in self-defense. Ali Ḥaydar Pasha was Minister of Justice of the Ottoman Empire and head of the highest court. His comment on Majalla was widely accepted in the scientific community and served as the basis for most subsequent comments. Sections 2 to 100 of his commentary cover the 99 legal maxims and offer a concise and clear explanation of these maxims. The commentary was translated from Ottoman Turkish into Arabic by Fahmī al-Ḥusaynī, a Palestinian-Ottoman lawyer who was mayor of Gaza in the early 20th century.
This view of Islamic law may have succeeded in tarnishing some Muslims` perception of their own legal history and tradition. It is precisely this distorted picture that this publication seeks to correct based on the subfield of Islamic legal maxims (al-qawāʿid al-fiqhiyya). Much has been written about Islamic legal history and theory, as evidenced by the commitment of Muslim jurists to rational and coherent legislation. While such defenses require a certain amount of technical knowledge to have the desired effect, legal maxims have an intuitive appeal that can quickly provide insight into the coherent, principled nature of fiqh.