Week 3

UsËl Al-Fiqh

The objectives of Shrʑah

Fiqh Maxims

UsËl al-Fiqh (Principle of Islamic Jurisprudence)

UsËl al-Fiqh (Principle of Islamic Jurisprudence)

Emergence of UsË al-Fiqh(The principle Islamic jurisprudence)

 After the prophetic period, Muslims refer to Quran and Sunnah as the last resort to
find solutions to the problems they had
 In the search for the solutions Muslim scholars resorted to reason as a means to
interpret the Quran and Sunnah
 Reason being naturally subjective1, there are differences in the interpretation of
certain words.
 To avoid having unguided interpretation, scholars of the first and second centuries
concerned themselves with laying down the rules of interpretation introducing
methods that will govern the use of reason. This has led to the emergence of
schools of Fiqh.
 A well developed science known as UsËl al-Fiqh later emerged from those rules of
interpretation and methods of reasoning.

Definition of UsËl al-Fiqh

 Usul mean foundation or basis upon which the Fiqh is built.

 Usul al-fiqh is a body of principles and methods by which the rules of Fiqh are
deduced from their sources.

 It is a science which deals with the sources of Shari’ah and and the methods of
extracting rules from them.

1
based on somebody's opinions or feelings rather than on facts or evidence

1
  The rules of fiqh are derived from the Qur’Én and Sunnah in accordance with the
rules of interpretation and the methods of reasoning laid down in UËul al-fiqh.

The principal sources of Shariah :

1) The Qur’Én
2) The Sunnah

 They derive their authority from the words of Allah (swt) and His Prophet (pbuh)
respectively.

The Secondary sources of Sharʑah

 In the absence of any guidance in the clear text of the Qur’Én or Sunnah on a
particular issue, a jurist may resort to the secondary sources.

The secondary sources refer to several methods and techniques of reasoning that are
developed by the scholars of UsËl al-fiqh. These include:

 Analogy (qiyÉs),
 Consensus of opinions (ijmÉ‘),
 Juristic preference (istihsÉn),
 Public interest (maslaha al-mursalah),
 Blocking the means (sad al-dharÉi‘),
 Presumption of continuity (istishÉb) and
 Custom (‘urf).
The purpose of developing the secondary sources

Muslim Scholars developed these methods in other to extend a ruling of the Qur’an or the
Sunnah to new issues or to provide answers to new problems the knowledge of these
methods of reasoning and rules of interpretation is indispensable to the scholars as they
lead to the proper understanding and derivation of legal rule from the text of the Quran and
the Sunnah.

The QurÉn

The QurÉn is the first source of Islamic law in general and Islamic commercial laws in
particular. It was revealed at a time when both Mecca and Medinah were blooming
commercial centers of Arabia

Nature of commercial transactions in Arabia before Islam and how they are treated

2
  Varieties of commercial transactions such as Mudharabah, Mushrakah and
Wadʑiah, usury (riba) in all its forms with maximum rate of interest was practiced.

 The QurÉn did not totally abolish all pre-Islamic commercial practices.

1. It prohibited those transactions that involved usury, uncertainty (gharar), games

of chance (maysir) and fraud.

2. Some other transactions such as Salam were reformed by removing unjust

elements from them.

3. The remaining transactions such as Mudharabah, and Wadʑah continued to be

practiced.

The focus of the QurÉn with respect to transactions

Unlike matters of rituals worship (IbÉdah) where the Quran specifically commands act of
worships, in transactions (Muamalat) the focus is more on prohibition. For instance the
Quran prohibits the following transactions:

 usury or interest (riba) (2:275; 9:30-39).

 Gambling and games of chance (maysir) (5:90; 2:219).

 Bribery (2:188)

 Taking others property unlawfully (4:29)

 Trading during congregational prayer on Friday before and after which trading is
permitted (62:9-11).

 The use of false weights and measures and other fraudulent dealings in everyday
business transactions (83:1-6; 6:152; 55:8-9).

What is the principle in commercial transaction and why?

 According to the consensus of the Muslim jurists, the principle in commercial

transactions (mu‘ÉmalÉt) is permissibility.

 The reason being that the prohibited instances of commercial transactions have
been enumerated in the QurÉn and Sunnah

The implication of adopting this principle

3
  The adoption of this principle implies that every commercial transaction which is
not specifically prohibited or does not contain prohibited elements is permissible.
The following may be deduced from this:

 Adoption of commercial transactions that are customarily practiced by people and

which do not go against the Sharʑah prohibitions.

 It also encourages innovation and creativity where new SharÊ‘ah compliant

products could be engineered.

The difference in principle between matters of “‘IbÉdah” and “Mu‘Émalah”

 The principle in matters of worship is prohibition except what is recommended; as

a result any new introduction outside the recommended forms is considered heresy
(bidah).

 In matters of transaction (Mu‘Émalah) the principle is permissibility except the

forms prohibited thereby accommodating new forms once is not in conflict with
Sharʑah.

The method of QurÉn in matters of Mu‘Émalah

The Quran is brief in matters of muamalat or “commercial transactions”. It lays down

some general principles and guidelines. As evident in the following recommendations
from the QurÉn:

 (4:29). “O you who have attained faith! Do not devour one another’s possessions
wrongfully (Batil)” The word batil however is general that they may include fraud,
misrepresentation, usurpation, bribery, breach of trust, mis-appropriation,
exploitation, and mismanagement.

 (2:275) ”While God has made commerce (bay) lawful and usury (riba) unlawful”

 (4:58) states that a deposit should be returned or discharged faithfully to its owner
 (5:1)commands that all contracts, obligations and undertakings are to be fulfilled
 (2:282) recommended writing and taking witnesses whenever a commercial
contract is made
 (2:283).permitted the taking of a pledge or security where a sale contract is made
for deferred payment in a journey or where a scribe is not available

4
  These Quranic injunctions are given in a general form without any detailed
regulations. For instance, the Quran does not explain:

1) the meaning of riba neither does it explain the type of lawful and unlawful
property (mal), right (haq), and ownership (milk)

2) it does not lay down detailed rules on the types of properties and rights or on
acquisition of ownership and its transfer to others except in cases of inheritance.

 These general principles were explained and promulgated with further details by
the Prophet (pbuh) in his traditions, who himself had taken an active part in
commerce and trade. Further details were provided by Muslim jurists in conformity
with the general principles laid down in the Quran and the Sunnah.

The Sunnah

 Sunnah literally means a clear path, a normative practice or established course of

conduct.

 Technically, Sunnah refers to all that is narrated from the prophet (pbuh) that
includes his acts, his saying and whatever he has silently approved.

 These were later collected by scholars and compiled in the form of books among
which the collections made by Bukhari, Muslim, Abu Dawud, Nisa’i, Termidhi,
and Ibn Majah are considered to be the most authentic.

Types of Sunnnah in relation to the QurÉn

 The Sunnah may consist of rules that merely confirm and reiterate what the Quran
has already stated. For example:

1. The Quran prohibits Muslims from devouring others’ property wrongfully

(4:29). The Prophet (pbuh) said: “The property of a Muslim is not lawful for
another Muslim except with the pleasure of his hearth (i.e. consent)”.

2. He also said: “The contract of sale is valid only by mutual consent”.

3. The same applies to other traditions pertaining to usury or traditions on the five
pillars of faith, rights of parents, homicide, theft and false testimony.

 The Sunnah may also consist of an explanation or clarification to the Quran. In

such cases the Sunnah specifies the general text of the Quran and elaborates its
brief and apparently ambiguous provisions. For instance,

5
 1. The Quran states that Allah (swt) “has made sale (bay‘) lawful and usury
unlawful” (2:275). The Sunnah has provided details by stating that there are
certain types of sales that are unlawful. These for instance, include: Bay‘ al-
hasat, Bay‘ al mulamasah and Bay‘ al-haml.

2. Similarly, liquor and wine are prohibited by the Quran while the Hadith
explains that trading in prohibited goods is also prohibited.

 The Sunnah may also consist of rulings on which the Quran is silent. For example:

1) The Quran has prohibited riba which is generally understood to refer to any
additional charges that a lender imposes on a debtor in a contract of loan
(qardh). The Sunnah has prohibited another variety of riba commonly known
as riba al-fadhl. Riba al-fadhl is prohibited by the hadith of the Prophet (pbuh)
that states that “gold, silver for silver, wheat for wheat, barley for barley, dates
for dates, salt for salt, like for like, from hand to hand and if they differ in their
species then sell them as you like provided the exchange is from hand to hand”.

2) Furthermore, the Sunnah has also laid down rules concerning the right of pre-
emption (Shuf‘ah) and endowment (waqf). It is also provides that the rate for
the payment of zakat on gold and silver is 2.5%

 Following the approach of the Quran towards commercial practices, the Prophet
approved and confirmed all those transactions which did not conflict with the
principles of Shariah. He corrected and modified some other transactions by
eliminating unjust elements from them. There were some other business practices
which were in conflict with principles of the Shariah and were disapproved and
prohibited.. These included fixing the prices of commodities (tas‘Êr), sale by a city
dweller to a desert dweller, fraudulent, overbidding and hoarding.

Consensus of Opinion (ijma)

 IjmÉ‘ literarily means to resolve or to agree on an issue.

 Technically, IjmÉ‘ is defined as a unanimous agreement of the Muslim jurists

(mujitahidin) of a period following the demise of the Prophet Muhammad (pbuh)
on issue on which the Quran and the Sunnah are silent.

6
  gets its strength and authority by the fact that it represents unanimity and
consensus. Thus, the opinion arrived at by Ijmɑ does not surfer from subjectivity, a
phenomenon which is normally associated with individual reasoning and judgment.

Analogical Deduction (QiyÉs)

 Analogy or deductive reasoning (qiyas) is one of the most commonly used methods
that is agreed upon by all the fiqh schools.

 Qiyas literarily means measurement, comparison and equation.

 Technically, Qiyas is the extension of Shariah value from an original case (asl) to a
new case (fri‘) because the later has the same effective cause (illah) as the former.

 In qiyÉs a new issue is compared with an issue on which there is ruling in the
Quran and the Sunnah. If the new issue on or a new thing has a similar effective
cause (‘illah) to the one mentioned in the Quran or the Sunnah then the same
decision applies to the new issue or thing. For example,

1) while wine is prohibited by the Quran, other intoxicants are not specifically
mentioned. Thus, a jurist has to decide what the law should be on other
intoxicants. The application of qiyÉs here means that first of all he has to
know the effective cause (‘illah) for the prohibition of wine. In this case the
reason for the application of wine is intoxication. Thus, all things that are
intoxicants are prohibited.

 In qiyÉs there are mainly three steps of reasoning:

 Wine is prohibited

 The reason for the prohibition is intoxication.

 All things that are intoxicants are prohibited.

Or

 Transaction A is prohibited by the Shariah.

 The reason for the prohibition is the existence of X.

 All transactions that have X are prohibited.

Juristic Preference (IstihsÉn)

7
  IstihsÉn is a method of reasoning initially introduced by the Hanafi’s School and
later adopted by the other schools of fiqh.

 According to this method if the application of analogy (qiyas) lead to hardship a

decision that will remove hardship form the people will be preferred over qiyÉs.

 IstihsÉn consists essentially of giving preference to one of the many considerable

solutions to a particular problem in the light of considerations of equity and
fairness. For example:

 The Prophet has prohibited the sales of non-existent things. By way of qiyÉs we
may come to the conclusion that:

 The sale of a car which is not yet manufactured, or the sale of a house which is not
yet built is prohibited. However:

 A company will only manufacture cars when there are orders for them.

 A contractor will only build houses if he has orders from the people who are
willing to buy the houses in advance.

 If a car or a house is made in advance it is possible that they may not be sold as
these are customized item needed only by certain people and not others. Thus it
may cause hardship and financial to a manufacturer if he is prohibited from selling
cars and houses in advance.

 The application of Istihsan here would mean that the Hadith was not intended to
apply to items that are manufactured and customarily sold by an order.

 Manufactured item are therefore distinguished from items mentioned in the

Hadith that prohibits the sale of non-existent things.

 Furthermore, the Hadith was not intended to create hardship to the people but
was aimed to avoid uncertainty (gharar) and the resulting conflict that may arise
from the sale the of non-existing things.

Blocking the Means (Sadd al-DharÉi‘)

 Sadd al-DharÉi‘ literally means blocking the ways or means.

 Base on this method a lawful act could be prohibited if there is a strong likelihood
that it would lead to an unlawful act. Thus, when there is a strong likelihood that a

8
 lawful means will lead to an unlawful end the means itself becomes unlawful. For
example:

1. the sale of grapes to a wine maker and the sale of weapons during a civil war
and disturbances is prohibited.

2. If a person’s lawful use of his own property result in harm to others it could be
prevented from using his property in that particular way.

3. The Maliki and Hambali’s Schools have also held that repurchase (bay al-‘Ênah)
is prohibited as it may more likely lead to usury. However, the Hanafi and
Shafi’s schools have held that in the absence of a positive knowledge or
certainty that the sale would definitely lead to riba, the basic validity of the
contract must be upheld.

 The schools of fiqh do not agree on the suitability of Sadd al-DharÉi‘ as a method
of usËl al-fiqh:

 The Hanafi and the Shafi jurists argue that the decision on the validity or otherwise
of the means could be made by recourse to other principles such as qiyÉsÉ and
Istihsan.

Public Interest (Maslahah Mursalah)

 Maslahah literarily means benefit.

 Technically, Maslahah Mursalah refers to undefined public interest on which no

textual authority could be found for its validity or otherwise.

 Maslahah Mursalah is a suitable method for designing and introducing policies for
the interest of the general public.

 The examples of decisions based on Maslahah Mursalah are:

 Issuing currencies

 Establishing prisons during the early Islamic history

 Waging war on those tribes who refused to pay zakÉt

 Introducing official documentation and registration for proof of marriages and

ownership of land and other properties

 Imposing taxes on the wealthy when public treasury runs out of fund.

9
  However, the public interest intended to be secured should not be in conflict with
the principles of the Sharʑah, should be compatible with the objectives of the
Sharʑh, and should prevent hardship from the people.

 Maslahah Mursalah could suitably be used to introduce policies that would stabilize
the prices of essential commodities.

 The Prophet (pbuh) is reported to have forbidden the townsman to sell the goods of
a man from the rural area.

 The townsman would usually tell the Bedouin to leave the goods with him so that
he could sell it at a later date when the price of those goods is higher.

 Had the bedouin sold the goods for the price of the day he would have made some
profit albeit lesser and the people would have bought the goods for a lower price.

 In another hadith the Prophet (pbuh) forbid the merchants from going out of
Medinah to meet the prospective sellers and buy their goods before they arrive in
the market.

 The reason for the prohibition could be:

 The lack of information on the part of the sellers

 The existence of unnecessary intermediaries may result in higher prices for the
public. Thus, the interest of the public should be given priority over the interest
of the intermediaries.

 Based on the principle of public interest it is possible for the authorities to

introduce measures that would control inflation or to prohibit speculation in order
to stabilize the prices of currencies and essential commodities.

Custom (‘Urf)

 ‘Urf or custom is another source of Islamic law.

 Literarily ‘Urf means known and common.

 Technically, ‘Urf refers to what is common or customary among the people who
have become habituated to it, whether it is a word or deed provided it is not
contrary to the Shariah. For instance the people customarily know that:

10
 1) If anyone gives a seller a price for a certain commodities and takes the commodity
without uttering a single word he intends to purchase the commodity from the
seller.

2) The purchasers of vehicles and real properties such as land, houses, have to pay
stamp duty for the transfer of the title and the lawyers fees for preparing the sale
and purchase agreement.

3) The tenant of rental properties is required to pay to the landlord a deposit. The
deposit will be returned at the end of the tenancy agreement when the tenant has
paid the rental and utility bills and the house is in good conditions.

 All transactions that are customarily common among people and are not contrary to
the Sharʑah are valid. This is because the basic Sharʑah principle with regard to
transaction is permissibility.

 Furthermore, prohibiting transactions that are customarily practiced by the people

and which are not against the Sharʑah may cause hardship to them which is not the
intention of the Sharʑah

Presumption of Continuity (IstishÉb)

 IstishÉb is another source of the Shariah which literarily means accompaniment and
keeping close association and attachment.

 According to the jurists istishÉb means maintenance of status quo until proof is
furnished in favor of its change. For example

 If A makes unproven claim that B owes him a sum of money, A’s claim will not be
admitted, for the law presumes that B is free from liability, which is the original
state and which cannot be changed by mere claims.

 If a person is proven to be a debtor, he will remain under this obligation until

evidence to prove the settlement of the debt is produced.

 It is also based on Istishab that the jurists argue that all contracts are presumed to be
permissible until the contrary is proven.

 Under this principle a missing person is presumed to be alive unless his death is
proven, or he is declared dead by a court. As such a missing person can inherit from
others and others cannot inherit from him

11
 The Objectives of Sharʑah
Introduction
A careful reading of the Quran and HadÊth reveals that in general they have emphasized on
certain basic objectives (maqÉsiid). One of the principal objectives of the Shariah is the
prevention and eradication of evil and corruption (fasÉd) and the creation and maintenance
of balance and equilibrium (islÉh) in human nature, inter-human relationships, human
societies and the environment. There are also other higher purposes and objectives behind
every command and prohibition in the Quran and Sunnah. These generally include
education of mankind, establishing justice, and safeguarding people’s interest (maslahah)
in this world and in the Hereafter.
Educating individual
 One of the main purposes behind sending prophets is to educate mankind; the prophets
were sent:
1) To enjoin right (m‘arËf) and forbid wrong (munkar)
2) To release mankind from the shackles of superstition beliefs. Islam by inspiring a
believer with faith educates and reforms his character and personality.
3) Acts of devotion (‘IbÉdah) are part of Islamic educational programmes which are
designed to educate the believer.
 They are aimed at purifying the soul, mind, and body from corruption,
selfishness, and indulgence in material pursuits.
 Prayer for instance disciplines man. It teaches cleanliness, punctuality, decency,
unity, obedience and solidarity.
 Similarly, all other devotional acts like fasting, ZakÉt and Hajj educate the
individual and instill in him self-discipline, sacrifice and purity.
Justice (‘Adl)
 The word ‘Adl and its derivatives are mentioned 53 times in the Quran.
 ‘Adl literally means placing a thing in its proper and right place. Justice (‘adl) denotes
giving a person his rights and punishing him for the wrong he has committed.
 In the context of an organization and governance, justice (‘adl) implies giving the right
person the right job. The Quran states that:
1) the main purpose behind sending the prophets is to establish justice. It says: “We
sent our messengers and revealed the Book through them so as to establish justice
among the people” (57:25).

12
 2) “For, never would thy Sustainer destroy a community for wrong (beliefs only) so
long as its people behave righteously (towards one another) (11:117)
 According to most classical commentators this verse means that Allah (swt) does
not make a community to suffer destruction solely because its members hold beliefs
that amount to polytheism (shirk) provided they behave towards each other based
on justice and their disbelief is not accompanied by injustice and tyranny.
 Justice is the supreme goal and objective of Islam which should be followed and
upheld wherever it is found. According to Ibn al-Qayyim: “any path that leads to
justice and fairness is an integral part of the religion and never contrary to it”.
Realization of Benefit (Maslaha)
 The Shariah intends to bring benefits to mankind both in this word and in the Hereafter.
Hence, securing benefits (masÉlih) and preventing evil or harms (mafÉsid) are the
principal objectives of the Sharʑah; so
1) All its commands and injunctions aim at realizing the interests (masÉlih) of
mankind
2) All its prohibitions are designed to prevent evil or corruption (mafÉsid).
 The Muslim jurists have generally divided the benefits that the Shar‘ah aims to protect
into three types:

A. Essentials (dharËriyyÉt) or fundamental values, which are defined as those values the
neglect of which leads to total disruption and chaos in human societies,
 They are the five fundamental values protected by SharÊ‘ah at both individual and
societal level
The five fundamental values and how they are being protected
1) The Protection of Religion (at both individual and community level)
 At individual level, it means the protection of religion means to protect the faith of
each and every individual Muslim from negative influences that might cause
confusion and undermine his faith.
 At the community level: it is to counter any attempt that may undermine religion
and its fundamentals, which includes:
a) Defending Muslim countries and their sovereignties
b) Making sure that the learning and teaching of religion continues into the future
generations of the Muslim community.
2) The Protection of Life

13
  The protection of life means the prevention of any harm that may lead to its
destruction.
 Islam forbids the taking of life unlawfully
3) The protection of Property
 The protection of property means that wealth should not go from the hand of its
owner without a fair compensation
 Measures taken by SharÊ‘ah to protect property:
1) Prohibition of theft and all other forms of misappropriation
2) Misuse and mismanagement of private and public wealth.
3) Even and just distribution of wealth
4) Fair manner of exchanging the wealth
5) Beneficial use of the wealth and its investment
6) In order to facilitate the beneficial use of the wealth and its investment various
transactions such as sale, lease, pledge, agency, transfer of debt -the list goes on-
are recommended
1) The Protection of Intellect
 It means the prevention of all negative and perverse influences on a person’s mind
that lead to corrupt and perverted human behavior
 To achieve this, the consumption of alcohol and all intoxicating substances are
totally prohibited
2) The protection of Lineage
 It means the prevention of all means that stops procreation such as celibacy,
adultery, homosexuality, and abortion
 It is through marriage and institution of family that lineage and procreation are
protected
B. Necessities: They are the complementary interests (al-hajiyat) overall supplement to
the essential interests
 It refers to interests whose neglect leads to hardship but not to total disruption of
normal life.
 D‘awah to spread religion, proper upbringing and education for spiritual and
intellectual development and adequate nutrition, clothing and medical facilities are
included in the category of necessities

14
C. Embellishments2
 This category refers to any measure or interest, the realization of which leads to
improvement, beautification, and perfection in the behavior of an individual
 It include all measure that facilitate the acquisition of praiseworthy moral qualities
that give an individual a balanced personality, excellent manners and a refined
character
 Embellishment also refers to all measures that improve the living conditions of
individual and social order of the community such as welfare policies, comfortable
transportation, the provision of accessible affordable or free healthcare…

Fiqh and Legal Maxim

Maxim according to the jurists is defined as the general rule which applies to all its
particulars.
Examples of Legal Maxim:
1) Matters are determined according to intention

Importance of intention in matters of worship and matters of transaction

a) In matters of transaction, Intention refers to a guided determination to do an action in
order to seek God’s pleasure and to implement His command Intention is particularly
important in matters of worship as it distinguishes between habitual actions and actions
of worship
b) In transactions a mere inward intention is of no consequences as it is unknown and
could be retracted
 Intention only becomes important if it is coupled with action; for actions are judged in
the light of intention, as in the case of a lost property it may be picked up by the finder
with the intention to return it to the owner or keep it for himself.
 The physical act is identical in both cases but the consequences differ according to the
intention

Conflict between the intention and the wordings of the contract

 In case of conflict consideration should be given to the meaning and not to the literal
wording

2
em·bel·lish [em béllish]
1. beautify something: to increase the beauty of something by adding ornaments or decorations

15
2) Certainty can not be removed by doubt
 In “Mu‘Émalah” doubt is a mere or none substantiated claim while a statement
supported by evidence is considered as certainty. i.e. the claim of settlement of debt by
debtor and denied by the creditor
 This example can also be determined by another sub-maxim “The principle is the
absence of new things” or “the absence of new things, conditions or attributes is
presumed”
 Some examples for this sub-maxim are:
1) Disagreement about the defect found in a purchased commodity before the sale or after
2) Dispute about whether option is stipulated or not

3) The Principle in Transactions and things is Permissibility

 According to the ÐÉhiriyyah school of Fiqh, the principle concerning transactions is
prohibition meaning that all transactions which are not allowed by Sharʑah ar void and
prohibited
 The majority of Fiqh schools are of the opinion that the principle in transaction is
permissibility
 The basis of this opinion is that the purpose in transaction is to protect the interest of
the people thereby allowing all transactions that ensure the lawful interest of the parties

 This legal maxim implies that all foods and transactions are permissible unless they are
specifically prohibited or have prohibited elements
 The basis for this is that the Quran and Sunnah have only mentioned the prohibited
foods and are mainly focused on prohibited transactions
 The jurists concluded from the above that:
 Foods and transactions which are not prohibited are permissible
 Commerce and trade are areas where creativity and innovations are needed
 New forms of transactions could be introduced provided they do not have prohibited
elements.
4) The Principle is Absence of Liability unless Proven
 This maxim implies that:
 A person is not held liable solely on the basis of the claim made against him, he
remains innocent until the claim is proven.
 The burden of proof is put on the person who made the claim

16
5) Hardship Begets Facility
 When strict adherence to a general rule brings about hardship, the flexibility of Shariah
is applied.
 Meaning of hardship and facility:
 Hardship (Mashaqah) refers to legal excuses such as minority, lunacy, duress,
forgetfulness, ignorance, defect, incapacity and incompetence.
 Facility ( taysÊr) refers to legal mitigations3 granted due to hardship as an exception to a
general rule
 Instances:
 A contract concluded under duress is void
 A lunatic is exempted from obligations and legal duties.
 Leniency with a debtor who is in financial constrains by giving him more time or
allowing him to pay by installments if can not pay in a lump sum
 This maxim has its basis in the Quran as evident in the following quotations:
 O you who believe! When you intend to offer As- Salat (the prayer), wash your faces
and your hands (forearms) up to the elbows, rub (by passing wet hands over) your
heads, and (wash) your feet up to ankles. If you are in a state of Janaba (i.e. had a
sexual discharge), purify yourself (bathe your whole body). But if you are ill or on a
journey or any of you comes from answering the call of nature, or you have been in
contact with women (i.e. sexual intercourse) and you find no water, then perform
Tayammum with clean earth and rub therewith your faces and hands. Allah does not
want to place you in difficulty, but He wants to purify you, and to complete His Favor
on you that you may be thankful. (5:6)
 He only prohibits for you dead animals, blood, the meat of pigs, and food which is
dedicated to other than GOD. If one is forced (to eat these), without being deliberate or
malicious, then GOD is Forgiver, Most Merciful. (16:115)
 And if the debtor is in a hard time (has no money), then grant him time till it is easy for
him to repay, but if you remit it by way of charity, that is better for you if you did but
know

3
mit·i·gate
transitive verb
1. partly excuse crime: to make an offense or crime less serious or more excusable
2. lessen something: to make something less harsh, severe, or violent

17
6) Necessity Renders Prohibited Things Permissible
 The basis of this maxim:
a) is based on certain verses of the Quran:
 And what reason have you that you should not eat of that on which Allah's name is
mentioned, when He has already made plain to you what He has forbidden to you --
excepting that which you are compelled to (6:119)
 Say, "I do not find in the revelations given to me any food that is prohibited for any
eater except: carrion, running blood, the meat of pigs, for it is contaminated, and the
meat of animals blasphemously dedicated to other than GOD. If one is forced (to eat
these), without being deliberate or malicious, then your Lord is Forgiver, Most
Merciful. (6:145)
b) Refers to where “essential”(dharuriyyah) necessities (hajiyyat) are in danger.
 These include situations where a person strives to safeguard his religion, life, property,
or offspring perdition
c) Does not include situations where nonessential interests that belong to the category of
embellishment, luxuries, or comforts (tasinyyat) are threatened
Examples of what are allowed on account of necessities:
1) Eating carrion and pork when starving
2) Pronouncing words that amount to disbelief when threatened with death
3) Taking the property of a bankrupt person without his consent
4) Fixing the price of essential commodities in certain situations
5) Forcing a hoarder to sell his properties at a lower price
Limitations of this maxim
1) The concession given on the account of essential needs and necessities as long as their
causes exist and when the causes cease to exist the concession also ceases to exist and
a return to original principle is required as in the case of dry ablution
2) Persons in extreme needs and necessities are not entitled to usurp another person’s
rights
 In case of usurpation or any violation of another person’s rights the violator is held
liable
7) Harm Should be Eliminated
 The origin of this maxim is the hadÊth “Harm should neither be inflicted nor received
 Sub maxims under this main maxim

18
a) A particular harm could be allowed to repel a common harm
Reason: The larger interest of the society take precedence over the interest of the
individual. A private injury is tolerated in order to ward off public injury
Examples:
 A hoarder could be forced to sell the hoarded commodities at a certain price
 The authority may fix the price of essential commodities
b) The lesser of the two evils is chosen.
The meaning: In the presence of two evils the one whose injury is greater is avoided by
the commission of the lesser
Examples:
 If a ship with passenger on board is in danger of capsizing, it will be legitimate to
throw overboard all goods or animals in order to save human lives
 When the life of a pregnant mother is in danger abortion would be preferred
c) Repelling an evil or mischief is preferable to the acquisition of benefit.
The neaning: If avoidance of corruption (mafsadah) and the acquisition of benefit
(maslahah) clash with each other avoidance of corruption is given preference
Examples
 Certain factories that produce pollutants also provide job opportunities may be stopped
or relocated in order to protect the environment
 Deforestation or indiscriminate cutting of trees may produce both revenue and
environmental damage. Since both maslahah and msfsadah are present avoidance of
mafasadah is given preference. Thus strict regulation can be imposed to avoid
indiscriminate cutting of trees
 A person may be denied the exercise of his right is such exercise will lead to excessive
injury to others.
d) Harm may not be removed by causing harm.
Example: Right of preemption

8) Liability Justifies Gains

 The basis of the maxim: Hadith of the Prophet(pbuh): “ The benefit from a certain
thing is in return for the liability that accompanies that thing” (‫)اﳋﺮاج ﺑﺎﻟﻀﻤﺎن‬
Examples:

19
 If a defective sold car is returned, the seller can not charge the purchaser for having
used the car; due to the fact that if the car has been destroyed while with the purchaser
he solely bears the responsibility
 Another similar maxim is “Gain accompanies loss (‫ )اﻟﻐﻨﻢ ﺑﺎﻟﻐﺮم‬meaning detriment is a
return for the benefit. A person who obtains the benefit of a thing take upon himself
also the loss from it
 According to the two maxims: A person who receives the benefit of an asset oo a
person who takes the responsibility for the loss of a certain asset is also entitled to the
benefit from that asset.
 In transaction, a person who takes the risk is also entitled to the profit that may arise
from the transaction.
Examples:
1) Partners In musharakah contract and the owner of the capital mudhÉrabah contract, take
the risk of loss and are therefore also entitled to the profit
2) MushÉrakah or mudhÉrabah contracts is not valid if a partner or the owner of the
capital is not willing to take the risk of loss but demand his share in the profit.
3) Since a creditor is guaranteed his debt and protected from any loss he is also not
permitted to impose any additional charge on the borrower.
9) When it is forbidden to take a thing it is also forbidden to give it
 According to this maxim, when the receiving of a certain thing is forbidden, its giving
to others is also forbidden, meaning that it is wrong to give what is wrong to receive.
 Example: It is prohibited to take usury and bribe it is also prohibited to give usury and
bribe.

20