al-Qawaid al-Fiqhiyya bayn al-Asala wa al-Tawjih
- Author died
- -
- Editions
- al-Qawaid al-Fiqhiyya bayn al-Asala wa al-Tawjih
al-Qawa‘id al-Fiqhiyya bayn al-Asala wa al-Tawjih (Legal Maxims: Between Originality and Application) is an instructional work on Islamic jurisprudence by Muhammad Hasan Abd al-Ghaffar, dedicated to elucidating major and minor legal maxims (al-qawa‘id al-fiqhiyya) and their practical applications across diverse branches of Islamic law .
Purpose and Introductory Themes
The work opens with an introductory overview of legal maxims (al-madkhal ila al-qawa‘id al-fiqhiyya), emphasizing that Islamic jurisprudence encompasses comprehensive principles derived from textual evidence, under which countless specific rulings fall . Mastering these maxims relieves the jurist and student of law from having to search for isolated proofs for every minor subsidiary issue . The author highlights the merit of seeking religious knowledge, the communal necessity of scholars, and the distinction of jurists who deduce rulings directly from legal evidences .
Scope and Core Maxims
The book organizes legal maxims hierarchically, beginning with the overarching five universal maxims agreed upon by scholars :
- Matters are judged by their intentions (al-umur bi-maqasidiha) .
- Harm must be eliminated (al-darar yuzal) .
- Necessities make prohibitions permissible (al-darurat tubih al-mahzurat) .
- Certainty is not overruled by doubt (al-yaqin la yazul bi-l-shakk) .
- Custom is an arbiter (al-‘adah muhakkama) .
Sub-Rules and Juristic Applications
Beyond the primary universal maxims, the text examines several subsidiary rules and specialized parameters (dawabit), detailing how legal principles govern specific transactions and circumstances:
- Intentions in Contracts: Treating the principle that in contracts, regard is paid to intentions and meanings rather than mere words and formulations (al-‘ibrah fi al-‘uqud bi-l-maqasid wa al-ma‘ani la bi-l-alfaz wa al-mabani), especially in preventing legal stratagems (hiyal) .
- Criminal Sanctions: Exploring the principle that prescribed penalties are averted by doubts (al-hudud tasqut bi-l-shubuhat), demonstrating how evidentiary doubt safeguards individuals against wrongful corporal punishment and execution .
- Hardship and Dispensations: Analyzing the principle that hardship brings ease (al-mashaqqah tajlib al-taysir) and its subsidiary rules, such as when a matter becomes constrained it widens (idha daqa al-amr ittasa‘) and the absence of obligation during incapacity or prohibition during necessity .
- Secondary and Dependent Rulings: Outlining rules governing dependent components (ahkam al-tabi‘ wa al-matbu‘), principles of hermeneutics such as giving effect to speech being preferable to disregarding it (i‘mal al-kalam awla min ihmalih), and treating evident errors without legal standing (la ‘ibrah bi-l-zann al-bayyin khata’uh) .
- Domain-Specific Parameters: Providing specific legal parameters confined to distinct chapters of jurisprudence, such as acts of worship (‘ibadat), oaths (ayman), and marriage (nikah) .
Answer updated