al-Qawaid wal-Dawabit al-Fiqhiyya fi al-Daman al-Mali
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al-Qawaid wal-Dawabit al-Fiqhiyya fi al-Daman al-Mali (Legal Maxims and Regulators in Financial Liability) is a contemporary two-volume work on Islamic jurisprudence by Dr. Hamad ibn Muhammad al-Jabir al-Hajri, a faculty member at the College of Sharia at Kuwait University . Originally written as a doctoral dissertation, the book compiles, contextualizes, and analyzes forty legal maxims (qawaid) and sub-branch regulators (dawabit) governing financial compensation, tort, and liability (daman) across Islamic legal schools .
Purpose and Scope
Al-Hajri prepared the work to address what he viewed as gaps in classical and contemporary legal maxim literature, noting that traditional compilations were often confined to a single legal school (madhhab) and frequently omitted legal evidence and underlying rationales . He also observed that rules concerning financial liability remained scattered across disparate chapters of jurisprudence .
Examining earlier contemporary studies, al-Hajri engaged with the chapter on liability maxims in Nazariyyat al-Daman (The Theory of Liability) by Wahbah al-Zuhayli . Al-Hajri noted that al-Zuhayli's chapter was brief, covered only twenty maxims—some of which were overarching principles rather than rules specific to liability—and relied predominantly on the Hanafi school, prompting al-Hajri to expand the scope to forty maxims and regulators with cross-school analysis .
Structure and Content
The work is organized into an introduction (muqaddima), a preliminary study (tamhid), four main parts (abwab), and a conclusion (khatima) :
- Preliminary Study (al-Tamhid): Defines legal maxims and differentiates them from sub-branch regulators, followed by a concise examination of liability (daman), covering its definition, related terminology, scriptural basis, pillars, conditions, causes, and categories .
- Part One: Maxims Concerning the Causes of Liability (Asbab al-Daman): Divided into three chapters addressing damage and destruction (al-itlaf), transgression and negligence (al-ta'addi wal-tafrit), and contracts and possession (al-aqd wal-yad) .
- Part Two: Maxims Concerning the Liable Party (al-Damin): Divided into two chapters dealing with legal capacity and the effects of knowledge, intent, or mistake, as well as the rules governing direct actors versus indirect causers (al-mubashir wal-mutasabbib) .
- Part Three: Maxims Concerning the Guaranteed Property (al-Madmun): Divided into two chapters covering foundational rules regarding damaged objects (such as fungibles replaced in kind versus non-fungibles compensated by value) and contracts governing guaranteed assets .
- Part Four: Maxims Concerning the Lapse of Liability (Suqut al-Daman): Divided into two chapters addressing the cessation of liability due to the absence of transgression (such as permissible actions or owner consent) and its lapse due to legal impediments .
Method
In analyzing each maxim or regulator, the author follows a standardized research methodology :
- Presenting the primary phrasing of the maxim along with any variant formulations .
- Clarifying rare vocabulary and specialized terminology .
- Explaining the general meaning of the rule .
- Reviewing scholarly consensus and divergence across legal schools, presenting their proofs, and stating the preferred view (al-qawl al-mukhtar) with its justification .
- Outlining conditions required for applying the maxim .
- Identifying subordinate maxims and regulators subsumed under it .
- Providing illustrative legal branches (furu'), including contemporary financial and commercial applications .
- Noting recognized exceptions to the rule .
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