ISLAMIC LEGAL MAXIM 3

AL-MASHAQAH TAJLIBI
AL-TAISEER (DIFFICULTY
BEGETS EASE)
By:
Muhammad Jidda Tom G1315283
Siti Noor Allyanafaiza Alirahim G1310240

Contents
Introduction.
II. Commencement & history of Legal Maxims.
III. Concept of Hardship Begets Ease.
IV. Types of hardship.
V. Origin base of Hardship Begets Ease.
VI. Some important books on Qawaid Qulliyah.
VII. Sources of Shariah Maxims.
VIII.Implication of Shariah Maxims on modern financial
transactions.
IX. Rules of necessity.
X. Types of easement in hardship.
XI. Reasons & circumstances of ease.
XII. Conclusion & recommendation.
I.

Introduction
The

Scholars of Islamic jurist classified the legal maxims in 2 parts:

- Al Qawaid Al Qubra.
- Al Qawaid Al Suqra.
Definition of Qawaid Al-Qulliyah:
- In arabic lexicon, it means the foundation of a building also the capital of the
state.
The word qaidah in Quran, it signifies foundation as the verse bears witness:


(








)








And when Ibrahim and Ismail were raising the foundation of the house (2:127)
- In the science of jurisprudence, the word qaidah means rule or formula
applicable to all parts. For instance, in arabic we have nahwu which says every fail
is marfu and also any maful is mansub.

Cont.
- According to Islamic jurisprudence, its
application is true in most, not all cases. Below
are some definitions:
1) A qa'idah refers to a rule which is generally,
but not always, applicable. This rule governs most
cases which fall under it, so the fiqhi injunction of
those cases might be established through it.
2) It is a rule which embraces most situations,
and is true to majority of cases which fall under
it.

Cont.
In Majjalla al-Ahkam Al-Adliyyah the author
explains the benefits and need of maxims, also it
advantages, these are some of his view:
1) Legal maxims are reliable and agreed upon rules,
knowing them in order to be more aware of the method
of how jurist employ them to derived injunctions is a
must.

2) In order to be familiar with injunctions of Islamic

Jurisprudence together with their background, their
study is indispensable.
3) Through their study, one develops a sort of bond
with injunctions of Islamic Jurisprudence.
4) Their study blesses one with an in-depth

Cont.
5) Maxims are significant, if one wants to compile
various sciences of Islamic jurisprudence and to
transform them into law.
6) There are many, minor and subtle issues which are
illusive, it is hard to retain them in memory. If one can
learn maxims plus their sources and proofs, one will be
able to apply them in a lot of situation.
7) After understanding maxims well, one can
comparatively easily understand everyday issues of
shari'ah and one can behave in their light.
8) A conformist (muqallid), even if not a fiqh, who pays
attention to maxims, is granted light and insight which
reveal to him the arguments of shari'ah. But a person not
well acquainted with them has no right to issue a legal

Commencement & History of

Legal Maxims

The formulation work of maxims started early

during the period of the companions of the
Holy Prophet (SAW). But great progress was
made only during the time of their
successors. It may strike odd, but it is logical,
that principles of Islamic jurisprudence and
maxims came into being before fiqh itself.

The companions of the holy prophet

themselves laid down many principles of
Islamic jurisprudence.

Cont.
For example:
In Qur'an it says the women of deceased
husbands shall wait for four months and ten days.
During this period, they cannot marry.

)




"Such of you as die and leave behind them wives,
they (the wives) shall wait, keeping themselves
apart, four months and ten days"

Cont.

At the beginning of the second century AH

( seventh century AD), when MUJTAHID IMAMS
were busy with compiling principles of Islamic
jurisprudence, and lifting veils from the subtle
injunctions of the holy Qur'an and Sunnah,
qawa'id qulliyah were also being laid down.

First legal maxims were collected and later on

they were compartmentalized. There are some
maxims which are derived from the words of a
tradition (Hadith), and some others are
(attributed to a jurist or a mujtahid) are not many.

Cont.
Some

which are derived from the words or implication of the

prophetic traditions.

1) "Matters go with their aims and objectives."

2) "Neither suffers loss nor (in retaliation) causes others to suffer
loss."
3) "When the lawful and the unlawful gather together, the unlawful
will be considered dominant."
4) "By one's indulging in something unlawful, no unlawful thing can
rise to the level of lawfulness."
5) "Hudud (punishments that are fixed for certain crimes) are
suspended where suspicion creeps."
6) "The responsibility of paying a penalty lies on the shoulders of the
one who benefits."

Concept of Hardship Begets Ease

Almashaqatu: literally derived from the word shaqqah which
means critical, effort, trouble, pain, adversity, necessity.
Technically: It means hardship and pains that end acute
possibility of anything.

Tajlibu: Literally derived from the word jalaba which means

brings, fetch, gets.
Technically: It means pulling or bringing something to used.

Attayseer: Literally derived from the word alyusur which

means facilitation, simplification.
Technically: It means simplification and facilitation of any
hardship in all things according to Islamic law.

Types of Hardship

There are 3 types:

1. Great and Heavy hardship

))
2. Average hardship ))
3. Light hardship ))

Origin base of hardship begets

ease

From the holy Quran:

Allah says: Allah intends every facility for you; He
does not want to put you to difficulties. (2:185)

Allah says: On no soul does Allah place a burden

greater than it can be. (2:286)

Allah says: And has imposed no difficulties on you in

religion. (Al-Hajj 78)

Allah says: It is no fault in the blind nor in one born

lame, nor in one afflicted with illness. (Al-Nur 61)

Cont.
From the Sunnah:
- Narrated by Anas may Allah be pleased with
him said; the prophet (PBUH) said: facilitated
and dont distress, promised good and dont
emigrate.

- Also narrated from Abu Hurairah may Allah be

pleased with him said; the prophet (PBUH) said:
The religion is simple and whoever hailed the
religion the religion defeat and overpower him.

Some important books on

qawaid qulliyah

Usul al-karkhi.
Ta'sis al-Nazr.
Al-Ashbah wal-Naza'ir.
Mujalla al- Ahkam al-Adliyyah.
Al- Fawa'id al-Bahiyyah fi al-qawa'id alFiqhiyyah.
Anwar al-Buruq fil Anwar al-Furuq.
Al-Qawa'id.
Qawa'id al-Ahqam fi Masalih al-Anam.
Al-Ashbah wal-Naza'ir.

Cont.
Qawaid was classed into various
groups:
1) Usuli qawaid.

2)

Qalamy qawaid.

3)

Lughawy qawaid.

4)

Fiqhi qawaid.

Cont.

Imam Tajuddeen al-Subky (d. 771 AH) reduced all maxims of

Islamic jurisprudence into 5:

1) "Doubt does not make an end of certainty." ))

2) "Hardship pulls ease." ))
3) "Harm should be removed." ))
4) "Injunction will be issued in accordance with the habit." (
)
5) "Deeds are judged by aims and objective." ))

Sources of Shariah Maxims

Qur'an is the main source of reference

for establishing the fundamental
principles and laws of Islam covering
basically every aspect of the religion. In
spite of the fact that is not regarded as a
legal document, a small portion of its
text deals with legal matters. Thus its
legal segment should not be interpreted
in isolation from its ethical teachings.
Over 350 verses pertaining legal
matters.

Cont.

Sunnah is the teaching and

exemplary conduct of the prophet
(PBUH), including his sayings, acts,
and implicit approval of the
conduct of his companions and
some of the customs Arabian
society. The prophet (SAW) verdicts
on what is legally recognized and
what is not, strikes an equal
balance with the Qur'an.

Implication of Shariah Maxims

on modern financial transactions.

The legal maxims are of general application,

whereas others might apply to a particular area of
Islamic jurisprudence, such as devotional matters,
civil transactions, contracts, litigation and court
proceedings.

Hardship begets ease relating to financial

transactions, links with necessity and one of the
basic maxims applied in legal concession for any
recognized hardship in Islamic law, also serves as
the purpose of Islamic law in lessening and
removing burden for people.

Cont.

The relevance of this maxims and its like to

Islamic transactions in general and to the Islamic
and conventional mortgage in particular lies in
the fact that, even when there is a clear evidence
on the prohibition of riba, it could be asserted
that British Muslims are potentially facing
difficulties in settling in an ideal environment,
suitable for breeding model family. Therefore,
they have religious concession to breach the
dictate of the text for protecting and preventing
their five necessities.

This ambit of difficulty has to be proportionally

and appropriately dealt with from the spirit of the
Islamic law.
(Whenever the circle of an affair narrows it is

Cont.

It can be summarized thus if there is an

apparent (hardship) in any matter, there
should be facility for it. And as soon as
that hardship disappears, the matter shall
revert to its original rule.

So in other to put the practice of hardship

begets ease in transaction we have to link
it generally with necessities (aldaruriyyat).

Rules of Necessity

First principle in this regard as:

"necessity justifies that which may
be unlawful (Ad-daruratu tubihulmahzurat)". It is on the basis of this
rule that the jurists validate the eating of
pork, blood, alcohol etc when there's no
any other alternative at this time you will
only take equal to the necessity not
taking very high amount, but only to
removed the harm. That is the hardship
(almashaqatu).

Cont.

Second principle on necessity declares:

"necessity is measured in
accordance with its true proportions
(ad-daruratu tuqadaru bi qadariha)
given this maxim of the shari'ah, if the
court orders the sale of assets of a
negligent debtor to pay his creditors, it
must begin with the sale of his movable
goods if this would suffice to clear the
debt, before selling his real property.

Types of easement in
hardship
1.

Ease of Dropping: Example the dropping of Solah

for women in the time of her period of
menstruation, as also the fasting as well but it will
be covered after her pureness.

2.

Ease of Diminution: As in reduction of the four

raka'at of solah in terms of travelling which will be
performed two only not four based on ( hardship
pulls ease maxims).

3.

Ease of Replacement: Like in the process of

replacing ablution with tayammum when there is
no water to make ablution.

Cont.
4. Ease of Heading: Which occurs mostly in Arafat
at the time of hajj in which the Muslims joined the
two solat in one of the time, Asar been joined with
Zuhur in its first time that is what means of taqdim.
5. Ease of Delay: Usually that happens in case of
fasting for a sick person which is suffering from an
illness that he cannot make the fast because of its
seriousness and could effects his body in general,
due to this hardship is been ease for the patient to
break the fast and later pay it back.

Cont.
6. Ease of Permission: This can be put in
practice when a person is in critical illness or
scarcity of anything halal that could be taken,
and he then missed it at the time. The shari'ah
maxims of hardship pulls ease allows and
permits him to take like alcohol or pork meat
according to his hunger and taste only.
7. Ease of Mutation or Variation: The
shari'ah maxims in this part will be very
important because the Muslims will be for
instance, in a battle of field where the time of
pray approaches them, so it is easy for them to

Reasons & Circumstances of

Ease
1)

Travel or journey: As travelling from one

place to another consist of hardships; the
shar'iu makes it one of the reasons that
will pull facilitation to us. This mention in
the Holy Qur'an: if anyone is ill, or on a
journey, the prescribed period should be
made up by days later. (2:185)

As the verse described is not all journeys

that hardship can pull ease, there are some
conditions considered by the Islamic jurist:

Cont.

The journey must be reasonable

and religiously norm.
The journey must be an obedient
one not a sin.
The journey must exceed his place
of residence and related buildings
and farms.
He must have an intention of
travelling for a specific place.

Cont.
2) Disease or Serious Illness: As we
know sickness is anything removing
human beings from his limit health
extent. For that it is one of the
circumstances that begets difficulty.
Conditions considered by Islamic jurist in
sickness:
A severe disease.
Leads self-destruction.
Damage some part of the body.

Cont.
3) Compulsion or coercion: This is the term were
by a person will be in a serious situation, where he
will be forced doing anything against his wish, this
happens to some of the companions of the prophet
(SAW) like Ammar bin Yaseer with his family all, and
also Bilal bin Rabah.
4) Forgetfulness or Omission: In this term the
shari'ah aspect looks at the person status were by
he is not able to think or remember of what he
wants to do at the time of necessity. For example
when he forget the prayer he is omitted to do it at
the time he remembers immediately and this is
used in all Ibadat. And mostly this could be a
mistake also that is why it stated in hadith; prophet

Cont.
5) Ignorance or Unawareness: This simply
means the lack of knowledge of legal
provisions all or some of them. And this could
be a huge situation whereby you doing
something on lack of knowledge which strictly
affect all your life activities and makes it void.
For this, scholars of Islamic law put some rules
for lack of knowledge can be an excuse that
hardship can pull ease. These conditions are:

Cont.

The subject most be linked with

suspect evidence in case of Ijtihad.

And there should be scholars in a city

who will answer questions of the
people.

That does not respect the right of the

subjects of ignorance.

Cont.
6) Universal Hardship: Simply means finding
the human hardship and avoiding the thing to
guard him. For instance, as in acceptance of
prayer with the presence of impurity. It happens in
the prophet (SAW) time whereby animal like cats,
dogs, urinate in the Masjid and they pray like that
without purifying it. But sometimes they spray
water on it to be purified.
7) Decrease or Imperfection: Can be easily
defined as going after the completeness of the
thing. It comprises three things for a matured
person: mind, freedom, masculinity, and all these
three can easily pull ease when there is hardship

Conclusions &
Recommendation

The aim or intentional of this maxims is

to pull ease and take the hardship. It
should be noted that the aim of al-shariu
is to raised the critical hardship from our
day to day life activities, as the
essentials to protect the religion, life,
mind, self, money. While the
complementary legislation, is raising the
hardship in general also the
embellishments requires good moral and
ethics in our life.

Cont.

This has sought for balance between rigidity in the

application of Islamic legal maxims and exercising
religious concession. And it also recommended
that coming back and putting the legal maxims in
practice is one of the most essential parts, which
shows that Islam is the only perfect religion that
comprises all aspect of life.

Furthermore, the understanding of the objectives

of shari'ah is essential for the development of
human being in all areas of life, particularly, the
area of financial transactions.

Cont.

We hope putting the legal maxim idea to our

events of life is the only solution of our
problems, clearly speaking, that could be
seen from some scholars fatwa in our time
like al-allama Yusuf Qardawy, al-allama
Wahabat Zuhaily, in which most of their fatwa
is based on this 'Qaidah Al mashaqqatu
tajlibuttayseer' (difficulty begets ease)
because in Islamic jurisprudence juristic
principles are used for law making activities.