Fiqh/Legal Maxims

Fiqh/Legal Maxims
Matters are Determined according to Intention
Certainty cannot be removed by Doubt
The Principle in Transactions/things is
Permissibility
Hardship Begets Facility
Necessity Renders Prohibited Things
Permissible
Harm Should be Eliminated
Liability Justifies Gain (al-kharaj bi al-dhaman)
When it is Forbidden to take a thing it is also
Forbidden to give it.
 Fiqh/Legal Maxims
Matters are Determined according to
Intention
The Hadith states: Actions are (judged)
by motives (niyyah), so each man will
have what he intended.
Intention serves as a basis for an action.
Intention distinguishes habitual actions from
an act of worship.
In contracts effect is given to intention and
meaning and not words and forms
 Fiqh/Legal Maxims
Certainty cannot be removed by Doubt
claims amount to doubts
Claims cannot remove a statement supported by
evidence
The Principle in Transactions is
Permissibility
All and transactions are permitted unless they are
specifically prohibited or have prohibited elements
Commerce and trade are areas where creativity and
innovation are needed.
new forms of transactions could be introduced
Contrast with matters of worship (ibadat)
 Fiqh/Legal Maxims
Hardship Begets Facility
when a certain situation gets difficult the law
becomes flexible
The Quraan states: but if one is driven (to it)
by necessity -neither coveting it nor
exceeding his immediate need- verily, God is
much forgiving, a dispenser of grace.
(16:115).
Hardship (mushaqqah) refers to legal excuses
such as illness, duress, forgetfulness, defect,
incapacity, and incompetence.
 Fiqh/Legal Maxims
Necessity Renders Prohibited Things Permissible
He (Allah) has explained to you in detail what is forbidden
to you, except under compulsion or necessity, (6:119)
Foe e.g. eating carrion and pork when starving, pronouncing
words that amount to disbelief when threatened with life,
taking the property of a bankrupt person without his
consent, fixing the prices of essential commodities in certain
situations, and forcing a hoarder to sell his properties at a
lower price are allowed on account of necessities.
Necessities on account of which certain exemptions are
made are exceptional situations.
If a certain cause ceases to exist, the concession also ceases
to exist and a return to original principle is required.
 Fiqh/Legal Maxims
Harm Should be Eliminated
A particular harm could be accepted to
repel a common harm.
The lesser of the two evils is chosen
Repelling an evil or mischief is
preferable to the acquisition benefits
Harm should not be removed by causing
harm
 Fiqh/Legal Maxims
Liability Justifies Gain (al-kharaj
bi al-dhaman)
a person who receives the benefit of an
asset is also liable for the losses
suffered or caused by that asset.
Profit and risk should go together
Musharakah and mudharabah
In usury no risk is taken
 Fiqh/Legal Maxims
When it is Forbidden to take a
thing it is also Forbidden to give
it
it is prohibited to take usury and bribe it
is also prohibited to give usury and
bribe.
it is prohibited to perform an act it is
also forbidden to request its
performance.