LLB Niyyah

ISLAMIC LEGAL MAXIMS: INTENTION
Assoc. Prof. Dr. Mahamad bin Arifin
MATTERS ARE DETERMINED ACCORDING TO INTENTION

Introduction The meaning of the maxim The basis of the maxim The importance of the maxim Application of the maxim Exception to the maxim
Islamic Legal Maxims (Qawa'id Fiqhiyyah)
@ Assoc Prof Dr Mahamad bin Arifin, AIKOL
Introduction
A great maxim that covers all aspects of Islamic law; The maxim that is based on textual authority; One of the five leading maxims; included in all works on legal maxims;
The meaning
The validity of an act is based on intention; The acceptability of an act is based on ones intention Whether the act is intentional or due to negligence or due to unawareness i.e., unintentional;
Intention in the Majallah

Art. 2 of the Majallah: Matters are determined according to intention. That is to say, the effect to be given to any particular transaction must be in accordance with the intent underlying such transaction.
Intention in the Majallah

Art. 769 of the Majallah says that if a person find anything in the highway or anywhere else with the intention of restoring it to the owner thereof, his conduct is in order, but if he intends to keep such a thing as his own, he is considered to be a person wrongfully appropriating property. The physical act is identical in both cases but the judgment therein differs according to the intention.
Islamic Legal Maxims (Qawa'id Fiqhiyyah) @ Assoc Prof Dr Mahamad bin Arifin, AIKOL 6
Bases of the maxim

On the authority of Umar b. alKhattab, who said: I heard the messenger of Allah (s.a.w) said: Action are but by intention and every man shall have but that which he intended [related by Bukhari and Muslim]
Bases of the maxim: Continuation of the Hadith

Thus he whose migration was for Allah and His messenger, his migration was for Allah and His messenger, and he whose migration was to achieve some worldly benefit or to take some woman in marriage, his migration was for that for which he migrated.
Al-Suyuti considers this hadith as the origin of this maxim. This hadith is the core of the maxim;
Abu Hurayrah reported that the Prophet SAW said: Man will be raised based on their intentions. Another hadith from Aishah, the Prophet said: They will be raised according to their intentions.
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Hadith
From Sad bin Abi Waqqas the Prophet SAW said: You are not spend your property seeking the pleasure of Allah, except you will paid for it, even something that you put into the mouth of your wife.
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Bases of the maxim (the Quran)

He who goes forth from his house as a migrant in the way of Allah and His messenger, and whom death overtakes, his reward become incumbent upon Allah. (al-Nisa: 100)
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Bases of the maxim (the Quran)

They are not commanded except to serve Allah sincerely for the sake of religion. (al-Bayyinah: 5)
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Ijma
The ulama are in agreement on the point that intention is essential in the act of salat, fasting, sadaqah and so on. Ibn al-Qayyim said that intention is the spirit of an act, its centre and its strength. It follows the intention in its validity and otherwise.
Rational
The Lawgiver does not account the act committed by those whose intention are not accepted, such as an insane, an idiot, a person who forget. The acts committed by sound people must be prompted by their intentions.
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Narrated Um Salama: Allah's Messenger said, "I am only a human being, and you people (opponents) come to me with your cases; and it may be that one of you can present his case eloquently in a more convincing way than the other, and I give my verdict according to what I hear. So if ever I judge (by error) and give the right of a brother to his other (brother) then he (the latter) should not take it, for I am giving him only a piece of Fire." (See Hadith No. 638, Vol. 3).
Narrated Um Salama: (the wife of the Prophet) Allah's Messenger heard some people quarreling at the door of his dwelling. He came out and said, "I am only a human being, and opponents come to me (to settle their problems); maybe someone amongst you can present his case more eloquently than the other, whereby I may consider him true and give a verdict in his favor. So, If I give the right of a Muslim to another by mistake, then it is really a portion of (Hell) Fire, he has the option to take or give up (before the Day of Islamic Legal Maxims Prof Dr Mahamad 17 Resurrection)."@ Assoc Arifin, AIKOL bin (Qawa'id Fiqhiyyah)
Scope of the maxim

Any saying and act of the mukallaf, that is any tasarrufat performed by the mukallaf be it ibadat, such as taharah, salat, zakat, fasting, hajj and sacrifice and nadhar. It also includes civil transactions such as sale, hire, hibah, jualah, accepting hibah or gift, and waqf. Also matters relating to family law and also criminal law.
Scope
What is meant by matters here does not refer to the act itself but to the rules of each act, such as valid or void, the act of obedience or otherwise, rewarded or punished, obligatory or recommended, unlawful or mere dislike and so on.
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Meaning of intention
The meaning of intention is the will directed towards the action, or the directing of the will towards the action. Example: if a person fires a shot at another with the intention of hitting him and does hit him, the perpetrator is said to have willed the action of firing and intended to hit the other person.
The meaning of intention

Phases of intention
Al-hajis the first impact of the intention upon the heart; Al-khatir where intent permeate the heart Hadith al-nafs where a person oscillates between the thought of committing the act and that of refraining therefrom Al-hamm where the intention to commit the act overshadows the thought of refraining therefrom Al-azm where the intention is solidified by the will and determination to implement the act
@ Assoc Prof Dr Mahamad bin Arifin, AIKOL 21
Position of intention
The first two stages are not included in the category of the will or the choice of action, therefore they do not carry liability. The third stage Hadith al-nafs does not carry a liability either, in line with the Prophets saying, My people may be excused for their self-talk (ma haddathat bihi nufusuha).
Position of intention
A person is also not answerable for the fourth stage in compliance with a tradition of the Prophet: A resolve (hamm) to do good is registered as a pious deed, while a resolve to commit evil is not registered as an evil. The fifth and last stage was a matter of controversy.
Importance of the maxim

Determine the legal effect of an act, be it devotional, marriage, criminal or transaction; Determine the validity of an act; Differentiate between different types of act; ibadat from adat; Differentiate between categories of acts: wajib or sunnat etc.
Importance of the maxim

Differentiate between categories of act: intentional or unintentional, such as murder, homicide, murder by mistake; Can determine different categories of punishments; e.g., found property: intention to own or intention to return to the lawful owner.
Exceptions
Intention does not apply in the following cases:
Acts of ibadat which are not to be confused, such as the believe in Allah, the recitation of Quran, remembrance of Allah etc; Prohibitions (nawahi); All the permissible things except when they are to be elevated to ibadat;
Intention without act

Mere intention to do an act does not give any effect, legal or religious;
Intend to divorce the wife; Intend to sell his house; Intend to make a piece of land as waqf;
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Acts without intention

If the acts or words are clear, effective: talaq, sell, wasiyyat, theft, qadhf; If the acts or words are not clear (figurative)
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Conditions of intentions
Islam Mumayyiz Full knowledge of the intended act; No contradiction between the intention and the intended act.
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Outward expression and intention

In the event of a difference between the intention and the outward expression the judgment should be in accord with the intention to the extent that it may be ascertained. Thus in the event of a divergence between the wording of an expression and its meaning, consideration should be given to the meaning and not to the literal wording.
30
The Majallah has adopted this rule in the interpretation of contracts: In contracts effect is given to intention and meaning and not words and forms (Article 3).
31
Example
It is known that a contract for the use of a thing is called a contract of hire if a remuneration is stipulated in consideration of such a use, and a contract of loan if no such remuneration is stipulated. If two persons conclude a contract ostensibly of a loan but in consideration for which a specific rental is provided for, the contract would be regarded as a contract of hire as its real meaning indicates, and not a contract of loan as the wording of the contract would suggest.
Exception:
If the contract involves 3rd party.
If the outward meaning of a statement should conflict with the intentions of the party making the statement, and a third party s rights become dependent upon such outward meaning, effect is given to it.
33
E.g.,
If a litigant before a court of law be asked to take an oath, that oath is taken to mean what it outwardly says according to the understanding of the judge and the other litigant whose rights depend upon the outward meaning of the oath. A tradition of the Prophet reads: An oath must conform to the intentions of the party tendering it.
An intention should be known if it is to be effected. Thus if a divergence should exist between the intention and the outward connotation and there is difficulty in ascertaining the intention, effect should be given to the outward connotation. In this regard a tradition of the Prophet reads: We give judgement on the basis of the apparent, God takes care of the inward intention.
In obscure matters the proof of a thing stands in the place of such a thing. That is to say, obscure matters in which it is difficult to discover the truth are judged according to the obvious proof concerning their outward connotation (Article 68)
36
Real and metaphorical meanings

Speech is divided into three categories:
the real, the metaphorical and the derelict
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The real (haqiqah)

The real refers to every expression used in its proper place in the language or in the common usage. For example, the name lion is used to indicate the animal known by that name. Again, the word analogy is used to describe a shariah source of law according to the idiom of the jurists.
Metaphorical (majazi)
Metaphorical expressions are those not used in their proper linguistic place, such as the word lion used by the Arabs to describe a brave man.
39
Derelict
The derelict is that which has passed out of use and therefore cannot be given any meaning.
40
Application
The Majallah says, In principle, words shall be construed according to their real meaning (Article 12). For example if a person should constitute his house into a waqf for the benefit of his sons, and if he should have sons and grandsons at the time of his death, the grandsons would not be entitled to any benefit because the real sense of the word sons does not include grandsons.
The Majallah says, When the real meaning cannot be applied, the metaphorical sense may be used (Article 61). In the example, if the constituter of the waqf had made his sons the beneficiaries and had no sons but grandsons at the time of his death, the word sons would be construed to mean grandsons by way of metaphor because it is impossible to apply the real literal meaning, and the grandsons would be entitled to receive the income of the property.
This interpretation would consummate the intention of the constituter of the waqf and would also be in conformity with a provision in the Majallah: A word should be construed as having some meaning, rather than disregarded. That is to say, if any particular meaning can be attributed to a word it may not be neglected as devoid of meaning (Article 60)
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But, if no meaning can be attached to a word it is disregarded altogether. That is to say, if a word cannot be construed in either a real or metaphorical sense it is neglected as being devoid of meaning (Art 62). An example of words devoid of meaning is for A to allege that B is his son while B is older than A (Art 1629)
All these articles of the Majallah have been derived from Al-Ashbah wa-al-Nazair and from the books of jurisprudence. In short, they provide that speech should fundamentally be construed according to its real meaning and if such construction should appear impossible then effect should be given to the metaphorical sense. Speech may only be disregarded if both the real and the metaphorical senses are impossible to discern.
If the real and the metaphorical meanings should conflict and the former were derelict, effect should be given to the latter. When in some localities the metaphorical meaning has been predominant by force of custom which meaning is to be preferred?
The Imm Abu Hanifah said that effect should be given to the real. His two companions (Abu Yusuf and alShaybni), al-Ghazzli and other jurists held that preference should be given to the metaphorical and the customary if they were continuous and predominant.
The Majallah adopted the second view; it says, The original (real) meaning is to be disregarded in favour of that established by custom (Article 40). Mahmassani add that the force of custom must be endorsed by intention as the jurists have explained on the authority of the Imm al-Shafii.
Explicit and implicit meanings

The Hanafi jurists have divided speech from the point of view of connotation into two categories:
explicit and metonymic.
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Explicit
is that speech which conveys a definite and clear meaning.
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The metonymic
is that speech in which the intention is hidden and requires explanation for proper understanding, and is deduced from the wording of the text or from its references or implications.
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Explicit speech is opposed from another side by meanings which are implicit in certain situations. These may be discerned from silence, presumption of fact or common usage. For example, most schools sanction bay al-taati which is sale by actual exchange indicating acceptance. The purchaser pays to the seller the price and receives the commodity without either of them uttering a word. In this case the implicit meaning of the facts has fulfilled the functions of offer and acceptance.
Another example is given by the Majallah: Permission may be given explicitly or by implication. Example: a minor of perfect understanding engages in business with the knowledge of his guardian who makes no comment thereon and does not prohibit him from doing so. The guardian is considered as having given his permission by implication (Art 975).
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Silence in itself is of no consequence unless it be supported by the facts of the situation. Thus the Majallah reads: No statement is imputed to a man who keeps silence, but silence is tantamount to a statement where there is a necessity for speech (Art 67).
Explicit speech is fundamental and is stronger than an implied connotation. This is the meaning of Art 13 of the Majallah which reads: No attention shall be paid to inferences (implication) in the face of an explicit statement.
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For example, if a person leaves certain property with a shopkeeper and the shopkeeper is aware thereof and keeps silent, the property in question is deposited for safe custody with the shopkeeper by implication. If the shopkeeper, however, deadlines to keep the property, no contract for custody is concluded. (See Majallah, Art 773)
Absolute and restricted speech

Absolute speech is that which connotes a certain prevalent meaning without qualifications or restrictive attributes. Restricted speech is that which is accompanied by specification or description which signify limitation.
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Examples
An example of this distinction is the contract of agency which may either be absolute or limited.
An example of the first exists wherein a person empowers another to sell his property without specifying the price. An example of the second is where a person empowers another to sell a certain thing but subject to explicit instructions as to the price of sale or any other limitation expressed or implied by custom
It is to be deduced from the definition of absolute and restricted speech that every speech which is free of conditions must be considered absolute. The Majallah reads: The absolute is construed in its absolute sense, provided that there is no proof of a restricted meaning either in the explicit text or by implication (Art 64).
Various articles in the Majallah exemplify this rule:
An agent who has been granted an absolute power to conclude contracts of sale may sell his principals property at any price he thinks fit whether great or small (Article 1494); if the principal, however, has fixed the price, the agent may not sell for less than such price... (Article 1495). In the latter ease restriction was explicit. But it may be implied; thus if a person appoints some other person his agent to purchase something which is necessary for some particular season the agency is considered to relate to that season (Article 1484).
@ Assoc Prof Dr Mahamad bin Arifin, AIKOL 60
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ISLAMIC LEGAL MAXIMS: INTENTION

Assoc. Prof. Dr. Mahamad bin Arifin

MATTERS ARE DETERMINED ACCORDING TO INTENTION

Islamic Legal Maxims (Qawa'id Fiqhiyyah)

@ Assoc Prof Dr Mahamad bin Arifin, AIKOL

Islamic Legal Maxims (Qawa'id Fiqhiyyah)

@ Assoc Prof Dr Mahamad bin Arifin, AIKOL

Islamic Legal Maxims (Qawa'id Fiqhiyyah)

@ Assoc Prof Dr Mahamad bin Arifin, AIKOL

Intention in the Majallah

Islamic Legal Maxims (Qawa'id Fiqhiyyah)

@ Assoc Prof Dr Mahamad bin Arifin, AIKOL

Intention in the Majallah

Bases of the maxim

Islamic Legal Maxims (Qawa'id Fiqhiyyah)

@ Assoc Prof Dr Mahamad bin Arifin, AIKOL

Bases of the maxim: Continuation of the Hadith

Islamic Legal Maxims (Qawa'id Fiqhiyyah)

@ Assoc Prof Dr Mahamad bin Arifin, AIKOL

Islamic Legal Maxims (Qawa'id Fiqhiyyah)

@ Assoc Prof Dr Mahamad bin Arifin, AIKOL

Islamic Legal Maxims (Qawa'id Fiqhiyyah)

@ Assoc Prof Dr Mahamad bin Arifin, AIKOL

Bases of the maxim (the Quran)

Islamic Legal Maxims (Qawa'id Fiqhiyyah)

@ Assoc Prof Dr Mahamad bin Arifin, AIKOL

Bases of the maxim (the Quran)

Islamic Legal Maxims (Qawa'id Fiqhiyyah)

@ Assoc Prof Dr Mahamad bin Arifin, AIKOL

Islamic Legal Maxims (Qawa'id Fiqhiyyah)

@ Assoc Prof Dr Mahamad bin Arifin, AIKOL

Scope of the maxim

Islamic Legal Maxims (Qawa'id Fiqhiyyah)

@ Assoc Prof Dr Mahamad bin Arifin, AIKOL

The meaning of intention

Islamic Legal Maxims (Qawa'id Fiqhiyyah)

Importance of the maxim

Importance of the maxim

Intention without act

Islamic Legal Maxims (Qawa'id Fiqhiyyah)

@ Assoc Prof Dr Mahamad bin Arifin, AIKOL

Acts without intention

Islamic Legal Maxims (Qawa'id Fiqhiyyah)

@ Assoc Prof Dr Mahamad bin Arifin, AIKOL

Islamic Legal Maxims (Qawa'id Fiqhiyyah)

@ Assoc Prof Dr Mahamad bin Arifin, AIKOL

Outward expression and intention

Islamic Legal Maxims (Qawa'id Fiqhiyyah)

@ Assoc Prof Dr Mahamad bin Arifin, AIKOL

Islamic Legal Maxims (Qawa'id Fiqhiyyah)

@ Assoc Prof Dr Mahamad bin Arifin, AIKOL

Islamic Legal Maxims (Qawa'id Fiqhiyyah)

@ Assoc Prof Dr Mahamad bin Arifin, AIKOL

Islamic Legal Maxims (Qawa'id Fiqhiyyah)

@ Assoc Prof Dr Mahamad bin Arifin, AIKOL

Real and metaphorical meanings

Islamic Legal Maxims (Qawa'id Fiqhiyyah)

@ Assoc Prof Dr Mahamad bin Arifin, AIKOL

The real (haqiqah)

Islamic Legal Maxims (Qawa'id Fiqhiyyah)

@ Assoc Prof Dr Mahamad bin Arifin, AIKOL

Islamic Legal Maxims (Qawa'id Fiqhiyyah)

@ Assoc Prof Dr Mahamad bin Arifin, AIKOL