brief word may be added here regarding the difference between
the usul, and the maxims of fiqh (al-qawaid al-fiqhiyyah), as the
two are sometimes confused with one another. The maxims of fiqh
refer to a body of abstract rules which are derived from the
detailed study of the fiqh itself. They consist of theoretical
guidelines in the different areas of fiqh such as evidence,
transactions, matrimonial law, etc. As such they are an integral
part of fiqh and are totally separate from usul al-fiqh. Over 200
legal maxims have been collected and compiled in works known as
al-ashbah wa al-nazair; [Two well known works both bearing the
title Al-Ashbah wa al-Naza'ir are authored by Jalal al-Din
al-Suyuti and Ibn Nujaym al-Hanafi respectively.] one hundred of
these, have been adopted in the introductory section (i.e. the
first 100 articles) of the Ottoman Majallah (Majalla is a
codification of Hanafi commercial law, discussed further in part
two). The name al-qawaid al-fiqhiyyah may resemble the expression
usul al-fiqh, but the former is not a part of the latter and the
two are totally different from one another.And lastly, unlike its
Western counterpart, Islamic jurisprudence is not confined to
commands and prohibitions, and far less to commands which originate
in a court of law. Its scope is much wider, as it is concerned not
only with what a man must do or must not do, but also with what he
ought to do or ought not to do, and the much larger area where his
decision to do or to avoid doing something is his own prerogative.
Usul al-fiqh provides guidance in all these areas, most of which
remain outside the scope of Western jurisprudence.Extracts from the
book Principles of Islamic Jurisprudence by M. H. Kamali.---In the
Name of Allah, Most Merciful and CompassionateLegal MethodologyThe
discipline of legal methodology (usul al-fiqh) teaches us how to
derive legal rulings from the primary sources of Islamic Law, such
as the Quran and the prophetic sunna. It teaches us how to read the
primary sources in an honest and unbiased manner to figure out what
Allah Most High really wants from us.Legal MaximsThe discipline of
legal maxims (qawa`id fiqhiyya) teaches us the underlying structure
and patterns of the rulings that have been derived from the primary
sources. A famous example of such a maxim is, Certainty is not
lifted by doubt. Another example is, Something obligatory is not
left except for something else that is obligatory.These maxims are
madhab-specific and are used by scholars to extrapolate existing
rulings of Islamic law to apply to new cases. This extrapolation is
a complex procedure that often involves the interplay of many
different maxims. The mark of a mufti is his/her mastery of this
discipline. [1]A Common MistakeIslamic Law has hundreds of maxims
and applying them to new situations requires sound knowledge, deep
insight, and rigorous training at the hands of experts. A common
mistake in our times is to reduce these maxims to the five most
universal ones, or to the five universal purposes (maqasid) of
Islamic Law, and to then use these limited number of maxims to
derive rulings for new circumstances or, even worse, to invalidate
rulings that have been established by primary texts.It is extremely
important to understand that legal maxims are inductively derived
from existing rulings that have been explicitly derived from the
primary sources. This means that if all applicable maxims (not just
one or two) are taken into consideration, then the existing rulings
can be extended to new circumstances. However, a number of
contemporary scholars (including Shaykh Muhammad Sa`id Ramadan
al-Buti) point out that it is logically inconsistent to use these
inductively derived maxims to invalidate the very rulings that they
have been inductively derived from. [2] In other words, rulings
that have been derived using the primary sources cannot be undone
using legal maxims.And Allah Most High knows best.Hamza.[1] Shaykh
`Abdullah al-Lahji (Allah have mercy on him)a famous Shafi`i
scholar of this centuryexplained that the benefit of studying the
the discipline of legal maxims is, (1) To easily discover the the
rulings of new situations that are not discussed in an explicit
text. (2) To learn disparate legal rulings in the shortest possible
amount of time (Idah al-qawa`id al-fiqhiyya li tullab al-madrasa
al-sawlatiyya, p. 7)[2] Shaykh `Abdullah al-Lahji (Allah have mercy
on him) defined the discipline of legal maxims as, Rules through
which the rulings of new situations are known when there is no
explicit text from the Quran or sunna that addresses them. (Idah
al-qawa`id al-fiqhiyya li tullab al-madrasa al-sawlatiyya, p.
7)==========In order for lawto represent this will, which is its
end, it must be backed up by coercion.--- AUSTINIAN concept of LAW
---- NYAZEE (HIGHLIGHS)
