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Paper presented at the 11th Regional leadership Training Programme held in Hungary 21 July - 21 August 1999 by Prof Omar Hasan Kasule, Sr.
PURPOSES OF THE LAW (MAQASID AL SHARIAT)
Protection Of Religion (Hifdh Al Din)
Protection Of Life (Hifdh Al Nafs)
Protection Of Progency (Nasl)
Protection Of The Mind (Hifdh Al ‘Aql)
Protection Of Wealth (Hifdh Al Mal)
PRINCIPLES OF THE LAW (QAWAID FIQHIYYAT)
Intention (Maqsad)
Certainty (Yaqeen)
Injury (Dharar)
Difficulty (Mashaqqat)
Custom (Aadat)
INTENTION (MAQSAD)
The Principle of Motive, qasad [Q] states that each action is judged by the intention behind it (al umuur bi maqasidiha). The main principle is: actions are judged by their intentions (AL UMUUR BI MAQASIDIHA). Derived principles: intentions and meanings and not literal interpretatins (maqasid wa ma’ani la alfadh wa mabani), means are judged with the same criteria as the intentions (al wasail laha hukm al maqasid), if the aim (qasd) is wrong the means (wasiilah) is wrong. The following are derived sub-principles: [Q1] what matters are intentions (maqasid) and underlying meanings (ma’aani) and not literal terms (alfaadh) or structures (mabaani). The terms or words used are symbols of the underlying meaning. If there is a contradiction between the term and the meaning, it is the underlying meaning that matters. [Q2] There is no reward in the hereafter for any good act or leaving a prohibited action without a specific intention (la thawaab illa bi al niyyat)
CERTAINTY (YAQEEN)
The Principle of Certainty, yaqeen [Y] states that a certainty can not be voided, changed or modified by an uncertainty (al yaqeen la yazuulu bi al shakk). When an assertion is an established truth, it should not be changed by a mere doubt being raised about all or some of its components. Certainty (yaqeen) is a situation when there is no doubt. Doubt (shakk) is a situation in which there are two or more competing options with no sufficient evidence to prove one of them as the most valid. Conjecture (dhann) is a situation in which there is some evidence in favor of one option but that evidence is not strong enough to rule out the other alternatives. The following are derived sub-principles: [Y1] Existing assertions should continue in force until there is compelling evidence to change them (al asl baqau ma kaana ala ma kaana) [Y2] innocence of an individual is presumed until compelling evidence is produced (al asl baraat al dhimma) [Y3] an event is considered of recent occurrence unless there is evidence to the contrary ( al asl idhafat al haadith ila aqrab waqtihi) [Y4] If an acquired attribute or change is not accepted unless there is compelling evidence (al asl fi al umuur al ‘aaridhat al ‘adam) [Y5] An existing structure, situation or condition whose origin is not known should be left as is until there is evidence to the contrary (al qadiim yutraku ala qadamihi) [Y6] What has been accepted as customary over a long time is not considered harmful unless there is evidence to the contrary (al qadiim la yakuun dhararan) [Y7] declaration of original motive takes precedence over what is de facto (la ibrat bi al dalaalat fi muqabalat al tasriih)
INJURY (DHARAR)
The Principle of Injury, dharar [D] states that an individual should not harm others or be harmed by others (la dharara wa la dhirar). It has the following derived principles: [D1] injury should be mitigated as much as is possible (al dharar yudfau bi qadr al imkaan). [D2] injury should be relieved (al dharar yuzaal). [D3] an injury is not relieved by a similar injury (al dharar la yuzaal bi mithlihi). [D4] There is no distinction between an event being old or recent in judging its injury. A matter cannot be considered no longer harmful just because it is old (al dharar la yakuun qadiiman). This sub-principle restricts sub-principle [Y6] above.
DIFFICULTY (MASHAQQAT)
The Principle of Hardship , mashaqqa [M] states that hardship mitigates easing of the sharia rules and obligations (al mashaqqa tajlibu al tayseer). The hardships that were considered valid by classical scholars were: travel, illness, coercion, forgetting, general disasters. The following are derived sub-principles: [M1] necessity legalizes the prohibited (al dharuraat tubiihu al mahdhuuraat). Necessity is defined as what is required to preserve the 5 Purposes of the Law (ie religion,life property, property, and intellect). If any of these 5 is at risk, permission is given to commit an otherwise legally prohibited action. Committing the otherwise prohibited action should not extend beyond the limits needed to preserve the Purpose of the Law that is the basis for the legalization (al dharuraat tuqaddar bi qadriha). Necessity however does not permanently abrogate others’ rights which must be restored or recompensed in due course; necessity only legalizes temporary violation of rights (al idhtiraar la yubtilu haqq al ghair). The temporary legalization of the prohibited action ends with the end of the necessity that justified it in the first place (ma jaaza bi ‘udhri batala bi zawaalihi). This can be stated in al alternative way if the the obstacle ends, enforcement of the prohibited resumes (idha zaala al maniu, aada al mamnuu’u). [M2] when a hardship situation is restrictive, the law is permissive and eases the situation (al amr idha dhaaqa ittasa’a). Possible abuse of this sub-principle is restricted by the sub-principle: when a situation is permissive, the law is restrictive (al amr idha ittasa’a dhaaqa). In practical terms this means that the law is permissive only to the extent of the hardhip and no more as explained above (al dharuraat tuqaddar bi qadriha). [M3] prevention of a harm has priority over pursuit of a benefit of equal worth (dariu an mafasid awla min jalbi al masaalih). If the benefit has far more importance and worth than the harm, then the pursuit of the benefit has priotity. [M4] the lesser of two harms is selected (ikhtiyaar ahwan al sharrain). If confronted with 2 actions both of which are harmful and there is no way but to choose one of them, the one with lesser harm is committed in order to block the way for the bigger harm. A lesser harm is committed in order to prevent a bigger harm (al dharar al ashadd yuzaalu bi al dharar al akhaff). This also implies that an individual could suffer in the interest of preventing a public harm. [M5] public interest has priority over individual interest (al maslahat al aamat muqaddamat ala al maslahat al khaassat). The individual may have to sustain a harm in order to protect public interest (yatahammalu al dharar al khaas li dafiu al dharar al aam) [M6] What is illegal to get, use or possess is also illegal as a gift or a trade good (ma haruma akhdhuhu, haruma itauhu). [M7] An action is still illegal even if someone else is made to carry it out (Ma haruma fi’iluhu, haruma talabuhu)
CUSTOM (AADAT)
The Principle of custom, aadat [A] states that what is customary is a legal ruling (al aadat muhkkamat). Unless contradicted specifically by text (nass), custom or precedence is considered a source of law. The customary must also be old and not a recent phenomenon. It has the following sub-principles: [A1] What is considered customary is what is uniform, wide-spread, and predominant (innama tutabaru al aaadat idha atradat aw ghalabat). [A2] The way people use words is used as evidence (istimaal al naas hujjat yajibu al amal biha). [A3] what is objectionable by custom is like what is legally objectionable (al mumtaniu aadat ka al mumtaniu haqiiqat). [A4] A fact could be abandoned on the basis of a custom (al haqiiqat tutrak bi dalaalat al aadat). [A5] what is considered is what is predominant, wide-spread, and not what is rare (al ibrat li al ghaalib al shaiu la al naadir). [A6] you can not deny the change of rulings with times, situations, and customs (la yunkiru taghayyur al ahkaam bi taghayyuri al azmaan wa al ahwaal wa al aadaat wa a’raaf) ie customs eventuary change with time.