Important Maxims of Islamic Jurisprudence
(These are the important principles which govern Muslim law.)
1. A Muslim is always subject to Muslim law.
If a person is not indented to be governed by Muslim law, his only way is to renounce Islam. He cannot continue in Islam refusing Muslim law.
2. A matter is determined according to intention.
That is to say, the effect to be given to any particular transaction must conform to the object of such transaction. The Prophet of Allah said, “O people! The reward of deeds depends upon the intentions, and every person will get the reward according to what he has intended”. This is one of the basic principles of Muslim law. The Principle of Mens rea which is the basis of modern criminal jurisprudence is nothing but derived from this principle of Muslim law.
Thus in contracts effect is given to intention and meaning and not to words and phrases. Consequently, a contract for sale subject to a right of redemption has the force of a pledge.
3. It is a fundamental principle that words shall be construed literally.
Where the text is clear, there is no room for interpretation. A word should be construed as having some meaning, rather than passed over in silence. That is to say, if any particular meaning can be attributed to a word, it may not be passed over as devoid of meaning. When the literal meaning cannot be applied, the metaphorical sense may be used. 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 literal or metaphorical sense it is passed over in silence as being devoid of meaning.
4. Necessity renders prohibited things permissible.
A thing which is permissible by reason of the existence of some excuse there of, ceases to be permissible with the disappearance of that excuse.
When a prohibition is removed, the thing to which such prohibition attaches reverts to its former status of legality. When prohibition and necessity conflict, preference is given to the prohibition
5. Necessity does not invalidate the right of another.
Consequently, if a hungry person eats bread belonging to another, such person must later pay the value thereof.
6. Severe injury is removed by lesser injury.
In the presence of two evils, the greater is avoided by the commission of the lesser.
7. It is a fundamental principle that a thing shall remain as it was originally.
Things which have been in existence from time immemorial shall be left as they were.
8. A thing which may not be taken may also not be given.
9. Public usage is conclusive evidence and action must be taken in accordance therewith.
10. An accessory to an object cannot be dealt with separately.
Example: The young in an animal\’s womb cannot be sold separately.
11. The owner of a thing held in absolute ownership is also the owner of the things indispensable to the enjoyment of such thing.
Example: Person who buys a house is also owner of the road leading to it.
12. Probability, even though based upon evidence, is not proof.
Example:- If a person admits while suffering from mortal sickness that he owes a certain sum of money to one of his heirs, such admission is not a proof unless confirmed by the other heirs, since the probability of such person defrauding the other heirs of their property is based upon the mortal sickness . If the statement, however, is made while in a state of good health, such admission is considered to be valid.
13. Evidence is for him who affirms; the oath for him who denies.
The object of evidence is to prove what is contrary to appearance; the object of the oath is to ensure the continuance of the original state.
Evidence is proof affecting third person. Admission is proof affecting the person making such admission only. A person is bound by his own admission.
14. Contradiction and proof are incompatible; but this does not invalidate a judgment given against the person contradicting.
Example:- Witnesses contradict themselves by going back upon the evidence they have given. Such evidence is not proof; but if the court has already given judgement based upon the original evidence, such judgement may not be set aside, but the witnesses must pay the value of the subject matter of the judgement to the persons against whom judgement has been given.
15. Failure to establish the principle claim does not imply failure to establish a claim subsidiary thereto.
Example:- A person states that A owes a sum of money to B and that he has the surety of A. Such person will be obliged to pay the sum in question if A repudiates the debt and B demands payment.
16. Any promise dependent upon a condition is irrevocable upon such condition being fulfilled.
17. The enjoyment of a thing is the compensating factor for any liability attaching thereto.
That is to say, in the event of a thing being destroyed, the person to whom such thing belongs must suffer the loss and conversely may enjoy any advantages attaching thereto. Example:- An animal is returned by reason of an option for defect. The vendor may not charge any fee on account of the use of the animal, because if it had been fallen upon the purchaser.
18. Remuneration and liability to make good loss do not run together.
19. The burden is in proportion to the benefit and the benefit to the burden.
20 The responsibility for an act falls upon the author thereof.
It does not fall upon the person ordering such act to be performed, provided that such person does not compel the commission thereof.
Similarly, if a person performs any act personally and is implicated therein with the person who is the cause thereof, the person performing such act is responsible thereof. Example:- A digs a well in the public highway and B causes C\’s animal to fall therein and to be destroyed. B is responsible thereof and no liability rests with the person who dug the well.
21. An act allowed by law cannot be made the subject of a claim to compensation.
Example:- An animal belonging to A falls into a well which B has dug on his own property held in absolute ownership and such animal is destroyed . No compensation can be claimed. But a person who performs an act even though not intentionally, is liable to make good any loss caused thereby.
A person who is the cause of an act being performed is not liable to make good any loss caused by such act unless he has acted intentionally.
22. No person may take another person\’s property without some legal reason.
23. Any person who hastens the accomplishment of a thing before its due time, is punished by being deprived thereof.
24. Judgment shall be given in respect to any matter which has been proved at any particular time, unless the contrary is proved.
Consequently, if it is proved at any particular time that a particular thing is owned by a particular person in absolute ownership, the ownership thereof shall be held to be valid unless circumstances arise which invalidate such ownership.