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 deri
ved from the detailed study of the fiqh itself. They consist of theoretical guid
elines in the different areas of fiqh such as evidence, transactions, matrimonia
l law, etc. As such they are an integral part of fiqh and are totally separate fr
om 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-H
anafi 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 cod
ification 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 no
t a part of the latter and the two are totally different from one another.
And lastly, unlike its Western counterpart, Islamic jurisprudence is not confine
d to commands and prohibitions, and far less to commands which originate in a co
urt 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, a
nd 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 Compassionate
Legal Methodology
The discipline of legal methodology (usul al-fiqh) teaches us how to derive lega
l rulings from the primary sources of Islamic Law, such as the Quran and the pro
phetic sunna. It teaches us how to read the primary sources in an honest and unb
iased manner to figure out what Allah Most High really wants from us.
Legal Maxims
The discipline of legal maxims (qawa`id fiqhiyya) teaches us the underlying stru
cture and patterns of the rulings that have been derived from the primary source
s. 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 ob
ligatory.
These maxims are madhab-specific and are used by scholars to extrapolate existin
g 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 o
f a mufti is his/her mastery of this discipline. [1]
A Common Mistake
Islamic 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 u
se these limited number of maxims to derive rulings for new circumstances or, ev
en worse, to invalidate rulings that have been established by primary texts.
It is extremely important to understand that legal maxims are inductively derive
d from existing rulings that have been explicitly derived from the primary sourc
es. This means that if all applicable maxims (not just one or two) are taken int
o consideration, then the existing rulings can be extended to new circumstances.
However, a number of contemporary scholars (including Shaykh Muhammad Sa`id Ram
adan al-Buti) point out that it is logically inconsistent to use these inductive
ly 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 prim
ary 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 o
f 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 short
est 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 o
f legal maxims as, Rules through which the rulings of new situations are known wh
en there is no explicit text from the Quran or sunna that addresses them. (Idah a
l-qawa`id al-fiqhiyya li tullab al-madrasa al-sawlatiyya, p. 7)
==========
In order for law
to represent this will, which is its end, it must be backed up by coercion.
--- AUSTINIAN concept of LAW ---- NYAZEE (HIGHLIGHS)