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1.

Introduction

Qawaid al-fiqhiyyah (legal maxims) encapsulates concepts and precepts that


facilitate a person to deliver an appropriate ruling where no explicit law exists
previously. The definitive meanings were developed from the knowledge and
application of the injunctions and the rules of the Shariah. The word injunction
signifies the prescriptive and the prohibitive injunctions of the Quran and the
Sunnah. These rules are the systemic expositions of the fortitude of the legal text
(nass) which are intended to guide man towards diverse situation in society. They
provide broad contours within which policy conception can be pursued and its
legitimacy judged. Legal maxims, in contrast, are amenable to trade-offs and
substitutions.
In public international law, maxims of law are viewed as synonymous with
general principles of law. Similarly, in Western legal traditions, maxims play a
vital role in the process of judgment. The significance and the role of legal
maxims in Western law are observed as follows: A general principle; a leading
truth so called, quia maxima est eius dignitas et certissima auctoritas atque
quod maxime omnibus probetur because its dignity is the greatest and its
authority the most certain, and because it is universally approved by all. For
instance, by the time of Coke, the maxim actus non facit reum nisi mens sit rea
(an act does not make a person guilty unless his mind is guilty) had become well
ingrained in the common law.
Legal maxims (al-qawaid al-fiqhyah ) is a term applied to a particular science
in Islamic jurisprudence. Islamic legal maxims, similar to their Western
counterparts, are theoretical abstractions in the form, usually, of short epithetic
statements that are expressive of the nature and sources of Islamic law and
encompass general rules in cases that fall under their subject. They are different
from usul al-fiqh (roots and sources of Islamic jurisprudence) in that the maxims
are based on the fiqh itself and represent rules and principles that are derived
from the reading of the detailed rules of fiqh on various themes. One of the main
functions of the Islamic legal maxims is to depict the general picture of goals and
objectives of the Islamic law (maqasid al-Sharah ). Today, legal maxims become
sine qua non for any Islamic jurist and judge to master a certain level of rules
(al-qawaid ) in order to be able to dispense Islamic verdicts and to pass accurate
judgment.
2.

The History of Legal Maxims in Islamic Jurisprudence

Al-qawaid al-fiqhiyyah was not written all at once by any particular scholar. It was
developed by the jurists during the resurgence years of the fiqh. The earliest
jurists to develop most of the fiqh maxims were from the Hanafi schools. The
authors of most of the maxims were not known, but for those maxims which
originated from the sayings of the Prophet. For instance, the maxim Injury may
not be met by injury. Most of the works involving legal maxims were attributed
by scholars back in the third century of hijrah and still continues till this day. The
earlier literature were a compilation of maxims by Abu Tahir al-Dabbas, which
consisted of seventeen maxims gathered from the Hanafi schools. In the fifth
century of hijrah, Abu Zayd Abdullah b Umar Al-Dabbusi wrote his book, entitled
Taasis al-Nazar. Subsequently, many more books were written on the subject,

and most, incorporated into the Majallah al-Ahkam al-Adliyah, the Ottoman Civil
Code.