137781454-islamic-legal-maxim.docx

EQUITY IN ISLAMIC LAW

Before we discuss more equity in Islamic law, we must know the definition of equity. What is equity? It is derived from the Latin term Aequitas (equality) which is means to reach as near as possible to natural or ideal justice. When law becomes static and un-responsive to social necessities, then legal fiction, equity and amending legislation help it to advance. Besides, equity corrects the law by applying, in circumstances where the ordinary rules would lead to unwarranted hardship, considerations of what is fair and just13. With that, equity broadly means fairness or natural justice and comes in whenever law causes hardship and injustice. It assists the law where it is defective and weak and defends it from evasions and technicalities. Basically, equity in English law is difference with equity in Islamic law. Equity in English law derived their rules from the natural law whereas Islamic equity finds its roots or sources based on Al-Quran and Sunnah. It is wide and flexible but holds firm in the provisions of primary sources. The door is wide-open to the adoption of anything of utility, of whatever origin, so long as it does not go against the texts of the Al-Quran and the Sunnah14. The sources of Islamic law mainly consist of primary and secondary sources. At the very apex, Al-Quran is the highest authority, which is accompanied by and interpreted by Sunnah of Prophet Muhammad S.A.W. In addition to the primary sources, ijma’, qiyas and ijtihad represent the secondary sources.

As we all know that the primary source i.e. Al-Quran and Sunnah are divine in nature. Any rules or hukm derived from these two sources are considered as absolute and nothing can prevail over them. Hence, where the equity can be applied in Islamic law? Equity will be needed for interpreting provisions of Shari’ah which are not divine but it is jurist-made. For example, although the primacy of reasoning by analogy in developing new ruling according to Al-Quran and Sunnah, it may be rejected by the Islamic jurists in favour of one based on and justified by ‘equity’.

13 14

Newman, Raph A., Equity and Law: A Comparative Study (New York, 1960), p. 11. Said Ramadhan.

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The Law of Mejelle15 provides that with a change of time, the requirement of the law changes. It follows the maxim:

‫األصل في األشيأ اإلباحة‬ The norm in regard to things is that of permissibility Equity can be only practiced if someone has equipped knowledge and proper understanding of the concept of Islam, its Tawheed, the objectives of Syariah, the concept of Khilafah and the concept of accountability to Allah S.W.T.

‫لقد أرسلنا رسلنا بالبينت وأنزلنا معهم الكتب والميزان ليقوم الناس بالققسط وأنزلنا الحديد فيه‬ We verily sent Our Messengers with clear proofs, and sent down with them the Book and the balance that men may conduct themselves with equity/justice: And We sent down Iron . . 16

Furthermore, secondary sources of the Shariah have also been used by the jurists to achieve equity in Islam. This concept is more to be found in Ijma’, Qiyas, the Hanafi principle of Istishan (juristic equity or preference) and the Maliki principle of Masalih AlMursalah (public interest). In the words of Abdur Rahim, ‘If we call analogical deduction (qiyas) the common law of Muslims, then juristic preference (istishan) may be relatively styled their equity”17. We can see it between equity and istishan where according to Muhammad Hashim Kamali18:

The title I have chosen for this article draws an obvious parallel between equity and istihsan which should be explained, for although they bear a close similarity to one another, the two are not identical.

15 16 17 18

Article 39. Surah Al-Hadid:25. Abdur Rahim, The Principles of Muhammadan Jurisprudence (Madras, 1911), p. 164. See Muhammad Hashim Kamali, Priciples of Islamic Jurisprudence (Kuala Lumpur, 1990), pp. 308-337.

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'Equity' is a Western legal concept which is grounded in the idea of fairness and conscience, and derives legitimacy from a belief in natural rights or justice beyond positive law. Istihsan in Islamic law, and equity in Western law, are both inspired by the principle of fairness and conscience, and both authorize departure from a rule of positive law when its enforcement leads to unfair results. The main difference between them is, however, to be sought in the overall reliance of equity on the concept of natural law, and of istihsan on the underlying values and principles of the Shari'ah. But this difference need not be over-emphasized if one bears in mind the convergence of values between the Shari`ah and natural law. Notwithstanding their different approaches to the question of right and wrong, for example, the values upheld by natural law and the divine law of Islam are substantially concurrent. Briefly, both assume that right and wrong are not a matter of relative convenience for the individual, but derive from an eternally valid standard which isultimately independent of human cognizance and adherence. But natural law differs with the divine law in its assumption that right and wrong are inherent in nature. From an Islamic perspective, right and wrong are determined, not only by reference to the 'nature of things', but also because God has determined them as such. The Shari'ah is an embodiment of the will of God, the Lord of the universe and the supreme arbiter of values. If equity is defined as a law of nature superior to all other legal rules, written or otherwise, then this is obviously not what is meant by istihsan. For istihsan does not recognize the superiority of any other law over the divine revelation, and the solutions which it offers are for the most part based on principles which are upheld in the divine law. Unlike equity, which is founded in the recognition of a superior law, istihsan does not seek to constitute an independent authority beyond the Shari'ah. Istihsan, in other words, is an integral part of the Shari'ah, and differs with equity in that the latter recognizes a natural law apart from, and essentially superior to, positive law.

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Istihsan is an important branch of ijtihad, and has played a prominent role in the adaptation of Islamic law to the changing needs of society. It has provided Islamic law with the necessary means with which to encourage flexibility and growth. Notwithstanding a measure of juristic technicality which seems to have been injected into an originally simple idea, istihsan remains basically flexible, and can be used for a variety of purposes. Yet because of its essential flexibility, the jurists have discouraged an overreliance on istihsan lest it result in the suspension of the injunctions of the Shari'ah and become a means of circumventing its general principles. Istihsan literally means `to approve, or to deem something preferable'. It is a derivation from hasuna, which means being good or beautiful. In its juristic sense, istihsan is a method of exercising personal opinion in order to avoid any rigidity and unfairness that might result from the literal enforcement of the existing law. `Juristic preference' is a fitting description of istihsan, as it involves setting aside as established analogy in favor of an alternative ruling which serves the ideals of justice and public interest in a better way. Enforcing the existing law may prove to the detrimental in certain situations, and a departure from it may be the only way of attaining a fair solution to a particular problem. The jurist who resorts to istihsan may find the law to be either too general, or too specific and inflexible. In both cases, istihsan may offer a means of avoiding hardship and generating a solution which is harmonious with the higher objectives of the Shari'ah.

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ISLAMIC LEGAL MAXIMS ‫القواعد الفقهية‬ Qawa'id al-Fiqhiyyah deals with the principles through which the rulings of new occurrences are identified in the absence of a clear statement in the Qur'an, Sunnah, or ijma'. The subject matter of the science is the methodology of deducing fiqh rulings from the established legal maxims. The issues that one studies in the field constitutes the examination of the conditions and states of furu', and determining the compatibility of the principles with the furu'. Al-Qaraf I, a renowned scholar of Islamic law, explained the importance of the Fiqh maxims when he said19: Islamic law can be generally divided into two parts, namely, the fundamental matters (‫ )األصل‬and the branches (‫)الفروع‬. The fundamental matters are further divided into two sections, the first is what called ‫ أصول الفقة‬and the second is the general principles of Fiqh which are very important and from which many rules of Fiqh can be deducted.

Qawa'id al-Fiqhiyyah allows one to know the ruling of new occurrences when there is no clear law from the lawgiver, and it allows one to understand a large amount of furu' in a relatively short period of time. Being a branch of fiqh, the study of legal maxims naturally shares the merit that fiqh enjoys: the best field after theology. A prominent modern jurist, Mustafa Al-Zarqa, in his introduction when discussing about legal maxim, mentioned that although these legal maxims are general principles, they have a significant role in Fiqh. These maxims have solved most of the minor rules (‫ )األحكام‬of Fiqh and without them; these minor rules will have no standing ground which would make it hard to solve them20.

It is stated in the law of Mejelle that the legal maxims are designed to facilitate a better understanding of the Shariah. Hanafi jurists were the first to formulate legal maxims. It was followed by Shafi’is, Hanbali’s and Maliki’s.

19 20

Al-Qarafi, Tahzib Al-Furuq, vol. 1, p. 36. Al-Zarqa, Al-Madkhal, vol. 2, p. 949.

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With that, these are the main maxims: 

Acts are judged by the intention behind them



Certainty is not overruled by doubt



Hardship begets facility



Harm must be eliminated



Custom is the basis of judgment

ACTS ARE JUDGED BY THE INTENTION BEHIND THEM

‫األموربمقاصدها‬ Generally, many great scholars had explained this axiom in their writings. In Idah alQawa'id al-Fiqhiyyah, Al-Lahji explains that the meaning of this axiom is that all matters are connected to the intentions behind them. The basis for this axiom is versified by Al-Ahdal: “This legal maxim is derived from the hadith: "Acts are only judged in accordance with the intention behind them.” In the literal sense, the word intention means purpose or objective; in the legal usage it refers to strong determination in the heart. This is the definition provided by Ibn al-Salah and Al-Nawawi.

The intention has been defined in different ways, as noted above, Imam Al-Nawawi defined the intention as a firm determination in the heart, but Al-Mawardi offered a different interpretation. According to Imam Al-Mawardi, the intention means that one's determination coincides with the performance of the intended act. In most instances, the intention is an obligatory condition or integral. The locus of the intention is the heart, and it is insufficient to utter the intention when the intention is absent in the heart. The intention in the heart is given absolute consideration. This means that if a person utters the intention to pray ‘Asr but the intention in the heart is Zuhr, then Zuhr prayer is considered. In most cases, it is not obligatory to utter the intention. For example, if a person wants to give a portion of land for a mosque as an endowment, the land is an endowment solely through the intention of the one giving the land. However, there are some instances that necessitate the utterance of the intention, such as divorce or swearing an oath.

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The meaning of intention is the will directed towards an action, or the directing of the will towards the action of any human being. It is basically refer to an act of any human being that being judged in the light of the intention or the purpose it seeks to have effect. This means that the effect to be given to any particular action or transaction must be in accordance with the intent underlying such attention or transaction. For example, if a person tries to punch at another at his face with the intention of hitting him and does hit him, the perpetrator is said to have willed the action of punching and intended to hit the other person.

This maxim has its origin from the following Hadith of the Prophet S.A.W: 

Narrated by Umar R.A, the Prophet S.A.W said; “Deeds are judged by intentions and every person is judged according to his intentions.” This hadith clearly stated that all deeds are judged according to intention. The legal implications of certain deeds are also based on intention.



Narrated by Anas R.A, the Prophet S.A.W is reported to have said: “There are no deeds to those who have no intention.”21

Generally the position of the intention is in the heart and it is not enough to utter it without having intention in the heart. Great scholars have different views regarding this particular issue. Uttering of intention is not requirement as there is no proof from the Prophet S.A.W or his companions on this matter. The Shafie’s school holds that it is recommended to pronounce the intention in order to support the intention in the heart whilst Hanbali’s school said that uttering of intention is not recommended and considered as a form of bid’ah (innovation). Whereas, Maliki’s school suggested that uttering of intention is permitted but is better not to utter it. In conclusion, if uttering of intention will distract the concentration of a person in performing ibadah, it is better not to practise it. Nevertheless, if it can assist a person in backing his intention, then, it is recommended to utter it.

This maxim also gives rise to the question of the difference between the intention and the outward expression. In this circumstance, the judgment should be in accordance with the intention to the extent that it may be established.

21

Recorded in Al-Bayhaqi.

13

Thus, in the event of a difference between the wording of an expression and its meaning, consideration should be given to the meaning and not to the literal wording. Another maxim indicates this rule in the interpretation of contracts when it says: “In contracts, effect is given to intention and meaning not and not words and forms.”22 For example, it is known that a contract for the use of a thing is called a contract of hire, if remuneration is stipulated in consideration of such a use, and a contract of loan if no such remuneration stipulated. If two persons conclude a contract apparently of a loan but in consideration for which a specific rental is provided for, the contract would be regarded as a contract of hire as its real meaning indicates, and not be a contract of loan as the wording of the contract would suggest.

An intention should be known if it is to be affected. Hence, if there is inconsistency between the intention and the outward connotation and there is difficulty in determining the intention, effect should be given to the outward connotation. There is a Hadith which explains this situation that reads: “We give judgment on the basis of the apparent, Allah takes care of the inward situation.” The Majallah says, “In obscure matters the proof of a thing stands in the place of such thing. That is to say, obscure matters in which it is difficult to discover the truth are judge according to the obvious proof concerning their outward connotation.”23

With that, it is clear from the above discussion that the knowledge of intention is important because it is essential in order to establish the correct juridical rule and failure to comprehend it might result in departure from the justice.

22 23

This maxim is mentioned under Article 3 of Majjalah Al-Ahkam Al-Adliyyah. Ibid, Article 68.

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CERTAINTY IS NOT OVERRULED BY DOUBT

‫اليقين اليزال بالشك‬ Al-Lahji mentions that the meaning of this axiom is that the ruling of certainty is not removed by doubt, be it 50/50 or 70/30. According to Al-Fadani, certainty refers to repose in the heart over the reality of a thing Doubt whereas according to the fuqaha, it is literally means to waver as Al-Nawawi explained in his writing when he said that “Doubt here and in most chapters of fiqh means wavering, be it 50/50 or 70/30.”24

This maxim discusses about the principle that should be followed if there is doubt in any matter, particularly those mentioning Islamic Law. It means that a fact established by law or proven wit evidence will remain so, until there is another certainty that prove another way around. Any doubt that occurs when certainty prevails will have no power to remove the certainty. Likewise, if something has not been established with certainty, it will remain so until proven otherwise. This is because doubt, which comes later, is weaker than the certainty on which it is founded. Doubt, therefore, cannot contradict or resist certainty.

There are several verses from the Quran and Sunnah which support this maxim. Firstly, verse from Quran:

‫وما يتبع أكثر هم إال ظنا إن الظن ال يغني من الحق شيئا‬ But most of them follow nothing but fancy: truly fancy can be of no avail against the truth.25

This verse speaks about the stage of being doubtful which the unbelievers are in. Surely the doubt that they are in will not prevail over truth or certainty. In addition, those who follow al-zann or are doubtful will never be successful and what they follow will never lead them to the right path.

24 25

Al-Daqaiq Surah Yunus:36.

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The legal basis for this maxim is derived from the hadith:

‫ّللا عليه و سلم انه قال إذا شك أحدكم في الواحدة والثنتين فليجعلهما واحدة وإذا شك‬ ‫روي عن النبي صلى ه‬ ‫في الثنتين والثالث فليحعلهما ثنتين و يسجد في ذلك سجدتين قبل أن يسلم‬ The Prophet S.A.W said: If forgetfulness arises to anyone of you in his salah and he does not know whether he has prayed one raka’ah or two raka’ahs, he should consider them as one raka’ah. Likewise, if this person is not sure whether he has prayed two raka’ahs or three, he should consider them as two. Moreover, if this person does not know whether he has prayed three raka’ahs or four, he should consider them as three raka’ahs. In all these cases, this person should prostrate twice before he will finish his prayer by giving the greeting (salam).26

This proves that certainty cannot be removed by doubt. In the first case, although this person is not sure whether he or she has prayed one raka’ah or two raka’ahs, it is certain that he or she has prayed at least one raka’ah i.e. the certainty of praying one raka’ah. Therefore, cannot be removed by doubt that has arisen regarding the second raka’ah. It goes the same way if he or she forgot at second and third raka’ahs. Beside, this hadith also clearly indicates there is no room for doubt and if it happens, that person should disregard the doubt and be affirmed on certainties.

Another hadith regarding this maxim,

‫ّللا عليه وسلم ثم إذا وجد أحدكم في بطنه شيئا ً فأشكل عليه أخرج منه شيء أم ال فال‬ ‫ّللا صلى ه‬ ‫قال رسول ه‬ ‫يخرج من المسجد حتى يسمع صوتا أو يجد ريحا‬ The Prophet S.A.W said: If anyone of you feels anything in his or her stomach and then he is confused of whether anything has come out of it or not, he should not go out of the mosque unless he hears any sound or gets any smell.27

26 27

Narrated by Al-Termidzi Narrated by Muslim

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Imam Nawawi in explaining this hadith, it remarked that, this maxim is a great maxim of Islamic Laws, that affairs should be judged to be in their original condition unless the opposite is certainly proved. If any doubt arises later, this doubt would not hamper the certainty that had been originally established about those affairs.

Al-Lahji mentions that this axiom enters into every chapter of fiqh, and the masa'il extracted from it consumes more than three-quarters of fiqh. This is because the maxim has various subdivisions, such as: 

The norm is that the status quo remains as it was before. A common example of this principle is the certainty of purity in the face of doubt. When one has conviction of purity but then doubts about having nullified ritual purity, such doubt is ignored. Likewise, if one is certain of ritual impurity but then doubts about having performed ablution, one is still considered to be in a state of impurity.



The norm is non-liability (with regards to others rights). An example of this maxim is when a person rents a piece of property and the property is destroyed while in the tenant’s possession, the norm is that the word of the tenant is considered regarding the amount to the damage.

There are many applications regarding of this maxim. Among others, if a person is certain that he is in the state of ablution, he is considered to have ablution until there is evidence or indication showing otherwise. Second, a person has taken a loan from another person and is in doubt whether he is still in debt, he is considered to be in debt until there is proof to show otherwise. Lastly, if a man marries a woman through a valid contract, then some doubts occur regarding the divorce of his wife, their marriage would be considered valid because these doubts came after certainty. This doubt of divorce, therefore, cannot remove the certainty of marriage. In addition to the said examples, there are many other instances in which this maxim can be applied.

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HARDSHIP BEGETS FACILITY

‫المشقة تجلب التيسير‬ This maxim particularly indicates that any ruling whose implementation causes hardship to a person or the action is unable to be performed by a person for a specific acceptable reason, then there are alternatives and way out that can be resorted to on order to overcome the difficulties and hardship. Before goes further, the meaning of this axiom is that necessity brings about dispensations from Allah Most High, as Al-Jarhazi explained in one of his books.28

According to Imam Ghazali, everything that exceeds its limit, changes into its opposite. It becomes necessary to lighten the people’s burden and to disregard general rules in certain exceptional circumstances if their applications were to result in injury and hardship. Hardship in this maxim refers to hardships that surpass the normal limit and ability of a person to perform them, and such as hardship of travel or sickness. The normal hardship that accompanies the implementation of every obligatory duty such as hardship in performing certain kinds of ibadah such as fasting, hajj, jihad, and the consequences of different kinds of penalty imposed by the Shariah does not fall under the interpretation of this maxim. This is because; this kind of hardship is bearable and is within the ability of a person to tolerate it. In addition, there will be no harm on a person who executes this kind of injunctions of the Shariah. Several Quranic’s verses were highlighted in support of this maxim. Among other are:

‫وما جعل عليكم في الدين من حرج‬ He did not make any difficulty for you regarding the religion29

‫ّللا بكم اليسر وال يريد بكم العسر‬ ‫يريد ه‬ Allah wants ease for you and He does not want hardship for you30

28 29 30

Al-Mawahib Al-Saniyyah Surah Al-Hajj:78. Surah Al-Baqarah:185.

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‫ّللا نفسا إال وسعها‬ ‫ال يكلف ه‬ Allah does not give anyone legal responsibility for anything except what is within his capacity.31

All the above verses indicate the fact that Allah does not intend to burden human beings with all the injunctions that He revealed. Therefore, if there is any exist of any injunction which is difficult to perform for a valid reason, then there will always be an alternative.

A number of the Sunnah form the Prophet S.A.W also indicates that Allah intends to provide facility and lift all kinds of unbearable burden from the mankind. For example, 

You have not been sent like those who have been given hardship. Rather, you have been sent as those who have being given ease or facility.32



Aishah R.A said, “Whenever the Messenger of Allah was given choice between two things, he choose the easier one unless it was a sin.33



Surely Allah S.W.T introduced the din as easy, full with kindness, and wide. He did not make it narrow.34

Al-Lahji mentioned that the scholars view all dispensations in the sacred law as a derivation from this legal maxim. The reasons for ease in the sacred law are seven: travel, illness, coercion, forgetfulness, being ignorant of ruling, difficulty and decrease. According to Imam Al-Suyuti, the criterion for hardship to beget facility is of two types: 1.

That which has no effect on easing the ruling, usually found in worship, such as the difficulty of using cold in ablution or the difficulty of fasting in severe heat.

2.

That which has an effect, not usually found in worship. This type has various levels:

31 32 33 34

Surah Al-Baqarah:286. Narrated by Bukhari and Muslim. Bukhari and Muslim. Narrated by Tabarani.

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

A very severe difficulty, such as fearing for one's own life. This is a cause for ease and dispensation.



Minimal difficulty, such as a mild headache. This is not a cause for ease.



An average hardship. A hardship that is closer to a level one hardship necessitates dispensation, while hardships in close proximity to level two do not.

Facility of six types: 1.

Takhfif isqat: such as Friday prayer when excuses are present.

2.

Takhfif tanqis: such as shortening prayers due to travel.

3.

Takhfif ibdal: such as dry ablution replacing a regular ablution.

4.

Takhfif taqdim: such as jam' taqdim in travel.

5.

Takhfif ta'khir: such as jam' ta'khir in travel.

6.

Takhfif tarkhis: This type includes difficult matters that the Lawgiver has made easy, such as using impure medicine.

Dispensations are of various types: 

Obligatory-- an example of this is eating unslaughtered dead when one believes that death is imminent if one does not consume the unslaughtered meat.



Recommended--an example of this is shortening prayers when the journey is three marhala.



That which is better to leave, such a wiping over leather socks.



That which is disliked to do, such as shortening on a journey less than three marhala.

The applications of the maxim can be seen as follows; 

If someone enters into a rental contract and later on he has to travel for certain reasons, he is allowed to cancel the rental contract. Under normal circumstances, a person is not allowed to cancel this type of contract unless it is agreed between the 20

contracting parties beforehand. However, forcing a person to continue paying the rental when he is not occupying the premise will amount to hardship; therefore, the Sharia has allowed the cancellation under specific circumstances in order to avoid this. 

The general ruling related to the implementation of punishments towards a person convicted for any crime is that the punishment should be carried out immediately upon conviction. However, under certain exceptional conditions, such as if the criminal is sick, the punishment can be deferred to a later date. This is to ease the person form additional hardship.



Two men were travelling together, one of whom died in a place where no judge can be found. In this situation, the other traveller is allowed to sell the property of his companion and keep its price for the deceased’s heirs without any legal power or instruction given by the latter to the former. Under normal circumstances, none is allowed to sell the property of a dead man who is neither related to the dead person, but in this case, if the above person does not sell the property of his companion it would be difficult for the former to carry the property of the latter.

There are also several maxims, which are considered as the branches of this maxim. Among others are necessity renders prohibited things permissible. This means that prohibited things are allowed to be carried out under extreme circumstances provided there are no permissible alternatives. For example, a person is allowed to consume prohibited food in order to survive under extreme situations where there are no food is available. Another branch is where a matter is narrowed, it becomes wide and lastly latitude should be afforded in the case of difficulties. This means upon the appearance of hardship in any particular matter, latitude and indulgence must be shown.

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HARM MUST BE ELIMINATED

‫الضرر يزال‬ According to M.H. Kamali, “....the maxim....is the validation of the option of defect in Islamic law, which is designed to protect the buyer against harm.” In addition, this maxim also is treated as a ‘pillar’ of Islamic law where it established laws of option, inhibition, return of defective merchandise, pre-emption, requital, Hudud, compensation and indemnity.

The basis for this axiom is the saying of our beloved Prophet S.A.W,

‫ال ضرر والضرار‬ Harm should not be inflicted nor reciprocated35

The scholars differ over what is meant by the words inflicted and reciprocated. Some scholars stated that inflicted harm is harm caused by one individual, while reciprocated harm refers to two individuals causing harm to each other. Another view is that inflicted harm entails that the person inflicting the harm is benefiting in some way, and reciprocated harm entails that the person inflicting harm is not benefiting from the harm caused.36

The first part of the maxim i.e. harm should not be inflicted, clearly indicates that all kinds of harm, whether it involves individual, society environment or any other things should be avoided. The word ‘harm’ is general and it includes all kinds of harm. All necessary measures should be taken in order to prevent any kind of harm from happening. The second part of the maxim explain that any harm that is inflicted should not be responded or revenged by inflicting another harm as this will add to the harm that already inflicted and will cause or incur further harm. If this happens, the better solution for the victim should demand his right through due process of law.

35 36

Narrated by Ibn Majah, Malik Al-Hakim, Al-Bayhaqi, and Al-Darulqutni. Kitab Al-Qawaid.

22

Apart from this clear indication on this maxim, there are also verses from the Quran that indicate the obligation to avoid any kind of harmful actions. One of those verses reads:

‫وال تلقوا بأيديكم إلى التهلكة‬ . . . Make not your own hands contribute to (your) destruction . . .37

In addition, this maxim also means that it is obligatory for everyone to always strive to prevent harm before its occurrence through implementing precautionary measures. Likewise, it means that if any harm has occurred, then all necessary measures should be taken to remove it or to lessen its destructive implications wherever possible.

Like the previous legal maxim, this axiom, upon which many rulings are based, enters into numerous sections of fiqh. Furthermore, this legal maxim has various sub-divisions: 

Necessity makes the unlawful lawful, such as eating unslaughtered dead.



Necessity is measured in accordance with its true proportions, such as only eating from unslaughtered dead the amount needed to keep oneself alive.



Harm must be eliminated but not by means of another harm, such as when a person eats the food of another to satiate his own hunger.



A greater harm is eliminated by means of a lesser harm. This axiom is derived from the incident of the desert Arab who urinated in the mosque, and the Prophet S.A.W ordered the companions to

leave the desert Arab as he was in

order to eliminate a greater harm. 

Prevention of evil takes priority over the attraction of benefit, such as leaving the group prayer or Friday prayer due to illness.

37

Surah Al-Baqarah:195.

23

The various levels in this axiom are: 

Necessity: Al-Zarkashi defines this as reaching a point where one would die, or come close to death, if an unlawful thing is not taken advantage of.



Need: where one will not perish if an unlawful is not taken advantage of, however, one will fall into hardship. Need in this sense does not permit the unlawful.



Benefit: something that one desires.



Adornment: a thing of amusement.



Surplus: consuming more than one need or utilizing doubtful things.

CUSTOM IS THE BASIS OF JUDGEMENT

‫العادة محكمة‬ ‘Adah or custom means the practise of the people in a certain place or town, whether in sayings or their actions, regardless of whether they are the general practises of the people or the practises of certain groups of people. These practises have authority and can specify a general matter (‫ )تخصيص العام‬or restrict an unrestricted matter (‫)تقييد المطلق‬. For instance, if a contract does not specify whether the delivery of goods is the responsibility of the purchaser or the retailer, where in this case the prevailing custom should be depended upon to specify and clarify this matter which is not cited in the contract. The basis for this axiom is derived from the verse: “And those who follow a way other than the path of the believers.” Al-Fadani explains that what is meant by path in the verse is the path that the believers approved, and that Allah warned those who follow a different path with punishment. This indicates that it is obligatory to follow the customs of the believers. In short, the custom of the believers is the basis for judgement in the sacred law.

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There are some evidence from the Holy Quran and Sunnah indicating the authority of custom. Among of these texts are:

‫خذ العفو وأمر بالعرف وأعرض عن الجاهلين‬ Keep to forgiveness, enjoin ‘urf and turn away from the ignorant38 Many mufassirun suggested that the meaning of ‘urf in this verse is synonymous to ma’ruf which means anything that is good. Therefore, customs will be considered in making legal judgments. Saidatina Aishah R.A had reported in a hadith, she said: “Hind, the daughter of ‘Utbah, wife of Abu Sufyan, came to Allah’s Messenger and said: Abu Sufyan is a miserly person. He does not give adequate maintenance for me and my children, but (I am constrained) to take from his wealth (some part of it) without his knowledge. Is there any sin for me? Thereupon Rasulullah S.A.W said: Take from his property what is customary (ma‘aruf) which may suffice you and your children.”

Some commentators of Sunnah suggested that this Hadith indicates the important role of custom and it should be relied upon on in matters where the Shara’ did not give the exact details.39 Besides that, Abdullah ibn Mas‘ud had said, “What the Muslims deem to be good is good the sight of Allah.” The proof that can be deducted from this quotation is that custom, if it is not against Islamic teachings, is normally considered as good practice to the Muslims and acceptable by people and reason. Therefore, such a practice is accepted by Allah. Hence, it can be regarded as a source of law in Islam.

In addition of above evidences, earlier and more recent scholars of Islamic law have agreed that custom is an important source in Islamic law. They have not objected to the rule of custom in solving the problems that arise in Islamic law.40

38 39 40

Surah Al-‘Arof:199. See Al-Asqalani, Fath Al-Bari Sharh Sahih Al-Bukhari, vol 9, pp 419-420. See Badran, Usul, p 226, Muhammad Hisham Kamali, Principle, p 372, Abdul Karim Zaydan, Al-Wajiz, p 254.

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This is obvious in the past and present literature of fiqh in which custom has been utilized by the jurists to solve many issues of fiqh.

Custom is continuously applied in fiqh. Some of the most important issues, such as determining the duration of menstruation and post-natal bleeding, return to custom. Similarly, in issues where one doubts about a small or large amount, the norm is to consider what is customarily considered large or small.

A number of discussions fall under this legal maxim: 

When is custom established, it can be established through one occurrence alone, such as abnormal uterine bleeding, or it is established by three occurrences, or through repeated occurrences, until it is most likely that a custom is established, such as the case of training an animal to hunt.



Custom is only considered when it is continuous and uninterrupted. A practical example of this is when a certain type of currency has become the standard currency in transactions, the default is that one must transact with the currency customarily used. The default for limits, measurements, and definitions is custom whenever the Lawgiver mentions such things without stipulating.

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BIBLIOGRAPHY  Mohammad Akram Laldin, Islamic Law an Introduction, (Kuala Lumpur, 2006).  Wan Azlan Ahmad & Paul Linus Andrews, Equity and Trusts in Malaysia, Sweet & Maxwell Asia, (2011).  Syed Khalid Rashid and Mohsin Hingun, Cases & Materials: Equity and Trusts in Malaysia, (Kuala Lumpur, 1997).  Muhammad Hashim Kamali, Principles of Islamic Jurisprudence, (Kuala Lumpur, 1990)

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