Al-qawāʿid al-fiqhiyya are legal maxims or principles that are usually expressed in the form of terse adages, such as: al-umūr bi-maqāṣidihā (acts are [judged according] to the objectives behind them); and al-mashaqqa tajlub al-taysīr (hardship brings about facilitation). Most of al-qawāʿid (sg. al-qāʿida) are specific to individual schools of law, although some of them are acknowledged by all schools. The most accepted definition of al-qāʿidaal-fiqhiyya is: “A predominantly valid legal determination (ḥukm aktharī) that applies to most of its particular cases (juzʾiyyāt) so that their legal determinations will be known from it”. Another designation of the genre is al-ashbāh wa’l-naẓāʾir (similitudes), referring to the similarities between cases included under the rubric of each qāʿida. The schools of law (madhāhib,sg. madhhab) are agreed on two types of qawāʿid fiqhiyya: general qawāʿid that apply to all or most fields of the law, which are therefore known as kulliyya (universal), and specific (khāṣṣa) qawāʿid that apply to one or more, rather than all, fields of fiqh; the latter are also known as ḍawābiṭ (sg. ḍābiṭ, regulators).
ʿAlāʾī al-Majmūʿ1:34–5; Suyūṭī Ashbāh 1:61–2; Ibn Nujaym Ashbāh 10–11. Ibn Nujaym mentions Abū Saʿd as one of the protagonists of the story rather than the narrator; this cannot be true as Abū Saʿd lived in the 5th/11th century (see Musa A Critical 96 n. 146) while Abū Ṭāhir lived in the 4th/10th century. It is stated in his biography that he was a contemporary of al-Karkhī. See Ibn Abī al-Wafā al-Jawāhir al-Muḍiyya fī Ṭabaqāt al-Ḥanafiyya (al-Hind: Majlis Dāʾirat al-Maʿārif al-Niẓāmiyya n. d.) 2:116–17.
Baḥusayn Qawāʿid321–2; Heinrichs “Qawāʿid as a Genre” 371. Heinrichs thinks that the story might have been used by later Ḥanafīs to claim that the Ḥanafīs started the genre while the Shāfiʿīs who later became outstanding in this field stole it from them. Heinrichs does not seem to be aware of the fact that the story was mentioned by al-ʿAlāʾī in the 8th/14th century which was the period of the resurgence of the genre. At that time it would have been hard to know that the Shāfiʿī scholars were the most active in this area as this role of theirs had just started as we shall see.
Bāḥusayn Qawāʿid347–52; Heinrichs “Qawāʿid as a Genre” 377–82. Heinrichs HHH lists the Ḥanbalī Ibn al-Laḥḥam’s (d. 803/1401) al-Qawāʿid wa‘l-Fawāʾid al-Uṣūliyya wa mā Yataʿllaqu bihā min al-Aḥkām al-Farʿiyyaed. M. Shāhīn (Beirut: Dār al-Kutub al-ʿIlmiyya 2001); it is not listed by other researchers perhaps for two reasons: first it does not discuss any qawāʿid fiqhiyya; as its title suggests it is a work of qawāʿid uṣūliyya. Second it mentions opinions and discussions of prominent uṣūlists from all schools rather than focusing on the Ḥanbalī school.
Hallaq“Was the Gate of Ijtihād Closed?”International Journal of Middle East Studies16 (1984) 3–4 20–21 24–6; idem “On the Origins of the Controversy about the Existence of Mujtahids and the Gate of Ijtihād” Studia Islamica 63 (1986) esp. 133f. Both articles are reprinted in: Hallaq Law and Legal Theory in Classical and Medieval Islam (U.S.A.; G.B. Variorum 1995); M. Khuḍarī Tārīkh al-Tashrīʿ al-Islāmī (Egypt: al-Maktaba al-Tijāriyya al-Kubrā 1970) 266; M. F. al-Nabhān al-Madkhal li’l-Tashrīʿ al-Islāmī (Beirut: Dār al-Qalam 1977) 342 350; M. M. Shalabī al-Madkhal fī al-Taʿrīf bi’l-Fiqh al-Islāmī (Egypt: Maṭbaʿat Dār al-Taʾlīf 1966) 131; Zarqā al-Madkhal 1:203–11; ʿA. Zaydān al-Madkhal li-Dirāsat al-Sharīʿa al-Islāmiyya (Baghdad: al-Maṭbaʿa al-ʿArabiyya 1964) 150. Cf. Coulson A History of Islamic Law (Edinburgh: Edinburgh University Press 1964) 81; Schacht Introduction to Islamic Law (Oxford University Press 1982) 70ff.
G. MakdisiThe Rise of Colleges (Edinburgh: Edinburgh University Press1981) 121–2; idem “The Juridical” 24; Nabhān Madkhal223–4; Shalabī Madkhal132f 144; Weiss The Spirit of Islamic Law (Athens Georgia: University of Georgia Press 1998) 15.
Ibn KhaldūnMuqaddima403–5; Ibn Taghrī Birdī Ḥawādith al-Duhūr fī Madā al-Ayyām wa’l-Shuhūr ed. M. K. ʿIzz al-Dīn (ʿĀlam al-Kutub n. p. n. d.) ed. Introduction 10–12; Jamāl al-Dīn Tārīkh Miṣr 3:650–1 (first section); Suyūṭī Ḥusn al-Muḥāḍara fī Akhbār Miṣr wa’l-Qāhira (al-Maṭbaʿah al-Sharafiyyah n. p. 1909) 2:65–6.