Using contemporary illustrations,
Legal Maxims in Islamic Criminal Law delves into the theoretical and practical studies of
al-Qawaid al-Fiqhiyyah in Islamic legal theory. It elucidates the importance of this concept in the application of Islamic law and demonstrates how the concept relates to the objectives of Islamic law (
maqāṣid al-Sharī‘ah), generally. Included in this examination are the following maxims:
al-Umūr bi-Maqāṣidihā ("Matters shall be Judged by their Objectives");
al-Yaqīn lā Yazūl bi-sh-Shakk ("Certainty Cannot be Overruled by Doubt");
al-Mashaqqa Tajlib at-Taysīr ("Hardship begets Facility");
Lā Ḍarar wa-lā Ḍirār ("No Injury or Harm shall be Inflicted or Reciprocated"); and
al-ʿĀda Muḥakkama ("Custom is Authoritative").
This article aims to focus on legal maxims related to financial transactions to explore whether they offer any solutions for Muslims concerned with this dilemma, and to investigate how such legal maxims can be used to shape the way in which Muslims in the West perceive today’s mortgage issues. Some questions raised are the following. When entering a mortgage contract, does a Muslim’s intention change the ruling of the transaction under the pretext of the two maxims al-ʿumūr bi maqāṣidihā (“matters considered according to intention”) and hal al-ʿibrah fī l-ʿuqūd bi l-maqāṣid wa l-maʿanī aw bi l-alfāẓ wa l-mabānī (“in contracts, is effect given to intention and the meaning or expression and form”)? Can one be certain that mortgages are completely ḥarām (unlawful) when considering the maxim al-yaqīn lā yazūl bi l-shakk (“certainty cannot be repelled by doubt”)? What aspects of ḥarām are found in mortgages and can they be marginalized by the maxim al-ḍarūrāt tubīh al-maḥẓūrāt (“necessity makes the unlawful thing lawful”)? If Islam allows bayʿ al-istiṣnāʿ (contract for manufacture) on the basis of ʿurf (custom), can mortgages also be permitted under the maxim al-ʿādah muḥakkamah (“custom is authoritative”)?
Islamic legal maxims promote the spirit of Islamic law through extrapolation of the texts. The legal maxim of al-ʿādah is one of the five basic legal maxims agreed upon among classical Muslim jurists. Despite the wide acceptability of custom in Islamic legal theory and its authoritativeness in application, one of the controversial issues surrounding the use of custom (al-ʿādah) is whether, by law, rulings can be changed over time when customs have changed. Thus, this article aims to examine the effect of custom in rulings related to ḥudūd and qiṣāṣ (fixed and retaliative punishments) in Islamic law and whether such rulings can be changed over time as custom changes and, if they can be changed, to what extent can such changes be made and to what effect do such changes affect the sanctity of the Qurʾān and Ḥadīth texts.