Summary of Legal Maxims of (Islamic) Jurisprudence: al-Uthaimeen

Summary of Legal Maxims of (Islamic) Jurisprudence

ملخص القواعد الفقهية

[Mulakhkhas al-Qawa’id al-Fiqhiyyah]

 

Prepared by

Abu Ahmad Abdullah ibn Humaid al-Falasi

May Allah have mercy on him and forgive him

إعداد أبو حميد عبد الله بن حميد الفلاسي

–  2003م – 1424هـ –

Summarized from the explanation of poetry of the same name by

Sheikh Muhammad ibn Salih Al-Uthaimeen

May Allah have mercy on him

ملخص لمنظومة القواعد الفقهية

فضيلة الشيخ محمد الصالح العثيمين رحمه الله

 

Translation, Foreword and Notes by

Abu Salman Deya ud-Deen Eberle

ترجمة وتقديم وتعليق

أبو ســـلمان ضياء الدين ابرلي

80 pages

Forth coming (insha-Allah: God willing)

Excerpt from pages  2 -17

(Scroll down to bottom of page for footnotes)

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بسم الله الرحمن الرحيم

الحمد لله رب العالمين والصلاة والسلام  على رسوله المصطفى الأمين

وآ له وصحبه ومن أتبعهم بإحسان إلى يوم الدين

 

In the name of Allah Most Beneficent Most Merciful

All praise is for Allah the Exalted and may the peace and blessings of Allah be upon His Messenger Muhammad and his family and companions and all those who follow them and their way until the Day of Resurrection

Translator’s Foreword

Indeed, all praise belongs to Allah. We praise Him, seek His Aid and His Forgiveness and we seek refuge in Allah from the evil of ourselves and from the evil of our actions. Whomsoever Allah guides, none can misguide, and whomsoever Allah misguides none can guide thereafter. I bear witness that there is no god except Allah (nothing has the right to be worshiped except Him), who is alone without partners. And I bear witness that Muhammad is His slave and Messenger.

“O you who believe! Fear Allah as He should be feared and die not except that you are Muslims.” (3:102)

“O Mankind! Fear your Lord, Who created you from a single soul (Adam) and from him created his partner (Eve) and from them both sent forth and scattered many men and women. So fear Allah through whom you demand your mutual rights and by the reverence of the wombs that bore you. For Allah is ever watchful over you.” (4:l)

“O you who believe! Fear Allah and say a truthful word. He will direct you to do righteous actions and will forgive your sins. Whosoever obeys Allah and His Messenger has verily attained the highest success.” (33:70-71)

Indeed the best speech is the Book of Allah and the best guidance is the guidance of Muhammad, peace and blessing be upon him. The worst of affairs are the invented matters, for every newly invented matter is an innovation, and every innovation is misguidance and every misguidance is in Hellfire.

The Arabic word ‘Qa’idah’ means base and foundation (not unknown to the English-speaking world nowadays), and in this context, the plural Qawa’id means the base, the most fundamental principles, rules and maxims. Fiqh is literally understanding and comprehension, and specifically, in matters of Islamic creed, faith, law and jurisprudence, as derived from the Qur`an, Sunnah, Ijma’a (consensus) and in limited scope, Qayas (analytical reason). The scholars of Islam down through the centuries have written many books on the important subject of Qawa’id al-Fiqhiyyah, the more renowned being by al-Iz ibn Abd as-Salam, As-Subuki, as-Suyyuti, Ibn Rajab, Ibn Najeem, ash-Shatabi, al-Qarafi, al-Wansharisi, az-Zarkashi and many others. There are many beneficial modern studies on the subject like the encyclopedia of maxims and its abridgment by Dr. Muhammad al-Burnu and the commentary of maxims by Sheikh Muhammad az-Zarqa.  In English we find on the subject, for instance, the short treatise of Mohammad Hashim Kamali “Qawa‘id al-Fiqh: The Legal Maxims of Islamic Law”, and the article by Hasanuzzaman, ‘Economic Relevance of Sharia Maxims’, and others. Since it serves as a tool to greater understanding in the field of Fiqh, there is an urgent need for more articles and books explaining this crucial genre of Islamic jurisprudence.

After going through this booklet the importance of the maxims for comprehension of religion will be evident for the readers.  This again is relatively self evident for the astute reader, and all are derived from the words of Allah and His Prophet for action is according to intention and thus as in the saying of the our Prophet peace and blessing be upon him, who has been bestowed with the best eloquence, “Verily the deeds are according to intentions and for every person as he intended…” And in another narration as mentioned below, “No harm to oneself, and no harm to others.” Which is in effect the golden rule: Do unto others as you would have done upon yourself.

Sheikh Salih al-Uthaimeen is renowned for his depth of comprehension in matters of religion in general and Fiqh in particular, and for his amazing abilities in teaching in great depth when needed, and summarizing and simplifying Islamic subjects for students of knowledge.  When I saw that Abdullah al-Falasi summarized the verses of the Sheikh in a precise abridgement useful as a primer to introduce the subject, I decided to translate them out for the general benefit by the aid of Allah and seeking His favor, mercy, and forgiveness.  I have added a few notes to cite the sources of the Prophetic narrations mentioned, and occasionally to elucidate the maxims and principles mentioned for the English readers who may be unfamiliar with the terminologies, references and rationales of Islamic jurisprudence. Of course, many more proofs and examples are mentioned in the more unabridged books, but are not within the scope of this summarized version.

>Some Preliminary Jurisprudence Terminology and Observations

This subject is extremely important for a Muslim since if he understands the basic principles and maxims of his religion he can assess properly many individual matters and events. If he has misconceptions in any basic concept, principle or maxim, this leads to other related mistakes and may become a major mistake leading to clusters of innovations or even, and we seek refuge in Allah, acts of apostasy.  Blind following of a particular school of jurisprudence or methodology without reflection and comparison with other positions of jurisprudence, especially in the basic principles and maxims, may lead to intellectual stagnation and sterility. Considering the many crucial issues of the modern era confronting the Muslim community of believers in various aspect of life, public and private, which demand Islamic verdicts, the study of maxims and essential elements in legal fundamentals and methodology of jurisprudence only gains in importance.

The first step of knowledge in a subject is learning basic terminologies and concepts. For this reason many of the maxims below are about various categories and their definitions. The most basic concepts to comprehend are Fard and Wajib, which indicate obligatory act of worship to Allah the Exalted: those who perform them are rewarded while the one who abandons them is punished.  Haram and Mahzthur indicates the unlawful, prohibited and forbidden, which the opposite of obligation in that the person performing them may be punished while there is a reward for avoiding them. Nafilah, Sunnah, Mandub, Mustahab are terms indicating the supererogatory acts that are loved and recommended as part of the Sunnah of the Prophet Muhammad, peace and blessing of Allah be upon him: the one who performs them is rewarded but the one who leaves them is not necessarily punished. Makrooh is the opposite of this, being what is disliked, obnoxious, detested, and discouraged: there is reward for leaving them but no prescribed punishment for performing them. Mubaah indicates what is permissible and allowed, where both doing these acts and leaving them are equivalent.

The Fard and Wajib are divided into two categories: Fard al-Ain (individual obligation), the doing of which is sought from every Mukallaf (morally responsible), Baligh (mature, past the age of puberty and discretion) Aqil (sane) person. These include the pillars of worship, being kind and obedient to parents, and many other moral obligations like truthfulness, justice etc.  The second is Fard al-Kifayah (collective obligation), the performance of which are sought from the morally responsible people as a collective community duty but not from every specific individual, like for example: performing the call to prayer; burial prayer; learning various subjects of useful knowledge and industries; commanding of good and forbidding of evil; and other similar matters.

There are other categories essential for religious comprehension, and two are preeminent. Rukn (plural: Arkan) are the most essential elements by which a thing exists. Naqid (pl. Nawaaqid) are those elements by which a thing ceases to exist and is demolished. Another name often given to express the same general meaning is Mubtal (pl. mubtalaat), and Mufsad (pl. Mufsadaat), all which convey the idea of Ihbat al-Aml, the invalidation of deeds and making them null and void, without merit and worthless. Fasad is a term translated below as destructive corruption since it is

Often the correctness or incorrectness of a worship, act or contract, etc, is according to the fulfillment of the Shurut (plural of Shart: condition).   A Shart is to be distinguished from a Rukn in that it is considered outside the thing’s essential being whereas a Rukn is considered an integral part of that thing’s essential being.  For instance, to make Wudu (ablution) is a Shart of an acceptable Salat (prayer), whereas to recite the Fatiha (opening chapter of the Qur`an) is Rukn of the Salat itself. Both are necessary for the prayer to be correct and acceptable, but one is outside its contents while the other in an integral part of the Islamic prayer.

CHART A

What is to be done and loved, 

[The positive things]

What is to be avoided and hated, 

[The negative things]

1) Rukn (pillar, essential element) 1) Naqid, Mubtil, Mufsid (nullifier)
2) Fard, Wajib (obligatory) 2)Haram,Mahzthur(prohibited, illegal)
3) Nafilah, Mustahab, Sunnah (voluntary, praiseworthy, supererogatory) 3) Makrooh (disliked)

(*) Mubah (permissible)

All legal rulings of Islamic canon law and jurisprudence are encompassed in the categories above. ‘Mubaah (permissible) is the act, which, in itself, is neither positive nor negative, or worthy of reward or punishment. It is a separate category according to some, and attached to one of the other categories according to others.

Masaalih (sing. Maslahah) and Mafaasid (sing. Mafsadah) are also crucial terms since it has been said that the entire edifice of the religion of Islam is built upon the rationale to provide or protect the beneficial things (Masaalih) and avoid or reduce the destructive/ corrupting things (Mafaasid).

The student will confront many other legal terms in the primer below, and our purpose here is just to highlight some of the concepts as a prelude and encouragement for to acquire knowledge in this vast, rewarding and fascinating subject.

Abu Salman Deya ud-Deen Eberle

abusalman102@yahoo.com

abusalman102@gmail.com

1427H. – 2006C.E.


TRANSLATION of the ARABIC TEXT

بسم الله ا لرحمن الرحيم

الحمد لله رب العالمين، والصلاة والسلام على رسول الله، أما بعد: فهذه المادة عبارة عن ملخص لمنظومة القواعد الفقهية التي ألفها وشرحها فضيلة الشيخ محمد الصالح العثيمين رحمه الله – طبعة دار الآثار (صنعاء) / دار البصيرة (الأسكندرية) – وبالله التوفيق:

In the name of Allah the Most Beneficent in Mercy, Most Merciful

All praises are for Allah the Lord of the Universe, and may the peace and blessing be upon the Messenger of Allah.  This is the summary of the verses of poetry of the eminent Sheikh Muhammad ibn Salih Al-Uthaimeen, may Allah’s mercy encompass him, as published by Dar al-Athar, Sana’a, Yemen, and Dar al-Baseera, Alexandria, Egypt.

القاعدة الأولى: الدين جاء لسعادة البشر.

الدين كله جلبٌ للمصالح ودفعٌ للمفاسد. وهذه القاعدة هي القاعدة العامة في دين الله عز وجل.

1.      Principle: The religion of Islam came for the happiness of mankind.

All of the religion of Islam is for achieving the good and beneficial (Masaalih) and avoiding evil and corruption (Mafasid). This principle is the most basic principle of Islam.

القاعدة الثانية: لا ضرر ولا ضرار.

أن كل أمر نافع قد شرعه الإسلام، وكل أمر ضار قد منعه، فكل ضار فهو ممنوع، وكل نافع فهو مشروع.

الدليل على ذلك: قول الله تعالى: ﴿وَلاَ تَقْتُلُواْ أَنفُسَكُمْ إِنَّ اللّهَ كَانَ بِكُمْ رَحِيماً﴾ [النساء:29]. وقول رسول الله صلى الله عليه وسلم: ” لا ضرر ولا ضرار “.

2.      Principle: Haram should not be committed to oneself or others

Every beneficial thing has been commanded in the legislation of Islam and every harmful thing has been prohibited. A proof of this is the saying of Allah the Exalted: “And do not kill yourselves (or one another), indeed, Allah is ever Merciful to you.” (4:29) Another proof is the saying of the Messenger of Allah peace and blessing be upon him: “No harm to oneself, and no harm to others.” [1]

القاعدة الثالثة: درء المفاسد أولى من جلب المصالح.

إذا اجتمعت في الشيء المنافع والمضار وتساوت المنافع والمضار، فإنه يكون ممنوعاً من أجل درء المفسدة، وأما إذا ترجحت المنفعة فإنه يؤخذ بها وإذا ترجحت المفسدة فإنه يغلّب جانبها.

3.      Principle: It is preferred to avoid corrupting elements (Mafaasid) over achieving benefits (Masaalih).

When the elements of corruption and of benefit are equal in a thing then the thing is prohibited in order to protect from the corrupting elements. If the elements of benefit are dominant then it is taken into consideration, but if the elements of corruption are dominant, they overtake.

القاعدة الرابعة: أن التكاليف الدينية ميسرة.

أن التكاليف الدينية ميسرة من أصلها، وإذا طرأ عارض خففت هذه الخفيفة مرة ثانية ومرة ثالثة.

والدليل على ذلك قوله تعالى في الصوم ﴿فَمَن كَانَ مِنكُم مَّرِيضاً أَوْ عَلَى سَفَرٍ فَعِدَّةٌ مِّنْ أَيَّامٍ أُخَرَ﴾ [البقرة:184]، وقول النبي r لعمران بن حصين: ” صل قائماً فإن لم تستطع فقاعداً فإن لم تستطع فعلى جنب “.

4.      Principle: Responsibilities of religion are easy.

The Islamic responsibilities are basically easy and smoothly facilitated.  If some obstacle or difficultly comes, then this basic easiness is made easier a second time and then a third time. The proof of this is what Allah the Exalted mentioned about fasting: “…So whoever among you is ill or on a journey then an equal number of days (are to be made up)…” (2:184) The Messenger of Allah peace and blessing be upon him, said to Imran ibn Husayyin, may Allah be pleased with him: “Pray standing and if you cannot then sitting, and if you cannot then on your side.” [2]

القاعدة الخامسة: كلما وجدت المشقة وجد التيسير.

هذه قاعدة شرعية ثابتة في الكتاب والسنة، والدليل على ذلك قوله تعالى: ﴿وَمَا جَعَلَ عَلَيْكُمْ فِي الدِّينِ مِنْ حَرَجٍ﴾ [الحج:78]، وقوله تعالى: ﴿يُرِيدُ اللّهُ بِكُمُ الْيُسْرَ وَلاَ يُرِيدُ بِكُمُ الْعُسْرَ ﴾ [البقرة:185]. وأما من السنة فقول النبي r: ” بعثت بالحنيفية السمحة ” .

5.      Principle: Whenever there is hardship, there is easiness to facilitate. [3]

This is affirmed by the Qur`an and the Sunnah. The proof of this is the saying of Allah the Exalted:  “…and He has not placed upon you in the religion any difficulty.” (22: 78) And He said: “Allah intends for you ease and does not intend for you hardship.” (2:185) In the Sunnah the Messenger of Allah peace and blessing be upon him, said: “I have been sent with al-Hanifiyyah Samhah.” [4]


القاعدة السادسة: فاتقوا الله ما استطعتم.

وهي مأخوذة من قوله تعالى: ﴿فَاتَّقُوا اللَّهَ مَا اسْتَطَعْتُمْ﴾ [التغابن:16]، وقول النبي r: ” ما نهيتكم عنه فاجتنبوه وما أمرتكم به فأتوا منه ما استطعتم “. فعلى الإنسان أن يفعل المأمور بقدر استطاعته، وأن يجتنب المحظور كله؛ لأن المحظور ترك ولا يعجز عنها الإنسان، وأما المأمور فهو فعل يحتاج تكلف وعناء فلهذا قيد بالاستطاعة ولم يقيد اجتناب النهي بذلك.

6.      Principle: Fear Allah as much as you can

This principle is taken from the saying of Allah: “So fear Allah as much as you are able.” (64:16) And from the saying of the Prophet peace and blessing be upon him: “Whatever I prohibit avoid it, and whatever I command you perform as much as you can…” [5] A person must perform the obligations as much as he is able to and avoid all the prohibitions because the prohibition is leaving off action and no one is helpless about not doing something. The commands take exertion and thus are conditional upon the ability to perform the obligations whereas the avoidance of the prohibitions is not conditional in the same way.


[1] Reported by Ibn Majah and verified by Sheikh al-Albani in Sahih ibn Majah and other books.

[2] Reported by al-Bukhari.

[3] As with many of these maxims there are various ways to phrase them, and another statement used for the idea expressed is to say (المشقة تجلب التيسير): hardship brings easiness.

[4] The Sheikh is referring to the narration: “So that the Jews will know that we have kindness, (and leniency, leeway and tolerance) in our religion: I have been sent with the Hanifiyyah Samhah.” Reported by Ahmad and others, and verified by Sheikh al-Albani in his Silsilah Sahihah no. 1829] And in another version: “I have not been sent with Jewish-ness or Christian-ness but I have been sent with the Hanifiyyah Samhah” “Hanifiyyah” is defined here as strict Islamic Monotheism, staying away from all idolatry and worship of other than Allah, and strictly abiding to sincere worship of Allah as prescribed by Islam without innovations.  “Samhah” is here defined as kindness, good conduct and the easy going, lenient and tolerant way in all of the necessary human relationships. In another narration he said: “Religion is very easy and whoever overburdens himself in his religion will not be able to continue in that way. So you should not be extremists but try to be near to perfection and receive the good tidings that you will be rewarded, and gain strength by worshiping in the mornings and latter part of the night.” Reported by al-Bukhari, no.38.

[5] Reported by Ibn Majah and verified by Sheikh al-Albani in Sahih ibn Majah and his other books.

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2 Responses to Summary of Legal Maxims of (Islamic) Jurisprudence: al-Uthaimeen

  1. ADAMU MUSA BICHI says:

    May Allah subhanahu wataala reward you with Jannatul fidaus.

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