Thursday, July 06, 2006

Understanding Qaid'a - Islamic Legal principle

‘Usul ul-Fiqh[i] utilises many technical terms, from the discipline of the Arabic language to the Science of Hadith. One such term is Qaid’a, or maxim. Qaid’a is a legal principle derived from the legislative sources which is applicable on actions or objects because it is a principle derived from the daleel[ii]. Qaid’a serves as the initial stage in issuing a legal verdict, and the mujtahid[iii] would consider it as a basis to build other daleel upon it.

Throughout the history of ‘Usul ul-Fiqh and Fiqh many Qaid’a existed. Some were accurately derived and widely applied, while others were not. The Qaid’a could be related to ‘Usul ul-Fiqh or Shari‘ah. Some of the widely accepted Qaid’a in ‘Usul ul-Fiqh are:

The Initial rule is that an object or a thing is permissible unless stated otherwise.

This Qaid’a is derived from many ayat in the Qur’an:

“He it is Who created for you all that is on earth.” [TMQ Al-Baqarah 2:29]

“Who has made the earth a resting place for you, and the sky as a canopy, and sent down rain from the sky, and brought forth therewith fruits as a provision for you? Then do not set up rivals unto Allah while you know (that He alone has the right to be worshipped).” [TMQ Al-Baqarah 2:22]

“See you not, O men, that Allah has subjected for you whatsoever is in the heavens and whatsoever is in the earth and has completed and perfected His graces upon you...” [TMQ Luqman 31:20]

“Allah is He Who has created the heavens and the earth and sends down water from the sky and thereby brought forth fruits as provision for you; and He has made the ships to be of service to you, that they may sail through the sea by His command, and He has made rivers to be of service to you.” [TMQ Ibrahim 14:32]

“Say, ‘Who has forbidden the adoration with clothes given by Allah, which he has produced for his slaves, and all kinds of lawful things of food ?’ Say, ‘ They are, in the life of this world, for those who believe and exclusively for the believers on the Day of Judgment.’ Thus we explain the ayat in detail for people who have knowledge.” [TMQ Al-A‘raf 7:32]

All of these ayat lead to the conclusion that Allah (swt) had made everything halal. However, from this wide circle of permissible things and objects there are certain prohibitions that also come from the legislative sources:

“Forbidden to you (for food) are: dead animals, blood, flesh of swine, the meat of that which has been slaughtered for others than Allah...” [TMQ Al-Ma’idah 5:3]

This ayah as well as others exclude certain things from the previous ayat which made everything permissible. Based on this Qaid’a, if a mujtahid wanted to derive a legal rule on a fruit that was not known to be eaten at the time of the Prophet (saw) such as Kiwi, the mujtahid would refer to the above Qaid’a and this would save the effort of applying every ayah or hadith that makes objects permissible. Additionally, if a mujtahid wanted to issue a verdict on a drink containing alcohol, then the mujtahid would refer to the Qaid’a and find the ayat and ahadith explicitly prohibiting any use of alcohol (khamr).

To further clarify this Qaid’a, Islam has prohibited Muslim men from wearing pure silk which is produced by the silk worm except for any Shari‘i-approved exemption. However, this prohibition of pure silk does not apply to synthetic silk because synthetic silk is not produced by the silk worm. There is no text prohibiting the use of synthetic silk. Based on the Qaid’a, it is considered mubah for Muslim men to wear garments made out of synthetic silk. The above mentioned Qaid’a addresses things or objects. This Qaid’a contributes towards a very high level of material progress in the society because it renders almost all objects at its disposal.
There is another famous Qaid’a that addresses actions:

The initial rule is that actions are neither permissible nor prohibited. Each action requires a daleel.

This is a valid Qaid’a derived from the legislative sources and supported by several daleel :
“By your Lord, We shall certainly call all of them to account. For all that they used to do.” [TMQ Al-Hijr 15:92-93]

“Whatever you may be doing, and whatever portion, you may be reciting from the Qur’an and whatever deed you (mankind) may be doing (good or evil), We are Witness thereof, when you are doing it. And nothing is hidden from your Lord (so much as) the weight of an atom on the earth or in the heaven. Not what is less than that or what is greater than that but is written in a Clear Record.” [TMQ Yunus 10:61]

Also, the Prophet (saw) said, “He who does an action not from us then he is not part of us.”
These and many other ayat and hadith indicate a vital issue: Allah (swt) will question every action, and every person will be held responsible for them. Because of this principle, then every action requires a sanction from Allah (swt) before executing it. The Sahabah (ra) were always cautious in inquiring the rule on any action before carrying them out. If the actions were allowed as a general rule, then they would not ask the Prophet (saw) before carrying them out or they would perform it until Allah (swt) would prohibit it.

The two mentioned Qaid’a are frequently mixed with each other and as a result cause confusion. Some claim that all actions are allowed unless stated otherwise. The difference between these two Qaid’a as well as their relationship can be illustrated using three objects: sword, khamr (alcohol) and pure silk.

Use of swords is permissible in Islam. However, what Islam restricts is the way it is utilised. For instance, the act of using a sword against Muslims, with the exception of implementing the Hadd (punishment) is considered haram, while the act of using a sword in Jihad is rewarded. In both cases, the sword as an object remains permissible, but the nature of the intention behind the action differs. So the permissibility to use an object does not necessarily mean that all actions associated with the object are permissible.

Khamr is of the few objects which Islam prohibits. The Prophet (saw) prohibited Muslims from all acts related to alcohol, such as buying, selling, manufacturing, handling or receiving the price of alcohol. Generally, if an object is haram, then all acts associated to it are haram as well. Any exception to this rule must have a daleel that states that exception.

Pure silk is a thing which is permissible. Islam prohibits only the act of wearing by Muslim men, other than in cases of Shari‘i exemptions. Islam, however, allowed men to sell, buy, trade, and manufacture pure silk. So if a object is permissible it does not necessarily mean all actions related to it are allowed. As in this case, the wearing of silk by Muslim men is prohibited.
The three mentioned examples exhibit the difference between the two Qaid’a. They are distinct because they address different issues. Consequently, each act requires its own daleel, and each issue should be addressed separately without any generalisation, unless if the daleel is general. It is interesting to note that the first Qaid’a discussed in this article renders all objects as permissible unless stated otherwise. Whereas, this Qaid’a controls how objects are utilised by requiring a Hukm Shari‘i for each of our actions. So the progress in the Islamic society is achieved within the scope of the Shari‘ah and thus takes a specific shape.

Another well known Qaid’a is: That which is necessary to accomplish a Wajib is itself a Wajib.

So, based upon this Qaid’a, the daleel ordering one to perform wudu for the prayer requires that one searches for water and turns the water valve on, although none of these acts are mentioned implicitly or explicitly in the text. But they have to be done in order to perform wudu thus they become wajib as wudu is. Similarly, the obligation for Jihad was mentioned without mentioning any specific form of preparation, but the preparatory phase is obligatory because of the ayah stating:

“And make ready against them all you can of power, including steeds of war to threaten the enemy of Allah and your enemy, and others besides whom you may not know but whom Allah does know.” [TMQ Al-Anfal 8:60]

Although the ayah did not mention the details of preparation, anything needed to perform Jihad effectively then becomes wajib. Consequently, technical military training, military institutions, and heavy industry would all fall under this preparation. If the ayat related to salah or Jihad were taken at face value only and stopped at that point then the whole daleel would become abstract and impractical. Since the re-establishment of the Islamic State is a fard, then any action required to achieve this objective becomes fard. Consequently, establishing a political party with the necessary ideological and political culture then become fard. This Qaid’a is extracted based upon understanding the nature of laws and their application in life.

The above mentioned Qaid’a are related to ‘Usul ul-Fiqh. Another set of Qaid’a, called Qaid’a Shari‘ah, are related to the Ahkam Shari‘ah[iv]. One of the Qaid’a Shari‘ah is related to business contracts and transactions, which states that all parties involved in any transaction have to bear both profit and loss. A person investing his or her effort or money to derive profit has to bear the loss as well. Consequently, it is haram to have a transaction in which a party does not bear any loss. So, any contract in which a person invests capital and is entitled to profit without liability for any loss constitutes riba, which Islam prohibits.

This Qaid’a is based upon the definition of riba and the ayah prohibiting it. Allah (swt) says:

“Those who eat riba will not stand (on the Day of Judgment) except like the standing of a person beaten by Shaitan leading him to insanity. That is because they say: ‘Trading is only like riba’ whereas Allah has permitted trading and forbidden riba. So whosoever receives an admonition from his Lord and stops eating riba shall not be punished for the past; his case is for Allah to judge; but whoever returns to riba, such are the dwellers of the Fire, they will abide therein.” [TMQ Al-Baqarah 2:275]

Abdurrazzaq narrated in Al-Jami' from 'Ali (ra): “The loss (al-wadhi'a) is upon the capital and the profit is according to what they stipulated.”

When Muslims understood Islam correctly, it reflected in the soundness of their understanding and application of ‘Usul ul-Fiqh and Fiqh, and this understanding influenced many things including the validity of Qaid’a being issued at the time. After the occupation of Baghdad by Mongols in 656 AH, taqleed (imitation) increased and the understanding dwindled as a result. The decline of Islamic thought had a great impact on the understanding of the Shari‘ah among Muslims, and resulted in the appearance of many Qaid’a with weak daleel or no daleel whatsoever. One such Qaid’a stated that, “the change of rules can occur due to the change of time and place,” and was justified by certain incidents:

The incident in which ‘Umar (ra) changed some rules, such as cutting the hand of thief and whipping the drunkards 80 times instead of 40 times.

The incident of Imam Shafi‘i’s change in Fiqh when he moved to Egypt.

Before discussing these justifications, one has to realise the tremendous difference between changing the rules and applying rules to the events. As an example, if a woman is married without the mention of dowry in the contract, then the judge would specify an amount based on the dowry amount given at that time and place. The verdict on the dowry amount by judges at two different locations would differ, but the order to pay the dowry is not changed or canceled. Also, every witness has to be ‘adl (just), however the definition of ‘adl varies from one jurist to another. At the time of Imam Shafi‘i, it was considered undesirable for an individual to be eating outside while engaged in any activity like walking. Some jurists placed this characteristic as one of many factors excluding a person from being ‘adl, and this difference would naturally lead to a different application of rules. However, the rule does not change the requirement of an ‘adl person as a witness or riba being haram. This Qaid’a was applied and used in this context in the earlier days. Islamic laws were never abandoned, left or changed. Applying a different rule to its respective situation is something which is required and necessary. If Islam allowed a person to abandon a rule in a situation such as eating pork to avoid death, then the rule was not forsaken because of a change of situation, time or place. In this instance, the order to eat pork in such a context is based upon other evidences.

When ‘Umar (ra) stopped cutting the hand of the thief during a famine, he made an Islamic judgment based upon a daleel. Before cutting the hand, the person’s basic needs must be met. Since the basic needs are not fulfilled during a famine, then the Islamic punishment cannot be applied. Also, ‘Umar’s (ra) actions were approved unanimously by all of the Sahabah (ra). It is inconceivable to think that ‘Umar (ra) changed a rule and none of the Sahabah would stand to correct him. Moreover, the idea that Imam Shafi‘i changing his Fiqh because of a change of place has no basis. Imam Shafi‘i’s changed his ‘Usul because he realised that his old‘Usul was not correct, and such a change led to a change in his Fiqh.

Currently, such Qaid’a have been grossly taken out of context due to the influence of Capitalism, Communism and other man-made ideas on Muslims. What Muslims failed to recognise was the difference between Islam and these other ideas. In Capitalism, the people are sovereign, and the decision of what is right and wrong rests with human beings. As the circumstances and conditions change, the thoughts and viewpoints of the people change, which result in a change in standards of right and wrong. Communism, which was based on the theory of dialectics, stated that things are in constant evolution and change. In Islam, Allah (swt) revealed His Shari‘ah to all humanity for all times and places, and His Laws are applicable and relevant until the Day of Judgment. Because the Ahkam Shari‘ah emanates from the Creator whose Knowledge is all-encompassing, then the system that stems from these laws does not need to be changed, updated or revised to adapt to new circumstances. The text of Qur’an and Sunnah should not be viewed as any writing like that of Marx or Adam Smith which is subject to contradictions or the need for change with changing conditions.

There are other false ‘Qaid’a ’ which are widely used and promoted in the Muslim lands today. They have stuck to the tongues of the people and have greatly contributed in shaping a specific personality that Islam neither recognises nor approves of. These false ideas were implanted in the Muslim Land as part of an ideological attack on Islam by the West through missionaries and other tools.

One such ‘Qaid’a’ is: Follow the Spirit of the Text.

This Qaid’a was originally derived from the French civil law. It is based upon two methods of interpreting the legal text: The Objective method, which adheres to the text literally; and the Subjective approach, which understands and applies the essence of the text.
These two methods of interpreting the legal text are quiet common in the West. Whether a specific law in the constitution should be taken literally or based upon consideration of the intent of the founding father has always been a subject of discussion in Western jurisprudence. Such a methodology of interpreting the text does not exist in Islam because Islam has outlined a well-defined methodology for interpreting the text and extracting rules. For example, one of the well known rules in qiyas is that the‘illah (reason for issuing the rule) has to be derived through the text, and the text must mention the‘illah either implicitly or explicitly. The laws are addressed through the Qur’an and Sunnah which constitute the revelation. Claiming that any rule is Hukm Shari‘i requires a text validating it either from the Qur’an, Sunnah, Ijma‘ as-Sahabah or Qiyas. New issues or situations require extracting rules from the Islamic sources of legislation to address them without altering or changing any existing laws. If there is discrepancy between the ideology and the society, then the society has to be changed to fit the ideology.

The methodology which Islam has defined for understanding the text enables the Islamic legal texts to be relevant and applicable at all times and places. Such an attribute does not exist in man-made legislative texts because Adam Smith, Thomas Jefferson or Marx are limited in their understanding and are not capable of producing a constitution comprehensive enough to address humanity at all times and places. To fill this gap the jurists in the West developed these two methods of interpreting the text. Adhering to such a Qaid’a will create many interpretation of the text in the society under the justification of the ‘spirit of the law’. Eventually people will find themselves abandoning the law or finding loop holes to bypass the law under the pretext of the ‘spirit of the law’. This Qaid’a leads to mere speculation of the intent of the text. Because such an understanding cannot be achieved, then the authority would simply enforce its own opinion under the pretext of ‘spirit of the text’.

The impact of Western methodology in understanding the text has caused many to think in a distorted manner. For instance, Islam permitted eating of pork at the time of hunger which could lead to death. Based on the ‘spirit of the text’ people began claiming that they can change rules under duress, resulting in such notions as a person can deal in riba or bribery if he/she is under duress. Rather than changing the environment to apply Islam, Islam was changed and twisted to fit the society’s corrupt practices and values. Those objecting to this thought pattern would be accused of not understanding the spirit of the text.

Many other invalid Qaid’a were widely promoted for the sole purpose of corrupting the Islamic thought among the Muslims. Today, they dominate the thinking of the Muslims as well as some scholars and political leaders of the Islamic Ummah.
Among them are:

- Choose the Lesser of the Two Evils.
- Be Realistic and Practical.
- Give and Take Approach.
- Be Diplomatic.
- Keep Religion away from Politics

These Qaid’a were not haphazardly or accidentally disseminated in the society. They were widely promoted through such institutions as schools, colleges and universities, media, and political figures. The poisonous concepts in these Qaid’a seek towards creating a personality typifying the Western culture, any individual with no values or standard and who is ready to sell his deen for a cheap price!

Through these concepts there was no consistent standard in the society. Haqq became subjective or a relative issue. Everything in Islam, even clear-cut issues never debated before, were suddenly the subject of debate, including Islam itself. These false ‘Qaid’a ’ have become the driving force of the culture and thinking of the Muslims, to the extent that they narrowed the Ummah’s vision of change and fulfillment to just filling its stomach or casting a vote in the ballot box. Under the influence of these ideas, many Muslims unknowingly think like seculars because of such notions as ‘The ends justify the means’.

The Islamic personality which Islam created in the Sahabah (ra) and in the early Muslims — a personality that had the clear distinction between right and wrong and would stand for the Haqq regardless of the consequences — was replaced by a personality with two faces that had no clear standard and would just move with the tide of circumstances.

Qaid’a constitute an important part of Islam because they establish fundamental maxims that outline a general and specific understanding from the Islamic text. Islam has established a well-defined criterion for understanding the text, and such a criterion must have a daleel to substantiate it. The Qaid’a cannot be undermined since they represent a principle from Islamic texts which we are ordered to adhere to. So it becomes imperative for the Ummah to maintain these Qaid’a by applying it and maintaining it. Otherwise it would become like any principle written in the books of jurisprudence collecting dust in a library.

[i] Defined as the collection of principles or rules pertaining to the methodology of extracting laws from the Islamic legislative sources.
[ii] Evidence from an Islamic legislative source.
[iii] An individual capable of extracting laws.
[iv] Address of Allah (swt) related to our actions.

By Abu Tariq


Abu Jibreel said...

After mentioning the ayah about riba, TMQ Al-Baqarah 2:275]

you said:

Also, the Messenger of Allah (saw) said, “Profit is based upon mutual agreement between partners. The loss is based upon the capital invested.”

As far as i know, this is a saying of 'Ali (radhi Allahu 'anhu), as explained in another article on this blog, companies in islam, taken from the economic system in Islam, by Sheikh al-Nabhani. It's also mentioned in a slightly different wording in al-Mughni by Ibn Qudama.

Islamic Revival said...

This is as an article that appeared in the Khilafah Journal which was published in the past. We will ammend it so that it mentions it as a statement of Ali (ra) unless we find the reference that it is mentioned in hadith.

Jazakallah khair in aiding us to maintain accuracy

Anonymous said...

Assalamualikum - Ya Shaykh Abu Tariq (and of course AI)- Can we have text book or referred book where we can have all the major Qaidas compiled with authoritative accuracy.?
Then we can speak, write and ammend the mentioned erroneous Qaidas spreaded in and around our society.