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The rules of Fiqh |
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The rules of Fiqh |
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I. The definition of "the Fiqh rules"
1- The definition of rules (Qawâ'id): In the Arabic language, the verb "Qaâda" whose noun is "Qawâ'id" means stability and steadiness. The name of the eleventh lunar month "Dhul-Qiîda" is derived from this word, and it was the month during which the Arabs refrain from travelling. "Qawâ'id" also means foundation like that of a house. The Almighty Allah said: «And as Abraham and Ishmael were raising the foundation of the house (kaâba) they humbly prayed: “Our Lord accepts this from us, surely you are the All-Hearing, the All-Knowing». [Surat Al-Baqara/ the Heirer, 127] - Aubaidul Allah bnu Massûd Muhammad El-Mahbubi El-Hanafi named "Sadru Esh-Sharia El-Asghar" said: «The rules are the general matters». - El-Fayyumi who is Abul Abass Ahmad bnu Muhammad bnu Ali El-Muqrî’ El-Fayyumi said: «… And the rule technically means the regulator (criterion) and it is the general matter that is applicable to all its partialities». - Tâdj Eddin bnu Es-Sabki said: «They are the general matter to which many partialities are applicable».
2- The definition of Fiqh: It is a restriction in the rules that extract all what is not related to Fiqh, like the rules of arithmetic, geometry, philosophy, linguistics, Ussul El-Fiqh …
3- The definition of the compound word "Fiqh rules": - Abdul Allah El-Muqrî' said in his book "El Qawâ'id": «It is every general matter that is broader than the Ussul (rudiments) and the other general mental meanings and wider than the contracts and the particular Fiqh restrictions». - Shehâb Eddin Ahmad bnu Muhammad El-Hamawi El-Hanafi said: «They mean the major stance and not the general one. This stance is applicable to the majority of its partialities in order to know their stances from it». - Mustapha Ahmad Ez-Zarqa said: «The rules are general Fiqh principals that figure in regulated concise texts. The latter include general legislative instructions about the occurrences that it deal with».
II. Their importance 1- Fiqh rules regulate the numerous widespread matters and order them in one line. This would be through organizing the scattered matters, restricting their irregularities and bringing rear the separated matters. 2- They make the learning of the majority of partialities needless; and they facilitate the learning of the stances of branches because Fiqh matters are too numerous (there are hundred thousands of them). - El-Qarâfi said in his book "El-Furûq" (the Differences): «And the one who regulates Fiqh by its rules dispenses with learning the majority of the partialities». 3- Understanding Fiqh rules helps the Faqih (the skilled in jurisprudence) understand the methods of Fatawa, and it enables him to deduce the stances and the solutions of the new matters. 4- They help to recognize the aims of the Islamic Sharia. 5- They enable the non experts in the domain of Sharia (the Islamic sciences) like lawyers, economists, physicians… to know easily Fiqh and its contexts (with the easiest methods).
III. Their pillars A. The subject: it is the matter on which the stance is set up like hardship in "hardship entails facilitation" and harm in "harm is to be removed" and certainty in "certainty can not be ceased by doubt". B. The stance: it is the rule that is ascribed to the subject. By this stance, we can affirm or reject a description or a feature about the subject. This description is a demonstration of a legal stance like affirming facilitation in case of hardship and removal in case of harm, and rejecting doubt in case of certainty.
IV. The historical development of Fiqh rules At the beginning, the Fiqh rules were just concepts, and then they were classified and then written down after their ougins were established. The first attempt to scribe Fiqh rules was done by Abu Et-Tahîr Ed-Dabas who was among the Hanafi Ulemas. He lived between the third and the fourth Hegerian centuries. This attempt was followed by so many others, and among the books that were written about the rules and the restrictions, the following ones: · Tâ’ssis En-Nathâ'ir of Abi Laith Es- Samarqandi (773 Hegira). · El-Qawâ'id of the judge Iyâdh El-Mâliki (544 Hegira). · El Qawaîd fi furû Esh-Shafi'ya of Abu Hâmid El-Djadjirmi (613 Hegira). · Qawaîd El-Ahkâm if Massalih El-Anâm of Imam El-Iz bnu Abdu Esallam named "the Sultan of the Ulemas" (660 Hegira). · El Ashbahu wa En-Nathâ'ir of Tadj Ed-Din bnu Es-Sabki Esh-Shafiî (771 Hegira). · Tqrir El Qawaîd wa Tahrir El-Fawâ'id of Radjab El-Hanbali (795 Hegira). · Al-Ashbahu wa En-Nathâ'ir of Djalal Ed-Din Es-Suyûti Esh-Shafiî (911Hegira). · Al-Furûq of Imam El-Qarafi El-Mâliki (684 Hegira).
V. The difference between Fiqh and Ussul rules 1- Unlike fiqh rules, the Ussul rules are assimilated and understood by the understanding of the language itself, and the knowledge of all that it is exposed to like abrogation, particularization, ordainment, interdiction… 2- The secret and the objectives of divine legislation can not be understood by the Ussul rules but by Fiqh rules. 3- The secrets of the partialities is extracted from the Ussul rules via medium and not directly, but in Fiqh rules, their stance is extracted directly without an intermediate. For example: the Ussul rule "the ordainment must be fulfilled" stipulates that performing prayer is obligatory, but this obligation is extracted according to a proof. The Almighty Allah said: «…So establish prayer…». [Surat Al-Hajj/ Pilgrimage, 78] - The Fiqh rule "Deeds are related to the intention" stipulates the obligation of Niyya (intention) in prayer. The stance of obligation is extracted directly without referring to an argument that stipulates the obligation of Niyya. 4. Ussul rules deal with arguments or stances like "Order must be fulfilled" and "Shunning stipulates prohibition" and "Unanimity is absolute evidence". But Fiqh rules deal with the actions and the deeds of those who are obliged to observe the precepts of religion, like: "Certainty can not be ceased by doubt" and "A saying can not be ascribed to a silent person". 5. The rules of Fiqh are the means by which the diligent can assimilate the divine injunctions. The rules of Fiqh are the general restrictions of Fiqh that are established by the diligent by using the Ussul rules.
VI. The explanation of Fiqh rules
1. Deeds are related to the intention This rule stipulates that the stances of matters (sayings or deeds) pertaining to the intention. The origin of this rule is the Hadith of the prophet -may peace be upon him: «The reward of deeds depends upon the intentions and every person will be rewarded according to what he has intended». [Agreed on]
2. Hardship entails facilitation The origin of this rule is the Noble Koran and the Sunna. The Almighty Allah said: «Allah desires to make things easier for you, for mankind created weak (to resist his lusts». [Surat An-Nissâ’/ the Women, 28] «… And He has not imposed a difficulty upon you in religion…». [Al-Hajj, 78] «… Allah does not impose on any soul a burden greater that it can bear, it receives every good that it earns, and it suffers every evil that it earns. Our Lord, pardon us if we forget or commit an error. Our Lord, do not subject us to hardship as you did subject those before us. Our Lord, do not subject us to more than we can bear…». [Al-Baqara, 286] The prophet Muhammad -may peace be upon him- said: «Facilitate things and do not harden, give glad tidings to people and do not frighten them». [Reported by An-Nassâ'i] It was reported that whenever the prophet -may peace be upon him- was let to choose between two matters, he was always choosing the easiest one as long as it is not sinful.
Some examples of its application · Tayamum for the ill person. Tayamum is used instead of ablution; it signifies rubbing one’s hands and face with stone or pure soil when there is no water or when the person is unable to use water for ablution. · Facing the Qibla (the direction to which people turn their faces in prayer) is not an obligation for the ill and the unable persons. · Shortening the quadrilateral prayers when travelling.
3. Certainty can not be ceased by doubt Certainty means assertion and it is obligatory in performing worships like ablution, prayer, fasting, pilgrimage… Certainty can never cease because of a doubt; it can be ceased only if another established truth is brought against it.
4. He who precipitates a matter before it happens is deprived of it It was reported that Othman bnu Afân judged according to this rule. When a man who was at the verge of death divorced his wife thrice (i.e. he pronounced the word divorce three times) in order to disinherit her. In fact, the wife was secluded from inheritance after his death, because the divorce was irrevocable with long interval But Othman bnu Afân gave the wife her legal share of inheritance in accordance with the above mentioned rule for the husband divorced her only to deprive her of inheritance.
5. The crucial factor in contracts is given to the aims and the meanings and not to the words and structures Many Other sub-rules are deduced form this rule, among them: · Donation that is compensated is a sell. · Lending on the condition that it is compensated is a lease.
6. The matter without which the obligatory deed can not be fulfilled is an obligation - Ablution is obligatory before any prayer because it is directly related to it (prayer) which is an obligatory duty. - If the Muslim dead are found together with those of the unbelievers, all of them must be washed and wrapped in shrouds and a funeral prayer must be performed on all of them.
7. Selves are originally innocent Every one is created free from any responsibility of debt, charge… and he remains so until his indebtedness or accusation is proved.
8. When a matter is hardened it shall be facilitated This rule is derived from the rule "Hardship entails facilitation". It means that in case of necessity or difficulty, a matter is still becoming easier until hardness is removed. This rule is the opposite of the following rule: "If a matter is facilitated, it hardens". That is, it regains its formal state.
Some of its application · Alleviations: Alleviations in the Islamic Sharia are of many Kinds. Among them we mention: 1. The alleviation of cancellation: the persons who are obliged to observe the precepts of religion are exempted from some worships when they have a legal excuse, for example: - Prayer is not performed by the menstruated and the confined women. - Fasting and pilgrimage are not obligatory for the unable and the ill persons. 2. The alleviation of reduction: as an example of this kind of alleviation the following ones: - The shortening of the prayer's numbers of prostrations for the traveller. - The sitting, recumbence and gesticulation in prayer for the sick. 3. The alleviation of substitution: this alleviation means to substitute a given worship by another, for example: - Substituting Tayamum for ablution and Ghusl (the major ritual ablution) when there is a legal reason. - Substituting sitting for standing in prayer. - Substituting feeding a poor person for fasting in Ramadan. 4. The alleviation of advance: it means to perform worship before its time. For example: - Advancing the Assr prayer to Dhohr prayer, Isha to Maghrib like in Arafat where the pilgrims pray the Assr and Dohr prayers together. 5. The alleviation of postponement: this alleviation means to perform worship after its time like: - Postponing the performance of Dhohr prayer to the time of Assr and the Maghrib prayer to that of Isha when there is a legal warrant. - Postponing or delaying the making up of Ramadan for those who have legal reasons such as the menstruating and the confined women and the traveler. - performing the Maghrib and Isha prayers together in Muzdalifa.
6. The alleviation of exigency - The permissibility to drink wine and to eat dead animal for the one who is too hungry and is afraid of dying.
9. Don’t harm and do not contend with harm The origin of this rule is a Hadith reported by Ibnu Mâdja, Eddar Qutni and others from Abi Said El-Khudri and Ibnu Abass. - Don’t harm: it means do not hurt or do evil to people. - Do not contend wither harm: it means that even if you are harmed, you are not allowed to repay like for like (i.e. to harm who caused harm to you). Some of its application 1. Khiyar Er-Ru’ya (sight): in Arabic "Khiyar" means the right to conceal or confirm a deal. Khiyar Er-Ru’ya is one of its kinds, and it means that the buyer accomplishes or concludes the deal only after seeing the goods. This is done to ward off harm from the buyer. 2. Khiyar Eshart (the right of withdrawal): it means that both of the buyer and the seller have the right to accept or reject the deal. By such conditions, any kind of swindle and deceit are warded off from the buyer. 3. The permissibility of limiting someone’s legal competence (Hadjr) in order to protect him, his family, his children and his creditors. 4. The system of pre-emption which is legislated to prevent the harm of a bad neighbour. 5. Detain or imprison the prosperous person when he abstains from maintaining his family in order to ward off the harm which results from non-spending. 6. Rejecting the testimony of a witness in case he is in disagreement with one of the litigants. 7. Rejecting the verdict of a judge who is in disagreement with one of the litigants.
10. Harm can cease but it shall not be removed by a similar harm This rule makes it obligatory to end harm if it happens, and with greater reason, to prevent the worst harm. Among its applications, we mention: 1- The legislation of the pre-emption system. 2- Limiting someone's legal competence in case of foolishness and stupidity. 3- Selling by force the property of the indebted in case of procrastination to pay off his depts.
11. Necessity allows the forbidden The origin of this rule is the Almighty Allah’ saying: «But certainly what Allah has forbidden to you are dead meat, blood, the flesh of swine, and that which has had other than the name of Allah invoked upon it, but whoever is constrained by necessity, not out of insolence, nor with intention of repeating it, then no sin is on him. Surely Allah is All-Forgiving, All-Merciful». [Al-Baqara, 173] «Prohibited to you are dead meats, blood, the flesh of Swine, which has had other than the mane of Allah invoked upon it, that which has been killed by strangling or by being butted to death by horns, or that which has been devoured by beasts of prey except that which you have duly slaughtered while it was still alive. Also unlawful to you is that which is sacrificed to idols and divided by raffling with arrows, this is impiety. Today, the unbelievers have despaired of your religion so do not fear them, but fear Me. Today I have perfected for you your religion and completed my grace on you, I have chosen Islam for you as your religion. But whoever is compelled by hunger, and not inclining purposely to sin, then Allah is All-Forgiving, All-Merciful ». [Surat Al-Mâ'ida/ the Table Spread, 03] «And why do you not eat of that over which Allah's name has been pronounced, when He has explained to you that which He has forbidden you except if you are constrained to it. But surely many are led away by their caprices, out of ignorance. Indeed, your Lord knows best of the transgressors». [Surat Al-Anâam/ the Cattle, 119] «Say: I do not find in that which has been revealed to me anything forbidden to one who eats, except carrion, or blood poured out, or flash of swine. Certainly that is an abomination, or an offering which has been made to other than Allah, but whoever is forced by necessity, not out of insolence, no with the intention of retiring to it, surely you Lord is All-Forgiving, All-Merciful». [Al-Anâam, 145] Necessity, in fact, is an urgent need. Among the application of this rule, we mention: 1- The permissibility to eat what is forbidden in case of urgent necessity. 2- The permissibility to the doctor to examine the private parts of men and women for medical sake. 3- The Muftee (the one who delivers a legal opinion) is permitted to know the secrets of the Mustaftee (the one to whom the legal opinion is delivered) 4- The permissibility to rid the ship which is about to founder of some goods in order to save the people who are on its board from sinking.
12. Necessity is valued according to its degree This rule restricts the above mentioned rule and stipulates that alleviation is permitted only to the extent of one’s necessity and need. As an example of this, taking what is forbidden in case of necessity is allowed, but its amount must be just enough to rescue the self from death. The Almighty Allah said: «He has only forbidden to you, carrion, and blood, and the flesh of swine, and that over which any name other than Allah’s has been pronounced. But whoever is compelled of necessity, not desiring to transgress, or repeat it, surely Allah is All-Forgiving, Most Merciful ». [Surat An-Nahl/ the Bee 115] «… But whoever is compelled by hunger, and not inclining purposely to sin, then Allah is all forgiving All Merciful». [Al-Mâ’ida, 03] Among the rules that ascertain this Fiqh rule, we mention: a) What is permitted due to a legal reason can not be so in case the reason disappears, for example, if there is water, Tayamum is no longer valid. b) When the deterrent disappears, the prohibited recurs. c) The principle (the obligatory matter) is substituted by its alternative only if it is invalid.
13. Warding off harms has precedence over bringing benefits When one is faced by harm and an interest at the sane time, he has first to prevent and ward off the harm. This rule originated from the saying of the prophet -may peace be upon him: «If I ordain a matter to you do what you are able of, and if I forbid something shun it». [Reported by Muslin] Some of its applications 1- Forbidding trade in the forbidden things like wine and drugs even if it is lucrative. The Almighty Allah said: «They ask you about intoxicants and gambling say: "In both of them there is grievous sin, and some profit for people; but the sin is more grievous than the profit…». [Al-Baqara, 219] 2) Amputating the organ which is afflicted with illness in order to save the self.
14. The lesser of two evils is to be chosen Among its applications: a) The legislation of Jihâd (fighting in the cause of Allah) in order to preserve honours and the sacred places. b) Throwing goods from the ship that is about to sink in order to save the selves. c) Donating an organ to a person who is on the verge of death conditioned that the organ donated does not cause the death of the donator. d) The permissibility to imprison the able person who abstains from maintaining his family.
15. The general harm can be warded off by committing a lesser harm Among its applications, we mention: 1) The legislation of the legal punishment of fornication and accusing of fornication in order to preserve honors. 2) The legislation of the legal punishment of stealing to preserve properties. 3) The legislation of the legal punishment of drinking wine to preserve minds. 4) The permissibility to limit the legal competence of an impudent Muftee to preserve religion. 5) Selling the goods of the hoarder by force in case of necessity to ward off a public harm.
16. When two harms occur, the lesser of them is to be committed Considering the serious harm would be by eliminating it. Whenever harm occurs it must be banished; and wherever there is an interest it must be established and affirmed as much as possible. Among its applications, we mention: 1) The permissibility to pass over a reprehensible action in silence if denying it causes a greater harm. 2) The permissibility to obey a tyrant ruler if rebellion against him leads to a greater harm. 3) The permissibility to operate on a dead woman to remove a baby from her womb if the life of this baby can be saved.
17. What is known by tradition is like what is stipulated by a condition This rule stipulates that the explicit conventional conditions, which are in conformity with the Islamic Sharia, must be taken into account, like the laws of trade which stipulates the delivery of the goods to the buyer's house.
18. Customs are resorted to in case of disagreement The origin o this rule is the Hadith reported by Ibnu Massûd from the prophet -my peace be upon him: «What is seen by the Muslims as good is good for Allah and what is seen by them as evil is also evil for Allah». [Agreed on] The tradition is resorted to, in case of disagreement, only if it fulfils the following conditions: 1) It must not disagree with a legal text (a verse or a Hadith) because the legal text is stronger and more authentic than the custom. For this reason, the custom or the tradition which prevents the woman from inheritance is invalid since it disagrees with absolute and definitive legal texts (i.e. texts which give the woman the right of inheritance). 2) It must be persistent and constant. 3) It must be general and not particular. 4) It must exist before the occurrence of the event whose stance we desire to know for there is no consideration for the incidental custom. Among its application, we mention: 1) Considering the measure and the weight of things whose measure and weight are known. 2) Paying the rent before benefiting from the lease contract.
19. The change of stances is not denied by the change of time The rules that are meant in this Fiqh rule are those based on people’s traditions and customs. For example, the permissibility to take prisons… Ibnu El-Qaim reported in his book "Informing the Signers" chapter entitled: the Changing of Fatawa by the Changing of Epochs, Status, Intentions and Customs: «This chapter (that of Fatawa) is of great benefit, and because of our ignorance of it, the Islamic Sharia was wronged and misunderstood, the fact that caused hardships and embarrassment and burdened people with what is not necessary and what the Islamic Sharia, which achieved the highest degrees in preserving people's interests did not bring. Indeed, the Islamic Sharia is built on rules and based on realizing people's interests either in their lives or in the Hereafter…». [Volume 3, page3]
20. The evidence lies on the one who makes the claim and the oath must be sworn by the one who rejects the claim The origin of this rule is the saying of the prophet -may peace be upon him: «If people were given whatever they claim (in disputes), some people would claim the lives (by retribution) and the possession of the others' wealth; but the evidence lies on the claimant and the oath must be sworn by the defendant». [Reported by El-Beihaqi from Ibnu Abass] This rule stipulates that the one who makes a claim about something (the claimant) must prove it by providing clear evidence which may be a legal document or a trustworthy witness; and the one who denies the claim (the defendant) must swear an oath which is sufficient for him to prove his innocence because the accused is originally innocent.
21. Evidence is transitive but confession is a restricted argument Evidence can be brought against another person but confession is limited only to the one who admits doing something. For example, the robber when he admits stealing something along with his friend, the necessary measures are to be taken only against him excluding his friend; but if evidence is brought against him and his friend, both of them will submit to the measures which will be taken against them.
22. A saying is not ascribed to a silent, but silence at the moment of decision Among its application: 1) When a virgin is consulted in her marriage and keeps silent, she confirms her approval by her silence. The prophet -may peace be upon him- said: «The virgin must be consulted, and her consent is her silence». [Reported by Muslim] 2) When one of the Ulemas delivers his Fatwa about a given matter in the presence of other Ulemas, and the latter maintain silence, they confirm their agreement on what he said, because they are required to bring a legal stance about the matter exposed.
23. No guarantees in what is legally permissible This rule stipulates that performing an allowed deed or giving it up relieves responsibility for the consequences or the harm that results from this deed since it is allowable. Among its application, we mention: 1) When a person digs a well in his land and then an animal or a person sinks in it and dies, he takes no responsibility for their death. 2) The surgeon is not responsible for the death of the patient if he did his utmost to cure him.
24. No consideration for the indication when there is clear declaration Indication is of many kinds: - Situational expression like the word's indication of a given meaning. - Natural expression like "Ah" which indicates pain. - Natural indication like turning red which indicates shyness, and turning yellow which indicates fear. Indication is no longer valid when there is clear declaration. For example: putting a fence round a field or an orchard means that it is not permissible to enter to it, but when the farmer declares that entering to it is allowed, so the fence's indication is not considered.
25. No diligence in the presence of a text Diligence is not permissible in absolute and decisive texts but it is allowed in the matters which are not clear and which are dubious in their indication. The origin of this rule is the discussion of the prophet -may peace be upon him- with Muaâd bnu Djabal when he sent him to yemen as a judge. The prophet -may peace be upon him- said to Muaâd: «How are you going to judge if a matter is exposed to you? Muaâd answered: "I judge according to Allah’s Book. The prophet said: «And if it is not mentioned in Allah’s Book? ». He answered: "So I judge in accordance with the prophet’s Sunna". The prophet said: «And if it is not mentioned in the prophet’ Sunna? ». He said: "I exert myself to the utmost of my power and I spare no effort". Muaâd said: then the prophet beat me on my chest and said: «Praise be to Allah who granted success to the messenger of His Messenger to what pleases Allah and His messenger». [Reported by Et-Termithi, Ahmed and Abu Dawûd]
26. The guardianship of the father is stronger than that of the judge The father's guardianship on his children is stronger than that of the judge. The latter can not substitute or act for the father in educating his children or marrying them or managing their money. The judge is a guardian of those who have no guardian.
27. Managing the citizens' affairs is conditioned by realizing a legal interest This rule stipulates that the leaders must consider and observe people's legal interests in their policies, in their regulation, and in their actions.
28. Considering ones talk is better than ignoring it This rule is taken into account mainly in courts; when a witness is asked to testify, all what he says must be considered because sometimes the talk that is seen as being unimportant is the one which may lead to the truth. The words that one says must be understood according to their linguistic meanings, and not according to the interpretation they may carry, save if there is an indication which may mean something different from their ordinary meanings.
29. Ruling others properties in not valid It is not permissible to run the properties of other people without having a legal reason.
30. Originally, things remain as they are until the contrary is evidenced This rule stipulates the obligation to consider and continue working according to the existent facts, and presuming their trueness until the contrary is proved.
31. Retributions are not executed in case of suspicion This rule is established in order to protect the suspect. Retributions are serious and severe penalties, and whenever there is a slight suspicion about the facts, retributions are not executed.
32. The principle is substituted by its alternative in case it is invalid This rule stipulates that the alternative (substitute) is resorted to only in case of the inability to perform (fulfil) the principle or the obligatory deeds like the permissibility to pray sitting for the ill and the one who is unable to pray standing.
33. Coercion invalidates contracts This rule means that coercion invalidates one's acts and contracts. The obligations which must be considered and acted accordingly are those which are emanated willingly from the person.
34. The stance (of a given matter) depends on its cause This means that for each stance a cause for which it is established, so if the cause exists, the stance is established; and if the cause is absent (invalid), the stance will not be established. |
