Part 3: Normative Legal Maxims (Al-Qawa’id Al-Kulliyyah Al-Kubra)

Book Title: Al-Qawâid Al-Fiqhiyyah (Legal Maxims of Islamic Jurisprudence) A Translated Compilation (القواعد الفقهية)
Author: Islamic University of North America (Mishkib) Islamic Studies English Program
Publisher: Mishkah (مشكاة)
Year of Publication: 2013 AD - 1434 AH
Field of study: methodology of Islamic Law / Jurisprudence

Table of Contents 

1. Part III: Normative Legal Maxims (Al-Qawâ’id Al-Kulliyyah Al-Kubrâ)
   1. The First Qâ'idah Kulliyyah Kubrâ:Acts are judged by the intention behind them  (Al-Umur bi maqâsidihâ)
   2. The Second Qâidah Kulliyyah Kubrâ:  Certainty is not overruled by doubt (Al-yaqîn lâ yazûl be ash-shakk)
   3. The Third Qâidah Kulliyyah Kubrâ: Hardship Begets Ease (Al-mashaqqah tajleb at-tiysîr)
   4. The Fourth Qâidah Kulliyyah Kubrâ: There is to be no harm, and no reciprocating harm, or harm must be eliminated (Lâ darar wa lâ dirâr) or (Ad-darar yuzal)
   5. The Fifth Qâidah Kulliyyah Kubrâ:  Custom is the basis of judgement (Al-âdah muhakkamah) 
   6. Footnote
      
2. Back to: Legal Maxims of Islamic Jurisprudence (Usul Fiqh) 

Part III: Normative Legal Maxims - Al-Qawa'id Al-Kulliyyah Al-Kubra (القَوَاعِدُ الكُلِّيَّةُ الكُبْرَى)

 Most of the scholar agree on five maxims as Al-Qa wa'id Al-Fiqhiyyah Al-the are fifth Qawa'id as most scholars agree. A student may notice that Al-Qa wa'id Al­ Kubra. These five maxims or (Qawa'id) are considered the pillars of Islamic Fiqh.

Imam As-Suyuti mentioned that judge Hussein Ibn Muhammad Ibn Ahmad Al­ Marudhi (d.462 /1070) summarized the entire Shafi'iy Madhhab in four maxims or (Qawa'id):

1.    Qa'idah: "(اليقين لا يزول بالشك) -Al-yaqfn Ia yazul bi ash-shakk" (Certainty is not overruled by doubt)"
2.    Qa'idah: "(المشقة تجلب التيسير )- Al-mashaqqah tajleb at-taysir " (Hardship begets   ease)"
3.    Qa'idah: "(لا ضرر ولا ضرار)- La darar wa Ia dirar " (There is to be no harm, and no reciprocating harm)" and
4.    Qa'idah:" ( العادة محكمة)- Al- 'ad ah muhakka mah" (Custom is the basis of judgement)".

Yet, many other scholars add the Qa'idah:

5.    "(الأمور بمقاصدها)- Al-umur bه maqasidiha"  (Acts are judged by the intention behind them or take the will for the deed)".94

The First Qa'idah Kulliyyah Kubro: (Al -Umur be maqasidiha ) Acts are judged by the intention behind them

Imams Ash-Shafi'l, Ahmad Ibn Hanbal, Ibn Mahdi', Ibn Al-Madin!, Abu Dawud, ad-Daraqotnl' and others thought that the Hadl'th concerning An -Niyyah (, intention) is a third or fourth of knowledge of Islam.95

Al-Qa'idah literally means that actions and behavior are judged by intentions. In addition, it practically means that a person is accounted by his intention and goal. Even though the maxim is self-evident, the Qur'an and the Sunnah are the main source for this Qa'idah.

First, from the Qur'an:

لَّا يُؤَاخِذُكُمُ اللَّهُ بِاللَّغْوِ فِي أَيْمَانِكُمْ وَلَٰكِن يُؤَاخِذُكُم بِمَا كَسَبَتْ قُلُوبُكُمْ ۗ وَاللَّهُ غَفُورٌ حَلِيمٌ ‎

Allah says:
(Allah will not call you to account for that which is unintentional in your oaths, but He will call you to account for that which  you r hearts  have  earned. And Allah is Oft-Forgiving, Most-Forbearing. )
(Surah 2. Al-Baqarah. Ayah 225)

Ibn Hazm commented on this Ayah saying that the soul is the object that is being commanded to do acts; yet the body is its machine, so should the soul intend to do something by its machine (the body), there can be nothi ng except what the soul has intended before.96

Second: from the Sunnah:

إنما الأعمال بالنيّات ، وإنما لكل امريء مانوى ، فمن كانت هجرته إلى الله ورسوله ، فهجرته إلى الله ورسوله ، ومن كانت هجرته لدنيا يصيبها ، أو امرأة ينكحها ، فهجرته إلى ما هاجر إليه

Narrated Al- Humaidi 'Abdullah ibn Az-Zubiyr that Sufyan that Yahiyah ibn Sa'id Al-Ansariy that Muham mad ibn Ibrahim At-Tiymiy that 'Alqamah ibn Waqqas Al- Liysiy that 'Umar Ibn Al- Khattab: . Allah's Messenger said, "The reward of deeds depends on the intentions and every person will get the rewa rd according to what he has intended. So whoever emigrates for Allah and His Messenger, his emigration will be for Allah and His Messenger and whoever emigrates for worldly benefits or for a woman to marry, his emigration will be for what he emigrated for."97

In  another  Narration:

 إنما الأعمال بالنية، وإنما لامرئ ما نوى، فمن كانت هجرته إلى الله ورسوله فهجرته إلى الله ورسوله، ومن كانت هجرته لدنيا يصيبها أو امرأة يتزوجها فهجرته إلى ما هاجر إليه

Narrated Yahya ibn Qaz'ah that Malik that Yahya ibn Sa'id that Muhammad ibn Al-Harith 'Alqamah ibn Waqqas Al-Liysiy that 'Umar Ibn Al-Khattab: Allah's Messenger said, "The rewa rd  of a deed depends  on the intention and every person will get the reward according to what he has intended. So whoever emigrates for Allah and His Messenger, his emigration will be for Allah and His Messenger and whoever emigrates for worldly benefits or for a woman to marry, his emigration will be for what he emigrated for." 98

An applicable example for this Qa'idah

The difference between an intended murder and a killing by accident.

Why must Niyyah be present?
a)    To distinguish between a deed that is for the pleasu re of Allah, or an act of worship (عبادة) and the deed that is not.
b)    To distinguish between 'ibadat themselves. Sawm (  صوم  )99 or Hajj ( حج   , pilgrimage to Makkah).
c)    To distinguish between the Hukum of the deed, whether it a Wajib (واجب)100, Nafl (نفل, optional worship) or a vow to Allah, the Most High.

Where is Niyyah ?
Exce pt for Hajj and Umra, the hea rt is the place of Niyyah. Howeve r, ibn Nujaim stated that: "Uttering of what is in the hea rt is Bid' ah in all acts of worship, compa ring to Niyyah of Salah that is only bette r when determination of a person is absent." 101

"Should a man utter something which is different from what that is in his hea rt, what is in his hea rt takes the priority over what he utte rs," all Madhahib observe. In addition, avoiding Haram does not require Niyyah.102

Qawa'id (Legal Maxims) come under the first Qa'idah Kulliyyah Kubro (Normative Legal Maxims) 

(Al -Umur be maqasidiha) Acts are judged by the intention behind them

Al-Qa'idah no.1

 العبرة في العقود بالمقاصد والمعاني لا بالألفاظ والمباني

(Al- 'Ibrah fi al- 'uqud bi al-maqasid wa al-ma 'dni la be al-Alfaz wa al­ mabani)
The essence in contracts is their goals and meanings not their words or forms

This Qa'idah means that the words used in a contract are not as important as their aims and meanings. Therefore, if there is a descripincy between the terms and the mea nings of a contract, the priority is given to the meanings. Also, an invalid condition spoils a contract whethe r it was mentioned in the contract or not, like Al-Muhalil (المحلل)103 which is prohibited (Haram) in Islam.104

Applicable examples for this Qa'idah

• If a person says to another, "I give you my yacht as Hebah (هبة)105 in return for a sum of money," this is not considered as Hebah but a sale, as the price is stipulated.
• If a person says to another, "You rende r me a sum of money immediately, and I will lend you a small amount of land" this is considered to be a renting contract, Ijarah  (اجارة)106 and not a lending one,  i'arah (اعارة, loan).

Al-Qa'idah no.2

هل النية تخصص اللفظ العام وتعمم اللفظ الخاص؟

(Hall an-niyyah tukhasses al-lafz al- 'amaw tu 'ammem al-lafz al­ khass?)
Does intention particularize a general discourse or generalize a particular discourse?

Malikiyyah and Hanabilah agree that an intention Niyyah particula rize the general words and may generalize the particular words. Ash-Shafi'iyyah, on the other hand, states that Niyyah could particularize general words, but it may not generalize specific statements in oaths. Hanafiyyah considers that Niyyah may possibly particula rize general words when the matter is between a person and Allah. But if the matter is between one person and others, Niyyah does not particularize a general statement.

Applicable examples for this Qa'idah

• When an owner of multiple compa nies says, "I am dismissing the entire workers"; then, he says, "In fact, I intended workers from a particular company," the majority of scholars accept this Takhsis (تخصيص)107.
•  If Y has taken an oath that he would not talk to people; then, he claimed that he intended  Z in particular, his oath is broken when he speaks to any person  other than  Z, according to Malikiyyah, Hanabelah, Shafi'iyyah and Al-Khessaf (a scholar of Hanafiyyah). His oath is legally violated, and he needs to pay the Kaffa rah according to the majority of Hanafiyyah.108
• When a spouse says to his wife, "If you wear a dress, you are divorced"; yet, after that he claims that he meant a particular dress, it is religiously accepted. However, with respect to justice, there are two opinions, according to the majority of Hanabelah.109

Al-Qa 'idah no.3

هل الأيمان مبنية على الألفاظ أم على الأغراض

(Hall El-Aiyman Mabniyyah  'ala Al-Alfaz aw 'ala Al-Aghrad ?) Do oaths lean on discourses or on purposes?

Malikkiyyah and Hanabelah concluded that words used in Al-Aiyman (الأيمان, oaths) are based on the Niyyat (نيات, intentions) whether the oath is appropriate for Zahir Al-Lafz (ظاهر اللفظ, apparent meaning) or not.

On the other hand, the Hanafiyyah and Shafi'iyyah observe that Al-Aiyman are contingent on a discourse if the discourse is used in those Aiyma n, otherwise Al-Aiyma n are built on Niyyah.

An Applicable example for this Qa'idah

• If a person made an oath that he will not sell certain goods for ten dollars, and yet he sold it for nine dollars or eleven dollars, his oath will not be considered broke n even if he intended to increase the price to ten. Such is because there is no Hinth (حنث )110  except by word/s according to Hanafiyyah and Shafi'iyyah111. His oath, however, is violated according to Malikkiyyah and Hanabelah.112

 Al-Qa 'idah no.4

 هل الايمان مبنيه على العرف

(Hall al-aiymdn mabniyyh 'ala al- 'urf ?) Are the words employed in oaths built on tradition?

According to an opinion of Hanafiyyah and Hanabelah, Al-Ayman (oaths) are built on 'Urf (tradition) of the one who takes an oath, only if they are not based on the meaning of the Shar' (شرع, Islamic terms).
Malikkiyyah observe that Oaths, or Al-Ayman in general are contingent first on a person's Niyyah, on motive (in case he has no Niyyah ), on 'Urf (if he has no motive) or on the linguistic rules.113

An Applicable example for this Qa'idah

• If a person made an oath to dwell in a house (Bait]114 and still resides in a tent, his oath will not be broken if he is of the people of the city; yet his oath will be violated if he is among the Bedouins, since Bedoui nes surly mean a built house when they reference the word "Bait".

Al-Qa'idah no. 5

 هل الأيمان علي نية الحالف أو المستحلف

(Hall al-ayman 'ala niyyat al-halif aw 'ala niyat al-mustahlif ?) Does an oath rely on the intention of the one who swears or on the intention of the one who adjures another person to swear?
 
In court, Al-Yamin  (oath) depends on the Niyyah of the one who swears if he is innoce nt and on the judge's  (in court) if the person is guilty.11s For divorce or emancipation, howeve r, according to Hanafiyyah , Al-Yamin is contingent on the Niyyah of the one who swears whethe r he is innocent or guilty.

Malikkiyyah and Shafi'iyyah believe that this is based on the Niyyah of the magistrate, and it does not accept concealment or exceptions. Hanabelah believe, on the other hand that it is built on the Niyyah of the one who takes an oath, if he is not guilty and when it is linguistically accepted.116

عن أبي هريرة رضي الله عنه قال قال رسول الله صلى الله عليه وعلى آله وسلم: يمينك على ما يصدقك عليه صاحبك أو  يمينك على ما يصدقك به صاحبك

Narrated Yahya ibn Yahya and 'Amro an-Naqid say Yahya narrated that Hushiym ibn Bashir that 'Abdullah ibn Abi Salih, and 'Amro says that Hushiym ibn Bashir narrated that 'Abdullah ibn Abi Salih that his father that Abi Hurairah 41: Allah's Messenger said, "Your oath, which an opponent believes, is contingent on the sense you mean."117

This Hadith means that the meaning of the oath is the conclusion that strikes the mind of the opponent/s and it is mostly in harmony with the appa rent meaning. Therefore, most scholars observe., that the one who takes an oath should speak without equivocation, otherwise his oath is a false oath, immersing him in sin.

Malikiyyah:
"An oath depends on the Niyyah (, intention) of the oath seeker," Sahm.In, Asbagh and ibn Al-Mawwar stated. On the other hand, Ibn al-Qasim stated: "An oath depends on the one who swears, and he can use exception, so he is not obliged to do Kaffa rah, but that is forbidden,".

Shafi'iyyah:

The oath is on the Niyyah of the oath requester on the condition that:
1.    He is among those who have the right to hea r Ash-Shahadh such as a judge, an arbitrator, a ruler; however, ibn 'Abdus-Salam added the opponent based on the Had1th mentioned above.
2.    He is the judge or the like depending on a request from the rival; yet, if there is no request from the opponent, the oath is contingent on the Niyyah of the one who takes an oath.
3.    He does not swear an oath of something (even if he tells the truth) other than what the rival adju res him to take an oath of.
4.    He swears to Allah except the claimant wa nts him to swear using words of divorce (Hanafiy Madhhab). In that case, the oath will be on Niyyah of the applicant.118

قاَعِدَةُ مُسْتَثْنَاةُ مِن القاَعِد ةِ الكُلِّيَّةِ الكُبْرَى الأُولَى

Excluded Qa'idah (A legal Maxim) from the First Qa'idah Kulliyyah Kubra (Normative legal Maxims)

قاعدة الأمور بمقاصدها

(Al -Umur be maqasidiha) Acts are judged by the intention behind them

من استعجل شيئا قبل أوانه عوقب بحرمانه

(Mann Ista 'jal ash-shai 'a qabl awanih  'uqeb be hermanih)
When someone rushes into something before its due time, he is punished by depriving

This Qa'idah has come in more than a few para phrases; however, all of them bear the same meaning. The first one has been  paraphrased  by Hanafiyyah:

من استعجل ما أخره الشرع يجازى برده

(Mann ista]al ma akhrah ash-shar' yujaza be raddih) Whoever hastens what is postponed by Shar' (teachings of Islam), is enforced by threat of punishment to render it back," and the second one is worded by Malikiyyah:

الأصل المعاملة بنقيض المقصود الفاسد

(Al -asl al-mu'amalah be naqid al-maqsad al-fasid) Whoever has a corrupted aim (or act) perpetrating or trying to commit it, will be faced with a reciprocal action under threat of punishment."

Applicable examples for this Qa'idah

• If a person has deliberately taken his testator's or legator's life, he will be deprived of inheritance.
• When one, in last illness, divorces his wife, without her accepta nce, to prevent her from inherita nce; then, he died during her '/ddah ( ) 119, she will inherit her share of his inheritance.
• When it is proved that a person bribes someone to do something, the former is punished by depriving him from that thing.

  The Second Qa'idah Kulliyyah Kubra

اليَقِينُ لا يَزُولُ بِالشَّكِّ

(Al -yaqin la yazul be ash-shakk) Certainty is not overruled by doubt

"This Qa'idah has been included in all chapters of Fiqh and the questions which are being extracted from it are more than 3/4 of Fiqh," Imam As-Sey-0.tl' stated.120I n addition, Imam Al-Qa rafiy asserted that this Qa'idah is accepted by scholars, and it means that suspected matters are supposed to be a
nonentity.121

Basically, the Qa'idah means that a matter which is certain cannot be removed except by decisive evidence, and it must not be cancelled or abrogated by mere suspicions.122

Degrees of Realization:

• Al-Yaqin (اليقين, certainty) is a confirmed frame based on a decisive proof.
• Al-I'tiqad (الاعتقاد, belief) is a confirmed frame even without a decisive proof.
• Hesitance between two equal matters (A and B), which is  referd to as Shakk (شك, doubt).
• Choosing a matter (A) while still doubting (B) leads to Zann (ظن, conjecture).
• The abundance of (B) leads to Ghalabatuz-Zann (غلبة الظن, a strong probability).
• If both  matters were fragile but one of them was frailer than the other, this leads to  Wahm (وهم, illusion).123

Evidences from the Qur'an:
Allah says:

وَمَا يَتَّبِعُ أَكْثَرُهُمْ إِلَّا ظَنًّا ۚ إِنَّ الظَّنَّ لَا يُغْنِي مِنَ الْحَقِّ شَيْئًا ۚ إِنَّ اللَّهَ عَلِيمٌ بِمَا يَفْعَلُونَ

(And most of them follow nothing but conjecture. Certainly, conjectu re can be of no avail against the truth. Surely Allah is All-Awa re of what they do.) (Surah 10. Yunus, Ayah 36)

In the next Ayat  (verses, signs, etc.) there are three degrees of realization:

Allâh says:

وَقَوْلِهِمْ إِنَّا قَتَلْنَا الْمَسِيحَ عِيسَى ابْنَ مَرْيَمَ رَسُولَ اللَّهِ وَمَا قَتَلُوهُ وَمَا صَلَبُوهُ وَلَٰكِن شُبِّهَ لَهُمْ ۚ وَإِنَّ الَّذِينَ اخْتَلَفُوا فِيهِ لَفِي شَكٍّ مِّنْهُ ۚ مَا لَهُم بِهِ مِنْ عِلْمٍ إِلَّا اتِّبَاعَ الظَّنِّ ۚ وَمَا قَتَلُوهُ يَقِينًا ‎﴿١٥٧﴾‏ بَل رَّفَعَهُ اللَّهُ إِلَيْهِ ۚ وَكَانَ اللَّهُ عَزِيزًا حَكِيمًا ‎﴿١٥٨﴾‏

(And because of their saying (in boast), "We killed M essiah Jesus, son of Mary, the  Messenger  of Allah -  but they killed him  not, nor  crucified  him, but the resemblance of Jesus was put over another man (and  they killed  the man), and those who differ therein are full of doubts. They have no (certain) knowledge, they follow nothing but conjecture. For surely; they killed him not (i.e. Jesus son of Mary): (158) But Allah raised him (Jesus) up (with his body and soul) unto Himself (and he is in the Heavens). And Allah is Ever All­ Powe rful, All-Wise.) (Surrah 4. An- Nisa', Ayat 157-158)

From the Sunnah:

أنه شُكِيَ إِلَى النَّبِيِّ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ الرَّجُلُ يُخَيَّلُ إِلَيْهِ أَنَّهُ يَجِدُ الشَّيْءَ فِي الصَّلَاةِ . قَالَ : (لَا يَنْصَرِفُ حَتَّى يَسْمَعَ صَوْتًا أَوْ يَجِدَ رِيحًا

Narrated 'Ali that Sufyan that Az-Zuhri that Sa'id ibn al- Musiyab that 'Abbad Ibn Tamim that Ibn Tamim's cousin Narrated Abdullah Ibn Yazid Al-Ansari that he asked Allah's Messenger   about a  person  who imagined to have passed wind during the Salah: Allah's Messenger  replied, "He should not leave his Salah unless he hears sound or smells an odour."124

Imam an-Nawawi asserted that this Had1th is among the Usul of Islam meaning that things survive counting on their Usu/ until something authenticated changes them, and unanticipated doubt has no influence on them.125

Logically:
Certainty  is stronger and wiser than uncertainty  since it has an exact and a decisive judgment; besides, it cannot be easily defeated by suspicions.126

Ghalabatuz-Zann (very likelihood) :
People should perform ordinances of Shari'ah relying on Al-Yaqfn  (certainty), or on Ghalabatuz-Zu nn (a strong probability) if they cannot.

The commands of Shar1'ah are clear, but sometimes a person cannot fulfill one of them with certainty. In  that case, he can trust Ghalabatuz-Zu nn of that command since ordinances coming from Shar1'ah are subject to man's capability.

Evidence:
Allah says:

 لَا يُكَلِّفُ اللَّهُ نَفْسًا إِلَّا وُسْعَهَا

(Allah burdens not a person beyond his scope . . . .) (Surah 2. Al-Baqarah, Ayah 286)

 صلَّى رسولُ اللَّهِ صلَّى اللَّهُ عليهِ وسلَّمَ قالَ إبراهيمُ فلا أَدري زادَ أم نقصَ فلمَّا سلَّمَ قيلَ لَهُ يا رسولَ اللَّهِ أحدَثَ في الصَّلاةِ شيءٌ قالَ وما ذاكَ قالوا صلَّيتَ كذا وَكَذا فثنى رجلَهُ واستَقبلَ القِبلةَ فَسجدَ بِهِم سَجدتينِ ثمَّ سلَّمَ فلمَّا انفتلَ أقبلَ علَينا بوَجهِهِ صلَّى اللَّهُ عليهِ وسلَّمَ فقالَ إنَّهُ لو حَدثَ في الصَّلاةِ شيءٌ أنبأتُكُم بِهِ ولَكِن إنَّما أَنا بشَرٌ أَنسى كَما تنسونَ فإذا نَسيتُ فذَكِّروني وقالَ إذا شَكَّ أحدُكُم في صلاتِهِ فليتحرَّ الصَّوابَ فليُتمَّ عليهِ ثمَّ ليسلِّم ثمَّ ليسجُدْ سَجدتَينِ

Narrated 'Uthman that Ja rl'r that Mansur that Ibrahim that 'Alqamah that 'Abdullah Ibn Mas'ud:

The Prophet prayed (and the sub narrator Ibrahim said, "I do not know whether he prayed more or less than usual"), and when he finished the Salah he was asked, "O Allah's Messenger! Has there been any change in the Salah? He  said, "What is it? The people said, "You have prayed such and such." Therefore, the Prophet bent his legs, faced the Qiblah (the direction of Salah) and performed two prostrations (of Sahw) and finished his prayers with Taslim (salam).127  When he turned his face to us he said, "If there had been anything changed in the prayer, surely I would have informed you but I am a human being like you and liable to forget like you. So if I forget, remind me and if anyone of you is doubtful about his prayer, he should do his best to reach the truth, complete his prayer accordingly, finish it and do two prostrations of Sahw."128

Commenting on "he should do his best to reach the truth", one ought to depend on Ghalabatuz-Zu nn of the matte r that comes into one's mind.

The considerable Zunn, here, must be constructed on the correct resea rch into evidence and infere nce, otherwise it should be neglected.129

Applicable examples for this Qa'idah

• Chapters of Fiqh concerning removing Najasah (impurity) and sail are based on Ghalabatuz-Zann.
• Numerical acts of worshi p, when one fails to recall one or some of them, he has to build his decision on Ghalabatuz-Zann. But if he cannot remember anything that he did, he should construct his decision on the least number.130
• If a person suspects whether or not his new garment is Tahir (pure or clean), he should conclude that it is.

Qawa'id (Legal Maxims) come under the second Qa'idah Kulliyyah Kubra (Normative Legal Maxims)

 - القَوَاعِدُ المُتَفَرعَِةُ على الق اَعِدَةِ الكُلِّيَّةِ الثَانِيَةِ

"اليَقِينُ لا يَزُولُ بِالشَّكِّ

(Al -yaqin la yazul be ash-shakk) Certainty is not overruled by doubt 

Al-Qa'idah no. 1

 الأصل براءة الذمة

(Al-Asl Bara'a 'tudh-Dhemmah) Non-liability or man is absolved from guilt, blame or responsibility for any wrong deed in principle

This Qa'idah practically means that in princi ple, and to start with, a person is innoce nt of any claims or accusations.

Applicable examples for this Qii 'idah

• Based on this maxim, a thought alone that one owes others is not by itself a proof for that.131

Al-Qa 'idah no. 2

ما ثبت بيقين لا يرتفع إلا بيقين

(Ma thabat bi yaqin la yartafi ' illa bi yaqin) Whatever is proved true with certainty, cannot be cancelled but by proof

There are some Qawa'id related to this Qa'idah:

 من شك هل فعل شيئًا أولا فالأصل أنه لم يفعله

(Mann shakk hal/ fa'al shai' aw Ia fal-asl  'annahu lam yaf alh) Whoever is not sure whether he has done something or not, he certainly has not done it.

 من تيقن الفعل وشك في القليل أو الكثير حمل على القليل ألنه المتيقن

( Mann tayaqan al-fi'l wa shakk fi al-qalil aw al-kathir humil 'ala al-qalil li a'annahu  al-mutayaqan ) Whoever has certainly done something; then, he doubts whether he did it more or less than required, his verdict is better to be contingent on the lesser number as it is proved true."

Applicable examples for this Qa'idah

• A doubt whethe r a person has performed Salah or not, doea not obligate the person to repeat the Salah as long as its time has passed.
• Should an individual not be certain how many Raka'at he has performed, the lesser number is counted as performed.132

Al-Qa'idah no. 3

الأصل العدم الأصل في الصفات أو الأمور العارضة العدم

(Al-asl al- 'adam aw al-asl fi as-sifat aw al-umur al- a'redha al- 'adam) Occasional descriptions or matters are not reliable in principle

Practically, this Qa'idah shows that descriptions are of two kinds; genuine and occasional. The genuine one is the early description of the described object like the wealth of Al-Mudarabah (المضاربة) 133 before investing in Al-Mudarabah.

An occasional description, on the other hand, is a late description of the described object such as the wealth of Al-Mudarabah after incurring profit or loss.134

Therefore, when two people differ in an accidental description of something and one of them has negated that description, the negation has the priority over the other opinion if it is confirmed by an oath.

Applicable examples for this Qa'idah

• When one purchases a machine or a device with a certain basic description; then, he finds that the item does not fit that description; he has the right to be recom pensed for the fault or to receive a refund, since the specification did not match with what was agreed on.
• If a person claims that he owed anothe r person some money or if there was an evidence to confirm that; and if he then alleged that he had paid off the debt and if the creditor renou nced that, the ruling here, is in favor of his rival after taking an oath. The debt is still incumbe nt on the debtor, and that is the principle (As/). Therefore, he is required to either pay the debt or to present evidences ( Bayyinah (بينة), Burhan (برهان) or Dalil (دليل).135

Al-Qa'idah  no. 4

الأصل إضافة الحادث إلى أقرب أوقاته

(Al -asl idafat al-hadith ila aqrab awqatih) In principle, any new events shall be regarded as happening at the nearest time to the present

Another form for this Qa'idah is:

الأصل في كل حادث تقديره بأقرب زمن

(Al-asl fi kull hadath taqdiruh bi aqrab zaman. "When an incident takes place in a couple of different times, and people doubt about the precise time, they need to relate it to its nearest time. '')  Since the farthest time is questionable, the nearest time is the one that counts.136

An applicable examples for this Qa'idah

!Ii   In the event of noticing spots of sexual discharge on garments -and a person  does not remember the reason behind this, he/she shall take a bath and repeat every Salah performed after the last period of sleep.

Al-Qa'idah no. 5

هل الاصل في الاشياء الاباحة أو الحرمة؟

(Hal- al asl fi al-ashiya ' al-ibahah aw al-hurmah?) Should things, in principal, be permissible or forbidden?

The strongest ruling that most of scholas of Islam are in agreement with, is that things in principle are permissible.

Concrete proofs from the Noble Qur'an:
Allah Al Karim (الكريم) the Bountiful says:     

هُوَ الَّذِي خَلَقَ لَكُم مَّا فِي الْأَرْضِ جَمِيعًا

(He it is Who created for you all that is on earth . . .) (Surah 2. Al-Baqarah, Ayah 29)

 قُلْ مَنْ حَرَّمَ زِينَةَ اللَّهِ الَّتِي أَخْرَجَ لِعِبَادِهِ وَالطَّيِّبَاتِ مِنَ الرِّزْقِ ۚ قُلْ هِيَ لِلَّذِينَ آمَنُوا فِي الْحَيَاةِ الدُّنْيَا خَالِصَةً يَوْمَ الْقِيَامَةِ ۗ كَذَٰلِكَ نُفَصِّلُ الْآيَاتِ لِقَوْمٍ يَعْلَمُونَ

(Say, (0 Muhammad): "Who has forbidden the adoration with clothes given by Allah, which He has produced for his slaves, and At-Tayibat, all kinds of Halal (lawful) things] of food?" Say: "They are, in the life of this world, for those who believe, (and) exclusively for them (believers) on the Day of Resurrection (the disbeliev rs will not share them." ...) (Surah 7. Al-'Araf, Ayah 32)

Moreover, Allah, Ar-Rahman, The Most Beneficent) Ar- Rahim (The Most Merciful) says:

 قُل لَّا أَجِدُ فِي مَا أُوحِيَ إِلَيَّ مُحَرَّمًا عَلَىٰ طَاعِمٍ يَطْعَمُهُ إِلَّا أَن يَكُونَ مَيْتَةً أَوْ دَمًا مَّسْفُوحًا أَوْ لَحْمَ خِنزِيرٍ فَإِنَّهُ رِجْسٌ أَوْ فِسْقًا أُهِلَّ لِغَيْرِ اللَّهِ بِهِ ۚ فَمَنِ اضْطُرَّ غَيْرَ بَاغٍ وَلَا عَادٍ فَإِنَّ رَبَّكَ غَفُورٌ رَّحِيمٌ ‎

(Say (0 Muha mmad ): "I find not in that which has been inspired to me anything forbidden to be eaten by one who wishes to eat it, unless it be May tah(, a dead animal) or blood poured forth (by slaughtering or the like), or the flesh of swine (pork, etc.) for that surely is impure, or impious (unlawful) meat (of an animal) which is slaughte red as a sacrifice for others than Allah (or has been slaughtered for idols, etc., or on which Allah's Na me has not been mentioned while slaughtering). But whosoever is forced by
necessity without wilful disobedie nce, nor transgressing due limits, (for him) certainly, your Lord is Oft-Forgiving, M ost M erciful.") (Surah 6. Al-An'a m, Ayah 145)

 ما أحل الله في كتابه فهو حلال ، وما حرم فهو حرام ، وما سكت عنه فهو عافية ، فاقبلوا من الله العافية ، فإن الله لم يكن نسيا ، ثم تلا هذه الآية ( وَمَا كَانَ رَبُّكَ نَسِيًّا )

Narrated Ja'far ibn Muhammad 'All' Ash-Shiybanl' that Ahmad ibn Hazim Al­ Ghefa riy that Abu Nu'iym that 'Asl'm ibn Raja' ibn H iywah that his father that Abu  ad-Darda' : Allah's Messenger said, "Whatever Allah makes halal in His Book, it is halal, whatever Allah makes Haram, it is Haram, and whatever Allah stops talking about it, it is Mubah. So, accept what Allah makes permissible because Allah forgets nothing; then, he recited the following Ayah: ( ... and your Lord is never forgetful.)  [Surah19, Maryam, Ayah 64]." 137

أعظمُ المسلمينَ في المسلمينَ جُرمًا من سألَ عمّا لم يُحرَّم فحُرِّمَ على الناسِ من أجلِ مسألتِهِ

Narrated 'Abdullah ibn Yazl'd Al- Muqri' that Sa'l'd that 'Aqll that ibn Shihab that 'Amir ibn Sa'd ibn Abi Waqqas that his father, Sa'd Ibn Abi Waqqas: The Messenger of Allah said, "The most sinful of Muslims is the one who asks about something that is not Haram, but it has become Haram because of his question."138

This maxim is applicable on everything except the acts of worships. In principle, acts of worships are forbidden unless they are dcreed by Allah.

An applicable examples for this Qa'idah

• If a new form of food is discove red by man, the ruling is that that food is permissible to eat (halal).

Al-Qa'idah no. 6

الأَصْلُ فِى الأَبْضَاعِ التَّحْرِيم

(Al-asl fi al-abda ' at-tahrim) In principle, legal sexual intercourse is absolutely forbidden except legal ones

The Asl, here, refers to the basis that the Ahka m and Fatwa are based on.139 Having an intercou rse with a woman is forbidden as Al-As/, unless Allah makes it Halal to the needs of a man. It is Halal by only two ways: marriage or the female slaves whom the Muslims' right hands possess. 140 So, if a man needs to marry a woman, but he does not know whether she is Halal or Haram for him, he has to stop and investigate thoroughly before he proceeds.141

Al-Qa'idah no. 7

لاَ عِبْرَةَ بالتَّوَهمِ

(La 'ibrah be at-tawahum) Rare and far imagination has no value in Shari'ah

The Ahkam of Shariah cannot be verified relying on far and rare imaginations, and consequently if something is decisively and surely proven to be true, it overrules what is imaginative and indecisive. 142

An applicable example for this Qa'idah

• If creditors prove their debts by witnesses, they should get paid regardless of any remote or imaginable possibility that might refute their claim . 143

Al-Qa'idah no. 8:

لاَ عِبْرَةَ بالظَّنِّ البَيِّنِ خَطَؤُه

(La 'ibrah be az-zunn al-baiyen khata 'uh) Assured mistaken conjecture has no value

Conjecture may be obvious or obscure false. If, however, it is plain wrong, no Ahkam Shar'iyyah can rely on it.

An applicable examples for this Qa'idah

• If a person strongly thought that some people deserved Zakah, however, there were evidence showing that he was mistkaen, he should not give his Zakah to them, since assured mistaken conjecture has no value.144

Al-Qa'idah no. 9:

المُمْتَنِعُ عَادَةَ كَالْمُمْتَنِعِ حَقَيِقَة

(Al -mumtani ' 'ddah kal-mumtani ' haqiqah) An unfeasible widespread matter resembles a subjectively impossible matter

Things that are unlikely to happen are divided into two categories according to Al-Usuliyin (scholars who adopt texts) and Al-Mutakalimun (scholars who adopt views).

First: impossible matters in reality :

• Like the impossibility of having more than one Creator to the universe.

Second: impossible matters in 'Adah (habit, routine, practice, and so on): The majority of scholars agree that there is no Taklif upon things which are unlikely to happen -in 'Adah- such as flying to the heavens without a vehicle.

An Exceptions:
Abu Yusuf, the companion of Abu Hanlfah, excluded Al-Aiyman from this Qa'idah. He stipulated that oaths are not deliberate except for the future im/ possible things. So, if a person swears by Allah that he will take somebody's life thinking that that person is alive but he was in fact dead, his oath is broken. Abu Yusuf did not differentiate betwee n things that happen in 'Adah and things that happen in fact. Swearing by Allah to traditional imaginary things is not believed to be true, according to Abu Yusuf.145
 
Deliberate oaths should be in something that will occur in the future, and they can be fulfilled or broke n, otherwise they are not deliberate oaths, the majority of Hanafiyyah, Malik, Ash-Shafi'iy and Ahmad observed.146

Al-Qa'idah no. 10:

لاَ حُجَةَ مَعَ الاِحْتِمَالِ الناَّشِئ عَنْ دَلِيلٍ

(La Hujjah ma 'a al-ihtimal an-ndshi 'e 'ann dalil) No argument with possibility arising based on evidence

In the book Tasis an-Nazar  the  author says: "When a clear-cut accusation smears an action, the action will be unsound",  according to Abu  Hanifah  only, not his two companions or ash-Shafi't.147

An applicable examples for this Qa'idah

• If a person in his last illness confessed to his heirs that he owed some debts, his confession might not be ownered, if there was an evidence of the possibility that he is pla nning on preventing his heirs fom his inheritance.148

  القاَعِدَةُ الكُلِّيَّة الكُبْرَى الثَالِثَة

The Third Qa'idah Kulliyyah Kubro

 المَشَقَّةُ تَجْلِبُ التَّيْسِيرَ

(Al-mashaqqah tajlib at-taysir) Hardship Begets Ease

Imam Ash-Shatibiy stated that getting rid of hardship is proved true by numerous decisive evidence in Sharl''ah.149 The Qa'idah includes all Rukhas (رخص), the plural of Rukhsah.150 Rukhsah is considered as an exceptional Hukm from preventive Ahkam, and it is constricted by excuses confirmed by Shariah, to lift human suffering.151

Evidence:
First: from the Qur'an:

Allah says:

 يُرِيدُ اللَّهُ بِكُمُ الْيُسْرَ وَلَا يُرِيدُ بِكُمُ الْعُسْرَ

( . . .Allah intends for you ease, and He does not want make things difficult for you . . .)
(Surah 2. Al-Baqarah, Ayah 185)

 لَا يُكَلِّفُ ٱللَّهُ نَفۡسًا إِلَّا وُسۡعَهَا‌

(Allah burdens not a person beyond his scope . . . .)
(Surah 2. Al-Baqarah, Ayah 286)

مَا يُرِيدُ اللَّهُ لِيَجْعَلَ عَلَيْكُمْ مِنْ حَرَجٍ

 ﴾…Allâh does not want to place you in difficulty…﴿
(Sûrah 5. Al-Ma’idah, Âyah 6)

Second: from the Sunnah:

عن أنس - رضي الله عنه - قال: قال رسول الله - صلى الله عليه وسلم -: ((يسِّروا ولا تعسِّروا، وبشِّروا ولا تنفِّروا))؛ متفق عليه.

Nar rated  Muham mad ibn Bashar that Yahya ibn Sa'l'd that Shu'bah that Abu At-Teyah that Anas (Ibn Malik) : Allah's Messenger said, "Facilitate things for people (concerning religious matters), and do not make it hard for them and give them good tidings and do not make them run away (from Islam)."152

In another Hadîth

ما خُيِّرَ رَسولُ اللَّهِ صَلَّى اللهُ عليه وسلَّمَ بيْنَ أمْرَيْنِ قَطُّ إلَّا أخَذَ أيْسَرَهُمَا، ما لَمْ يَكُنْ إثْمًا، فإنْ كانَ إثْمًا كانَ أبْعَدَ النَّاسِ منه

Nar rated 'Abdullah that Muha mmad ibn Mus'ab that Al-Awza'l' that 'Urwah that 'A'ishah, Mother of the Believers said, "Whenever two matters were offered to the Prophet to choose between them, the Prophet would always choose the easiest one unless it was Haram."153

Types of Hardship:

1-    Tolerable hardship:
An example is having a headache (a degree of pain), or feeling hungry due to fasting (Sawm).

2-    Intolerable hardship:
If, for instance, a human can only find a dead animal to eat, he should eat the amount that keeps him alife. The extent of this situation is to protect one's life or one's organs from deterioration. One must consume only the amount that he needs.

3-    Medium hardship:
An example is whether to do the acts of Wudu' once or three times in a cold weather. It is when one has the choice to take Rukhsah or 'Azfmah.

Imam Jalaludin As-Seyuti restricted Rukhsah in eight reasons: travel, illness, coercion, forgetfulness, ignorance,  hardship,  a  common  hardship  and deficiency of mentality.

Rukhsah is classified by scholars into:

1.    Rukhsah that cancels a command of Shar', a man can cancel Jumu'ah Salah, Hajj, jihad (47)154 due to valid excuses.
2.    Rukhsah that reduces Salah, like for a traveler, and so on.
3.    Rukhsah that replaces a particular worshi p with another, like performing Tayammum instead of Wudu' due to the lack of water or due to a difficulty.
4.    Rukhsah that delays doing something, like delaying the fasting of Ramadan to anothe r time due to sickness or travel.
5.    Rukhsah of Darurah (necessity), eating a dead animal or pork to survive.
6.    Rukhsah that changes a structure of Salah due to fear.155

القَوَاعِدُ المُتَفَرعَِةُ على القاَعِدَةِ الكُلِّيَّةِ الكُبْرَى الثَالِثَة

Qawa'id Flow beneath the Third Qa'idah Kulliyyah Kubro

 المَشَقَّةُ تَجْلِبُ التَّيْسِيرَ

(Al-mashaqqah tajleb at-tiysir) Hardship Begets Ease

Al-Qa 'idah no. 1&2:

 إِذَا ضَاقَ الأَمْرُ اتَّسَعَ وَإِذَا اتَّسَعَ ضَاقَ

 (ldha daq al-amr itasa ' wa idhd   itasa '  ddq) When a matter tightens, it will widen and vice versa

The first pa rt of the Qa'idah means that whenever or wherever Muslims experience unexpected hardship preventing them from applying some Shar1'ah's commands, Shari'ah's system simplifies this hardship. The second part of the Qa'idah means that If a hardship ends, things should return to the ordinary state or Hukm Al-Asl (the verdict of the origin).

Evidence:
Allah Ar-Rahman (the Most Beneficent) says:

وَإِذَا ضَرَبْتُمْ فِي الْأَرْضِ فَلَيْسَ عَلَيْكُمْ جُنَاحٌ أَن تَقْصُرُوا مِنَ الصَّلَاةِ إِنْ خِفْتُمْ أَن يَفْتِنَكُمُ الَّذِينَ كَفَرُوا ۚ إِنَّ الْكَافِرِينَ كَانُوا لَكُمْ عَدُوًّا مُّبِينًا ‎﴿١٠١﴾‏  وَإِذَا كُنتَ فِيهِمْ فَأَقَمْتَ لَهُمُ الصَّلَاةَ فَلْتَقُمْ طَائِفَةٌ مِّنْهُم مَّعَكَ وَلْيَأْخُذُوا أَسْلِحَتَهُمْ فَإِذَا سَجَدُوا فَلْيَكُونُوا مِن وَرَائِكُمْ وَلْتَأْتِ طَائِفَةٌ أُخْرَىٰ لَمْ يُصَلُّوا فَلْيُصَلُّوا مَعَكَ وَلْيَأْخُذُوا حِذْرَهُمْ وَأَسْلِحَتَهُمْ ۗ وَدَّ الَّذِينَ كَفَرُوا لَوْ تَغْفُلُونَ عَنْ أَسْلِحَتِكُمْ وَأَمْتِعَتِكُمْ فَيَمِيلُونَ عَلَيْكُم مَّيْلَةً وَاحِدَةً ۚ وَلَا جُنَاحَ عَلَيْكُمْ إِن كَانَ بِكُمْ أَذًى مِّن مَّطَرٍ أَوْ كُنتُم مَّرْضَىٰ أَن تَضَعُوا أَسْلِحَتَكُمْ ۖ وَخُذُوا حِذْرَكُمْ ۗ إِنَّ اللَّهَ أَعَدَّ لِلْكَافِرِينَ عَذَابًا مُّهِينًا ‎﴿١٠٢﴾ فَإِذَا قَضَيْتُمُ الصَّلَاةَ فَاذْكُرُوا اللَّهَ قِيَامًا وَقُعُودًا وَعَلَىٰ جُنُوبِكُمْ ۚ فَإِذَا اطْمَأْنَنتُمْ فَأَقِيمُوا الصَّلَاةَ ۚ إِنَّ الصَّلَاةَ كَانَتْ عَلَى الْمُؤْمِنِينَ كِتَابًا مَّوْقُوتًا ‎﴿١٠٣﴾

(And when you (Muslims) travel in the land, there is no sin on you if you shorten your prayer if you fear that the disbelievers may attack you, verily, the disbelieve rs are ever unto you open enemies.(101) When you (0 Messenger Muham mad) are among them, and lead them in prayer, let one pa rty of them stand up (in prayer) with you taking their arms with them; when they finish their prostrations, let them take their positions in the rear and let the other party come up which has not pray with you taking all the preca utions and beari ng arms. Those who disbelieve wish, if you were negligent of your arms and your baggage, to attack you in a single rush, but there is no sin on you if you put away you r arms as a result of the inconvenie nce of rain or because you are ill,but take every precaution for you rselves. Verily, Allah has prepared a humiliating torment for the disbelievers.(102) When you have finished the (congregatio nal) prayer, remember Allah standing, sitting down, and lying down on your sides, but when you are free from danger, offer prayers perfectly Iqamat-as-Salah). Verily, the praye r is enjoined  on the believers at fixed hours.( 102) ) (Surah 4. An- Nisa' , Ayah 101-103)

Examples:

• When a debtor is poor, it is encouraged that he is given a period of time wherein he can repay the money - even in installments.
• Should a huma n have nothing to eat, he can eat a dead animal or make use of some others' pro perty in order to survive, but he ought to return what he took when he can.
• While on board, passengers can offer Salah even if they do not know where the Qiblah is or they are not able to stand up.156

Al-Qa 'idah no. 3:

الضَّرُورَاتُ تُبِيحُ المَحْظُورَاتِ

(Ad -darurat tubih al-mahzurat) Necessity renders prohibited matters permissible

What is legally forbidde n becomes  legitimate  due to  dire  need  or Darurah (necessity).

Evidence:
Allah says: 

وَقَدْ فَصَّلَ لَكُم مَّا حَرَّمَ عَلَيْكُمْ إِلَّا مَا اضْطُرِرْتُمْ إِلَيْهِ ۗ

(...While He has explained to you in detail what is forbidden to you, except under compulsion of necessity?) (Surah 6. Al-An'am , Ayah  119)

In another place, Allah Al-Ghafur, The Oft- Forgiving) says:

فَمَنِ اضْطُرَّ غَير بَاغٍ وَلاَ عَادٍ فَلا إِثْمَ عَلَيهٌِْ

(But if one is forced by necessity withou"t willful disobedience nor transgressing due limits; then, there is no sin on him ...) (Surah Al-Baqrah, Ayah 173)

 
Allah Al-'Afuww,  the oft-Pardoning)says:.- 

مَن كَفَرَ بِاللَّهِ مِن بَعْدِ إِيمَانِهِ إِلَّا مَنْ أُكْرِهَ وَقَلْبُهُ مُطْمَئِنٌّ بِالْإِيمَانِ وَلَٰكِن مَّن شَرَحَ بِالْكُفْرِ صَدْرًا فَعَلَيْهِمْ غَضَبٌ مِّنَ اللَّهِ وَلَهُمْ عَذَابٌ عَظِيمٌ ‎

(Whoeve r disbelieved in Allah after his belief, except him who is forced thereto and whose heart is at rest with Faith - but such as open their breasts to disbelief, - on them is wrath from Allah, and theirs will be a great torment.) (Surah 16. An- Nahl, Ayah 106)

Moreover, there is Qa'idah that perfects this Qa'idah:

ما جاز للضرورة يقدر بقدرها

( Ma jaz le darurah yuqadar be qadariha) What is permissible due to necessity is restricted by it and should not transgress it."

Perhaps it was extracted from what Allah says:

فَمَنِ اضْطُرَّ غَيْرَ بَاغٍ وَلَا عَادٍ فَلَا إِثْمَ عَلَيْهِ ۚ إِنَّ اللَّهَ غَفُورٌ رَّحِيمٌ

( . . .  But if one is forced by necessity without willful disobedience  nor transgressing due limits; then, there is no sin on him ...) (Surah 2. Al-Baqrah, Ayah  173)

The conditions of Darurah (necessity) are:
It must be real, truthful and not fabricated, and it can actually remove the difficulty in hand. Thus, for insta nce, if one has the choice either to spend some yea rs in jail for indebted ness or to take Riba (money to pay his debt), he can take the Riba. That is because if he refuses to take Riba, he will be
imprisoned, mingling with criminals, and his family's affairs will deteriorate, and so on.

 
Nar rated Ahmad ibn Al-M iqdam that Khalid that Sa'id that Qatadah that Anas

رخص النبي صلى الله عليه وسلم لعبد الرحمن بن عوف والزبير بن العوام في لبس قميصين من حرير لحكة كانت بهما ‎

Allah's Messenger gave permission  to Az-Zubair and  'Abdur-Rahman Ibn 'Awf  to wear  silk clothes  owing to skin irritation.157

Three levels of Darurah are involved in this Qa'idah:
1-  Darurah that makes the illegitimate, legitimate:

Like when someone fears death because of starvation, he must eat anything that he can fin, even if it were a dead animal or Pig meat.

2 -  Diirurah  as a consequence. It does not legitimize the illegitimate.

Like If someone was forced to utter blasphemy or words of disbelief, he can say them providing that his heart is full of faith. In this example, the doer is not sinful, but the description of the act is still Haram. In this type of Darurah or Rukhsah, should a person refuse what he is enforced to do, it might be better for him.

3-  Darurah that does not legitimize what is illegitimate.

Such as killing a sinless or Infallible blood person, dealing with pa rents forcefully or violently, committing Zina (Ll), adultery, fornication), and so on. In this type of Darftrah, what is done is Haram, and the doer is sinful and must recom pense the victim. However, Al-Hudud (3l) 158 are avoided by Ash-Shubuhat (suspicions). It is recorded that Tarkhis, concession) removes sin but cannot remove Tahrim.

Examples:

• It is permissible for a creditor to secretly take all or some of his money from a debtor who wrongly declines to repay the money.
• It is permissible to defend and kill an enemy who cannot be subdued except by killing him.
• Al-Mu hrim can kill wild animals defending himself.159
• Out of necessity, one can drink wine or urine (if there is no wate r) to swallow food.160

Al-Qa'idah no. 4:

الضَّرُورَةُ بِقَدَرها مّا أُبِيحَ لِضَرُورَةِ يُقدرُ بقدَرها

(Ad -darurah tuqadar be qadariha or ma ubih le darurah yuqadar be qadariha) Necessities have limits that should not be exceeded

Darurah, necessity) that is blockaded by sieges should not exploit Rukhsah. The Dabit (the controller), here, that limits the Darurah is a dangerous matter or severe hardship that human beings cannot endure.161
 
Evidence:
Allah ays:

  فَمَنِ اضْطُرَّ غَير بَاغٍ وَلاَ عَادٍ فَلا إِثْمَ عَلَيهٌِْ

( . . .  But if one is forced by necessity without willful disobedience  nor transgressing due limits; then, there is no sin on him ...) (Surah 2. Al-Baqarah, Ayah 173)

Should Rukhsah be restricted by a definite time, a man cannot go beyond that time.

Examples:

• Suppose a person, in order to save his life, was forced to eat a dead animal, he is no allowed to consume more than he actually needs to survive.
• A doctor should not look at the private parts of a man's body except what is necessary.
• If someone is starving, and anothe r person, who has more than his immediate needs, refuses to provide the starving person with food, the hungry person has the right to take it by force, and to recompense him later.

Al-Qa 'idah no. 5:

مَا جَازَ لِعُذْرٍ بَطَلَ بِزَوَالِوِ

(Ma ja za le 'udhr batal be zawalih) Should something become legal by a valid excuse, it becomes illegal when the excuse ends

If something (Y) has become lawful by an accepted excuse (X), Y is going to become  unlawful when X ends. "Unlawful" here equals nonexistent since when X is absent, Y must stop.162

Examples:

• In the event of making Tayammum instead of Wudu', because there is no wate r, a man will make Wudu' when he finds water.
• Returning to his country,  a  travele r  should  not  make  Qasr  (shorten)   Salah.
• A widow in her iddah should stay in her house until the 'iddah ends except if she needs to work to get money. However, if she finds money, she has no right to look for work or to work within this period of time.

Al-Qa 'idah no. 6:

الحَاجَةُ تَنْزِلُ مَنْزلَِةَ الضَّرُورَةِ عَامَّةً كَانَتْ أَوْ خَاصَّة

(Al-hajah tanzil manzil ad-darurah 'ammah aw khassah) General/Particular need, can develop into necessity

Hajah (need) is lesser than Darurah (necessity) and Shari'ah divides man's needs into three categories:

1- Darurah:
It is Circumsta nces where one or more of the five objectives of Sharia is violated, (protection of faith, life, intellect, honor, and wealth).
2-  Hajah:
It is Circumsta nces where one or more of the five objectives of Sharia may be violated.
3-  Kamaliyat 163:
It is extra comadities that are neither necessa ry nor needed (luxurios comadities).

Note
When a general hajah befalls someone or a group of people, it becomes a Darurah that needs to be removed by Rukhsah for all people. Hajah turns to Darurah not for one person only but for all people, members of a pa rticula r occupation or citizens of a certain country. A forbiden matter becomes allowable by Darurah, and it ends when the Daru rah ends, and human/s can benefit from it. Matters that are used as a pretext for committing Haram become Haram; however, Darurah renders them Halal.164

"When people are afflicted by a pa rticular hardship which can destroy their life, they take exactly what they need even if it is Haram," Ghiyathl, Imam Al-Haramain (d. 478/1085) stated. The group of scholars who advocates this trend and his leader Al-Juwiynl' Imam Al-Ha ramain said, "When there is no way for people except to take or commit Haram, three provisos must be adhered to:
i.    Hajah must be true, not unreal. Hajah here means removing a certain hardship people are suffering from.
ii.    When there is no escape except taking or committing Haram.
iii.        People must only take what they really and precisely need since there is no room (in that case) to live in comfort and luxury.165

Examples:

• Al-Ijarah,166 Al-ji'alah,167 Al-Hiwalah 168 and As­ Salam169 are not analogous to Shari'ah, but they  are  legalized owing to the public Hajah of people. Although one has not to sell non­ existent objects, Al-Ijarah and As-Salam are exceptio ns to this principle because of the Hajah of people. Al-ji'alah includes ignorance of its affairs, and Al-Hiwalah is to trade a debt with anothe r debt and that is null and void, but they are allowed thanks to the public Hajah of people.
• Because of people's need, it is permissible to appoint a broker and to pay for him such and such a sum of money although Al-Qiyas disallows that deal and dictates that the broker should take the wage of the like of him.170
• Out of necessity, Shariah allows the witness or the judge to look at a woman's face, even if he certainly knows that this matter causes him a very strong sexual desire.171

Al-Qa'idah no. 7:

الاضْطِرَارُ لُاَ يْبِطُلُ حَقَّ الغَيْر

(Al -idtirar la yubtil haqq al-ghair) People's rights are not devoured because of necessity

This Qa'idah limits Qa'idah: "الضَّرُورَاتُ تُبِيحُ المَحْظُورَاتِ"
(Ad -darurat tubih al-mahzurat) Necessity knows no law", namely whethe r a matter is Darurah or Hajah, man ought not to seize others' rights. In addition, it is not permissible to remove detriment by drawing anothe r detriment. Therefore, if starving, a person is obliged to consume others' food yet he is onligated to repay the valur of the food to the owner when starvation is removed. I f a person has been brutally forced and threatened to commit Haram, the one who commanded him will be the oppressor who will be held accountable for the act and who must compensate the victims. When a person is forced to take somebody's life, he should not do it. Howeve r, if he did, he and the one who commanded him will both be responsible for the crime. It is believed that coercion is not a valid excuse for committing murder.172

Examples:

• When someone on boa rd a means of transportation throws others' baggage in the ocean to reduce the load, he has to make up to those people for the damage.
• When somebody slays a camel defending himself, he does not reimburse its owner, according to Shafi'iyyah and Hanabelah.173 Howeve r, he should make up for it to its owner as people's rights are not devoured owing to necessity, unless it is commonly known as a wild animal and his owner does not keep it back from attacking people, Hanafiyyah observe.174 Hanafiyyah believe that Al- Ibahah (permission) does not thwart the guarantee.175

Al-Qa 'idah no. 8:

إِذَا تَعَذَّرَ الأَصْلُ يُصَارُ إِلَى البَدَلِ

(Idha ta 'adhar al-asl yusar  ila al-badal) When Al -Asl (that must be first) is not available, we proceed to Al -Badal (alternative)

First, we need to talk about categories of Al-Ada' (H ':ll,which is fulfilled immediately) and Al-Qada' Ul,which is fulfilled later).

Kinds of Al-Ada' :
1.    Complete Ada' like one who offers Salah at its time in congregation.
2.    Partial Ada' like one who offers Salah alone.
3.    Ada'  that looks like Al-Qada' , for instance, a person came later to offer congregational Salah, so he performs what he has missed; this is called Qada' and in the same time it is named Ada' since he has performed Salah with the Imam.176

Kinds of Al-Qada' :
1.    Complete Qada', when, for example, somebody steals something and devours it fully, he must repay its value or its like.
2.    Incomplete  Qada', when, for insta nce, a person takes something that does not have a counterpart, but it can be valued, he must pay its cost.177

The Qa'idah says that if one cannot do 'Azfmah, he should resort to Rukhsah called Badal (an alternative).

This Badal  is divided into three types:

1-a Badal that exist but only in the future and after the time ends:
Imagine the time of Salah is about to end and there is no wate r (but it will possibly appea r after the time of Salah terminates), a man would make Tayam mu m. 

2-a Badal which is not limited by time:
A Muslim will not leave Kaffarah 178 and avail himself of Badal if he has the ability to do Kaffarah  since these sorts of Kaffarat  (plural of Kaffarah expiation) are not constrained by time. Even if he dies, his heirs on his behalf can do Kaffarah  from his property.

3- a Badal is eq uivalent to the two previous kinds of Badal:
For expiation of Zihar179, for instance, a man can do penance later since it is not controlled by a definite time, as the majority of scholars state180, or he can turn to Badal (fulfilling the Kaffarah ) if that postpone ment wrongs him.181

Evidence:
Allah the One Who loves those who make themselves clean and pure says:

وَإِن كُنتُم مَّرْضَىٰ أَوْ عَلَىٰ سَفَرٍ أَوْ جَاءَ أَحَدٌ مِّنكُم مِّنَ الْغَائِطِ أَوْ لَامَسْتُمُ النِّسَاءَ فَلَمْ تَجِدُوا مَاءً فَتَيَمَّمُوا صَعِيدًا طَيِّبًا فَامْسَحُوا بِوُجُوهِكُمْ وَأَيْدِيكُمْ ۗ

( . . .And if you are ill, or on a jou rney, or one of you comes after answering the call of nature, or you have been  in contact with wome n  (be sexual relations) and you find no wate r, then  perform Tayam mu m with clean earth and rub therewith you r faces and hands (Tayammum(Sûrah 4. An-Nisâ’, Âyah 43)
 
In another position, Allah the Most Beneficent says:

 فَإِذَا أَمِنتُمْ فَمَن تَمَتَّعَ بِالْعُمْرَةِ إِلَى الْحَجِّ فَمَا اسْتَيْسَرَ مِنَ الْهَدْيِ ۚ فَمَن لَّمْ يَجِدْ فَصِيَامُ ثَلَاثَةِ أَيَّامٍ فِي الْحَجِّ وَسَبْعَةٍ إِذَا رَجَعْتُمْ ۗ تِلْكَ عَشَرَةٌ كَامِلَةٌ ۗ

 ( ...Then if you are in safety and whosoever  performs the 'Umrah in the months of Hajj, before  (performing) the Hajj (i.e. Hajj-at-Tamattu'  and Al­ Qiran    ly.ll3    \ e),he must slaughter a Hady (animal, i.e. a sheep, a cow or a camel, etc.) such as he can afford, but if he cannot afford it, he should fast three days during the Hajj and seven days after his return (to his home), making ten days in all...)
(Surah 2. Al-Baqarah, Ayah 196)

Examples:

• In the event of argument betwee n a couple of suitors and the guardian of a woma n, they will adhere to the Mahr (dower)  of her counterparts.
• If the spouses differ in the dowry and none of them has Bayyinah (), the dowry of the like of women should be there.
• Concerning Al-Waqf (endowment), if there is no Bayyinah, we ought to return to treatment of the persons who were responsible for Al-Waqf in the past.

 القاَعِدَةُ الكُلِّيَّةُ الكُبْرَى الرَّابِعَة

The Fourth Qa'idah Kulliyyah Kubra:  

 لاَ ضَرَرَ وَلاَ ضِرَارَ أو الضَّرَرُ يُزَال

There is to be no harm, and no reciprocating harm (La darar wa la dirar) 182, or harm must be eliminated    (Ad -darar yuzal)

This  Qa'idah states that a human must not hurt others (creating Darar), and others should not reply too (producing Dirar), Imam Ibn Al-Ath1r (d.606/12 09) observed 183•   In addition, it shows how Islam encourages people's security, spreads peace by dismissing evil from their life and forbids detriment among them. Several chapters of Fiqh are based on this Qa'idah such as: Al- Khayarat184 Al- Hajr, ash-Shuf'ah185 Al-Qisas,186 Al-Hudud, Al-Kaffarat,  guarantee of damages, division of common property, appointing of leaders, Ahkam, and  so on. Causing difficulties  is Haram counting on the evidence of this Qa'idah in the coming pages. Although applying Hadd (penalty) generates Darar, it is not Haram as Allah prescribes it so that people can survive in peace.

If a human wishes to injure someone for no reason, this is completely Hara m. Commonly, to act freely in ownership, there two statements are: a person deals conclusively with his possession since it is his pure right, according to Abu Hanlfah, Ash-Shafi']' and others. A person has no right to proceed
independently in his ownership like a man who builds a high building depriving his neighbour  from sun and air, etc., according to Malik (in some cases), Ahmad and others.187

Evidence:
•    First, from the Qur'an:

Allah the One Who comprehends all things in mercy and knowledge says:

 لَا تُضَارَّ وَالِدَةٌ بِوَلَدِهَا وَلَا مَوْلُودٌ لَّهُ بِوَلَدِهِ

( ...No mother shall be treated unfairly on account of her child, nor father on account of his child ...) (Surah 2. Al-Baqarah, Ayah 233)
 
Allah the One to Whom is the final return says:

 الطَّلَاقُ مَرَّتَانِ ۖ فَإِمْسَاكٌ بِمَعْرُوفٍ أَوْ تَسْرِيحٌ بِإِحْسَانٍ ۗ

(The divorce is twice, after tht, eithe r you retain hr on re"asnable terms or release her with kindness ...) (Surah 2. Al-Baqarah, Ayah 229)
 
Allah the All- Knower of everything says:

 وَإِذَا طَلَّقْتُمُ النِّسَاءَ فَبَلَغْنَ أَجَلَهُنَّ فَأَمْسِكُوهُنَّ بِمَعْرُوفٍ أَوْ سَرِّحُوهُنَّ بِمَعْرُوفٍ ۚ وَلَا تُمْسِكُوهُنَّ ضِرَارًا لِّتَعْتَدُوا ۚ

(And when you have divorced women and they have fulfilled the term of their prescribed period, either take them back on reasonable basis or set them free on reasonable basis. But do not take them back to hurt them ...) (Surah 2. Al-Baqarah, Ayah 231)

•    Second. from the Sunnah:

 عَنْ  أَبِـيْ  سَعِيْدٍ سَعْدِ بْنِ مَالِكِ بْنِ سِنَانٍ الْـخُدْرِيِّ  رَضِيَ اللهُ عَنْهُ أَنَّ رَسُوْلَ اللهِ صَلَّـى اللهُ عَلَيْهِ وَسَلَّمَ قَالَ : لَا ضَرَرَ وَلَا ضِرَارَ مَنْ ضَارَّ ضَرَّهُ اللهُ وَمَنْ شَاقَّ شَقَّ اللهُ عَلَيْه

Nar rated Abu Al-'Abbas Muham mad ibn Ya'qub that Al-'Abbas ibn Muha mmad Ad- Duwari that 'Uthaman ibn Muha mmad ibn 'Uthman ibn Rabl''ah ibn Abl' 'Abdur-Rah man ibn 'Abdul-Azl'z ibn Muha mmad ad-Durawradl' that 'Umar ibn Yahya al-Maznl' that his father that Abu Sa'l'd Al-Khudri
Allah's M essenger said, "La Darar wa Ia Dirar (do not injure  others and others should not reciprocate), and whosoeve r hurts others, Allah  hurts him, and whosoever places others under difficulties, Allah places him under difficulties."188

Moreover, Samurah Ibn Jundab narrated that a man had a tree in another person's orchard and the tree's owner incurred a continuous pain because he constantly entered the orchard. The orchard's owner complained to the Prophet of Allah who commanded the tree's owner to take an alternative to it or leave it for charity, but he vetoed. Therefore, Allah's Messenger ordained  the  owner  of the  orchard  to  remove  that tree, and said to the tree's owner, "You are nothing except harmful."189

Examples:

• When the period of a lease expires before harvest, the lessee can stay until he harvests his plants because collecting crops before their exact time damages them; howeve r, he should pay an extra rental fee for the additional period he stays.
• There is no harm if the government incarcerates those who are well known for prostitution and corruption to guard the community, in case it cannot legally prove their corruption.190

 القَوَاعِدُ المُتَفَرعَِةُ على الق اَعِدَةُ الكُلِّيَّةُ الكُبْرَى الرَّابِعَة

Qawa'id come under the fourth Qa'idah Kulliyyah Kubra

 لاَ ضَرَرَ وَلاَ ضِرَارَ

(La darar wa la dirar) There is to be no harm and no reciprocating harm

 Al-Qa 'idah no. 1:

الضَّرَرُ يُدْفَعُ بِقَدْرِ الإِمْكَانِ

(Ad -darar yudfa ' be qadr al-imkan) Harm should be avoided as much as possible

Before undergoing hardship, detriment must be averted by all available means without incurring harm as much as possible, according to the Masalih Mursalah.191

Evidence:
Allah Al-'Aziz ( the All-Mighty) says:

 وَأَعِدُّوا لَهُم مَّا اسْتَطَعْتُم مِّن قُوَّةٍ وَمِن رِّبَاطِ الْخَيْلِ تُرْهِبُونَ بِهِ عَدُوَّ اللَّهِ وَعَدُوَّكُمْ

(And Make ready against them all you can of powe r, includi ng steeds of wa r (tanks, planes, missiles, artillery, etc.) to threaten the enemy of Allah and your enemy ...) (Surah 8. Al-Anfal, Ayah 60)

Examples:
Interests for the community:

• Al-jihad is legalized by Shar1'ah to avoid the enemies' evils, and Hudud and Ta'zfr192 are legally recognized to avert crime and tighten security against it.
• Should all the money in the world become Haram because of unlawful dealings and extorted property that was mingled with one another, rich and poor people are given what is sufficient for them all. However, if they have been provided with what is barely sufficient, the entire world would gradually be obliterated.193

Interests for private rights:

• Ash-Shuf ah is sanctioned to forestall unanticipated troubles from a new neighbor.
• Hajr is officially authorized to preclude damage that may be generated from hazardous financial deals.

Al-Qa 'idah no. 2:

الضَّرَرُ يُزَال

(Ad -darar yuzal) Harm should be eliminated

Detriment should be overruled when it takes place.

Examples:

• Numerous pacts including Khayarat (options) such as Khayarul­ 'Aib,194 or Khaya rul-Ghabn195 and so on, are legalized in  order to remove  difficulties that may happen to the contracting parties.196
• If a tree extends to the neighbor's wall engendering trouble, the tree's owner should eliminate the damage.
• One ought to recompense others when detriment is incurred by him.

Al-Qa'idah no. 3:

الضَّرَرُ لاَ يُزَالُ بِالضَّرّرِ أوْ الضَّرَرُ لاَ يُزَالُ بِمِثْلِه

(Ad -darar la yuzal be ad-darar or d-darar la yuzal be mithlih) Harm should not be overruled by another harm or by the same harm

Detriment should be overridden by the least harm and without drawing parallel or much harm.

Examples:

• When a Muslim is being forced to murde r another Muslim, he must not take the person's life since it is not permissible to get rid of oppressio n by means of similar oppression.
• In case of starvation, it is not permitted for a person who wishes to save his life to seize someone else's food who also needs to survive.
• The mortgagee, by the permission of the rule r, can spend on the mortgaged object keeping it in a good state when the mortgagor declines to expend on it; yet, the mortgagee's expenses will be the mortgagor's debt.197

Al-Qa 'idah no. 4:

الضَّرَرُ الأَشَدُّ يُزَالُ بالضَّرَرِ الأخََفِّ

Ad -darar al-ashadd yuzal  be ad-darar al-akhaf) Severe harm is removed by lesser harm

In Furu' (varied questions or branches) of Fiqh and Ahkam, people take shelter from life's difficulties. In fact, this Qa'idah has been utilized in many significant ways:

يختار أهون الشرين أو أخف الضررين

(Yukhtar ahwan ash-sharriyyen aw akhaff ad-darariyyen)

 إذا تعارض مفسدتان روعي أعظمهما ضررا بارتكاب أخفهما

(Idha ta'arad mafsadatan ru'aiy a'zamahuma darar be irtikab akhffahuma )

إذا اجتمع الضرران أسقط الأكبر للأصغر

(Idha ijtama' dararan usqqit al-asghar al-akbar). "

In principle, the three Qawa'id above have comparable meanings saying when you are between the devil and the deep blue sea, choose the lesser of two evils.

Evidence:
A man who is distressed by a couple of equal calamities or cases (calling on him to commit Ha ram) can elect whatever he is able to endure. H owever, when both are not the same, he ought to vote on the lesser one since committing Ha ram is not allowed except by Darurah, and there is no Darurah
here to choose the severer or the harder.198
 
Examples:

• If Muslims are besieged by disbelievers who refuse to release them except for money, then money should be used to release the believe rs.199
• Splitting a dead mother's belly is lawful on the condition that the fetus is expected to survive.

Al-Qa 'idah no. 5:

يُتَحمَّلُ الضَّرَرُ الخَاصُّ لدِ فعِ الضَّرَرِ العَام

(Yutahammal ad-darar al-khd ss le daf ' ad-darar al- 'dmm) Facing private harm is tolerated than facing public harm

When a nation or a group of people experience two evils urging people to commit Hara m, they must avoid facing a general tragedy. Damages are going to be endurable if a particular disaster only pertains to one or a few men. This Qa'idah is inferred from texts of the Qur'an and Sunnah, Ijma', Maqasid (goals) of Shari'ah, Al-Masalih and Al-Mursalah.

To fulfill a collective duty is better than to perform an individual duty. In fact, when one performs an individual good deed, he only liberates himself from the burdens, however, when he performs a deed on behalf of a group, he liberate the group from the bu rdens.zoo

Examples:

• An impude nt M uftiy (, jurist) could be thwa rted from giving Fatwa lest people should be misled or they go behind their caprices.
• An ignorant doctor must be dismissed from his career for fear that people may be hurt because of him.
• In case of monopoly or high prices of some commodities, government officials can fix a price list for them.

Al-Qa 'idah no. 6:

دَرْءُ المَف اَسِدِ أَوْلَى مِنْ جَلْبِ المَصَالِحِ

(Dar ' al-mafasid awla men jalb al-masalih) Avoiding detriment takes precedence over bringing about benefit

When Mafsadah201and Maslaha202 are mixed together, people  are supposed  to leave both  of them so long as people  cannot extract the benefit solely. Sharl''ah is very keen to encourage man to leave the forbidden more than to do the commands. Detriment may increase if we do not frustrate it immediately.

Evidence:
•    First, from the Qur'an:
Allah Al- Hakim (the All-Wise)  says:

وَلَا تَسُبُّوا الَّذِينَ يَدْعُونَ مِن دُونِ اللَّهِ فَيَسُبُّوا اللَّهَ عَدْوًا بِغَيْرِ عِلْمٍ

(And insult not those    whom they (disbeliever ) worship besides Allah, lest they insult Allah wrongfully without knowledge ...) (Surah 6. Al-An'am, Ayah 108) 

 Second, from the Sunnah:

 

Narrated Isma'il that Malik that Ab1 az-Zinad that al-A'raj that Abu Huraiyrah

عن أبي هريرة رضي الله عنه ، قال : سمعت رسول الله صلى الله عليه وسلم يقول : ( ما نهيتكم عنه فاجتنبوه ، وما أمرتكم به فأتوا منه ما استطعتم

 Allah's M essenger  said, "Whatever I  forbid, you must leave it without delay, and whatever I command, do it as much as possible".203

Examples:

• If there is no secure place for taking a necessary shower, a woman may postpone performing Salah since exposing her body is a great Mafsadah.
• A man is not allowed to open a window exposing his neighbor's privacy.
• The numbe r of those who perform Hajj (pilgrimage) or 'Umrah (lesser Hajj) needs to be reduced lest they should perish; in particular those who performed it before. Should they spend Hajj's or 'Umrah's charges in Allah's cause i.e. for the poor, those in debt, seekers of knowledge of Islam, and so on, that would be approp riate for them.204

القاَعِدَةِ الكُلِّيَّةِ الكُبْرَى الخَامِسَة

The Fifth Qa'idah Kulliyyah Kubro

 العَادَةُ مُحَكَّمة

Custom is the basis of judgement (Al-Adah muhakkamah)

Since Al-'Urf influences numerous Ahkam, scholars have paid it great attention. First, we need to know the meaning of Al-'Urf Any act that may be good or bad according to one's mind or Shariah is the 'Urf 205 Al-'Urf is what is stabilized in the souls and instilled in people's minds and nature.206

In addition, Al-Ma'ruf  is a general name including worshipping Allah, dealing with  people  in a reasonable  manner,  and  commands and  prohibitions of Shariah. Besides, it is familiar to people, so they accept it and do not reject it. Al-Munkar is its opposite.207

Having confidence in this Qa'idah, Al-'Urf is considered one of the Adillah Shar'iyyah, namely it has the ability to evaluate questions and cases, and it can give decisions regardi ng them unless there is Nass from the Qur'an or Sunnah contrary to it. If a situation contains 'Urf and Nass, we can avoid 'Urf, and judge by counting on Nass. Imam Al-Isnawi' (d.722 /1322)208 said, "When a question or a case has no solution in Shari'ah  or Arabic language, we have better resort to Al-'Urf "209

'Urf has two forms:
I.    Lawful 'Urf does not contradict Nass, incurs more probable Mafsadah  (a source of harm or ruin, or a reason of corruptio n or evil) or ignores permitted Maslahah. People, for example, are used to fixing prices, dealing with different currencies, defining expressions and words employed in contracts.

II. Unlawful 'Url, on the contrary, challenges the Nass, invites to more probable Mafsadah or closes the eyes to permitted Maslahah. Many people, for example, are used to devouring Riba.210

Evidence:
•    First, from the Qur'an:

Indicating the significance of Al-'U rf concerning passing Ahkam, the words "Al­ 'Urf' and "Al-Ma'ruf'  are repeated in the Noble Qur'an about 37 times. The following are some of these Ayat:

Allah Al-'Allm (the All-Knowing about the state of the people) says:

 خذ العفو وأمر بالعرف وأعرض عن الجاهلين

(Show forgiveness, enjoin what is good, and turn away from the foolish (i.e. don't punish them).(Sura h 7. Al-A'raf, Ayah 199)
 
Allah the One Who knows best the transgressors says:

 فَمَنْ عُفِيَ لَهُ مِنْ أَخِيهِ شَيْءٌ فَاتِّبَاعٌ بِالْمَعْرُوفِ وَأَدَاءٌ إِلَيْهِ بِإِحْسَانٍ ۗ

 ( ...then the relatives  (of the killed  person) should demand blood-money  in a reasonable  manner, and the killer must pay with handsome  gratitude ...) (Surah 2. Al-Baqrah, Ayah 178)

Allah Al- Malik (the King), Al- Malik (the Owner of the dominion) says:
 
(It is prescribed  for you, when  death approaches any of you, if he leaves wealth, that he makes a bequest to pa rents and next of kin, according to reasonable manners. (this is) a duty upon Al-Muttaqun (the pious).) (Surah 2. Al-Baqarah, Ayah 180)

•    Second, from the Sunnah:

Directly or indirectly, the word “Al-Ma‘rûf” appears in the venerable Sunnah:

  جاءت هندٌ إلى النَّبيِّ صلَّى اللَّهُ عليْهِ وسلَّم، فقالت: يا رسولَ اللَّهِ إنَّ أبا سفيانَ رجلٌ شحيحٌ، لا يعطيني ما يَكفيني وولَدي، إلَّا ما أخذتُ من مالِهِ، وَهوَ لا يعلَمُ، فقال: خُذي ما يَكفيكِ وولدَكِ بالمعروفِ

Narrated Abu  Nu'iym  that Sufyan that Hisham that 'Urwah that 'A'ishah, Mother of the Believers: "Abu Sufyan is greedy, so am I sinful if I secretly takes some of his money? Hind, the wife of Abu Sufyan, asked. "You can take from your husband's money what is enough for you and you r child in Ma'ruf (a reasonable manner)," Allah's Messenger  answered. 211
Moreover,

جَاءَتْ فَاطِمَةُ بنْتُ أبِي حُبَيْشٍ إلى النبيِّ صَلَّى اللهُ عليه وسلَّمَ فَقالَتْ: يا رَسولَ اللَّهِ إنِّي امْرَأَةٌ أُسْتَحَاضُ فلا أطْهُرُ أفَأَدَعُ الصَّلَاةَ؟ فَقالَ رَسولُ اللَّهِ صَلَّى اللهُ عليه وسلَّمَ: لَا، إنَّما ذَلِكِ عِرْقٌ، وليسَ بحَيْضٍ، فَإِذَا أقْبَلَتْ حَيْضَتُكِ فَدَعِي الصَّلَاةَ، وإذَا أدْبَرَتْ فَاغْسِلِي عَنْكِ الدَّمَ ثُمَّ صَلِّي - قالَ: وقالَ أبِي: - ثُمَّ تَوَضَّئِي لِكُلِّ صَلَاةٍ، حتَّى يَجِيءَ ذلكَ الوَقْتُ.

Nar rated  Muha mmad that Abu Mu'awiyah that Hisha m ibn 'Urwah that his father that 'A'ishah, Mother of the Believers : Fatimah لاint Hubaish told Allah's Messenger that  she  always suffered  from vaginal  bleeding  in  between her  ordinary periods, so she had never been  in a state of Taharah. "Shall I leave Salah? she asked. "No, because it is from a blood vessel and not the menses. So when your real menses begins, give up your Salah and when it has finished wash off the blood  (take a bath) and offer your Salah," Allah's Messenger replied. Hisham (the sub narrator) narrated that his father had also said, (the Prophet told her): "Perform ablution for every Salah till the time of the next period comes."212

This Hadهth reveals that the decision or the Hukm of the Prophet of Allah,returns to 'Urf and to what continuously occurs.

Examples:

• Inasmuch as educators of Sharl'ah were deprived from donations, it is a duty to hire them due to their revered missions.
• Ijarah can be adjudicated  lawfully even if there has not been contract betwee n pa rties but that belongs  to works people  used to fulfill and get earnings for.213
• The periods of menstruation are subjected to Al-'Adah.
• A jurist ought not to give a person from another country Fatwa before being familia r with the current meani ng of the questioner's words in that country.214

Note
Suppose a single word were to bea r a couple of indications or meanings, the meaning of Shari'ah and the meani ng of 'Urf, what would we do?

1-  If the word is employed in Shari'ah. but it does not form Hukm or Taklif (obligation or legal capacity), we ought to choose the meaning of 'Urf, particularly in Al-Aiyman (oaths) as they are based on the 'Urf of the one who takes an oath.

2-    - If the word is exercised in Shari'ah and it makes Hukm or Taklit we should give precedence to Shar1'ah over the 'Urf When, for instance, a man swears he does not offer Salah, his oath is not broke n unless he offers Salah including Sujud (prostration), Ruku' 215 and so on. Besides, when a person swears that he does not observe Sawm, his oath is not violated unless he makes Niyyah because avoiding food, drink or having intercourse with his wife without Niyyah of Sawm is not considered Sawm.

3-    If the word in Shari'ah refers to a general question or case. yet in 'Urf it denotes a particular question or case. we select the meaning of Shariah. This is the prevailing opinion in the Hanafiy Madhhab and others. When a person, for instance, swears he does not eat meat, his oath is not violated if he eats a dead animal as Shari'ah does not consider dead animals meat. This view is according to Hanafiyyah and Shafi'iyyah, but Hanabilah have two narrations in this matter.216

Al-La fz  between Linguistic Facts and Habitual Facts: 

Al-Hanafiyyah:
Oaths rely on Al-'Urf not on linguistic facts; there is no difference in this point. So, if a person, for example, takes an oath that he will not consume bread, his oath is broke n when he eats what the people of his city used to eat. Howeve r, if a man swears that he will not eat meat, his oath is violated when he consumes pig; some Hanafiyyah trust generalization of the linguistic facts. Ash-Shafi'iyyah:
Since Imam ash-Shafi']' sometimes would depend on linguistic facts and on the facts of 'Urf, some scholars of Shafi'iyyah give precedence to linguistic facts over the facts of 'Urf, while the other scholars of Shafi'iyyah do the opposite.

Therefore, if, for example, a man swears that he will not dwell in a house, his oath is broke n when he resides in a tent whether he is a Bedouin or a villager; this is the opinion of the first group. Howeve r, if he is a Bedouin, his oath is violated when he settles in a house whateve r its kind is.

Hanabilah:
When the usage of the general noun prevails in some of its individuals till it grows a linguistic fact i.e. they use   ' Urt

So, if a person swears that he will not devour Shewa' Ul, a roast), his oath is
not broke n when he consumes any other food can customarily be roasted.   When the private usage prevails, and that has two shapes:

a) A noun that cannot be called a general noun except when it is added by another noun; it cannot come alone or enter in generalization; there is agreement on this point. So, if, for insta nce, a man takes an oath that he will not eat/drink tamr hindiy , tamarind), his oath is not broke n when he eats tamr (, dates) since tamr hindiy cannot include all tamr.

b) A noun that is called a general noun but it mostly needs another noun; it cannot be understood  alone; there is no agreement on this point. Therefore, if, for example, a man swears that he will not eat heads, his oath is broke n (according to some of Hanafiyyah) when he eats head/s of fish or birds. His oath, howeve r, is not violated unless he eats a head that people used to eat customarily, according to other Hanafiyyah.

Malikiyyah:
First, oaths rely on Niyyah then on incentive then on  'Ur/ then on linguistic facts.217

Footnote

94 Al- 'Alii 'i stated that it is very good, in addition, ash-Shiifi 'iy stated that this Hadith (the fifth Qa 'idah) includes two third of the knowledge. See As-Seyiiti, Al-Ashbah Wan-Naza 'ir, p.8. 

95 As-Seyuti, Al-Ashbah Wan-Naza'ir, p.40. 

96 'Ali Ibn Ahmad Ibn Sa'id Ibn Hazm, Al-Ihk am fi U sfil Al-Ahk am, Vol.5 , p.132. Cairo, Egypt: Dar-Al-Hadith Press. Volume 8, 1404/1984.

97  Summarized Sahih Al-Bukh ari Arabic -English, chapter: The Book of Revelation, 1. 

98  Sahih Al-Bukhari, chapter: The Book of Revelation , 4783.

99 Fasting, to abstain from food, drink and sexual intercourse before the break of the dawn till sunset.

100 Duty, obligation task, assignment, and so on.

101 Zain-ud-Din  Ibn Ibrahim Ibn Nujaim, Al-Bahr   ar-Ra'ig   Sharh Kanz  ad-Daga'ig,  Vol.2,  p.346.  Beirut:  Dar  al­ Ma 'refah Press. 

102 The previous source, p. 171.

103 The man who marries an irrevocable divorcee in order to make her lawful for her former husband if he wishes to marry her. Moreover, this marriage, with no condition in the contract, is correct according to Hanafiyyah but correct and disliked according to Shafi'iyyah. It, however, is Haram, even there is no condition on the contract, according to Malikiyyah and Hanabelah. See Al-Mawsu'ah Al-Fighyyiah Al-Kuwaitiyyah. Kuwait: Ministry of Waqf and Islamic Affairs. (2006-1984/1427-1404), Vol. 10, p257.

104  Muhammad   Salih  Ibn  'Uthiymin,  Al-Qawa 'id   Al-Fighiyyah,  p.72.  Alexandria ,  Egypt:  Dar-Al-Basirah  Press, 1422/2002.

105 To give someone something immediately and without exchange.
 
106   The use and enjoyment of property for a time, includes hire, rental, and lease. 

107 Specialization, specification , and so on. 

108 The previous source, pp.152-153.

109 The previous source, pp. 152-153.

110 Breaking/violating of the oath.

111  Ibn Nujaim, Al-A shbah W an-N aza'ir. p.57.

112   Dr. Al-Bornii , Al-W aji z, p.156.

113  Abu  Bakr  Ibn  Hasan  Al-Kishnawl , A s-hal  Al-M ad arik  Sharh  Irshad  Al-M asalik  fi  Figh  Imam  Al-A 'imm ah Malik, Vol. 2, p.23. Cairo, Egypt  'Isa Al-Babiy Al-Halabiy Press, 1st. ed.

114 A building which people, usually one family, live in. 

115 Al-Hamawiy , Ghamz 'Uoun Al-Basa'ir, p.89.

116 Dr. Al-Bornii , Al-W aji z, p.158.

117 Sahih Mu slim, chapter: the oath of the one who takes it is contingent on the Niyya h of the oath seeker, 4373.

118 Al-Mawsu 'ah Al-Fighyyiah  Al-Kuwaitiyyah, Vol. 7, p.305-307.

119 A period of probation after the death of her husband or after her divorce.

120 As-Seyiitl, Al-Ashbah W an-Naza 'ir, p.51.

121 AI-Qarafiy , Anwar AL-Borfig , Vol. 1, p.111.

122   Khalid ibn Muhammad Al-Atasl, Sharh Maj alat Al-Ahk am Al- 'Adliyy ah, Vol.1, p.32. 

123 Dr. Al-Bornii , Al-Wajiz, p.168.
 
124 Summarized Sahih Al-Bukh ari Arabic-English, chapter Wudu ' (Ablution), 112.

125 Mohyed-Din Yahya Ibn Sharaf An-Nawawi (d.676/1277), Sharh An-N awawi 'ala Sahih Mu slim, Vol.4, pp.49-50.    Beirut, Lebanon  Dar Ibn Ihya' At-Turath Al-'arabiy Press. Volume 9, 2"d. ed., 1392/1972.

126  Dr. Az-Zurqqa , Al-M adkhal, Vol. 2, p.981, chapter 81, passage 6. 

127 Sahw, here, means forgetting how many Raka 'at a person has prayed , in which case he should perform two prostrations of Sahw. This is after Taslf m: On finishing the prayer; one turns his face to the right and then to the left saying, Assalam  'Alaikum wa Rahmtullah (Peace and Mercy of Allah be on you).

128  Sahih Al-Bukhari, chapter: Facing the Qiblah, 392. 

129 Walid Ibn Rashdan As-Sa'idan, Al-Iktifii' bel-'Amal beghalabat-ez-Zunn  fi Al-Masa 'il Al-Fighiyyah, p.6.

130 The previous source, pp. 6-7. 

131    Khawajah Amin Afandi  'Ali Hiydar  Durar Al-Hukkam,  Vol.  1, p. 20. Translated  and verified  by Fahmy Al­ Husaini. Beirut, Lebanon. Volume 4.
 
133 A contract of copartnership, of which the one party (namely the proprietor) is entitled to a profit on account of the stock, he being denominated Rab-ul-mal, or proprietor of the stock, and the other party is entitled to a profit on account of his labor,  and this last one is called the mudarib (or manager). A contract of mudarabah cannot be established  without  participation  in  the  profit.  See  Dictionary   of   Islamic   Terms,   Arabic-English  by  Deeb  Al­ Khudrawi, first ed. 1416-1995 Al-Yamamah Damascus.

134  Dr. Al-Bornii, Al-Wajiz, p.184.

135 Proof, evidence, demonstration, testimony, witness, and so on.

136 Al-Atasl, Sharh Maj alat Al-Ahkam, Vol.1, p.32. 

137  It is Sahfh (authentic) Hadith according to the criterion of Al-Bukhari and Muslim but they did not report it. See "Talkhis Al-Mustadrak  'ala as-Sahihiyyn,"  by adh-Dhahabi, chapter   Interpretation of the Holy Qur'an, 3419.

138 Sahih Al-Bukh ari, chapter  Taking shelter by the Holy Qur 'an and the Sunnah, 6859.

139 Dr. Bakr Isma'il, Al-Qawa'id Al-Fighiyyah p.342.

140 A person would have slaves through purchasing , Hebah, inheritance, bequeath, etc. Islam found this system in the world, so it exploits every chance to free slaves like Kaffarah, and urges the community to help slaves to get their freedom. Allah orders the masters to treat slaves kindly and carry out their lawful needs, etc. That is Briefly understood  from Al-Mawsu'ah  Al-Fighyyiah  Al-Kuwaitiyyah,  Vol.23, pp.48-49

142  Dr. An-Nadawi, Al-Qawa 'id Al-Fighiyyah  p.416.

143 Az-Zurqqa , Sharh Al-Qawa 'id, p.363.147   Abu  Zaiyd  Ad-Dabbiisiy ,  'Ubiydullah  Ibn  'Umar,  'Tasis-un-Nazar ," p.19 , in  Sharh  Al-Qawa 'id, by  Az­ Zurqqa,  p.361.

148AI-Atasl, Sharh Ma jaliit  Al-Ahkam, pp.204-209.
 
149 Abu Ishaq Ibn Musa Al-Lakhmi Ash-Shatibiy , Al-Muw afag at fi U sill Ash-Sharl'ah , Vol.1, p.340. Verified  by 'Abdullah Draz. Beirut, Lebanon : Dar Al-Ma 'rifah Press, Volume 4.

150 Plural of Rukhsah i.e. concessionary law.

151  'Ali Hiydar, Durar Al-Hukk am, Vol.  1, p.31, passage 17.
 
152 Summarized  Sahih Al-Bukhari  Arabic-English , chapter: Knowledge, 63.

153 It is Sahfh (authentic) Hadith authenticated by Shu'iyb Al-Ama 'Ctt See Musnad Al-Imam Ahmad Ibn Hanbal by Imam Ahmad Ibn Hanbal, no. 24593. Although this Isnfid (The Chain of Transmission) is weak, Cairo,  Egypt: Qurtubah Foundation Press, Volume 6.
 
154 Fighting in the cause of Allah or any other kind of effort to make Allah 's Word superior.

155 As-Seyiitl, Al-A shbah W an-N az a'ir, p.82.

156 Dr. AI-Qahtaniy , Manh aj  Istinbat Ahkam An -N aw azil,_p.950.

157   Sahih Al-Bukhari, chapter: Wearing silk clothes in war, 2762, Sahih Muslim, chapter: Wearing silk clothes for who is afflicted by itching, 5550, and lbn 'Uthiymin, Al-Qawa'id Al-Fighiyyah, p.26.   

158  Fixed punishments  by Shari'ah.

159 'Alii'ud-Din Abu al-Hasan 'All ibn Suliyman Al-Mardawi al-Hanbaliy (d.885/1480) At-Tahbir  Sharh at-Tahrir fi Usiil Al-Figh,Vol.8 , p.3847 , verified by Dr. 'Abdur-Rahman Al-Jibrin and others. Saudi Arabia: Riyadh, Ar-Rusd Press, Volume 8, 1421/2000.

160 The previous source and the same page.

161   'Abdur-R ahman  As-Sa'di, Risa lah  L atifah  wa   Jami 'ah  men  U sCtl  Al-Figh   Al-Muh emmah,  p.  103.  Beirut, Lebanon : Dar Ibn Hazm Press,  1412/1992. 

162 Dr. Al-Bornii , Al-W aji z, p.241.

163 Luxuries, articles of luxury; nonessentials, and so on.

164 The previous source, p.26.

165    Ahmad  Al-Kafi, Al-Hajah  Ash-Shar'iyyah  Hududuhii  wa  Qawa 'iduhii, pp.115-117. Beirut, Lebanon:  Darul Kutub Al- 'Ilmmiyyah Press, 1st. ed., 1424/2003.

166    The use and enjoyment of property for a time, includes hire, rental, and lease.

167    A reward given to a person for doing something.

168  The transference  of a debt from one person to another. It is an agreement whereby a debtor is released  from a debt by another becoming responsible for it.

169 The synonym of salaf means a sale in which the price is paid at once for goods to be delivered later.
 
170   Az-Zurqqa,  Sharh Al-Qawa 'id, p.211.

171     'Alii'ud-Din  Al-Kasaniy  (d.587/1191),  Bada'i'  as-Sana'i'  fi Tartib ash-Shara'i',  Vol.5,  P.122,  Beirut:  Dar al­ Kitab Al-'arabiy,  1982, Volume 7. 

172 Dr. d Al-Bornii, Al-W aji z , p.244.

173   Al-Atasl, Sharh Maj alat Al-Ahk am, Vol. 1, p.76 . 

174 Dr. Al-Bornii, Al-Wajiz, pp.244-245.

175 Muhammad Amin ibn 'Umar ibn 'Abel-'Aziz ad-Dimeshqiy lbn 'Abdin, a great scholar  of  Hanafiyyh (d.1836/1252),  Hashiyat  Radd  Al-Mukhtar   'Alii  Addurr   Al-Mukhtar   Sharh  Tanwir   Al-Absar   Figh  Abi   Hanifah Vol.6, p. 663. Beirut, Lebanon: Dar Al-Fikr Press, Volume 8,1421/2000. 

176 Al-Mawsu'ah Al-Fiqhyyiah Al-Kuwaitiyyah,  Vol.2, p.327.

177 Dr. Al-Bornii, Al-Wajiz, p.248. 

178 Certain punishment upon the people who committed sins. Some kinds of Kaffarah are: Fasting, feeding the poor and freeing a slave.

179 Signifies the likening of a woman to a within the prohibited degrees. The usual formula is: "You are to me as my mother's back." Before Islam, Zihar stood as a divorce, but Islam changed it to a temporary prohibition, for which expiation must be performed, viz. either freeing a slave, or two months' fast, or feeding sixty  persons.  See Dictionary  oflslamic Terms, Arabic-English  by Deeb Al-Khudarawi.

180   Some, however, stated that he is sinful when he delays doing of kaffarah of az-Zihar till the end of his life. See Al-Mawsu'ah  Al-Fighyyiah  Al-Kuwaitiyyah,  Vol.10, pp.  14-15

181  Dr. Al-Bornii, Al-Wajiz, p.248-249.

182 It is Sahih le ghaireh (i.e. Hadith Hasan comes from more than one narrator) Sunan Ibn Ma jah, on the authority of Ibn 'Abbaas iilL ) chapter: Judgments; Hadith No. 2341. Verified by Muhammad Fu'ad 'Abdul-Baqi and authenticated by Al-Albaniy. Beirut, Lebanon: Dar Al-Fikr Press. Volume 2.

183   Abu  As-Sa 'adat  Al-Mubarik  ibn  Muhammad   Al-Jazari  Ibn  Al-Athir,  An-Nihayah   fi  Gharib   Al-Hadith   wal­ Athar, Vol.3, p. 81. Verified by Tahir Ahmad Az-Zawi and Mahmud Muhammad at-Tanahi. Beirut, Lebanon:  Al­ 'Ilmiyyah Press, 5st. ed.,  1399/1979.

184 All sorts of options of contracts.

185 "Adjunction". The right of pre-emption is a power of possessing property that is for  sale. It applies  not  to movable property but to immovable property (.)lk 'aqar). This right of pre-emption  appertains in the first place to the co-sharer or partner in the property; secondly, to a sharer in the immunities and appendages of the property such as the right to water, or to roads; and thirdly, to the neighbor.  See Dictionary  of Islamic  Terms,  Arabic-English  by Deeb Al-Khudarawi.
 
186 (Retaliation) is that punishment which, although fixed by the law, can be remitted by the person offended against, or, in the case of murdered person, by his heirs. Moreover, arsh means estimated compensation  to be  given to injured person by another person.

187 Zainud-din 'Abdur-Rahman ibn Ahmad al-Hanbaliy Ibn  Rajah  (d.  1393/795), Jami'Al-'UICtm  wal-Hikam  fi  Sharh  Khamsin  Hadith  men  Jawami 'al-Kalim,  Vol.3, p.921.  Verified  by Dr. Muhammad  Al-Ahmadi Abu  An-Nfu.
Dar as-Salam press., Volume 3, 2"d. ed. 2004/1424.
 
188 It is Sahfh Hadith on the criterion of Imam Muslim, but he did not report it. See "Talkhis Al-Mustadrak  'ala As­ Sahihiyyn," by  adh-Dhahabi, chapter: Bargains  no. 2345.

189 It is Da 'if (weak) Hadith. See Sunan Abi Dawfid, no. 3636.
 
190 Dr. Az-Zurqqa, Al-Madkhal,  Vol. 2, pp.966-967, chapter 81, passage 20-29.
 
191 The previous source, Vol. 2, pp.993-1000 , chapter 81, passage 20-29.

192 Discretionary punishments. 

193  Muhammad  Ibn Muhammad  Ibn Muhammad  Abu Hamid AI-Ghazall, Al-Mankhlil  fi Ta 'ligat  Al-Usfil.  p.369. Verified by Dr. Muhammad Hasan Hito. Damascus: Dar Al-Fikr Press, 1400/1980. 

194 The option of dissolving the contract on discovery of a defect.

195 The option of deception.

196 Dr. Az-Zurqqa, Al-Madkhal,Vol.2,  p.993, chapter 81, passage 20.

197 Az-Zurqqa , Sharh Al-Qawa 'id, p.195.
 
199 As-Seyiitl, Al-Ashbah Wan-Naza'ir,  p.88.
 
200 Badr-ud-Din Muhammad Ibn Bahiidir lbn 'Abdullah Az-Zarkkashiy , Al-B ahr Al-Mohit fi Usfil Al-Figh, Vol.I , p.201.  Verified by Muhammad Muhammad Tamer.   Beirut, Lebanon: Dar Al-Kutub Al- 'Ilmmiyy ah Press, Volume 4, l5, 1421/2001.

201  Harm, detriment, evil, and so on.

202  Benefit, help, good, and so on.
 
203 Sahih Al-Bukh ari, chapter Taking shelter by the Holy Qur 'an and the Sunnah, 6858.

204  Dr. Yusuf AI-Qaradawi, "Fiqh Al-Awlawiyat" p.94 in At-Tatbigat Al-Mu 'asirah le sadduth-Thara'i', by, Dr. Yusuf 'Abdur-Rahman Al-Fart, p.18. Cairo, Egypt: Al-Bardi Press, Printed no. 2002/18363.

205 Al-Hasan Ibn Muhammad Ar-Raghib Al-Asfahaniy , Al-Mufr ad at fi Gharib Al-Our 'an, Vol. 1, p. 561. Damascus: Dar Al-Qalam Press, 1st . ed. 1412/1982._

206Aj-Jerjani, At-Ta 'rifat, p. 193.

207 'Abul-Fadl Jamal-ud-Din Muhammad Ibn Makram Ibo-Manzur (d.711/1311), Li san Al- 'Ar ab, Vol.9, p.236. Lebanon : Dar Sadir Press, Volume 15, 2ed.

208 'Abdur-Rahim Ibn Al-Hasan lbn 'Ali Al-Isnawi ash-Shafi 'iy Abu Muhammad Jamalud-Din , see Al-A 'Jam ed. by Az-Zarkkali, Vol.3, p.344.

209 Jamal-ud-Din Abu Muhammad 'Abdur-Rahim Ibn Al-Hasan Al-Isnawi, "At-Tamhid fi Takhrij Al-Furu ' 'alii Al-Usul ," in Al-Q awa' id Al-Fighiyy ah ed. by Dr. An-Nadawi, p.296.

210 'Abdullah lbn Yusuf Al-Judiy' , T aysir 'Ilm Usul Al-Figh, Vol.2 , p.64. written in 1418/1997.

211 Sahih Al-Bukh ari, hiring and selling trust tradition and custom, 2097.

212  Sahih Al-Bukh ari, chapter: Wudu' (ablution), 226.

213 Muhammad ibn Ahmad ibn 'Arafah ad-Desiiqiy Al-Malikiy, [(d.1230/1815)  born  and  died  in  Egypt  wrote several books such as "Al-Hudiid Al-Fiqhiyyah", Hashiyh on "Mughni al-Labib", on "As-Sa 'd at-Taftazani" and on "As-Seniisi",  etc.]  Hashiyy at   Ad-Desu giy   'Ala   Ash-Sh arh   Al-K abir,  Vol.4,P.3.  verified  by  Muhammad   'Ilash. Beirut: Dar al-Fikr, Volume 4.

214  'Ali Hiydar, Durar Al-Hukk am, Vol.  1, p.45 , passage 40.

215  The position in Salah in which the person prostrates himself in a standing position with his body bent forward at the waist and his hands on his knees.

216 Dr. Al-Bornii , Al-Wajiz, pp.286-288.

217  Dr. Al-Bornii , Al-W aji z, pp. 288-291.