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Saturday, 2 April 2011

99 Islamic Legal Maxims

Muslim Jurists have grouped questions of jurisprudence under certain general rules each one of which embraces a large number of questions. These general rules are taken in the treatises on jurisprudence, as justification to prove these question. (These preliminary study of these rules facilitates the comprehension of the questions and serves to fix them on the mind.) Consequently the ninety-nine (99) rules of jurisprudence have been collected together ... Although a few of them, taken alone, admit of certain exceptions, their general application is in no way invalidated thereby, since they are closely interrelated.

The original Arabic is basically quoted from the original Arabic text by Mahmasani.
The English translation is from the translation by Farhat J. Ziadeh.

Article 1: "Matters are determined according to intention"
Article 2: "In contracts effect is given to intention and meaning and not words and forms"
Article 3: "Certainty is not dispelled, (does not dispel caused), by doubt."
Article 4: "It is a fundamental principle that a thing shall remain as it was originally."
Article 5: "Things which have been existence from time immemorial shall be left as they were."
Article 6: "Injury cannot exist from the time immemorial."
Article 7: "Freedom from liability is a fundamental principle."
Article 8: "Non-existence is a fundamental presumption attached to intervening (transitory) attributes."
Article 9: "Judgment shall be given in respect to any matter, which has been proof at any particular time, unless the contrary is proved"
Article 10: "It is a fundamental principle that any new event shall be regarded as happening at the time nearest to the present."
Article 11: "In principles, word shall be construed according their real meaning."
Article 12: ""No attention shall be paid to inferences (implication) in the face of an explicit statement."
Article 13: "Where there is a text there is no room for interpretation."
Article 14: "A thing established contrary to the Qiyas can not be used as an analogy for other things."
Article 15: "One legal interpretation does not destroy another."
Article 16: "Hardship begets facility".
Article 17: "Latitude should be afforded in the case of difficulty."
Article 18: "Injury may not be met by injury."
Article 19: "Injury is to be repaired."
Article 20: "Necessity renders prohibited things permissible."
Article 21: "Necessity is determined by the extent thereof."
Article 22: "Whatever is permissible owing to some excuse ceases to be permissible with the disappearance of that excuse."
Article 23: "When a prohibition is removed the thing to which such prohibition attaches reverts to its former status of legality."
Article 24: "An injury cannot be removed by a similar injury."
Article 25: "A private injury is tolerated in order to ward off a public injury."
Article 26: "Severe injury is removed by lesser injury."
Article 27: "In the presence of two evils, the one whose injury is greater is avoided by the commission of the lesser."
Article 28: "The lesser of evils is preferred."
Article 29: "Repelling an evil is preferable to securing benefit."
Article 30: "Injury is removed as far as possible."
Article 31: "Need, whether a of a public or private nature, is treated as necessity."
Article 32: "Necessity does not invalidate the right of another."
Article 33: "When it is forbidden to take a thing it is also forbidden to give it."
Article 34: "When it is forbidden to perform an act it is also forbidden to request to its performance."
Article 35: "Custom is authoritative."
Article 36: "Public usage is conclusive and action must be taken accordance therewith."
Article 37: "A thing that is customary to regard as impossible is considered to be impossible in fact."
Article 38: "It is undeniable that rules of law vary with change in time."
Article 39: "The original (real) meaning is to be regarded in favor of that established by custom."
Article 40: "Effect is only given to custom where it is of regular occurrence or when universally prevailing."
Article 41: "Effect is given to what is of common occurrence, not to what happens infrequently."
Article 42: "A matter recognized by custom is regarded as if stipulated by agreement."
Article 43: "A matter recognised customary amongst merchant is regarded as if agreed upon between them."
Article 44: "A matter established by custom is like a matter established by a legal text."
Article 45: "When prohibition and exigency conflict, preference is given to prohibition."
Article 46: "An accessory which is attached to an object in fact is also attached to it in law."
Article 47: "An accessory to an object cannot be dealt with separately"
Article 48: "The owner of a thing held in the absolute ownership is also the owner of the things indispensable to the enjoyment of such thing."
Article 49: "If the principle fails, the accessory also fails."
Article 50: "A thing which has been discharged or annihilated cannot be restored."
Article 51: "When a thing becomes void, the thing contained in it also becomes void."
Article 52: "When the original fails it is restored to its substitute."
Article 53: "A thing which is not permissible in itself, may be permissible as an accessory."
Article 54: "A thing which is not permissible by way of commencement may be permissible by way of continuance."
Article 55: "Continuance is easier than commencement."
Article 56: "A gift becomes complete by delivery."
Article 57: "Management of citizen's affairs is dependent upon public welfare."
Article 58: "Private trusteeship is more effective than public trusteeship."
Article 59: "A word should be construed as have some meaning, rather than disregarded."
Article 60: "When the real meaning cannot be applied, the metaphorical sense may be used."
Article 61: "If no meaning can be attached to a word it is regarded altogether."
Article 62: "A reference to a part of an indivisible thing is regarded as a reference to the whole."
Article 63: "The absolute is construed in its absolute sense, provided that there is no proof of a restricted meaning either in the explicit text or by implication."
Article 64: "A description with reference to a thing present is of no consequence, but the contrary is the case if such thing is not present."
Article 65: "A question is considered to have been repeated in the answer."
Article 66: "No statement is imputed by to a man who keeps silence, but silence is tantamount to a statement where there is a necessity for speech."
Article 67: "In obscure matters the proof of a thing stands in the place of such a thing."
Article 68: "Correspondence resembles conversation."
Article 69: "The recognized signs of a dumb person take the place of a statement by word of mouth."
Article 70: "The word of an interpreter is accepted in every respect."
Article 71: "No validity is attached to conjecture which obviously tainted by error."
Article 72: "No argument is admitted against supposition based upon evidence."
Article 73: "No weight is attached to fancy."
Article 74: "A thing established by proof is equivalent to a thing established by visual inspection."
Article 75: "The burden of proof is on him who alleges; the oath on who denies."
Article 76: "The object of evidence is to proof what is the contrary to the apparent fact."
Article 77: "Evidence is an absolute proof in that it affects third person; admission is relative proof in that it affects only the person making such admission."
Article 78: "A person is bound by his own admission."
Article 79: "Contradiction and proof are incompatible, but this does not invalidate a judgment."
Article 80: "Failure to establish the principal claim does not imply failure to establish a claim subsidiary thereto."
Article 81: "Anything dependent upon a condition precedent is established on the happening of the condition."
Article 82: "A condition must be fulfilled as far as possible."
Article 83: "Promises dependent upon a condition precedent are irrevocable."
Article 84: "The enjoyment of a thing is the compensating factor for any liability attaching thereto."
Article 85: "Remuneration and liability do not run together."
Article 86: "Liability is an obligation accompanying gain.
(That is to say, a person who enjoys the benefits of a thing must submit to the disadvantage attaching thereto.)"
Article 87: "The burden is in proportion to the benefit and the benefit to the burden."
Article 88: "The responsibility for an act falls upon the author thereof; it does not fall upon the person ordering such act, provided that such person does not compel the commission thereof."
Article 89: "In the presence of the direct author of an act and the person who is the cause thereof, the first alone is responsible therefor."
Article 90: "Legal permission is incompatible with liability."
Article 91: "Liability lies on the direct author of an act, even though acting unintentionally."
Article 92: "No liability lies on a person who is the cause of an act unless he has acted intentionally."
Article 93: "No liability attaches in connection with injury caused by animals of their own accord."
Article 94: "Any order given for dealing with the property of others is void."
Article 95: "No person may deal with the property of another without such person's permission."
Article 96: "No person may take another person's property without legal cause."
Article 97: "Any change in the cause of the ownership of a thing is equivalent to a change in that thing itself."
Article 98: "Any person, who hastens the accomplishment of a thing before its due time, is punished by being deprived thereof."
Article 99: "If any person seeks to disavow any act performed by himself, such attempt is disregarded."

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