Intro to Jurisprudential Maxims

1- Maxim of Purity (قاعدة الطهارة - Al Tahara)

Definition: If the impurity of a thing is doubted, it is to be considered as pure (until certainty of impurity is acquired - in which case it is considered impure)

Note: A thing is impure in reality and yet may be considered/treated as pure due to the doubt of its impurity. This does not mean it is pure in reality - it is in fact impure in reality or else it would be a contradiction for it to become impure upon knowledge of impurity if it was in fact pure in reality.

2- Maxim of the Muslim Market (قاعدة سوق المسلمين - Suq Al Muslimin)

Definition: Something being sold in the Muslim market is a sign that the animal was slaughtered Islamically.
Note: The sign of the Islamic slaughtering is the Muslim possession and not the market itself.

Note: An item being sold in a non-Muslim land which is labelled as being made in an Islamic Country is to be considered as halal/tahir so long as there is confidence (itmi'nan) in the truthfulness of what is written on the label.

Summary: Three signs of Islamic Slaughtering: Muslim Market, Muslim Hand, Muslim Land

3- Maxim of the Principle of Validity (قاعدة أصالة الصحة - Asalat Al Sihhah)

Definition: When a Muslim does something and it is uncertain whether their action was performed correctly or not, it was be assumed the act was done correctly and the result is effective in producing the desired result (eg in washing an item to remove najasah, or in performing/writing a contract, etc)

Note: Difference to the Maxim of Finishing (which assumes an action to be correct if finished): 1 - Maxim of Validity looks at the actions of others, while the Maxim of Finishing looks at ones own actions. For example if one is praying and doubts during their prayers whether or not they have performed a valid wudhu, they cannot use the maxim of validity to justify their wudhu as being correct and must stop and repeat the wudhu and their prayer (as their prayer has not yet finished and the Maxim of Finishing cannot be applied). However if one doubts the proper wudhu of another during their prayer, due to the Maxim of Validity, it can be assumed that their wudhu was performed correctly and that their prayer is valid

Note: Without knowledge the Maxim of Validity does not apply. (Eg a contract written by someone who has zero knowledge of contracts cannot be considered by this maxim to have correctly written the contract).

4- Maxim of Not Repeating (قاعدة لا تُعاد- La Tu'ad)

Definition: One who is praying and violates some part of the prayer (or its conditions) is not required to repeat it except in the case of: ruku, sujud, tahara, qibla, or timing (i.e., one of the pillars (arkan) of the prayer cannot be violated).

Note: Whether the violation was unintentional or made out of inculpable ignorance makes no difference. An intentional violation of any parts of a prayer regardless or a violation made by inculpable ignorance cannot be validated by the Maxim of Not Repeating, and the act must be performed again.

Note: If the knowledge of the violation of an act becomes known during one's prayers , the Maxim of Repeating does not apply (as the action is not yet finished, and thus cannot be said to be needed to repeat) and the Principle of Validity does not apply (as it looks at the actions of others). As such it would be required to repeat the action if mid-act a violation was made.

5- Maxim of the Accessible (الميسور - Al Maysur)

Note: Due to lack of evidence this maxim is not considered to be a hujjah upon a mukallaf, however the author has included it for the sake of knowledge.

Definition: If an obligatory act which is comprised of parts is being performed (these parts must not be seen as independent of one another but rather are sub-parts of a larger single act) and series of those parts is not able to be performed, then it is still necessary to perform the rest. The 'accessible' parts do not lose their obligation just because other parts cannot be done - and the obligation of the entire series of acts does not lose validity.

Applicable Usage: Example: One cannot fast for a certain number of days in Ramadan - the remaining days remain obligatory. Example: Wudhu over Jabira with the remaining portinos of the wudhu being obligatory as normal

Note: This Maxim does not apply to prayers - as prayers must be be completed and never left under any circumstance, as evidenced by various traditions.

6- Maxim of Finishing & of Passing(الفراغ و التجاوز - Al Faragh & Al Tajawuz)

Definition: The maxim of finishing dictates that after an action has been completed, if there is doubt in the validity of the action (for example whether or not it was performed correctly) then one must consider the act as been doing correctly and for it to be considered valid. The maxim of passing dictates that during an an on-going action comprised of a series of parts, once one moves from one part to the next, if any doubt arises as to the validity of the previous part, it must be considered as correct and valid. Thus the maxim of finishing applies to fully completed actions (whether comprised of a single part or a series of parts) whereas the maxim of passing applies to an on-going action comprised of a series of parts.

Note: In regards to ablution, the maxim of finishing applies but the maxim of passing does not apply. This is due to a sahih narration from Imam Baqir AS to Zurarah in which he indicates that doubts in the validity of ablution, while in the act of ablution, require one to go back and repeat the parts upon which there is doubt. However if the ablution has been completed then any doubts which arise which must be dismissed

Applicable Usage: For example a person has entered into ruku and doubts the recitation of surah al Hamd, he must dismiss this doubt based on the maxim of passing. If one doubts any part of a prayer after completion of the prayer, the doubt is to be dismissed based on the maxim of finishing.

Question: Is entering the next a requirement for applying the two maxims? Answer:If someone doubts the occurrence of a part, one cannot consider it as having been done unless they have entered into the next part (else they would be considered to still be in the first part in which their is doubt of its occurrence - which is illogical). This is opposite to one who doubts the validity of what has been done after being certain the act itself was performed - because one who is certain of an act being performed does not need to enter into the next act in order to be certain the previous act was completed. An example: Someone who is certain they have performed ruku, but doubts its validity, will consider it to be valid even if he has not yet entered the next part of the prayer (so long as the ruku is complete). This is contrary to if he was having a doubt about performing ruku, where in order for him to have considered it valid he must have started the next act.

7- Maxim of Seizing( على اليد - 'Ala Al Yad)

Definition: Someone who seizes and takes possession of someone else's property becomes liable for it, even if it is not damaged, and even if someone else damages it. This differs with the maxim of possession (maxim 15). This does not include items which are entrusted to someone else; unless the damage was done via negligence.

8- Maxim of Deception (الغرور - Al Ghurur)

Definition: The one who deceives another and causes them loss is responsible for that loss

Note: If a person was to usurp some food and give it to someone else, who was unaware of the food being usurped - the maxim of deception could be applied in making the usurper liable for the stolen goods. If the person who received the food was in fact aware of the stolen food, then he could also be responsible based on the maxim of seizing (maxim 7) or the maxim of damaging (and there is a difference of opinion as to the final liability based on these maxims).

Note: If we assume a person gives food to another person (or eats the food himself), not knowing this food is stolen and in fact believes the food is his, he is still liable for the food. This is because although he is unaware of his status as a deceiver (causing loss towards others) he still retains that status - in the same way that the person who is seen sleeping but is unaware of his being asleep is still considered to be in the status of sleeping. Although, the maxim of the cause (maxim 9) could also be used.

9- Maxim of the Cause (التسبيب - Al Tasbib)

Definition: One who causes another person's loss is responsible and liable for that loss

Note: There is no evidence for this maxim other than "The Conduct of Rational People" (Al Sirah al Uqala'iyyah)

10- Maxim of No Harm (لا ضرر - La Dharar)

Definition: The maxim of no harm entails negating a ruling that leads to harm. For example: a jurist can use this maxim to negate ablution, fasting, etc if they lead to harm.

Note: The harm must be such that a person falls into hardship or difficulty (for example a millionaire losing a small sum of money is not harm; whereas someone living paycheck to paycheck losing the same amount could be put into serious financial distress)

Note: This maxim is widely used in the process of deduction (Istinbat) of religious laws.

11- Maxim of Averting Hardship (نفي الحرج - Nafi Al Haraj)

Definition: The maxim of averting hardships entails negating (averting) any established shar'i ruling that if established would cause the ukallaf to endure hardship

Note: The difference between 'hardship' and 'harm' - harm entails loss (either in wealth or body or something else) and anything that has no loss will not be a harm. Hardship on the other hand is something strenuous to the point of extreme difficulty (that which could not be overcome) even if it does not entail harm.

Note: The maxim of averting hardship is applicable only in individual (shakhsi) instances and not in generic (naw'i) instances. For example, negation of the ruling of fasting during Ramadan for an ill person who is unable to perform it is to be taken on a case by case basis; one cannot say that the requirement of fasting is negated for every sick person in every circumstance because perhaps a person's sickness is mild and will not cause hardship during a fast.

12- Maxim of Drawing Lots (القراعة - Al Qur'ah)

Definition: If a person is in a problematic situation and cannot distinguish which way to go through a sign or principle, then it is possible to resort to drawing lots (which can be performed by writing the options on numerous pieces of paper and randomly selecting one of them). This is not seen as gambling and has a Quranic basis in verses 37:139-141 (Nabi Yunus AS being selected by lots to be thrown off the ship) and in verse 3:44 (Nabi Zakariya AS being selected by lots to take charge of Maryam AS)

Applicable Usage: Drawing lots can also be used in instances where there is a dispute which cannot be settled and requires religious arbitration (eg. two men fighting regarding ownership of a camel, both claiming it's his, and no evidence can be provided by either).

Note: Istikhara can be justified using the maxim of drawing lots.

13- Maxim of the Marriage Bed (ِالفراش - Al Firash)

Definition: When a women gives birth to a child but there is no certainty whether the child is the husband's or not, then it will be automatically attributed to the husband and he cannot reject it solely because there is doubt regarding whether or not the child is his.

Evidence: Hadith stating ألولد للفراش وللعهر الحجر amongst others.

14- Maxim of Binding (الإلزام - Al Ilzam)

Definition: If a non-Imami (non-Shi'i) was to perform a particular action, believing in its validity (based on his/her jurisprudence) then the effects are to be considered valid and binding based on their beliefs; even for a Shi'i who does not hold the same particular beliefs or jurisprudential rulings.

Example: According to Sunni belief, divorce without witnesses is valid. But a divorce without witnesses is invalid in Shi'i belief. Thus if a Sunni was to divorce his wife without witnesses, then based on the maxim of binding from the Shi'i point of view it must be considered a valid divorce.

15- Maxim of Possession (اليد - Al Yad)

Definition: Someone who takes control over something specific, that thing will become that person's possession in reality, and it is considered to belong to him. Thereforce this taking control (al istila) is a sign (amarah) of possession. Thus if someone is using an object (car, house, book, etc) in such a way that it can be seen it is there property, then this is considered a sign of possession, and the burden of proof for ownership is not upon this person but upon anyone else claiming ownership of said object. This maxim is used when there is doubt or lack of certainty regarding the ownership of an object.

Note: A person might ask how this maxim would apply to situations where an object was usurped. The answer lies in the continuous presumption (istishab) of the state of previous ownership. When the previous state is unknown, then the maxim of possession can be applied such that the state of ownership is assumed based on their possession and usage of the object; and per the conduct of rational people it can be assumed the object is not usurped. However if it is known with certainty that the object in its previous state was usurped, then the istishab of its condition remains such that it is still usurped, and there is no need to refer to this maxim.

16- Maxim of Control (السلطنة - Al Saltanah)

Definition: Any person who owns something has control over and usage of that thing any time he wants to, within the shar'i limits. As a stipulation this also means that someone who does not own a thing has no right to use it without the owner's consent.

Note: A persons self autonomy and control over his body is not equivalent to owns ownership over one's wealth. As such one does not have the control over his self to, for example, cast himself into destruction (see Quran 2:195). However in regards to for example organ donation, while the author mentions it is possible to negate the maxim of control in this regard, it is my opnion that further research is required for this specific case.