15.4.1 INTRODUCTION

Qaidat is a general principle applicable to the specifics and is of 3 types: qawaid usuliyat, qawaid fiqhiyat, and dhawabit fiqhiyyat. Qawa’id fiqhiyyat are legal principles that embrace general legal rulings from several chapters of the law dealing with a subject matter. Qawa’id usuliyyat are general principles applied to specific situations in usul al fiqh dealing with the daliil and not the hukm in any branch of fiqh. Dhawaabit fiqhiyyat are general principles applied to specific situations in one chapter of the law being of a narrower scope than qawa’id fiqhiyyat. Kulliyaat fiqhiyyat are general axioms (either qawa’id fiqhiyyat or dhawaabit fiqhiyyat) beginning 'all' with hardly any exceptions to them. Motivation for these 3 principles is from the Qur’an and sunnat that are mainly brief, concise, and precise statements of principles without detailed elaboration. The principles simplify the Law, facilitate the extraction of legal rulings, and are easy to memorize and remember. Principles derived directly from the nass are recognized as daliil. Those derived from reasoning facilitate legal reasoning but cannot on their own be the daliil on which the ruling is based.

15.4.2 EXAMPLES OF PRINCIPLES OF USUL AL FIQH, qawa’id usuliyyat

The default original position is permissibility. Haram is what was prohibited by the Qur’an and sunnat. Nothing can be declared haram if there is uncertainty. If no prohibition is known about a matter then it is considered mubaah.. Any amr requires immediate execution unless there is evidence for delaying. Amr means nahy for all its opposites. Any orders to the prophet cover his followers. Any nahy covers all people. There is no fardh unless there is certainty. Anything needed to accomplish the waajib is itself waajib.

15.4.3 PRINCIPLES OF FIQH, qawaid fiqhiyyat

Five major principles, al qawaid al kulliyat al khamsat, are unanimously recognized as the pillars of the law: Intention, qasd; certainty, yaqeen; injury, dharar, difficulty; mashaqqat and custom or precedent, urf. Each is a group of legal rulings or axioms that share a common derivation by qiyaas or are derived from the Qur’am, sunnat, or writings of jurists. The principle of intention states that each action is judged by the intention behind it. Reward is based on the intention. What matters is the intention and not the letter of the Law. Means are judged with the same criteria as the intentions. If the intention is wrong the means is also wrong. The principle of certainty states that a certainty cannot be changed by doubt. Existing assertions continue until compelling evidence changes them. All acts are permissible unless there is evidence to the contrary. Declaration of original motive takes precedence over the de facto.  The principle of injury states that injury should be relieved or prevented as much as is possible but cannot be relieved an injury of the same degree. Prevention of an injury takes precedence over pursuit of a benefit of equal worth. Prevention of haram has priority over pursuit of halaal. The lesser of two actions of equal harm harms is selected. A lesser harm is committed in order to prevent a bigger one. An individual could sustain harm in the public interest. The principle of hardship states that difficulty calls forth ease and mitigates easing of rules and obligations. Humans are not obliged beyond their capacity. Necessity, dharuurat, legalizes the prohibited. The principle of custom/precedent states that custom or precedent is a legal ruling and is a source of law unless contradicted specifically by text.

15.4.5 OTHER PRINCIPLES OF FIQH

Other principles of fiqh are axioms, kulliyaat al fiqh; principles mentioned directly in hadith; principles from the books of law; and qawaid usuliyat that are qawaid fiqhiyyat, qawaid usuliyat majriya al qawa’id fiqhiyyat. The following are examples of axioms: any ta'at reached through ma’asiyat should not be undertaken, any non-disclosure that could lead to dispute nullifies the contract, ignorance that could be relieved is not a defence, and any ma’asiyat without a fixed hadd is punishable by ta’azir. The following principles are mentioned directly in hadith: no harm to self and others and any innovation in religion is rejected. The following are examples of principles from the books of law: it is recommended to get out of differences, the majority has the rights of the whole, and a legal ruling based on ‘illat is void if the the ‘illat disappears. The following are examples of qawaid usuliyat that are qawaid fiqhiyyat: An ijtihad is not voided by a similar ijtihad, the default position is to leave things as they are, and no word is attributed to a silent person.