ISLAMIC LEGAL MAXIMS: AL- IJTIHAD LA YANQUD BI IJTIHAD AND IZA IJTAMA’A AL-HALAL WA AL- HARAM...

LEGAL MAXIMS IN SHARIAH

1.0 INTRODUCTION

Basically, qawaid fiqh is a part and the study of fiqh maxims.

It teaches the muslim with the underlying structure of maxims

to rule many issues fall that actually were derived from the

Islamic primary sources. These maxims taken directly from the

quran and sunnah and play a big role for mujtahid to derive

ruling that whether mention in the text or not.

Historically, the development of rules in shariah during

the sahabah time were rely directly from the quran and sunnah

of Prophet Muhammad saw and there was not a lot of confusion

about certain issues on that time because they being close and

got direct knowledge during Prophet Muhammad saw still alive.

The situations during the sahabah time also not much

difference as Prophet Muhammad Saw time. During Caliph Uthman

Ibn Affan rules, he ordered the repetition of Quran copying

process that actually only one copy on Caliph Abu Bakr time,

so that they are able to send to major urban centers of muslim

land. The record of sunnah Prophet Muhammad saw had started

officially during Caliph Umar Ibn Abd Aziz to Abu Bakr Ibn

Hazm. However, the process was not begins on that time because

the leading scholars would speak directly about Islamic

matters from their memory. Until year 143 AH, many scholars

write down the Islamic studies such as hadith and fiqh.

As for the development of qawaid fiqh, Hanafi

jurists were the first jurists to formulate the precious legal

maxims. Abu Tahir Muhammad Ibn Muhammad Al-Dabbas was the

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first person who systematically identify seventeen maxims from

Hanafi rulings references. Later, Abu Hasan Al-Karakhi manage

to increase these to thirty-seven maxims which including the

main five maxims. Some of the earliest maxims as compile by

Abu Hasan Al-Karakhi are ‘the norm is that the affairs of the muslim are

presumed to be upright and good unless the opposite emerges to be the case’,

‘prevention of maxim takes priority over the attraction of benefit’ and ‘question and

answers proceed on that which is widerspread and common and not on what is

unfamiliar and rare’. These maxims were increase in number over the

time and set as the provided guideline of principles for the

Islamic issues.

There was a debating before, regarding to the

permissibility of Islamic maxims. A few views were not support

the legal maxims as to derive hukm in Islamic issues because

the maxims were not an absolutely comprehensive laws. However,

many jurists support its validity as long as not contradict

with the quran and sunnah and able to achieve maqasid shariah

which is for the public welfare. It is based from the Quran,

Surah Al-Maidah, 5:58 “And We have revealed to you, (O Muhammad Saw),

the book in truth, confirming that which preceded it of the Scripture and as a

criterion over it. So judge between them by what Allah has revealed and do not

follow their inclinations away from what has come to you of the truth. To each of

you, we prescribed a law and a method”.

From the huge effort of the muslim jurists, there are

many books discussed about the legal maxims in Islam such as

Al-Qawaid fi furuq Al-Shafie, Manzumah Al-Manhaj Al-Muntakhab and Idhah Al-

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Masalik Ila Qawaid Al-Imam Malik. Imam Al-Jalaluddin Al-Sayuti also

wrote Al-Ashbah wa Al-Nazair with the evidence originated from what

Caliph Umar Ra addressed to a jugde in Basrah ‘To ascertain

similitudes and recemblances and adduce matters analogous in given judgement’.

This book explains deeply about the primary five legal maxims,

forty qawaid kulliyah maxims and other relevant issues about

qawaid fiqh. On the other hand, Majalla Al-Ahkam Al-Adiyyah

that was used during Ottoman empire in Turkey consists of 99

maxims with 1851 sections about civil laws. Those acts based

from the Hanafi thought and the combination of Al-Ashbah wa Al-

Nazair and Mujammak Al-Haqaih.

According to Taha Jabir Fayyad ‘Alwan (2003), there are

seven reasons for the new methodology and one of his view is

“The thinking of the muslim jurist with respect to the geo-political world map of the

time was influenced by contemporaneous historical convention. They overlooked the

quranic concept of the world and human geography and their work have tended to

be localized and provincial”.

As for this assignment, the two maxims, al- ijtihad la yanqud bi

ijtihad and iza ijtima’a al-halal wa al-haram ghalaba al-haram will discussed

in detail including their application in nowadays practice

especially their role in Islamic finance and banking. The

discussion actually will bring a broad view about how these

maxims very useful and helpful toward achieving the ease in

the human life.

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2.0 AL- IJTIHAD LA YANQUD BI IJTIHAD ( هاد ت� الاج�� ض� ب�� ق� ن� هاد لا ي�� ت� ( الاج��2.1 Definition and Meaning

This maxim means “ijtihad or diligence is not aside by another ijtihad”.

The main words in this maxim are ‘ijtihad’ and ‘yunqadu’.

On the other hand, this maxim is also known as “diligence

does not invalidate its ideals” (له مث� ض� ب�� ق� ن� هاد لا ي�� ت� This maxim is among .(الاج��the important maxim in Islamic Law especially to

determine the new rulings by the scholars because this is

among the vital principle to make sure the ruling made do

not contradict with the primary sources of Islam.

Ijtihad is derived from the Arabic verb of jahada

هد) or (ج�� yajhadu �دو) ��ه ج� ,(ي�� means ‘exertion’, ‘effort’ or‘strive’. However, in fiqh terminology, it was defines as

exertion or effort to achieve a careful weight of

judgement for shariah rules about particular Islamic

issues. Every ijtihad made by ulama in Islam actually was

the views and rulling that based to their investigation

and deep understanding of quran and sunnah. The validity

of ijtihad also must not conflict with the dalil qat’i or

other strong evidences which were no argument among the

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scholars as wrong and cannot be disputed. For an example

is the obligation to perform the five times of prayer

daily and fasting during Ramadan by muslim. On the

contrary, the ijtihad would be rejected when it was

clearly opposite with the shariah principles and causing

the harmful for muslim to practice it in life.

Mujtahid or mujtahidun (plural) are those who practice

the ijtihad. Not everyone qualified to be called as

mujtahid or mujtahidun because there are strict

conditions as a guideline to make sure their though would

be accepted. According to Ibn Qudama Hanbali rahmatullahi

alaihi, this group must be acknowledgeable in six science

of quran, traditions of Holy Prophet Muhammad saw, ijma’,

science of varied opinions, analogy besides Arabic

language. Moreover, they must have the good characters

as the mujtahidun, alim, full knowledge of narrators’

lifestyle and expert to analyze and making conclusion

from their understanding of complex problems. “It is not

permissible for anybody to give Islamic legal opinions (fatwa) who is not well

versed in Quran and is well acquainted with the science of abrogation as well

as the following science” (Hafiz Ibn Qayyim rahmatullahi alaihi).

There are at least three types of ijtihad as discussed

by the scholars of usul fiqh which are takhrij al-manat, tanqih

al-manat and tahqiq al-manat. Takhrij al-manat is the extraction

of the grounds or divine ruling and the main reason for

study the law from the scripture. It needs a proper

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understanding about the indications of divine ruling for

example the prohibition of wine on muslim. Otherwise,

tanqih al-manat is the intermediate step to select and test

the hypotheses from the takhrij al-manat with other data as to

determine the actual ground for the rule whether the

hypotheses generated before is correct or not. The last

step of ijtihad is tahqiq al-manat which is concern to the

accuracy of reason’s perception of the real problems in

the public.

The second important word in this maxim is yunqadu (

ض� ق� ن� which (ي�� has a range meaning of to ‘invalidate’,

‘demolish’, ‘repeal’, ‘void’ or ‘nullify’. However, ‘to

void’ and ‘nullify’ are the most relevant words as to

describe about this maxim. Yunqadu is also the passive

voice of the verb naqada/yanqidu. So, from the both

definition of ijtihad and yunqadu, this maxim means the

ijtihad with a propely conducted cannot be void or

nullify by the another ijtihad from the same mujtahidun,

or from the different mujtahidin later. Every mujtahidun

must rely to the study and deep observations about quran

and sunnah and if the ijtihad was contradict with the

shariah principles such as the adopted son allowed to get

faraid, it is clearly means the ijtihad is voidable and

must be denied based from Allah SWT stated in the quran,

Surah Al-Ahzab, 33:4 “..And He has not made your wives whom you

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declare unlawful your mothers. And he has not made your adopted sons your

(true) son. That is (merely) your saying by your mouths, but Allah SWT say the

truth, guides to the (right) way”.

However, it does not means the mujtahidun not allowed

to change his thought about the shariah issues. The

mujtahidun will be given only a few considerations if he

wants to do so in the future same case if he found the

new evidence on that time. For the previous decision of

the same case, the ruling was still accepted and will not

give any effect to the second case because they are both

valid.

2.2 Development of this maxim

The origin of this maxim is from the consensus of Prophet

Muhammad saw companions. It was derived during the Qaliph

‘Umar Ibn Al-Khattab Ra rules time. Ibn Al-Sabbagh

narrated that Qaliph Abu Bakar Ra already decided many

issues and problems during his rules time. After his

death, actually Qaliph ‘Umar Ibn Al-Khattab Ra had not

agreed with the decisions, however, he also not reopen or

cancel the settled cases by Qaliph Abu Bakar Ra before.

This maxim contains some exceptions such as the

government policy on the public welfare so the ijtihad

ruling is not reversible by another ruling of ijtihad.

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Qaliph ‘Umar Ibn Al-Khattab Ra stated regarding to his

different rulings than what Qaliph Abu Bakar Ra rulings:

“ ا ث� ي� ض� لك) ع�لى م�ا ق�� ا،ب�� ث� ي� ض� ه ع�لى م�ا ق�� ” وه�د�“That was what we judge previously, and this is what we have decided (in the

present case)”.

2.3 The Application of The Maxim in life

This maxim was used as independent legal judgment for the

common issues arise in our life. The ijtihad which need a

huge effort and deep understanding from the ulama should

be appreciated by the public as it was really helped to

solve the disorders humankind issues such as either

uterring the word of talaq (divorce) three times in one

setting is equivalent to a single divorce or not,

determination of direction of qiblah for the uncertain

place and the issue of the permissibility of smoking

cigarettes.

Taken the permissibility of smoking cigarettes as an

example for this maxim, this issue was not mention

directly in the quran or sunnah besides, the smoking of

cigarettes only exist after 15th century and tobacco only

entered the Islamic countries on that time. So, the

scholar guided it as mubah and some scholars said makruh

because it had not harmful and not prohibited by Allah.

However, this issued maybe because of the failure of

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scholars to get a real information about cigarette or

maybe because the contains of tobacco in cigarette on

that time not harmful as today which now contains harmful

chemistry substance.

Discussion of Fatwa Committee of National Council for

Malaysia Islamic Religious Affairs for the 37th meeting

held on March 23, 1995, decided that smoking cigarette as

forbidden in Islam because medical studies have proven

each of it contains 6-8mg of nicotine and various other

chemicals. Each puff of cigarette smoke in fact contains

4,000 types of harmful chemicals. So, this latest ijtihad

must be used.

2.3.1 Application in Islamic Finance and Banking

As the need and demands from the Islamic finance and

banking nowadays besides the situation in business and

economy that are frequently to changes over the time,

this maxim taken as a precious principal to issue the new

ruling after the arising of the new evidences later as to

deem the previous ruling to be valid and accepted during

the previous time.

2.3.1.1 Aplication for Amanah Saham Nasional

Berhad (ASNB)

As to protect the Muslim welfare and avoid

the greater harm in the future especially for

Bumiputra, Fatwa Committee of the National

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Council for Islamic Religious Affairs agreed

to permiting ASNB as permissible. This caused

many Muslim invest in ASNB products offered

on that time.

It brings a controversy because contains

the uncertainty from the mixing of shariah

permissible and non-shariah permissible

elements besides the methods and the

implementation were conflict with the shariah

compliance as guidelined from Shariah

Security Council (SAC) of Security Commission

(SC) which is a special body staffed by

experienced specialist individuals in the

field of jurisprudence and Islamic finance.

Later, SAC claims that ASNB is

classified as non-Shariah unit trust due to

the interest based investment and the

operation was in conventional money market.

So, by using this maxim, the investor

previous profit’s transactions in ASNB are

deemed as valid but not including the profit

after the announcement made by SAC.

3.0 IZ

A IJTAMA’A AL-HALAL WA AL- HARAM GHALABA AL- HARAM

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3.1 De

finition and explanation

Generally, this maxim mean “ if permissibility and

prohibition coincide, prohibition prevails”. In more

detail, this maxims relate with the concept of halal and

haram. Actually, halal is anything that has permitted by

Allah s.w.t, while, haram can be defines as anything that

has been prohibited by Allah s.w.t. and these both

category have originally applied to an act. Halal also

may be defined as an act or object or conduct which the

individual has freedom of choice and its exercise does

not carry out either reward or punishments. Halal

encompasses obligatory, recommended, neutral or

permissible or also dislike. Moreover, things also can be

permissible (halal) or prohibited (haram) in

consideration of the act associated with them. The

Shafie’ jurist interpretation regarding this maxim is

that refer to the mubah (neutral or permissible).

Meanwhile for Hanafi jurist, state that the halal matters

here is encompasses the wajib (obligatory) as well.

Muslim Jurist have discussed about the sources of

evidence on halal and haram and formulated guidelines to

regulate their application to slaughter procedures.

On top of that, regarding with the importance

of this maxim, it is actually had provided a very

important guideline in order to resolve the situations of

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uncertain validity which where an act may be as likely to

be valid as not because there is a conflict between

permissibility and prohibition. However, if when applied

to Islamic finance and banking, an important distinction

must be borne in kind between things that prohibited

(haram) and permissible (halal). This is because, its

essence and earnings that are tainted by the way they

were earned. For example, in the contract of bay al- dayn

and also bay al-inah.

On the other hand, another key term in this

maxim is ijtama’a which is the reflexive form of the verb

ijtama’a jama’a/yajma’u that means “to gather, combine,

unify and also collect”. Meanwhile, for the ijtama’a

a/yajtamani’u can be defined as “ to gather together, to

combine with and also to meet which has more broad

meaning compare to ijtama’a/yajma’u. For this maxim, its

meaning should be understood in maxim 26, that is,

“Consideration is given to the predominant and

widespread, not to the rare”.

Futhermore, the impact of the prohibited (haram)

on the permissible (halal) must to be taken into

consideration when it is noticeable and significant. Due

to this matter, al- Suyuti on his book, al-Ashbah wa al-

Naza’ir, had stated that, the principle does not apply to

a case. For example, in the situation where a man knows

that a few women in a large village are mahram to him but

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he is not sure of their identities. So, in this case, he

is allowed to marry a women from that village. Based on

the writing of Muhammad Zuhayli in al- Qawa’id al-

Fiqhiyyah, 2:695, if a thing or an act that can be

consider as a permissible (halal) from certain angle and

also prohibited (haram) from another angle, it will be

difficult to determine which consideration is more

preferred and relevant, which due to the contention of

this maxim that the Shariah had gives primary

consideration to the unlawful aspects. This is because,

the Shariah prohibits things due to the harm they entail

and also there are many types of halal means in order to

achieve the objective that ratified by Shariah.

Besides that, the act also can be considered as

“doubtful or ambigious” if it had been difficult to

determine in term of lawful or unlawful act. There are

two causes of the ambiguity. Firstly, is the apparently

conflicting evidences. For example, Prophet Muhammad

s.a.w had made two statements regarding with the

relations of a husband and wife during menstruations.

First, “the husband may do anything except intercourse”

and the second is, “ the husband are allowed only what is

above the navel”. However, the Muslim Scholars give more

precedence to the second text which more restrictive

compared with the first. Secondly, is the commingling of

substances that are halal with substances that are

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prohibited (haram).It is involve with the mixing of

things that cannot be separated, like, mixing of water

and milk. In this case, the mixing of lawful and unlawful

are inseparably mixed will produce two outcome which is

the effect of unlawful will appear in lawful and the

effect of unlawful will not apparent in lawful. Another

type of commingling involves with the mixing if things

that can be distinguish and separated from one to

another. The effect of commingling of money is more

complicated. This is due to the reasons that money is not

an impure as other substance such as gold and silver

which is categorized as pure substances. In Surah al-

Baqarah verses 279, Allah s.w.t had stated that, “ But if you

repent, you may have your principal without suffering loss or causing others

to suffer loss”. Through this verse, it indicates that if the

principal is pure it does not become impure due to an

impure profit earned from it. Therefore, when it is

possible to distinguish between them, each takes its own

rule.

3.2 The Development of The Maxim

When halal and haram items are prescribe by the Al- Quran

and the Sunnah, the Muslims are bound to adhere it. The

Muslim have no option on such matters except when the Al-

Quran and Sunnah provide exceptions in certain

unpredictable circumstances. The problem arise when the

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issues in questions is in grey areas known as al-

shubuhat or doubtful matters, especially in relation to

foods as well as transactions, when technological

advancement has introduced a lot of products.

The jurist had identified the methodology of

determining the status of the doubtful matters in the

form of legal maxims, which are based on their overall

reading of the sources of the Shari’ah. One of these

maxims are Iza Ijtama’a al-halal wa al-haram ghalaba al-

haram. A part from the employment of the maxim, the

jurist also had summarized that the underlying grounds of

haram (prohibited) are harmful, intoxication, impurity,

and wrongful acquisition of the property.

This maxim has its roots from hadith, whereby

Prophet Muhammad s.a.w was reported as saying, “ When

halal and haram meets, the haram prevails”. Even though

this hadith is disputed, its meaning as suggested by

Subuki is sound and valid. The authority of the maxim is

based upon the number of Hadiths. For example, Abu

Huraryrah quoted Allah s.w.t Messenger which is Prophet

Muhammad s.a.w saying that, “ What is lawful is clear and what is

unlawful is clear and between the two there are doubtful matters (shubuhat)

which many people do not know (the rule for). Whoever avoids doubtful

matters maintains clarity and assurance in practicing the religion and

protecting his honor, but whoever falls into doubtful matters falls into

unlawful; like the shepherd who pastures his flock around a preserve, letting

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it graze almost, but not quite, inside the boundary. Truly, every king has a

preserve that is off-limits to others, and truly Allah’s perceive is His

prohibitions” (Sahih Bukhari,1:56,hadith no.52

3.3 The Application of The Maxim In Life

3.3.1 The Application of The Maxim in Food and

Drink

The original rule for food and drink is everything

is permissible unless there is evidence showing to

the contrary. This is based on the Qur’anic which

is surah al- Baqarah verse 29, “ It is He who created all

that is in the earth for you”. This means that all the

things in the universe including for and drinks

are created by Allah s.w.t for the mankind. Since

they are merely created for the mankind, it is

impossible that they are prohibited because such

prohibition generally defeats the purpose of the

creations.

With regards to food and drinks, the

general principle is that anything which is good

and healthy is halal. Al- Qaradawi (1995) lays

down a number of prohibited foods mentioned in al-

Quran and Sunnah, such as, dead animals that

strangled, beaten, the fallen, the gored, the

pork, flowing bloods, intoxicants, drugs and

harmful things. However, there are foods and

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drinks which its permissibility and prohibition is

not clear. This is called “ mushtabihat” or the

doubtful. The reasons of the uncertain ruling of

the foods and drinks is due to the presence of the

non-halal substance such as emulsifier, gelatin,

malt, and alcohol (Jakim 2000).

According to the European Council for Fatwa

and Research, the emulsifier that originated from

animals are halal because they do not remain the

same during the process of manufacturing.

However, the fatwa of the Malaysian National

Fatwa Committee and the Fatwa of State Mufti of

Brunei about this issues is different which is all

products that originated from non- halal meat or

non- slaughtered animals are prohibited (haram).

This fatwa is based on the opinion Shafie’ School

of Law that not consider that the chemical

transformation is valid because of man’s

intervention. Whereas the European Council for

Fatwa and Research is based on the opinion of

Hanafi’s School which validates an types of

transformation with or without man’s intervention.

In case of drinks that contain an amount of

alcohol, the European Council for Fatwa and

Research issued a fatwa that as long as the drink

does not cause intoxication if consumed in large

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quantity then, it is deemed halal (permissible).

This fatwa is similar to the fatwa of the

Malaysian National Fatwa Committee. So, buy using

this maxim, it give more facilitate in determining

the halal and haram food and drinks in the

industry.

3.3.2 The Application in Islamic Finance and

Banking

Fatwa on permissibility and prohibited food

especially on issues relating to the principle of

“transformations” and “assimilations” have been

applied in Islamic Finance and Banking

transactions. Under the principle of “

assimilations” funds for Islamic Finance activity

received as deposits by Islamic banking and

institutions may be mixed. The Shariah Advisory

Council of Bank Negara resolved that Islamic

banking institutions may generally accept deposit

or investment fund without the need to investigate

the status of the sources of funds either Shariah

compliant or non- Shariah compliant or a mixture

of two.

Although the funds or deposit that received may be

a mixture of Shariah and non- Shariah compliant

sources, the application of the fund have to be

clearly defined. Islamic financing institutions

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have to identify whether the funds are designated

for Shariah compliant financing or for non Shariah

compliant financing. In Islamic finance and

banking, one of the cardinal principles is the

segregation of the funds to protect the sanctity

of the sources of fund for Shariah compliant

financing activity, services and products.

There are disputes among jurist whether financial

services based on riba (usury) are non-Shariah

compliant. Islamic jurists are generally of the

view that based on the historical practices during

the period of revelation, what is definitely

prohibited in al- Quran is the way in which riba

is doubled and redoubled. In surah Ali- Imran

verse 130 had been stated that “O You who have

attained faith! Do not gorge yourself on usury, doubling and

redoubling it”. According to the jurist, “ Riba” refer

to the usurious loans that are exploitative by

virtue of their exorbitant rate. Gradually, based

on hadiths, Islamic jurisprudence extended the

scope of riba and identify others acts or

practices that may deemed as riba. These may

include transactions that are not transparent,

contain ambiguous term, and speculative in nature.

Actually, the acts of riba are likewise not

clearly define al- Quran and hadith, which led to

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the various determination of riba practices by

classical and temporary jurists. The only form of

riba where the prohibition is without doubt is the

practices of extending delay to the debtors in

return for an increase in the principal which the

jurist determine as “riba jahiliyyah”. Thus,

whether “interest” falls within this definition is

subject to various views contemporary jurist.

So, in this case, through the application of the

legal maxim Iza Ijtama’a al-halal wa al-haram

ghalaba al-haram which comprises when the

permissible (halal) and prohibited (haram) meets

together the haram prevails. Thus, if a bank

offers some products that are Shariah compliant

such as Mudharabah and Murabahah financing and at

the same times the bank also had a item and

products based on interest (ribawi item) and

practices riba, then, the bank cannot be called an

Islamic Bank, until the bank gets rid of the

prohibited (haram) elements.

4.0 CONCLUSION

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In short, the legal maxim have played significant role in

bringing up together the resembling branches of fiqh which are

found scattered in voluminous fiqh literature and putting them

in one maxim on the basis of having the same criteria. On top

of that, it has to be keep fully in mind that all the

injunctions of Shariah seek to benefit human beings and

eliminate harm, lays down the parameter for the legal status

of ijtihad and also to provide the important guideline for

human beings to determine and resolve situation of uncertain

validity. Thus, in the cases where the primary sources of

Shariah silent about a certain issues, legal maxim will

provide guidance particularly inmany contemporary issues in

different aspects including the modern Islamic finance and

banking practice.

Nevertheless, some of the maxims are wide enough to

cover almost all issues by their general applications, whereas

some others are applicable in certain fields and issues only.

Legal maxim which provide for the general rules of fiqh

indeed, have a big role in modern Islamic banking and finance.

Modern issues in Islamic finance which have no precedent from

the classical text arise from the time to time and these

issues need to be addressed according to the Islamic rulings.

Thus, the solution is founded in the application of legal

maxim to develop the parameters of Islamic banking and finance

and its general principles.

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In the cases of legal maxim al- Ijtihad La Yanqud

bi al- Ijtihad, there are many benefit can be provided from

the application of this maxim. As an example, this maxim was

used as independent legal judgment for the common issues arise

in our life. For this maxim the ijtihad which need a huge

effort and deep understanding from the ulama should be

appreciated by the public as it was really helped to solve the

disorders humankind issues such as either uterring the word of

talaq (divorce) three times in one setting is equivalent to a

single divorce or not, determination of direction of qiblah

for the uncertain place and the issue of the permissibility of

smoking cigarettes. Moreover, in Islamic finance and banking,

this maxim also plays an important role which taken as a

precious principal to issue the new ruling after the arising

of the new evidences later as to deem the previous ruling to

be valid and accepted during the previous time.

Meanwhile, in the cases of the maxim Iza Ijtama’a al-

halal wa al-haram ghalaba al-haram, there also various of

advantage for the application of this maxim. For example, this

maxim is actually had provided a very important guideline in

order to resolve the situations of uncertain validity which

where an act may be as likely to be valid as not because there

is a conflict between permissibility and prohibition. This

maxim can be considered as important maxim because Islam lays

great emphasis on the permissibility or impermissibility of

food, transactions, and other acts, because they are deemed

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essential in determining their position in front of the

creator. On the issues of mixture between lawful and unlawful

food and business transactions, the jurist have based their

views on the related legal maxims.

Lastly, as mentioned before, even though, there was a

debating, regarding with the permissibility of Islamic maxims

which is a few views were not support the legal maxims as to

derive hukm in Islamic issues because the maxims were not an

absolutely comprehensive laws. However, many jurists support

its validity as long as not contradict with the quran and

sunnah and able to achieve maqasid shariah which is for the

public welfare and the importance of the legal maxim in

determining and discovering the rules of various issues cannot

be underestimate. This is because, the legal maxim had

provided many rules in order to resolve certain problem about

the Islamic issues.

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5.0 REFERENCES

5.1 Book

Quran, Surah Al-Maidah, 5:58

Quran, Surah Al- Baqarah, 2: 29

Quran, Surah Al- Baqarah, 2: 279

Quran, Surah Ali- Imran , 3: 130

Mohamad Akram Laldin, Said Bouheraoua, Riaz Ansary,

Mohamed Fairooz Abdul Khir, Mohammad Mahmubi Ali &

Madaa Minjid Mustafa (2013) Islamic Legal Maxims & Their

Applications in Islamic Finance, Kuala Lumpur, ISRA, pg ix-xx

& 167-170

Taha Jabir Fayyad ‘Alwan (2003) Towards a Fiqh for

Minorities: Some Basic Reflections, United Kindom,

The International Institude of Islamic Though, pg

xxix, 12-19

Muhammad Hashim Kamali, (2013), The Parameter of Halal and

Haram in Shariah and the Halal Industry, Kuala Lumpur, The

International Institute of Advances Islamic Studies

(IAIS) Malaysia, pg 2-4

24


5.2 Internet

Kaedah-kaedah Fiqh, Retrieved at 2.44pm, 21 October 2014

from,

http://www.bicaramuslim.com/bicara7/viewtopic.php?

f=11&t=6816

Kaedah Fiqhiyyah, Retrieved at 2.45pm, 21 October 2014 from,

http://risalahsyumul.wordpress.com/2008/05/05/kaedah-

fiqhiyyah/

Ijtihaad, criteria and categories, Retrieved at 3.52pm,

21 October 2014 from,

http://www.inter-islam.org/faith/Ijtihaad.html

Mohammad Fadel, On the Validity of Ijtihad: From the

viewpoint of Usul (Principal of Islamic Jurisprudence), Retrieved at

4.00pm, 21 October 2014 from

http://www.sunnah.org/fiqh/usul/on_the_validity_of_ij

tihad.htm

Mohammad Hashim Kamili, Qawaid Al-Fiqh: The Legal Maxim of

Islamic Laws, The Association of Muslim Lawyers, United

Kindom, Retrieved at 9.15pm, 21 October 2014 from

http://www.sunnah.org/fiqh/usul/Kamali_Qawaid_al-

Fiqh.pdf

Zaharuddin Abd Rahman “Terkini: Hukum ASB dan ASN” Retrieved at

1.0.am, 22 October 2014 from

http://zaharuddin.net/pelaburan-&-perniagaan/805-

terkini-hukum-asb-dan-asn.html

25

http://zaharuddin.net/pelaburan-&-perniagaan/805-terkini-hukum-asb-dan-asn.html

http://zaharuddin.net/pelaburan-&-perniagaan/805-terkini-hukum-asb-dan-asn.html

http://www.sunnah.org/fiqh/usul/Kamali_Qawaid_al-Fiqh.pdf

http://www.sunnah.org/fiqh/usul/Kamali_Qawaid_al-Fiqh.pdf

http://www.sunnah.org/fiqh/usul/on_the_validity_of_ijtihad.htm

http://www.sunnah.org/fiqh/usul/on_the_validity_of_ijtihad.htm

http://www.inter-islam.org/faith/Ijtihaad.html

http://risalahsyumul.wordpress.com/2008/05/05/kaedah-fiqhiyyah/

http://risalahsyumul.wordpress.com/2008/05/05/kaedah-fiqhiyyah/

http://www.bicaramuslim.com/bicara7/viewtopic.php?f=11&t=6816

http://www.bicaramuslim.com/bicara7/viewtopic.php?f=11&t=6816


Ahmed Sahin (16 February 2010) Is Smoking Haram?

Retrieved at 1.0.am, 22 October 2014 from

http://www.questionsonislam.com/question/smoking-

haram

Merokok Dari Pandangan Islam, Retrieved at 1.0.am, 22

October 2014 from http://www.e-fatwa.gov.my/fatwa-

kebangsaan/merokok-dari-pandangan-islam

Muhammad Naim Omar “When Halal and Haram Meet the Haram

Prevails?: An Analysis of The Maxim and Its

Application in Contemporary Issues”. Retrieved at

2.30p.m, 22October 2014 from,

http://ajbasweb.com/old/ajbas/2012/Special

%20oct/199-205.pdf

Fakihah Azahari (2010) Islamic Finance : Shariah

Principles of Transformation and Assimilation

Retrieved at 3.00 p.m, 22 October 2014 from,

http://198.101.238.229/itreasury/html/download/1M

LJ2010.pdf

Nuradin Abdi Elmi “ The Application of Islamic Legal

Maxim to Islamic Banking and Finance” Retrieved at

4.00 p.m, 23 October from,

https://www.scribd.com/doc/85742512/The-

Application-of-Islamic-Legal-Maxims-to-Islamic-

Banking-and-Finance

26

https://www.scribd.com/doc/85742512/The-Application-of-Islamic-Legal-Maxims-to-Islamic-Banking-and-Finance



http://198.101.238.229/itreasury/html/download/1MLJ2010.pdf

http://198.101.238.229/itreasury/html/download/1MLJ2010.pdf

http://ajbasweb.com/old/ajbas/2012/Special%20oct/199-205.pdf

http://ajbasweb.com/old/ajbas/2012/Special%20oct/199-205.pdf

http://www.e-fatwa.gov.my/fatwa-kebangsaan/merokok-dari-pandangan-islam

http://www.e-fatwa.gov.my/fatwa-kebangsaan/merokok-dari-pandangan-islam

http://www.questionsonislam.com/question/smoking-haram

http://www.questionsonislam.com/question/smoking-haram


Marco Tieman “ The Application of Halal In Supply Chain

Management : In Depth Interviews” Retrieved at 4.30

p.m, 23 October from,

http://ksi.fp.uns.ac.id/box/agribisnis/0%20-

%20Journal%20Agribisnis/Marketing/Islamic

%20Marketing/Vol%202/No%202/The%20application%20of

%20Halal%20in%20supply%20chain%20management-%20in-

depth%20interviews.pdf

6.0 Appendix

27

http://ksi.fp.uns.ac.id/box/agribisnis/0%20-%20Journal%20Agribisnis/Marketing/Islamic%20Marketing/Vol%202/No%202/The%20application%20of%20Halal%20in%20supply%20chain%20management-%20in-depth%20interviews.pdf




Example of Qawaid book written by Abu Abdullah Muhammad Ibn

Ahmad Mokri

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ISLAMIC LEGAL MAXIMS: AL- IJTIHAD LA YANQUD BI IJTIHAD AND IZA IJTAMA’A AL-HALAL WA AL- HARAM...

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