Qawaid Fiqhiyyah Individual Assignment pdf

BIMS 2093 QAWAID FIQHIYYAH FOR BUSINESS
SEMESTER 2 SESSION 2021/2022 (A212)

INDIVIDUAL ASSIGNMENT

PREPARED BY
AISYAH NABILAH BINTI MOHD GHAZALI

(277460)

LECTURER’S NAME
DR FAUZIAH BINTI MOHD NOOR

(Placeholder2)Table of Contents

Introduction................................................................................................................................... 3
Definition of Qawaid Fiqhiyyah .................................................................................................. 3
Introduction to Al-Darar Yuzal................................................................................................... 4
The importance of Islamic Legal Maxim “Al Darar Yuzal” .................................................... 6
The application of Qawaid Fiqhiyyah specifically Al- Darar Yuzal ........................................ 6
Ibadah ............................................................................................................................................ 6
Finance ........................................................................................................................................... 8
Business.......................................................................................................................................... 8
Medical........................................................................................................................................... 8
References .........................................................................................Error! Bookmark not defined.

2

Introduction

It is important before any detailed study of particular Islamic Legal Maxims and their application
in Islamic Finance, to start with a brief introduction to what Qawaid Fiqhiyyah is really about.

Definition of Qawaid Fiqhiyyah

Qawaid is the plural of the word Qai’dah which is from the root word ‫د‬-‫ع‬-‫ ق‬, that gives mening

to permanence or stability. The linguistic meaning of qawaid is foundations or support whether
tangible, like foundation of a building, like the fundamentals of Islam or the rules of grammar.
Meanwhile Fiqhiyyah is a denominal adjective derived from the word fiqh which literally mean
‘understanding’ and ‘ comprehension’. The technical meaning of fiqh is knowledge that acquired
from the detailed evidence, regarding the rules of the syariah pertaining to the act of mukallaf. In
technical meaning, Qawaid Fiqhiyyah is a general rules which applied to all its particulars. It based
on the idea that if detailed rules stem from similar causes, it follows the common generally
applicable principle or maxims. According to Mustafa al-Zarqa Qawaid Fiqhiyyah is general fiqh
principle which are presented in a simple format consisting of the general rules of syariah in a
particular field related to it.

The most prevalent English translation to Qawaid Fiqhiyyah is ‘Islamic Legal Maxims’. Legal
maxims are indeed general rules that can be applied to various cases that come under the common
rulings such as munakahat, evidence, transactions and etc. Islamic legal maxims also have a great
role in the formation of Islamic law because they are used as guidelines in finding the rules of fiqh
but cannot be accepted as sources of shariah. These maxims have solved most of the minor rules
of fiqh and without them these minor rules will have no standing ground which will make it hard
to solve them. Actual wordings of the maxims are occasionally taken from the qur’an or ahadith -
often the refined work of leading jurists and mujtahids.

Qawaid Fiqhiyyah are classified in a number of different ways, depending on various
considerations. One of the most prominent considerations is with regard to the scope of the maxim.
First, the major comprehensive maxims (Qawaid Kulliyah Kubra). These maxims that apply to all
chapters of Fiqh or atleast the vast majority of them; for example there are 5 major comprehensive
maxims which are;

3



2. The harm must be excessive (fahish)

In Islamic jurisprudence, legal consideration is given only to significant and excessive
harm while minor harm is ignored. The magnitude of harm is determined based on custom
of the people (‘urf). What they see as excessive is also excessive in the sight of syariah. An
example of insignificant harm is that of homeowner who hangs his rug in his own yard
once a month and beats it to get rid of the dust out of it. If his neighbor complains that he
is causing him harm, the complaint is unreasonable because the amount of dust that rises
into the air is not excessive also the act of the homeowner only once a month. Minor harm
resulting from people’s lawful activities is usually unavoidable. If the shariah were to give
legal consideration to such levels of harm, it would disrupt normal life.

3. The harm must be unjustified or lawful
For a condition to be classified as harmful, the act that disrupts the legal maslahah (benefit)
must be unjustified, such as abusive use of a right (ta’assuf) or unlawful such as
transgression (ta’ddl) or negligence (ihmal). This excludes acts that entail legally
prescribed harm to those who merit such treatment; for example retaliation (qisas) for
murder or personal injury or prescribed punishments (hudud) or discretionary punishment
imposed by a judge (ta’zir).

4. The harm must interrupt a valid maslahah
If the harm disrupts an invalid maslahah for example, containers belonging to a muslim
who uses them to store intoxicants by destroying them is not considered darar by the
shariah. Jurist consider the maxim to be fundamental to financial transactions. The rules of
financial transactions are mostly intended to prevent either of the contracting parties from
being harmed by other. Allah says;

‫ٰٓياَ ُّي َها ا َّل ِذ ْي َن ٰا َمنُ ْوا َلا تَأْ ُكلُ ْٰٓوا اَ ْم َوالَ ُك ْم َب ْي َن ُك ْم ِبا ْل َبا ِط ِل ِا َّل ٰٓا اَ ْن تَ ُك ْو َن ِت َجا َرةً َع ْن تَ َرا ٍض ِم ْن ُك ْم ۗ َو َلا‬
‫تَ ْقتُلُ ْٰٓوا اَ ْنفُ َس ُك ْم ۗ ِا َّن ّٰلهل َا َكا َن ِب ُك ْم َر ِح ْي ًما‬

5







especially those involving the clefts of the lips and palate, difficulty pronouncing some
consonant sounds and usually experience nasal due to defects in the soft palate, often get
infections in middle ear. This is due to the abnormal anatomy of the soft palate muscles
and interfering with auditory/Eustachian tube function.

Cleft surgery is considered as reconstructive surgery which is a surgery performed to treat
deformity and restore limb function and the purpose for this surgery for cleft lip patient is
to restore tooth and mouth function. Plastic surgery has been widely discussed by scholars
around the world. Because cleft surgery is also categorized as plastic surgery, hence the
fatwa and the law related to it is also taken into account. Among the fatwas that discuss the
subject plastic/cosmetic surgery is the fatwa of Shaykh `Abdul-Aziz ibn` Abdullah ibn Baz.
According to Shaykh `Abdul-Aziz ibn` Abdullah ibn Baz in the“ General Presidency of
Scholarly Research and Ifta ’”: Performing plastic surgery with the aim of restoring
defective bodily functions are justified, and are not considered to alter God’s creation. This
decision is based on the principle of "al-Dharar Yuzal" that is, harm must be eliminated.

2. Jurists have used some qawa’id fiqhiyyah to support that abortion is permissible in the case
it threatens the life of the mother. First, the intention of abortion in such cases is to save
the mother’s life, and since “al umuru bi-maqasidiha”, such intention is one of the bases of
the permissibility of abortion in these cases. Second, abortion can be seen as a means to
raf‘al-darar (eliminating harm), since it prevents the mother of bad consequences and saves
her life. However, eliminating harm includes preventing its occurrence, since protection is
better than cure; and, in case it occurs, eliminating it by whatever means. Abortion can
work in both dimensions according to the situation of the mother. In case that the
continuation of the pregnancy, based on reliable medical checks, would cause the mother
to contract a permanent and dangerous illness in future, which significantly threatens her
life, and where abortion is determined to be the only solution, the qa’idah fiqhiyyah says
in this regard: “al-dararu yudfa’u qadra al-imkan” (harm must be prevented – to accrue -
as far as possible). In case that harm (dangerous illness) has already occurred because of
pregnancy and that abortion would eliminate this kind of harm, it is then allowed based on
the qa’idah which says: “al-darar yuzal” (harm is removed).

9

References

Abu Umar Faruq, N. M. (2016). Shariah Maxims and their Implication on modern financial transaction.
Al-Qawâ‟id Al-Fiqhiyyah (Legal Maxims of Islamic Jurisprudence). (2013). Retrieved June 10, 2022, from
https://learning5.uum.edu.my/ss2122/pluginfile.php/502064/mod_resource/content/1/ebook%20on%
20islamic%20legal%20maxim.pdf
Dr Abd Latif Muda, D. R. (2012). Usul Fiqh & Kaedah Fiqh. Pustaka Salam.
Ibn, M. (2013, January 2). An Introduction to Qawa'id al-Fiqhiyyah and the 5 maxims that govern shariah
law. Sunnah Muakada. Retrieved June 10, 2022, from
https://sunnahmuakada.wordpress.com/2013/01/02/an-introduction-to-qawaid-al-fiqhiyyah-and-the-5-
maxims-that-govern-shariah-law-2/
Laldin, M. A. (2013). Islamic Legal Maxims & Their Application in Islamic Finance. Kuala Lumpur,

Malaysia: International Shariah Research Academy for Islamic Finance.
Mamat, Z. (2020). THE APPLICATION OF THE ISLAMIC LEGAL MAXIM “LA DARAR WA LA DIRAR” IN

COVID-19 ISSUES IN MALAYSIA. APLIKASI KAEDAH FIQH “LA DARAR WA LA DIRAR” DALAM ISU
COVID-19, 331-335.
Mualimin Mochammad Sahid, F. A. (2020). APLIKASI KAEDAH-KAEDAH FIQH DALAM ISU-ISU SEMASA
PANDEMIK. APPLICATION OF FIQH RULES IN CURRENT PENDEMIC COVID-19 ISSUES, 535-542.
Mohd Azli, Rafidah & Othman, Rohana & Sahri, Mardhiyyah & Abdul Aris, Nooraslinda & Arshad,
Roshayani. (2011). Aplikasi Maqasid Shariah Dalam Kewangan Islam.
Tarmizi, L. (2020, March 19). IRSYAD USUL FIQH SERIES 52: SUSPENSION OF FRIDAY PRAYER, IS IT
CONSIDERED AS PRIORITIZING LIFE COMPARED TO RELIGION? Pejabat Mufti Wilayah Persekutuan.
Retrieved June 10, 2022, from https://muftiwp.gov.my/en/artikel/irsyad-usul-fiqh/4347-irsyad-usul-
fiqh-series-52-suspension-of-friday-prayer-is-it-considered-as-prioritizing-life-compared-to-religion
Wan Abdul Fattah Wan Ismail, N. M. (2015). Orafasial Clock: A Guide Principles In Treatment Planning .
Panduan Prinsip Fiqh Dalam Perancangan Rawatan, 15-23.

10