BIMS2093 QAWAID FIQHIYYAH FOR BUSINESS

College of Business
BIMS 2093 QAWAID FIQHIYYAH FOR BUSINESS

SESSION 2021/2022 (A212)

INDIVIDUAL ASSIGNMENT
AL-MASYAQQAH TAJLEB AT-TAYSER

SUBMITTED TO:
DR. FAUZIAH BINTI MOHD NOOR

SUBMITTED BY:
AMIRAH HANA BINTI AMERUDDIN (276986)

Date of Submission: 25th June 2022

Table Of Content 3
5
1.0 Introduction 6
1.1 Qaidah: Al-Masyaqqah Tajleb At-Tayser 6
7
2.0 Application Al-Masyaqqah Tajleb At-Tayser 9
i) Application Of The Maxim In Finance and Banking 10
ii) Application Of The Maxim In Fiqh

3.0 Conclusion
4.0 References

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1.0 INTRODUCTION

Al-Qawid Al-Fiqhyah, or legal maxims, are basic fiqh principles that can be used in a
variety of situations that includes all types of the common judgments. According to the
dictionary, a maxim is "a broad rule that applies to all of its connected particulars,"
(Mahmassani, 1961). These legal maxims are essential in the creation of Islamic law since they
serve as the foundation for numerous fiqh regulations (Laldin, 2014). These maxims can be
used to a variety of situations to provide solutions; for example, they can establish the legality
of specific acts. They consist mainly of statement of principles derived from the detailed
reading of the rules of fiqh on various themes. Between the numerous schools, there are legal
maxims (al-qawid al-fiqhyah) and the differences between the scholars are actually not so
significant. Al-qawaid al-fiqhyah are also closely related to and offer insightful understandings
into the purposes of the Shariah (maqasid al-Shariah), to the extent that they have frequently
been included under the maqasid. “Legal maxims represent the culmination, in many ways, of
cumulative progress, which could not have been expected to take place at the formative stages
of the development of fiqh” (Kamali, 2012). Legal maxims sometimes derive terms from the
Qur'an or the Hadith, but most often, these maxims have been improved and expanded over
time by jurists.

The legal maxims do not force the jurist to give a conclusion unless they confirm a rule
of the Qur'an or Sunnah, but they do have a significant impact on how ijtihad is used to reach
judgements (hukm) and views (fatwa). Like legal theories (al-naariyat al-fiqhiyah), legal
maxims help to clarify a comprehensive understanding of the subject rather than to deal with
enforcement. The legal maxims are not similar to uṣul al-fiqh (principles of Islamic
jurisprudence) since maxims are based on the fiqh itself and represent rules and principles that
are derived from the detailed rules of fiqh on various issues. Uṣul al-fiqh is concerned with the
sources of law, the rules of interpretation, methodology of legal reasoning, dealing with the
meaning and implication of commands and so on. On the other hand, a maxim is defined as “a
general rule, which applies to all or most of its related particulars” (Kamali, 2012), which is a
generally accepted definition credited to Taj al-Din al-Subki. The word ‘al-qawaʿid’ is the
plural of al-qaʿidah, which means principles, and fiqh means Islamic law; therefore, generally
al-qawaʿid al-fiqhiyah mean the principles of Islamic law (Laldin, 2014). Al-Zarqa defined al-
qawaʿid al-fiqhiyah as “the general fiqh principles which are presented in a simple format
consisting of the general rules of Shariʿah in a particular field related to it”. The overall

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meaning of this concept is the same as that provided by other well-known Islamic law scholars.
According to this definition, statements involving general principles that may be applied to
particular fiqh-related concerns are included in al-qawaid al-fiqhiyah. These statements are
taken from jurisprudential decisions. Legal maxims of Islamic jurisprudence, known as ‘al-
Qawaid al-Fiqhiyyah’ are developed to facilitate a better understanding of Islamic
jurisprudence.

These Islamic legal maxims are statements of principle that are extracted from the
thorough reading of the rules of Islamic jurisprudence on multiple themes. These inclusive
written descriptions empower the jurists to reduce them into theoretical statement of principles
at a later stage of development.
The Five Normative Legal Maxims

1. Al-Yaqin la yazul de ash-shakk

Certainty is not overruled by doubt. Doubt cannot overrule certainty in judgment
because clear evidence and proof establish the latter. It is not tolerable if it can be
invalidated by uncertainty or the proof, which the strength is lower than the latter, to
eliminate harmful and hardship.

2. Al-Mashaqqah tajleb al-taysir

Hardship begets ease. Masyaqqah or difficulties that will be the cause of relief and
simplification based on this method (masyaqqah tajlibu al-taisir) is masyaqqah that
exceeds the normal limits and cannot be borne by man in his habit, can even harm
oneself and prevent him from doing useful deeds.

3. Al-Darar yuzal

Harm must be eliminated. Opening the space of benefits and preventing harm is the
basis of Islamic law. Islamic law is built on this foundation to bring good and reject
evil. The good or maslahah in question is the public interest or general good that is
beneficial to the universal human being.

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4. Al-‘Adah Muhakkamah

Custom is the basis of judgement. Al-adah muhakkamh means a custom that is practiced
in a society, whether general or specific, which is a source of legal reference when there
is no explanation of the relevant law by syarak.

5. Al-Umur bi-Maqasidiha

Acts are judged by the intention behind them. This concept from the hadith serve as
guidance for the Muslim to evaluate and judge what they do and say (Niyyah/Intention
& Willingness) whether it is an ibadah in their daily life.

1.1 Qaidah: Al-Masyaqqah Tajleb At-Tayser

The legal maxim that I choose is “Al-Masyaqqah Tajleb At-Tayser. “Hardship begets
facility” is necessity to lighten the burden and to disregard rules in exceptional circumstances
if it will cause hardship. It constitutes the basis of legal concessions, which the Shariah makes
available in special cases throughout the full range of fiqh issues, including worship (ibadat),
transactions (muamalat) and criminal law (jinayat). It is important to note that the primary
objective of the Shariah is to actualize maslahah (benefit) for the people through the
preservation of essential needs, including religion (deen), life (nafs), the mind (‘aql), lineage
(nasl), property (mal) and human dignity (‘ird). The disruption of these needs at the essential
level (daruriyyat) entails unbearable requires unbearable hardship. Even at the complementary
level (hajiyyat), their disruption requires excessive difficulty that must be enhanced. This
maxim denotes Islam’s concern for relieving hardship and difficulty and promoting ease. It
does so by legalizing, in exceptional situations, the relaxation of normally strict rules. This is
because Allah does not impose any injunction or prohibition beyond a person’s capacity to
fulfil.

There are a number of Quranic verses which from the legal basis for this maxim,
including:

“He has placed no hardship upon you in your religion”

[Surah Al-Hajj (22) :78]

“Allah wants ease for you, not hardship”

[Surah Al-Baqarah (2) :185]

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2.0 Application Al-Masyaqqah Tajleb At-Tayser

i) Application Of The Maxim In Finance and Banking

There are few ways or method that can ease the burden of mukallaf in facing challenges
nowadays that are not detailed in the Quran:

a. Bai’ Salam

Bai 'Al-Salam is the deferred sale and purchase of goods with payment of price in cash,
such as selling goods that have been deemed details of form, specification, quality and quantity
in detail with payment of the price made in cash, while delivery of goods is deferred at a
specified time. Nowadays, there are many businesses conducted based on the concept of
Bai’Al-Salam. For example, products purchased through the "pre-order" system or simply
referred to as transactions by reservation. One of the reasons the Prophet allowed the practice
of salam with some conditions was because of the needs faced by farmers and traders. If finance
is not forthcoming at the time of sowing, production will stop which will be harmful for the
entire community. To ensure productive activity is not hampered, the cultivator is allowed to
sell his expected produce against advance payment. In principle, the seller of a commodity that
is not owned by the seller is not allowed. The practice of salam is legalized as an exception due
to the need for farmers and money/capital producers to cultivate their plants.

b. Bai’ Istisna’
The definition of Al-Istisna’ according to the opinion of the fuqaha' is to ask the maker
to do something special in a special way. Or it is a contract to ask to do something (order) on
the work of something that has been determined on his dependents that is a contract to buy
something what he ordered to the maker of the order. The Hanafi school defines Al-Istisna' as
a contract on goods ordered on debt provided it is made according to what is requested. Fuqaha
Hanafi uses the word istisna' with the meaning that it is categorized as buying and selling
something with conditions. They stated bai’ istisna’ is not the same as bai’ salam. Similarly,
the opinion of Hanbali jurists also think that al-istisna' is not the same as selling salam. In fact,
Hanbali jurists define the word istisna' as buying and selling something with conditions. While
the Maliki and Syafi'i jurists categorize istisna' as the same as bai' salam. The concept of al-

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istisna' is the same as bai' salam, that is, both are transactions of ordering goods, only what
differentiates between the two principles is the types of goods ordered. It is seen that the types
of goods ordered in the sale and purchase of salam are more general than the goods ordered in
al-istisna' where the order requested is specific and it is not necessarily something that exists
in the market. It can be concluded here that al-istisna' is a sale and purchase in which a buyer
orders an item such as a shirt, car, furniture to another party. There are two views from the
scholars of fiqh related to the provision of istisna' contract. The first group argues that the
principle of istisna' should not be used based on qiyas. While the second group of the opinion
stated that istisna’ contract should be used in Islamic transactions.

The practice of al-istisna’ contracts in Malaysia is a practical and ideal financing
facility and meets the needs of today's customers. It is in line with the principles applied in
Islamic transactions. Apart from that, the practice of special sale and purchase contracts helps
a lot to the country's economic development. There are many housing and infrastructure
constructions that use this facility. In Islamic banking in our country, especially Bank Islam
Malaysia Berhad (BIMB) has provided a facility of modern financing mechanisms that are
applied and practiced in contracts through the principle of al-istisna’ contracts. The facility that
offers such facilities is known as istisna’ facility (Istisna’ Facility). Istisna’ Facility is a sale
and purchase facility according to the order or reservation by the buyer or orderer of an item.
It is a product offered by BIMB to its customers who originally wanted to make a loan. Yet as
we already know that in Islamic law, the only principle that can be used for loan services is the
Qard Al-Hasan contract. The basic concept of Istisna’ Facility is that the bank will buy the
ownership of an asset under construction from the customer according to the construction
contract between the customer and the supplier or contractor. Then the ownership to the asset
is resold to the customer at a sale price that includes the purchase price and profit margin. The
customer will pay the sale price in installments according to the agreed period.

ii) Application Of The Maxim In Fiqh

a. Darurah that makes the illegitimate, legitimate

If a person and his family are found to be suffering from hunger and do not get qardul hasan to
meet his needs then he is allowed to get a debt loan with a pre -determined profit for the person
who lent it. Similar to the situation when a person is hungry and has no food to eat then it is
permissible for him to eat a dead animal (carcass) or an animal that is forbidden according to

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Islamic law. However, one cannot eat to satiety or fullness but to eliminate hunger only. So
one does not starve to death because there is no food to eat. In Islam, when in such a situation
it is permissible to drink and eat food/animals that are forbidden by Islamic law because it is
an ikhitar to continue living. An example of this situation can be found in one of the branches
‘al-masyaqqah tajleb at-tayser’ which is ‘ad-darurat tubih al-mahzurat’ which carries the
meaning of necessity renders prohibited matters permissible. Allah says in Surah al-Baqarah,
ayah 173,

“He has only forbidden to you dead animals, blood, the flesh of swine, and that which has
been dedicated to other than Allah. But whoever is forced [by necessity], neither desiring [it]

nor transgressing [its limit], there is no sin upon him. indeed, Allah is Forgiving and
Merciful.”

The scholars outlined some conditions for allowing things that are forbidden:

 The emergency did indeed occur and was no longer a mere conjecture of the destruction
of life or property. Even if the concern is based on assumptions, the assumptions should
be strong assumptions such as having gone through a process of experience and
observation.

 People who are in a state of emergency have no other way. For example, a person who
is desperate to eat, then he must choose halal food first but if halal food is not found
and his life will be endangered if he does not eat then he is allowed to steal food to save
his life from perishing.

 People who are in a state of emergency (forced) must try not to choose things that
clearly violate the basic principles of Islamic law. If a person is in such a state of
extreme hunger then he must first choose something else to eat other than pork. But if
there is nothing but having to eat pork then it is permissible for him to eat.

 When releasing his emergency situation one must only do it at the necessary rate, not
to be comfortable doing the forbidden thing.

Allah strictly commands by making it obligatory to eat from halal sources, but when there is
an emergency and there is no halal food. So Islam allows eating haram food at the proper rate.
This is due to emergencies and food becoming very important to preserve human life.

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b. Covid-19

The difficulties meant in this method are not ordinary difficulties but difficulties that
are out of the norm according to Islamic considerations. The difficulty is to the point of
endangering life or property. If some people dispute the closure and ban on holding any
activities in the mosque, the preacher can use the method of "hardship begets ease". Certainly
the COVID-19 outbreak can be categorized as a hardship that can reduce or drop the claim of
worship for fear of loss of life. As of 26 August 2020, Malaysia recorded more than 9000 cases
with 125 deaths (Ministry of Health Malaysia 2020). If the mosque continues to be open for
various activities, then the public will continue to gather and may cause the number of cases to
continue to increase. The preacher can also use other methods included in the al-mashaqqah
tajlib al-taysir such as "harm necessitates things that are forbidden." For example, under
normal circumstances, the act of deliberately replacing Friday prayers with noon prayers at
home is indeed prohibited. But in the event of an epidemic, that method is allowed.

3.0 CONCLUSION

In conclusion, the discussion above has discussed about legal maxims which are related
to fiqh, Islamic financial and banking. The application of “al-masyaqqah tajleb at-tayser” in
nowadays situation are very widespread. The development in Islamic finance and banking has
also witnessed a revival of the Shariʿah laws of muʿamalat. Especially in the current financial
situation, there is a substantial need for these maxims to play their role in strengthening Islamic
finance. Islamic jurists have surely contributed enormously and continue to provide an
important role, given their considerable knowledge of fiqh and competency in deriving rulings
that involve these important legal maxims, after the primary sources that are the Qur’an and
Sunnah. Moreover, the current situation and current challenges following the Covid-19
pandemic have greatly changed our lifestyles. Laws for current issues that are constantly
changing and evolving according to the progress of time can be taken from the sources of
syarak which are flexible. Based on the sources of Islamic law, various principles are
formulated and compiled fiqh (qawaid fiqhiyyah) by the scholars to facilitate the adoption of
law for new issues.

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4.0 REFERENCES

Al-Quran

Nurul Shiyam Aprila, D. E. (n.d.). Masyaqqah Tajlebu Tayser. Retrieved from StuDocu:
https://www.studocu.com/my/document/universiti-teknologi-mara/pemikiran-dan-tamadun-
islam/al-masyaqqoh-tajlibut-taysir-kesulitan-m/20431339

Adam Abdullah, B. S. (2016, July). The Legal Maxims of Islamic Law (Excluding Five Leading Legal
Maxims). JKAU: Islamic Econ, 139-151.

Adedapo, A. A. (2014, January). Bai Salam In The Light of Contemporary Application: Issues,
Challenges and Recommendation . Retrieved from ReaseachGate:
318317523_Bai_Salam_In_The_Light_of_Contemporary_Application_Issues_Challenges_an
d_Recommendation

Azhar, N. S. (2018). Bay’ Al-Istisna. Retrieved from StuDocu:
https://www.studocu.com/my/document/universiti-sultan-azlan-shah/fiqh-muamalat/fiqh-
muamalat-bay-al-istisna/15149968

Azhari, H. F. (2015). Qawaid Fiqhiyyah Muamalah. Lembaga Pemberdayaan Kualitas.

D. I. (2019). AL-QAWA`ID AL-FIQHIYAH. Palembang: NaerFikri.

Elmi, N. A. (n.d.). The Application of Islamic Legal Maxims to Islamic Banking and Finance. Retrieved

from Academia:

The_Application_of_Islamic_Legal_Maxims_to_Islamic_Banking_and_Finance

Hakim, L. (n.d.). Darurat Mengharuskan Yang Haram. Retrieved from Academia:
https://www.academia.edu/24271971/darurat_mengharuskan_yang_haram

Hardi, E. A. (2018). Kaidah Al-Masyaqqah Tajlibu At-Tayser Dalam Ekonomi Islam. Retrieved from

ReasearchGate: https://www.researchgate.net/publication/342976868_KAIDAH_AL-

MASYAQQAH_TAJLIBU_AT-TAISIR_DALAM_EKONOMI_ISLAM

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Mohamad Zulkifli Abdul Ghani , K. O. (n.d.). PERANAN QAWAID FIQHIYYAH DALAM
DAKWAH SEMASA SITUASI. In Bicara Dakwah Kali Ke 21: Dakwah Dalam Talian Semasa
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Sahid, M. M. (2020). APPLICATION OF FIQH RULES IN CURRENT PENDEMIC COVID-19
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