MAKALAH AL- IJTIHAD LA YANQUD BI IJTIHAD AND IZA IJTAMA’A AL-HALAL WA AL- HARAM GHALABA AL- HARAM

AL- IJTIHAD LA YANQUD BI IJTIHAD AND IZA IJTAMA’A AL-HALAL WA AL- HARAM GHALABA AL- HARAM

1. 1. LEGAL MAXIMS IN SHARIAH 1 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 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
2. 2. LEGAL MAXIMS IN SHARIAH 2 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-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.
3. 3. LEGAL MAXIMS IN SHARIAH 3 2.0 AL- IJTIHAD LA YANQUD BI IJTIHAD ( ‫باالجتهاد‬ ‫ينقض‬ ‫ال‬ ‫االجتهاد‬ ) 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” (‫بمثله‬ ‫ينقض‬ ‫ال‬ ‫.)االجتهاد‬ This maxim is among 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 (‫)جهد‬ or yajhadu (‫,)يجهدو‬ 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 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).
4. 4. LEGAL MAXIMS IN SHARIAH 4 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 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 (‫)ينقض‬ which 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 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.
5. 5. LEGAL MAXIMS IN SHARIAH 5 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. Qaliph ‘Umar Ibn Al-Khattab Ra stated regarding to his different rulings than what Qaliph Abu Bakar Ra rulings: “ ‫قضينا‬ ‫ما‬ ‫على‬ ‫تلك‬،‫قضينا‬ ‫ما‬ ‫على‬ ‫وهذه‬ ” “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 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.
6. 6. LEGAL MAXIMS IN SHARIAH 6 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 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.
7. 7. LEGAL MAXIMS IN SHARIAH 7 3.0 Iza Ijtama’a Al-Halal Wa Al- Haram Ghalaba Al- Haram 3.1 Definition 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 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
8. 8. LEGAL MAXIMS IN SHARIAH 8 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 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 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
9. 9. LEGAL MAXIMS IN SHARIAH 9 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 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 it graze almost, but not quite, inside the boundary. Truly, every king has a preserve that is off-
10. 10. LEGAL MAXIMS IN SHARIAH 10 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 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
11. 11. LEGAL MAXIMS IN SHARIAH 11 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 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 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
12. 12. LEGAL MAXIMS IN SHARIAH 12 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 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 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,
13. 13. LEGAL MAXIMS IN SHARIAH 13 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. 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 essential in determining their position
14. 14. LEGAL MAXIMS IN SHARIAH 14 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. 5.0 REFERENCES 5.1 Book Quran, Surah Al-Maidah, 5:58 Quran, Surah Al- Baqarah, 2: 29
15. 15. LEGAL MAXIMS IN SHARIAH 15 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 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_ijtihad.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 Ahmed Sahin (16 February 2010) Is Smoking Haram? Retrieved at 1.0.am, 22 October 2014 from http://www.questionsonislam.com/question/smoking-haram
16. 16. LEGAL MAXIMS IN SHARIAH 16 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,