Qawa'id Fiqh (Jurisprudential Maxims)(book): Difference between revisions

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 '''Qawa'id Fiqh (Jurisprudential Maxims)''' is a four-volume collection comprising 189 jurisprudential maxims across four domains: private, public, criminal, and international law. In this series, [[Abbasali Amid Zanjani]], in addition to explaining the maxims, discusses the importance and application of each one and examines the history of their formation and codification in parallel with the Shari'a and in light of the developments of ijtihad. The author also points to the gap in jurisprudential maxims in the two fields of criminal fiqh and international law and the necessity of formulating rules in these areas. Furthermore, the challenges and problems of rule-making, methods of formulating maxims, and the alignment, overlap, and conflict among jurisprudential maxims, as well as between jurisprudential and legal rules, are analyzed.
-In Amid Zanjani's view, "Jurisprudential maxims are the middle ground and link between the science of *usul al-fiqh* (principles of jurisprudence) and *fiqh* (jurisprudence). Without delving into the detailed disagreements in *usul al-fiqh*, they encompass the effects of those disagreements, transfer them to the process of deriving religious rulings, and shield fiqh from the disarray arising from these differences of opinion." He believes that jurisprudential maxims in the field of public law lead to opening new horizons in the vast realm of fiqh, presenting new data, and facilitating access to religious rulings on contemporary public subsidiary issues. He considers maxims such as the selection of the fittest (*intikhab al-aslah*), the [[Guardianship of the Jurist]], and [[Maslaha|expediency]] to be contemporary maxims of public law.
+In Amid Zanjani's view, "Jurisprudential maxims are the middle ground and link between the science of usul al-fiqh (principles of jurisprudence) and fiqh (jurisprudence). Without delving into the detailed disagreements in usul al-fiqh, they encompass the effects of those disagreements, transfer them to the process of deriving religious rulings, and shield fiqh from the disarray arising from these differences of opinion." He believes that jurisprudential maxims in the field of public law lead to opening new horizons in the vast realm of fiqh, presenting new data, and facilitating access to religious rulings on contemporary public subsidiary issues. He considers maxims such as the selection of the fittest (intikhab al-aslah), the [[Guardianship of the Jurist]], and [[Maslaha|expediency]] to be contemporary maxims of public law.
 Pointing to the establishment of the rules of Islamic international law a millennium before its European counterpart, Amid Zanjani identifies one of the characteristics of jurisprudential maxims in the field of international law, similar to the maxims of private law, as their universality, noting that they are not exclusive to Islam and Muslim nations. He emphasizes that the assumption that the audience of jurisprudential maxims in the field of international law is Muslims is an error stemming from unfamiliarity with the reality of Islam and its universal dimension. In this context, he refers to maxims such as the equality of states, the rule of non-interference in the affairs of other states, the sovereignty, independence, and freedom of states, [[Legitimate defense|legitimate defense]], migration and [[Asylum|asylum]], the prohibition of [[weapons of mass destruction]], the fight against [[terrorism]], the prohibition of acquiring the cultural heritage objects of other countries, and the prohibition of [[human trafficking]].
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 === Structure ===
-In the first volume (Private Law), after discussing general topics such as "Right and Ruling" and "The History of the Codification and Evolution of Jurisprudential Maxims among Shias and Sunnis," 25 maxims in the field of private law and 14 maxims concerning the general rules of contractual options (*khiyarat*) are presented (Maxims 1 to 39).
+In the first volume (Private Law), after discussing general topics such as "Right and Ruling" and "The History of the Codification and Evolution of Jurisprudential Maxims among Shias and Sunnis," 25 maxims in the field of private law and 14 maxims concerning the general rules of contractual options (khiyarat) are presented (Maxims 1 to 39).
-The second volume (Criminal Fiqh) includes 99 jurisprudential maxims (from Maxim 40 to 138) regarding prescribed punishments (*hudud*), retaliation (*qisas*), and blood money (*diyat*). The third volume, which is dedicated to public law, after presenting generalities about the jurisprudential maxims of this field and their sources, examines 14 maxims (Maxims 139 to 152).
+The second volume (Criminal Fiqh) includes 99 jurisprudential maxims (from Maxim 40 to 138) regarding prescribed punishments (hudud), retaliation (qisas), and blood money (diyat). The third volume, which is dedicated to public law, after presenting generalities about the jurisprudential maxims of this field and their sources, examines 14 maxims (Maxims 139 to 152).
 The fourth volume (International Law) is organized into three parts: the first part deals with generalities and the characteristics of the maxims in this field and their relationship with other jurisprudential maxims; in the second part, 25 jurisprudential maxims are discussed, and the third part is dedicated to specific topics of international fiqh, comprising 12 special maxims.
 === The Author ===
-Abbasali Amid Zanjani (1316 - 1390 SH / 1937 - 2011 CE), the author of the book, was a mujtahid, legal scholar, university professor, and political science researcher. He studied in the seminaries of Qom and Najaf under masters such as [[Sayyid Hossein Borujerdi]], [[Sayyid Ruhollah Musavi Khomeini|Ruhollah Khomeini]], [[Sayyid Abu al-Qasim al-Khoei]], and [[Sayyid Muhsin al-Hakim]]. Most of his scholarly works are in the field of [[Political Fiqh]], with his most famous work being the ten-volume series *Political Fiqh*, which has been reprinted many times. He also had experience in the political arena as a member of the Islamic Consultative Assembly and the Assembly of Experts. His other books in the field of political fiqh include "*[[Essentials of Political Fiqh (Book)|Essentials of Political Fiqh]]*," "*[[Encyclopedia of Political Fiqh (Book)|Encyclopedia of Political Fiqh]]*" (both in collaboration with [[Ebrahim Musazadeh]]), and "*[[An Introduction to Political Fiqh (Book)|An Introduction to Political Fiqh]]*."
+Abbasali Amid Zanjani (1316 - 1390 SH / 1937 - 2011 CE), the author of the book, was a mujtahid, legal scholar, university professor, and political science researcher. He studied in the seminaries of Qom and Najaf under masters such as [[Sayyid Hossein Borujerdi]], [[Sayyid Ruhollah Musavi Khomeini|Ruhollah Khomeini]], [[Sayyid Abu al-Qasim al-Khoei]], and [[Sayyid Muhsin al-Hakim]]. Most of his scholarly works are in the field of [[Political Fiqh]], with his most famous work being the ten-volume series Political Fiqh, which has been reprinted many times. He also had experience in the political arena as a member of the Islamic Consultative Assembly and the Assembly of Experts. His other books in the field of political fiqh include "[[Essentials of Political Fiqh (Book)|Essentials of Political Fiqh]]," "[[Encyclopedia of Political Fiqh (Book)|Encyclopedia of Political Fiqh]]" (both in collaboration with [[Ebrahim Musazadeh]]), and "[[An Introduction to Political Fiqh (Book)|An Introduction to Political Fiqh]]."
-== Jurisprudential Maxims in Private Law and Options (*Khiyarat*) ==
+== Jurisprudential Maxims in Private Law and Options (Khiyarat) ==
 In the first volume of the book, Amid Zanjani examines jurisprudential maxims in the field of private law. He begins by discussing general topics such as the definition of a jurisprudential maxim, the necessity and results of its study, and the history of the codification and evolution of jurisprudential maxims (vol. 1, pp. 1-53). He then examines 39 jurisprudential maxims in two parts: 25 maxims in the general field of private law and 14 maxims specifically on the general rules of contractual options.
 In the analysis of each maxim, he first addresses its definition and content, then examines its religious evidence, cases of its application, and related problems and challenges. In some cases, he also compares these maxims with the civil laws of Iran.
-Maxims such as the binding nature of contracts, the negation of hardship (*'usr wa haraj*), the negation of uncertainty (*gharar*) and harm (*darar*), and options in contracts are discussed in the field of private law, which remain applicable in the contemporary era. However, it would have been commendable for the author, alongside traditional discussions and examples, to have examined contemporary transactions, such as the pre-sale of goods or capital market and stock exchange transactions, from the perspective of uncertainty (*gharar*) and ambiguity (*majhul*), at least in subsequent editions and revisions.
+Maxims such as the binding nature of contracts, the negation of hardship ('usr wa haraj), the negation of uncertainty (gharar) and harm (darar), and options in contracts are discussed in the field of private law, which remain applicable in the contemporary era. However, it would have been commendable for the author, alongside traditional discussions and examples, to have examined contemporary transactions, such as the pre-sale of goods or capital market and stock exchange transactions, from the perspective of uncertainty (gharar) and ambiguity (majhul), at least in subsequent editions and revisions.
 == Jurisprudential Maxims in Criminal Fiqh ==
-In the second volume of the book, Amid Zanjani examines 99 jurisprudential maxims in the field of criminal fiqh (without separate categorization for the three sections of *hudud*, *diyat*, and *qisas* mentioned in the title). In the examination of each maxim, he first explains its definition and content, then analyzes its religious evidence, cases of application, and related problems and issues. In some instances, its alignment with the civil regulations of Iran is also considered.
+In the second volume of the book, Amid Zanjani examines 99 jurisprudential maxims in the field of criminal fiqh (without separate categorization for the three sections of hudud, diyat, and qisas mentioned in the title). In the examination of each maxim, he first explains its definition and content, then analyzes its religious evidence, cases of application, and related problems and issues. In some instances, its alignment with the civil regulations of Iran is also considered.
 === Necessity and Method of Rule-Making in Criminal Fiqh ===
-The necessity and method of rule-making in criminal fiqh is one of the author's introductory discussions. Amid Zanjani believes that in reference books on jurisprudential maxims, very little attention has been paid to the specific maxims of criminal fiqh. This lack of attention probably stems from the restrictive definition of a jurisprudential maxim—a definition that only includes general rulings applicable beyond a single chapter of fiqh. This has led to the maxims related to criminal issues, which do not have this characteristic, being less recognized. This is while maxims like the "Rule of Dar'" (averting punishments in cases of doubt), which are specifically applied in the chapter on criminal matters, challenge this definition (vol. 2, p. 1). He suggests that the definition of jurisprudential maxims in the criminal field be expanded and that general maxims specific to this chapter also be considered, taking into account their relative scope. Accordingly, among the general rulings of *hudud*, *diyat*, and *qisas*, maxims can be identified that, like the Rule of Dar', have a relative scope (vol. 2, p. 1).
+The necessity and method of rule-making in criminal fiqh is one of the author's introductory discussions. Amid Zanjani believes that in reference books on jurisprudential maxims, very little attention has been paid to the specific maxims of criminal fiqh. This lack of attention probably stems from the restrictive definition of a jurisprudential maxim—a definition that only includes general rulings applicable beyond a single chapter of fiqh. This has led to the maxims related to criminal issues, which do not have this characteristic, being less recognized. This is while maxims like the "Rule of Dar'" (averting punishments in cases of doubt), which are specifically applied in the chapter on criminal matters, challenge this definition (vol. 2, p. 1). He suggests that the definition of jurisprudential maxims in the criminal field be expanded and that general maxims specific to this chapter also be considered, taking into account their relative scope. Accordingly, among the general rulings of hudud, diyat, and qisas, maxims can be identified that, like the Rule of Dar', have a relative scope (vol. 2, p. 1).
-He also notes that the assumption that criminal rulings are not rule-based because they are devotional (*ta'abbudi*) is incorrect. Religious rulings always follow benefits and harms and are capable of being systematized into rules. It can even be said that the more scattered and diverse the jurisprudential sub-issues in a chapter, the greater the need for rule-making in that area. Due to the breadth and diversity of its sub-issues, criminal fiqh needs rule-making more than other chapters of fiqh (vol. 2, p. 2).
+He also notes that the assumption that criminal rulings are not rule-based because they are devotional (ta'abbudi) is incorrect. Religious rulings always follow benefits and harms and are capable of being systematized into rules. It can even be said that the more scattered and diverse the jurisprudential sub-issues in a chapter, the greater the need for rule-making in that area. Due to the breadth and diversity of its sub-issues, criminal fiqh needs rule-making more than other chapters of fiqh (vol. 2, p. 2).
 According to Amid Zanjani, rule-making in criminal rulings is possible in two ways:
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 * Second, extracting derived maxims by researching the sub-issues, opinions, and evidence of the jurists (vol. 2, p. 2).
-Among the jurisprudential maxims in this volume, there are cases that deserve to be examined with a more practical perspective from the viewpoint of today's social and political life. These include maxims related to the prescribed punishment (*hadd*) or discretionary punishment (*ta'zir*) for sins or illegal acts for which no *hadd* or *ta'zir* has been specified in the Shari'a, or maxims related to blood money, retaliation, and imprisonment and their role in solving contemporary judicial issues. Although Amid Zanjani occasionally and briefly touches on these topics, such as expanding the concept of imprisonment and confinement to mean creating restrictions and control over the offender (vol. 2, p. 144).
+Among the jurisprudential maxims in this volume, there are cases that deserve to be examined with a more practical perspective from the viewpoint of today's social and political life. These include maxims related to the prescribed punishment (hadd) or discretionary punishment (ta'zir) for sins or illegal acts for which no hadd or ta'zir has been specified in the Shari'a, or maxims related to blood money, retaliation, and imprisonment and their role in solving contemporary judicial issues. Although Amid Zanjani occasionally and briefly touches on these topics, such as expanding the concept of imprisonment and confinement to mean creating restrictions and control over the offender (vol. 2, p. 144).
 == Jurisprudential Maxims in Public Law ==
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 One of the challenges and points emphasized by Amid Zanjani is the need to pay attention to the exceptions to jurisprudential maxims. He considers a jurisprudential maxim to be a maximalist ruling that is not sufficient on its own for deriving a judgment. Some jurisprudential maxims, like the no-harm rule, have numerous exceptions, while others, like the rule of negating uncertainty and the rule of Nafi Sabil, have fewer exceptions. Therefore, one who uses jurisprudential maxims for rule-making must either have ijtihad regarding the conditions and characteristics of each maxim or have sufficient knowledge of the opinion of the jurist they emulate (vol. 3, p. 15).
-In Amid Zanjani's view, "Jurisprudential maxims are the middle ground and link between the science of *usul al-fiqh* and *fiqh*. Without delving into the detailed disagreements in *usul al-fiqh*, they encompass the effects of those disagreements, transfer them to the process of deriving religious rulings, and organize fiqh, moving it away from the disarray arising from these differences of opinion." Therefore, jurisprudential maxims have two characteristics:
+In Amid Zanjani's view, "Jurisprudential maxims are the middle ground and link between the science of usul al-fiqh and fiqh. Without delving into the detailed disagreements in usul al-fiqh, they encompass the effects of those disagreements, transfer them to the process of deriving religious rulings, and organize fiqh, moving it away from the disarray arising from these differences of opinion." Therefore, jurisprudential maxims have two characteristics:
-* Transferring the effects of disagreement in *usul al-fiqh* to the derivation of religious rulings;
+* Transferring the effects of disagreement in usul al-fiqh to the derivation of religious rulings;
-* Organizing fiqh and distancing it from the disarray arising from differences of opinion in *usul al-fiqh* (vol. 3, p. 7).
+* Organizing fiqh and distancing it from the disarray arising from differences of opinion in usul al-fiqh (vol. 3, p. 7).
 In this context, he points to the importance of utilizing jurisprudential maxims in public law, an action that leads to opening new horizons in the vast realm of fiqh, presenting new data, and facilitating access to religious rulings on contemporary public subsidiary issues (vol. 3, p. 8).