Qawa'id Fiqh (Jurisprudential Maxims)(book)
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.
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| Book Information | |
|---|---|
| Author | Abbasali Amid Zanjani |
| Style | Argumentative Fiqh |
| Language | Persian |
| Volumes | 4 |
| Pages | 1594 (total for four volumes) |
| Publication Information | |
| Publisher | SAMT Publications |
- Abstract
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 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, migration and 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.
Brief Introduction and Structure
The book "Qawa'id Fiqh" is a four-volume work dedicated to the analysis of 189 jurisprudential maxims in the four fields of private, public, criminal, and international law. The author, Abbasali Amid Zanjani, clarifies in the preface to the first volume that the first three volumes of this collection are the result of his 27 years of teaching and are derived from his educational notes and pamphlets. This book was published in 1386 SH (c. 2007 CE) in collaboration with the SAMT organization and the Research Institute for the Development of Humanities.
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).
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, 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*," "*Encyclopedia of Political Fiqh*" (both in collaboration with Ebrahim Musazadeh), and "*An Introduction to Political Fiqh*."
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.
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.
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).
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:
- First, extracting text-based maxims from the sources, considering their absolute application and general customs;
- 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).
Jurisprudential Maxims in Public Law
In the third volume, after presenting generalities about the jurisprudential maxims of public law and their sources, Amid Zanjani examines fourteen maxims of public law. Following the pattern of the previous volumes, for each maxim, he discusses its content, evidence, instances, and problems.
In the book's introduction, he speaks about the methods and challenges of rule-making in public law and defines his own method for extracting jurisprudential maxims specific to public law in four stages:
- Jurisprudential maxims specific to public issues, such as the Rule of Nafi Sabil;
- Applying jurisprudential maxims to public issues (Political Fiqh), which is termed "returning the branches to the roots" (*radd al-furu' bi-l-usul*);
- Extracting public issues from an Islamic perspective through jurisprudential maxims;
- Rule-making in the realm of public law by examining jurisprudential sources and applying them to jurisprudential maxims (vol. 3, pp. 5-6).
He points to the novelty and limited precedent of this discussion, the uncertainty in achieving desired results, and potential opposition to rule-making in public law. He emphasizes that rule-making does not mean codifying and regulating something unsaid, but rather the goal is a clearer explanation of matters that have been "said but neglected." For example, by taking a jurisprudential look at the "Pact of Malik al-Ashtar," numerous jurisprudential maxims in the field of public law (both the political and administrative systems) can be extracted (vol. 3, p. 7).
Characteristics of Jurisprudential Maxims
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:
- 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).
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).
Contemporary Public Law Jurisprudential Maxims
Some of the public law maxims discussed in the book are part of contemporary jurisprudential and legal debates, such as the selection of the fittest (Maxim 140), the Guardianship of the Jurist (Maxim 147), and expediency (Maxim 148).
In the discussion of the maxim of selecting the fittest, after mentioning the evidence for this maxim from verses, narrations, consensus, and reason, Amid Zanjani addresses the disputes and problems raised against it. He ultimately concludes that, given the disputes about the generality and absoluteness of the maxim of selecting the fittest, this maxim can be accepted as a particular affirmative proposition, especially in important public matters and particularly concerning governmental positions and dignities. This is especially true for individuals who are aware of the greater capabilities of others and can, by refraining from accepting responsibility, entrust it to more qualified individuals (vol. 3, p. 58).
In the discussion of the maxim of the Guardianship of the Jurist, he examines its historical background, written works, and its nature and content, categorizing the various opinions and theories about it into minimalist and maximalist views (vol. 3, pp. 104-200). Amid Zanjani considers the evolution of political custom as one of the rational proofs for the Guardianship of the Jurist. He believes that with changes in the structure of the state, governmental institutions, and the extent of political authority based on political custom, the concept of the Guardianship of the Jurist cannot be considered a fixed and permanent matter. Therefore, as political custom changes, the definition and limits of the authority of the guardian jurist also fluctuate and may vary between minimalist and maximalist views. He considers this transformation to be examinable in relation to authoritarian, monarchical, and even guided democratic political systems (vol. 3, p. 200).
Amid Zanjani examines the maxim of expediency in thirteen topics, from its definition and types to expediency in secondary and grace-based rulings (vol. 3, pp. 200-377). He believes that the jurisprudential maxims related to secondary rulings are, without exception, based on expediency, and their main pillar is personal or specific-type expediency. Thus, maxims such as no-harm, no-hardship, the more important then the important, preferring the lesser of two evils, and preserving the system are considered symbols of various types of expediency in the form of jurisprudential and legal maxims (vol. 3, p. 373).
Jurisprudential Maxims in International Law
In this volume, after presenting general topics, Amid Zanjani discusses 25 general jurisprudential maxims in the second part of the book and 12 maxims related to specific topics of international fiqh in the third part. In each case, in addition to explaining the maxim, he also appropriately examines the different jurisprudential views and the challenges related to those maxims.
The Universality of Jurisprudential Maxims from Private to International Law
Pointing to the establishment of the rules of Islamic international law a millennium before its European counterpart (vol. 4, p. 3), Amid Zanjani identifies one of the characteristics of jurisprudential maxims in the field of international law as their universality, noting that they are not exclusive to Islam and Muslim nations but concern all nations of the world and the relations among them. 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. Similarly, jurisprudential maxims in the field of private law also have a universal nature and characteristic and are not exclusive to the relations of Muslims. For example, the no-harm rule, which at first glance pertains to private law, also includes the domain of public law and, beyond the relations of Muslims, expresses the Islamic view on the domains of private, public, criminal, and also the internal relations of other nations of the world (vol. 4, p. 2).
In the discussion of rule-making in the field of international law, he also refers to the use of jurists' documentation to extract a jurisprudential maxim. This means that when they take a matter as a principle and derive another matter from it, it becomes clear that the principle is citable as a maxim (vol. 4, p. 8).
Amid Zanjani attributes the alignment of jurisprudential maxims of international law with other legal fields, as well as their correspondence and coherence in some cases, to the multidimensional nature of these maxims, which are applicable in various legal fields. He gives the example of the maxim of the necessity of cooperation, collaboration, and participation in all matters related to the good of human society at the international level, which is an effective and universal jurisprudential maxim, and its audience in the Quran includes all nations (vol. 4, p. 4).
In the author's view, the multidimensional nature of many jurisprudential maxims in the field of international law causes some individuals to doubt and creates the impression that these maxims originally pertained to individual cases and relations, and that Islamic scholars, after becoming familiar with international concepts, extended those maxims to international issues, because they do not see the goal of Islam as being directed towards international issues. He points out two errors in this view: first, these individuals are not familiar with the multidimensional nature of Islam, and second, they reduce the work of Islamic scholars to an unrealistic justification and accuse them of distorting Islam, which is itself an unforgivable error (vol. 4, p. 4).
Alignment and Conflict of Jurisprudential and International Law Maxims
In the book's preface, the author examines the relationship between jurisprudential maxims and the rules of international law and believes that most legal rules are considered a subset of jurisprudential maxims (vol. 4, p. 7). Also, many jurisprudential maxims, such as the rulings on prisoners of war, the missing, and the wounded, correspond with the provisions of international conventions, and the existing differences are often minor or related to the conditions of implementation (vol. 4, p. 7). Despite this, in some cases, there are conflicts between jurisprudential and international maxims that are quite fundamental and cannot be justified or overlooked. For example, "the maxim of the equality of nations in the enjoyment of fundamental rights versus the veto power in the United Nations," which is exclusive to a few countries, or "the maxim of legitimate defense" versus the requirement to report it to the Security Council before taking military action. This is because the right to legitimate defense arises from the aggression of another state, and this right should not be conditioned on anything, especially a condition that allows the aggressive enemy to prepare for a counter-attack (vol. 4, p. 7).
Amid Zanjani's final conclusion is that, in a general view, the level of agreement and correspondence between jurisprudential maxims and international rules is very broad, and cases of conflict are less observed. This is due to two reasons:
- Rationality: The rationality present in both fields leads to convergence. The rationality of Islamic rulings gradually attracts international law experts to the realities.
- Common Origin: In many cases, the origin of the rules in both fields is the common custom among the wise and informed people. Both Islam and international law respect this custom (vol. 4, pp. 7-8).
Jurisprudential Maxims Suited for Today's International Law
Some of the jurisprudential maxims presented by the author are part of contemporary international law debates, such as the equality of states (Maxim 157), the maxim of non-interference in the affairs of other states (Maxim 160), the sovereignty, independence, and freedom of states (Maxim 164), legitimate defense (Maxim 177), migration and asylum (Maxims 178 and 179), the prohibition of weapons of mass destruction (Maxim 181), the fight against terrorism (Maxim 182), the prohibition of acquiring the cultural heritage objects of other countries (Maxim 185), and the prohibition of human trafficking (Maxim 186).
In the maxim of the equality of states, he discusses the position of states and the principle of their equality in the international system from the perspective of the Quran and the words of Imam Ali (a). In his belief, the moral and religious superiority of individuals should not become a source of discrimination in their rights. From this perspective, the equality of humans extends to the equality of peoples, tribes, nations, and ultimately, the states that represent them (vol. 4, pp. 73-74).