This article was written by Shaykh Abd al-Hakeem Carney (d. 2007) and was originally published on a website he was running called Shiapedia. After his demise, the domain and hosting services were not renewed and the website vanished. Soon after his death, someone had backed up his entire website and I had downloaded all the articles – around 60-70 – from this backup. I will be uploading some of these articles on the blog as some of them contain invaluable information and research. I will only be doing minor edits to the text, leaving the rest as it was originally.
Al-qawa’id al-fiqhiyyah (القواعد الفقهية) are general principles that are used by Islamic legal scholars, often defining the default legal position given to whatever entity the particular principle deals with.
Definitions
Qawa’id is the plural of qa’idah (القاعدة), meaning a base. Al-qawa’id al-fiqhiyyah are legal principles that operate on specific legal categories. One of the more famous examples it the principle of purity (qa’idah at-taharah/قاعدة الطهارة). The principle of purity states that all things are to be considered ritually pure until proven otherwise. As such, we see that we begin with a particular concept, such as “things whose purity is doubted”, and then we state a principle related to that particular concept. That principle will then be applied to whatever fits under that particular concept.
Because the concepts being used are particular, the result of applying one of al-qawa’id al-fiqhiyyah will also be particular. This is the main difference between al-qara’id al-fiqhiyyah and usul al-fiqh. Linguistically, both terms mean basically the same thing. However, the principles of usul al-fiqh are universal, whereas the principles of al-qawa’id al-fiqhiyyah are particular. Al-qawa’id al-fiqhiyyah, therefore, can only be used in certain areas of law, and not in others. The principle of purity, for example, would obviously only be able to be used in issues related to ritual purity. The principles of usul al-fiqh, however, are universal in scope, and can see application in any area of law.
On a deeper level, some scholars have argued that the principles of usul al-fiqh are used for deduction. The principle that ‘a command in religious sources indicates an obligation unless proven otherwise’ is a way of deducing rules from the sources. Al-qawa’id al-fiqhiyyah, on the other hand, operates in the opposite direction: they consist of the application (تطبيق) of general principles to the entities that the principle covers.
Some important legal principles are as follows:
1. The Principle of Completion (قاعدة الفراغ)
The Principle of Completion (قاعدة الفراغ) deals with religious acts that are composed of a number of different parts. If a person has finished the act and then doubts about whether or not they have performed that act, the whole act is assumed to be correct. This principle only applies if the person is in a state of forgetfulness or confusion. If the person doubts whether they intentionally left out a part of the act, then the principle is not considered to apply. The reason for this is that most jurists consider this principle to be related to another principle, the Principle of Non-Forgetfulness (قاعدة عدم الغفلة), which is considered to be a rational principle that assumes a person didn’t forget to do what they knew they were supposed to do. A number of hadiths are offered in support of this principle, such as the sahih narration of Muhammad ibn Muslim from Imam as-Sadiq, when he was asked about a man who had finished praying and then doubted if he had done it correctly. The Imam responded: “He should not repeat it, and he has no obligation upon him.” (لا يعيد و لا شيء عليه). Another, more explicit narration, is the muwaththaqah narration of Imam al-Baqir, where he says: “Whatever you doubt about after finishing your prayers, leave it, and do not repeat it.” (كلما شككت فيه بعد ما تفرغ من صلاتك فامض و لا تعد). Another narration is the muwaththaqah narration of Muhammad ibn Muslim from Imam al-Baqir, where he says: “Any acts you doubt about which are now passed and finished, leave it as it is.” (كلّما شككت فيه مما قد مضي فامضه كما هو).
2. The Principle of Denying the Path (قاعدة نفي السبيل)
The Principle of Denying the Path (قاعدة نفي السبيل) is a principle designed to deny giving any authority from a disbeliever over a Muslim. It specifically dictates that it is not permissible for a Muslim to hire himself out to a disbeliever in such a way that he becomes a slave or otherwise completely empowered by the non-Muslim. The main evidence for this principle is verse [4:141] “Allah will never give the disbelievers a path [i.e., power] over the believers.” (لن يجعل الله للكافرين على المؤمنين سبيلاً). Another evidence is a famous narration of the Prophet, which states “Islam is exalted, and nothing is exalted over it.” (الإسلام يعلو و لا يعلى عليه), which is interpreted as meaning that disbelief and disbelievers are not allowed to have the upper-hand over Muslims.
3. The Principle of Destruction (قاعدة الأتلاف)
The Principle of Destruction (قاعدة الأتلاف). This principle states that, when a person takes the property of a Muslim without their permission, and that property is damaged or destroyed, then that person is responsible for whatever damage occurs to the product. This is true whether the damage occurred intentionally or unintentionally. Verses of Qur’an are cited as support of this principle, such as verse [42:40] “The reward of evil is an equivalent evil.” (و جزاء سيئة سيئة), or verse [2:194] “And whoever transgresses against you, then transgress against them in equal measure.” (فمن اعتدي عليكم فاعتدوا عليه بمثل ما اعتدي عليكم). Narrations such as the sahih narration of Abu Wallad are also offered, who took somebody’s camel without their permission, and the camel then escaped from him and ran off to Kufa, then to the Nile river, then to Baghdad, and then back again. Imam as-Sadiq told the man that he is responsible for recompensing the owner of the camel for the equivalent it would have cost to rent the camel for that entire journey.
4. The Principle of Doing Good (قاعدة الإحسان)
The Principle of Doing Good (قاعدة الإحسان). This principle states that, if a person accidentally does damage to another person’s property while they were attempting to assist that person, then the person who did the damage does not bear any responsibility to the damaged party. For example, if somebody sees that another person’s house is on fire, and attempts to put out the flames, but in the course of doing so does damage to the property (like water damage from fire hoses), the person who put out the fire is not responsible for the damage that they do. This is true even if the person is not successful in what they were trying to accomplish. Evidence for this is verse [9:91] “There is no burden of the weak, the sick, and those who have no resources to spend, so long as they are sincere to Allah and His Messenger. There is no burden upon those who seek to do good.” (ليس على الضعفاء و لا على المرضي و لا على الذين لا يجدون ما ينفقون حرج إذا نصحوا لله و رسوله ما على المحسنين من سبيل).
5. The Principle of Dissimulation (قاعدة التقية)
The Principle of Dissimulation (قاعدة التقية) states that any act performed by a person while in a state of taqiyyah (religious dissimulation) is correct. This principle is a direct consequence of the permissibility of doing religious dissimulation itself. The evidences for this are as many as the evidences related to religious dissimulation.
Qur’anically, verse [3:28] says: “The believers do not take the disbelievers as guardians to the exclusion of the beliefs, and whoever does this has nothing with Allah, except those who are performing taqiyyah, and guard themselves with Allah.” (و لا يتخذ المؤمنون الكافرين أولياء من دون المؤمنين و من يفعل ذلك فليس من الله في شيء إلا أن تتقوا منهم تقاة و يحذركم الله نفسه و إلى الله المصير). ِThe second major verse on this subject is verse [16:106] “Whoever disbelieves in Allah after he has believed, except those who are compelled, but their hearts are stable in faith.” (من كفر بالله بعد إيمانه إلا من أكره و قلبه مطمئن بالإيمان). Jurists argue that these verses both establish the permissibility of dissimulation, as well as the correctness of acts that are performed in it. However, it is not entirely clear from the verses themselves that all religious acts performed in a state of dissimulation are correct. Some have argued that they could merely mean that if a person, for example, prays like a Sunni in order to avoid persecution from Sunnis, that they have not committed a sin. However, in and of itself, these verses may not indicate that they do not have to repeat the prayers in the correct form at a later date.
However, numerous hadiths are taken as making the issue much more clear. An example is the sahih of Zurarah from Imam al-Baqir: “Allah makes permissible to the son of Adam everything that he is forced to do in taqiyyah (التقية في كلّ شيء يضطر إليه ابن آدم فقد أحله الله له). The argument is that since it is made licit to the person to do taqiyyah, this makes the acts performed in it correct in terms of religious law.
Rationally, it is also argued that the obligation to perform religious acts correctly ceases when they are trumped by a more important obligation, such as protecting one’s life. Scholars of usul al-fiqh refer to such a situation as tazahum (تزاحم), the state where two obligations collide with each other but one is more important than the other. Since the obligation to perform the act correctly has dropped, it would require separate evidence to indicate the obligation of making up that act at a later time. As a result, a person who, for example, prays as a Sunni in order to avoid persecution, does not need to make that prayer up at a later time. Scholars have disagreed, however, as to whether or not this principle applies in a situation where it is possible for a person to abandon taqiyyah and perform the act correctly in privacy. Ayatullah Khu’i, for example, argues that the stronger opinion is that it would be necessary for such a person to find a place where they are safe from their persecutors, and to perform their act correctly. If not, of course, then the act is considered correct.
6. The Principle of Ease (قاعدة الميسور)
The Principle of Ease (قاعدة الميسور) is one that is often disputed by jurists. It deals with any religious act which is compounded of a number of different acts (such as ritual prayer). It states that when a person is unable to do part of a religious act, they are still obligated to do what they can. If a person is on hajj, for example, and they are unable to perform the ritual stoning of the idols, it does not mean that the entire obligation of hajj ceases. Rather, the person would simply have to do what they are capable of doing. There are two narrations that explicitly confirm this principle. The first states “What is possible does not cease to be obligatory because of what is impossible.” (لا يسقط الميسور بالمعسور). A second narration is: “What cannot be performed entirely, should not be abandoned entirely.” (ما لا يدرك كلّه لا يترك كلّه).
The implications of these narrations are obvious. The problem, however, lies in their chains of narrators; in fact, neither narration has any chain of narrators at all. For scholars who follow the usuli school of thought, this is a potential problem. In spite of this problem, however, some scholars nonetheless accept these narrations, on the ground that they are famous amongst the religious scholars, and many religious scholars have used them. This would put both narrations into the “acceptable” (مقبولة) category, and (for some), this is considered a way of rectifying the problem with the chain of narrators. Most contemporary jurists who have followed in the tradition of Ayatullah Khu’i reject this way of rectifying narrations.
7. The Principle of the Hand (قاعدة اليد)
The Principle of the Hand (قاعدة اليد) is somewhat similar to the colloquial saying in English, “possession is nine/tenths of the law.” This principle states that, when there is doubt about property ownership, the property goes to the person who is in actual possession of it. One narration that speaks of this and offers an example is the muwaththaqah narration of Yunus ibn Ya’qub from Imam al-Baqir, concerning a wife who dies before her husband, or a husband who dies before his wife. The Imam said: “Whatever would normally be associated with a woman, then that property goes to the man. And whatever could be considered property of a man or a woman, then it is divided between them. And whoever has control over something, then it is to them.” (ما كان من متاع النساء فهو للمرأة و ما كان من متاع الرجال و النساء فهو بينهما و من استولى على شيء منه فهو له). Ayatullah Khu’i comments that, when two people dispute about a property, then it is first obligatory on the person who has the property to swear before a judge that it is theirs. If he does so, then the property is ruled to be in the possession of that person. If he refuses, then the plaintiff should be asked to swear that it is his. If he does, then the property is ruled to be in his possession. If they both refuse, then the property is ruled to be in the possession of the one who currently possesses it.
8. The Principle of “Islam Effaces What Came Before It” (قاعدة الإسلام تجبّ ما قبله)
The Principle of “Islam Effaces What Came Before It” (قاعدة الإسلام تجبّ ما قبله) states that conversion to Islam effaces all misdeeds that were committed before the person became Muslim. Somebody who becomes Muslim does not have to make up their obligatory prayers, fasts, and so forth. Scholars have differed in terms of the basis of this principle. Most scholars of the Usuli school of thought are of the belief that all mature, sane people, are equally obligated before Islamic law. A non-Muslim is as much obligated to pray as a Muslim is. However, when the person becomes Muslim, they are forgiven for what they did before. Many Akhbari scholars do not believe this and argue that a person only becomes subject to Islamic law when they become Muslim. This principle is based on a famous hadith of the Prophet, reported in both Sunni and Shi’ite books, which states simply “Islam effaces what came before it.” (الإسلام يجب ما قبله)
This principle is considered to only apply to sins. Converting to Islam does not efface a person’s good deeds, nor does it invalidate any contracts that they may have entered into before converting. Many scholars also argue that this principle does not apply to sins that a person has committed against other people, and there are specific narrations saying that a person is required to make up for missed zakah that went unpaid during the time of their disbelief. The narrations concerning this, however, seem to apply only to a Sunni who has become Shi’ah, and even then, many scholars argue that this only applies if the actual object that the zakah was levied upon is still in that person’s possession.
Scholars have disputed about whether or not this principle applies to an apostate who reconverts. Ayatullah Khu’i has argued that it is immediately clear from the previous narration that this only applies to a person who has newly converted to Islam. Other scholars, like Ayatullah Muhammad Husayn ash-Shirazi, have argued that the aforementioned hadith is absolute, and there is no other evidence to suggest that it excludes the apostate.
9. The Principle of Non-Responsibility (قاعدة الإئتمان)
The Principle of Non-Responsibility (قاعدة الإئتمان). This principle states that, when a person takes something from another person as a trust, the trustee is not responsible for any damage that occurs to item, unless the trustee has done something completely irresponsible to it. The primary evidence for this principle is the sahih narration of Al-Halbi from Imam as-Sadiq: “The trustee does not bear responsibility.” (ليس على المئتمن ضمان).
10. The Principle of “Obliging People to What They Obligate Themselves” (قاعدة الإلزام)
The Principle of Obliging People to What They Obligate Themselves (قاعدة الإلزام) is a principle that requires legislating between people on the basis of their own belief systems. If, for example, a Sunni man and woman came to a Shi’ite judge, and the Sunni man said that he had read the words of divorce three times, then the Shi’ite judge would have to rule that it is impermissible for the Sunni man to remarry the woman without her first marrying somebody else (a rule followed by Sunni scholars, but rejected by Shi’ite scholars).
There are many narrations supporting this. The most basic narration is the one of Abu Hamzah from Imam ar-Rida, which states “oblige people to what they oblige themselves.” Most scholars, however, considered this narration to be weak (ضعيف) in its chain of narrators. Other narrations include the sahih narration of Muhammad ibn Muslim from Imam as-Sadiq, where he says: “It is permissible to the followers of any religion what they make permissible to themselves.” (يجوز على أهل كل ذوي دين ما يستحلون).
11. The Principle of Passing (قاعدة التجاوز)
The Principle of Passing (قاعدة التجاوز) deals with religious acts that are composed of a number of different elements. It states that, when a person has finished performing one of the elements of the religious act and has moved on to another element, and then doubts whether or not they have performed that previous element correctly or not, they should assume that they did it correctly and continue with the act. This principle is different from the Principle of Completion (قاعدة الفراغ), which states that when a person has finished the entire act and then doubts about its correctness, they should assume the act is correct. This principle deals with the obligations of a person while they are still in the act. Furthermore, the principle of completion is related to the soundness of an act, whereas the principle of passing deals with the very existence of an obligatory part of a compound act. Many narrations are offered in support of this principle, such as the sahih narration of Zurarah from Imam as-Sadiq. Zurarah asked about a man who has started the iqamah of the ritual prayer, and then doubts whether he did the adhan. The Imam said: “Leave it.” He then asked about a man who doubts about both the adhan and the iqamah, and has gone to do the first takbir of the prayer. The Imam said: “Leave it.” He then asked about the man who has started praying and then doubts whether or not they did the takbir. The Imam said: “Leave it.” He continued asking him about all the parts of the prayer, and the Imam said the same thing. He finally concluded by saying: “O Zurarah! If you have finished one thing and moved on to another, then your doubt has absolutely no standing.” (يا زرارة إذا خرجت من شيء ثمّ دخلت في غيره فشكّك ليس بشيء). This principle applies in all areas of religious worship, except wudhu, where there is specific evidence saying that a person must not follow this principle with that act and that act alone.
12. The Principle of Leniency (قاعدة التسامح)
The Principle of Leniency (قاعدة التسامح) is a principle that many jurists use in relationship to religious acts that are not obligatory, but are merely recommended. The principle states that if a recommended act is indicated by a hadith, and there is some problem in that narrations chain of narrators, that it still can be used. This principle is said to be based on specific narrations that allow for a person to perform recommended acts, and promises reward for them, even if the narrations indicating upon those acts are not themselves authentic. An example is the sahih narration of Safwan ibn Yahya from Imam as-Sadiq, where he says: “If something reaches you reporting there is reward for a certain act, and you perform that act, you will receive the reward for it, even if the Prophet did not actually say it in reality.” (من بلغه شيء من الثواب على شيء من الخير فعمل كان له أجره و ان كان رسول الله لم يقله). Another narration is the sahih narration of Hashim ibn Salim from Imam as-Sadiq where he says: “If you hear anything concerning reward for a particular thing, and you perform that act, then you will receive that reward, even if the report that reached you was not true.” (من سمع شيئاً من الثواب على شيء فصنعه كان له و إن لم يكن على ما بلغه).
Some scholars, such as Ayatullah Khu’i and Ayatullah Sistani do not accept this principle. They argue instead that a person, if they are going to perform a religious act that there is not a binding legal basis for, must do it with the intention of “hope” (رجاء), hoping that it will be pleasing to Allah and seeking the reward for it.
[For more information refer to the article: The Principle of Leniency in Evidences for Non-Obligatory Acts and its Jurisdiction]
13. The Principle of Power (قاعدة السلطنة)
The Principle of Power (قاعدة السلطنة) is a principle that dictates the right of private property within Islam. It says that a person is allowed to dispose of their own personal property in any way, shape, or form they want, provided that it does not violate the statutory injunctions of Islamic law. It also indicates the impermissibility of usurping property from another person, or using it in any way that they do not approve of. This principle is therefore more general than the principle of the sanctity of a Muslim’s property, since it applies to all human beings, regardless of their creed. Most jurists give an exception to the “warring disbeliever” (الكافر الحربي), a person who is waging war against Islam; their property is not considered sacrosanct in any way. Scholars have differed as to whether or not any disbeliever who is not a tax-paying member of an Islamic state is to be classed as a “warring disbeliever” or not.
The primary hadith in this regards is a famous narration of the Prophet, “The people are empowered over their property.” (الناس مسلطون على أموالهم). There are, however, some problems related to this hadiths chain of narrators, since its chain is broken, and it was not mentioned in any of the four books that are usually considered to be the main, authentic books of hadith amongst the Shi’ite jurists. However, most jurists consider that the import of the hadith is confirmed by numerous other narrations, that make a similar implication. An example is the sahih narration of Muhammad ibn Muslim from Imam al-Baqir, where the Imam was asked about a person who sought to buy a patch of earth at the mouth of the Nile river, but there was dispute amongst the people of the area as to who owned it, and who did not. The Imam said: “You cannot buy it except with the permission of its owners.” (لا تشتراها إلا برصا أهلها)
14. The Principle of Purity (قاعدة الطهارة)
The Principle of Purity (قاعدة الطهارة) states that all things are to be considered ritually pure until proven otherwise. This is a universally accepted principle amongst religious jurists. Many narrations are offered in support of it, such as the muwatthaqah narration of ‘Ammar al-Ma’rufah: “Everything is clean until you know that it is unclean. If you know, then it is to be considered unclean; otherwise, there is no obligation upon you.” (كل شيء نظيف حتى تعلم أنه قذر. فاذا علمت فقد قذر و ما لا تعلم فليس عليك). It should be remembered, however, that “knowing” does not necessarily mean actual knowledge. If a thing was ritually impure before, and then one doubts that it is still pure, the principle of istishab would apply, and the thing would still be considered to be ritually impure.
15. The Principle of the Sanctity of a Muslim’s Property (قاعدة إحترام مال المسلم)
The Principle of the Sanctity of a Muslim’s Property (قاعدة إحترام مال المسلم). This principle states that a Muslim’s property is absolutely sacrosanct, and cannot be violated by another person under any circumstances. The most important narration justifying this principle is the sahih narration of Abu Basir from Imam al-Baqir, from the the Prophet, where he says: “Insulting a believer is an insult, and killing him is disbelief, and the sanctity of his wealth is like the sanctity of his blood.” (سب المؤمن فسق و قتله كفر و حرمة ماله كحرمة دمه).
