What are the Legal Maxims? How did they prove relevant in handling Fiqhi questions related to an emergent situation like COVID-19 pandemic?
The Qur’an and Sunnah give us certain rules which Islam has prescribed for the benefit of people. Sometimes these teachings are brief, but other times they can be very detailed. For example, the longest verse in the Qur’an [Al-Baqarah 2:282] is an entire page long and gives several details about when to write down a debt:
{You who believe, when you transact a debt for a specific term, put it down in writing…}
The verse goes on to mention some exceptions and the rationale behind it.
Now this is only one guideline about writing down debts. Imagine if every single issue that a person encounters had an entire page? The Qur’an would be tens of thousands of pages long and the Ḥadīth compilations would be even longer.
But Allah is merciful. Sometimes we have a lot of details about one issue and other times we have just a few. Yet, in other cases, we have no details at all, but rather a general principle that applies to several different cases that might arise.
? Read Also: Coronavirus Pandemic: Tips from Prophet Muhammad (PBUH)
Legal Maxims Meaning
In Islamic legal terminology, a general rule like this is called a legal maxim [qāʿidah fiqhiyyah]. It is a technique to help process and solve issues in Islamic Law.
Like most rules, there are some exceptions where they don’t apply to certain cases, but they do apply to most. Imam Shihāb Ad-Dīn Al-Qarafī [d. 684 AH] explains in the introduction to his book Al-Furūq that if a scholar memorizes a lot of answers to particular cases but doesn’t know the general rules, he will eventually feel an inner contradiction in all those rulings and would have to memorize an endless number of particular cases to be able to answer queries about Islam. However, if a faqīh [legal scholar] masters the general rules, he can dispense with having to memorize too many legal rulings since many of them would come under the category of the general principles. [Al-Furūq, 1:3]
History
Some of these maxims come directly from a ḥadīth of the Prophet, such as: “Do not cause harm, and don’t get harmed [lā ḍarar wa lā ḍirār].” [Muwaṭṭa’ #1435].
Others are derived from analyzing the different rules in Islamic Law and seeing a pattern which should apply to most other cases.
These legal maxims were present in the minds of the scholars among the Companions and their Successors, as well as the mujtahid [expert] imams like Abū Ḥanīfah, Mālik, Ash-Shāfiʿī, and Ibn Ḥanbal.
As the science of Islamic Law became more refined, scholars began to explain these maxims in more detail. One of the earliest scholars to codify these rules was the Ḥanafī ʿIrāqī scholar Abū Ṭāhir Ad-Dabbās who elaborated seventeen legal maxims and explained their usage.
Then his contemporary Abul Ḥasan Al-Karkhi [d. 340 AH] documented thirty-seven rules [including several sub-rules] to help solve legal issues that arose.
Scholars continued throughout the centuries to expound and expand these rules to encompass more and more issues until the famous civil code of the Ottoman Empire titled Majallah al-Aḥkām al-ʿAdliyyah was compiled by a group of scholars headed by Ahmad Cevdet Pasha. It was completed in 1876 and mentioned ninety-nine legal maxims in the introduction that could be used to help arrive at legal rulings.
Application of Legal Maxims to the COVID-19 Pandemic
As mentioned earlier, one of the legal maxims was directly derived from a general principle taught by the Prophet Muhammad: “Do not cause harm, and don’t get harmed [lā ḍarar wa lā ḍirār].” [Muwaṭṭa’ #1435]
This statement clarifies a general principle that is used in deciding how a Muslim should behave.
For example, in the early stages of the Novel Coronavirus outbreak [Covid-19], Muslim scholars began discussing the idea of whether this principle could be used to encourage people to stop shaking hands with each other and hugging.
Handshaking and hugging are beautiful gestures which Muslims practice regularly. It is from the practice of the Prophet and his Companions, and it creates love and goodwill between people.
However, given the outbreak, discussion began on whether this practice should be stopped completely or only with those who are showing symptoms of illness.
Questions to Consider
Before answering such a delicate question, Muslim scholars returned to the detailed explanation that past scholars had given about this legal maxim. They had discussed whether this applies to specific harm to an individual or to harm in general. The answer was that it applies to both.
Then the question about whether it applies to preventing something which is likely to cause harm is included, or this only applies to something which is guaranteed to cause harm.
In the case of the coronavirus, the concept of ‘social distancing’ was not fully developed a few weeks ago because it was not fully understood by medical experts how the disease spreads [in fact, it is still not fully understood yet].
Therefore, the likelihood to transmitting the disease to someone who is asymptomatic [i.e. has no symptoms] had to be taken into consideration, based on the sub-principle that there must be a significant likelihood of harm being caused.
Inevitable Harm?
The next question regarding this legal maxim was: what if ‘harm’ was inevitable and could not be prevented? What should be done?
The principle of ‘choosing the lesser of two harms’ [ikhtiyār akhaffi ḍ-dararayn] when possible was formulated. There is some potential harm in not wanting to shake hands with your brother or sister in Islam. Perhaps they do not understand or accept the danger posed by the coronavirus. Refusing to shake their hand could harm them because they would take offense.
However, if you had the COVID-19, and did not know it since you had no symptoms [and this is very common], you would potentially be harming the other person as well.
So, applying the legal maxim, it must be decided: which harm is greater: The possibility of emotional harm or the possibility of spreading the virus in an area where the healthcare system is already overburdening and cannot help those in need of medical treatment?
The answer given by most scholars, taking this legal maxim, and its sub-maxims, into consideration was: the harm of handshaking is worse and should be averted. This is how social distancing was given a Sharīʿah [Islamic Law] mandate by Muslim scholars.
To be continued.