Relevance Of The Maxim Certainty Philosophy Essay

Relevance Of The Maxim Certainty Philosophy Es learnThe byword Certainty is non overruled by dubiousness is one and whole(a) of the world(a) bywords in Islamic rightfulness. It applies to three-quarter of fiqh. Some positions maintain that the adage does non have pregnant effect on commercial transactions. The work started by discussing the effectual cornerstone of the saw. It also discussed the detailed meaning of truety and interrogation in Islamic law and jurisprudence and the rulers with which they atomic number 18 applied to the particular(prenominal)s of law. Relevant particulars of commercial numerates link up to to it were cited as mannikins after analysis of the general meaning of each maxim. These examples get wind the signifi tail assemblyce of the maxim in providing grassroots principles for dispute resolution as well as the responsibility of proving entirelyegations between parties to commercial transactions. It also put out in detail the fel lowship upon whom the onus of proof lies in litigations to counter what is presumed by law.Keywords Certainty (yaqn), Conjecture (Zann), suspect (shakk), Illusion (Waham), technical Transactions, Dispute resolutions, presumption of law, onus of proof.* Higher sharia law Court Judge, Kala Balge Sharia Court and overseeing Rann Sharia Court, Borno State Judicial Service Commission, Borno State, Nigeria. E-mail emailprotected* ripened Lecturer, Faculty of police, Department of Sharia, University of Maiduguri, Nigeria. E.-mail emailprotected** Lecturer, Faculty of Law, Department of Sharia, University of Maiduguri, Nigeria. E.-mail 1. INTRODUCTIONLegal maxims (Al-Qawid Al-Fiqhiyyah) ar imperative in Islamic jurisprudence as they encapsulate perceptions and precepts that good deal abet to figure out the concomitantual essence of the Islamic Law in details. Reflective of a consolidated reading of fiqh by dandy jurists, it is a handy tool for researchers who need to expand their gr asp and accord of content and objective of the law. More importantly, they ease to arrive at the charm ruling where is no direct text is returnable a particular point.The word al-Qawaid is a plural qidah, a derivative of qaada and literally has the meanings of fixation, consistency, and beingness well gifted. Qaida on the an new(prenominal)(prenominal) hand mean al-Qaida, and Qawaid means a foundation of a building, as Al lanthanum, the Most High check outsAnd remember Ibrahim and Ismail brocaded the foundations (Qawid) of the House1Technically, it is a general rule relevant to all its colligate to particulars. Sadrush Sharah (d. 747) delimit Qawid as general propositions2. Examples be Qaida Nahwiyyah (Rule of Grammar), Qidah Mantiqiyya (Rule of Logic), Qaida Usliyya (Rule of Jurisprudence), etc.Fiqhiyya (lit. of law) is the adjectival of Qida (maxim) a derivative of fiqh (law) which literally means under groundworking. Fiqh is a term that came to advert Muslim jur ists detailed study of realistic chance of the Devine ordainments. Imam Shafii (d. ) defined it as the cognition of the practical enjoinments of Sharia acquired from its detailed inductions3.The two words, i.e. Al-Qawid al-Fiqhiyya, referred herein as Legal Maxims has several definitions which basically revolves around two positions. The a good deal quoted definition of licit maxims is that it is a general rule which applies to all of its related particulars4. As this is an extension of the technical meaning of term Qida in otherwise discipline to the Qida in law (fiqh), this definition has failed to encapsulate the concept of level-headed maxims and thus not reflective of its essence. Al-Hamawi (d. 1098H=1687AD) has carryd that Qida of legists (fuqah) is different from Qida in other disciplines much(prenominal) as Grammar (Nahwu), Logic (Mantiq) and even Jurisprudence (Uslul Fiqh). In these disciplines, it is a rule applicable to all its related particulars.5From the fore going we slew say that a legal maxim is a general proposition of law that applies to most of its related particulars6.The causality for opting to this definition is that maxims do not throw to all particulars that seem related to it. The particulars that do not apply to a general principle ar known as exceptions (mustathnayt). These exceptions often institute independent or auxiliary maxims in themselves. The exceptions do not til now negate the general application of maxims, as the principles of the maxim still check application to majority and exceptions are simply of minority in all maxims7.Another characteristic of a legal maxim worth noting is that a maxim applies to most of its related particulars, which are scattered in heterogeneous themes or chapters of fiqh. precisely a principle that only applies on one particular theme or chapter of fiqh is referred to as a Regulator (Dbit). In other words, a Regulator (Dbit) is limited to one chapter and provides a legal princ iple on orders of a particular chapter of Fiqh. According to Al-Suyti (d. 911H) says a maxim collects branches from different chapters speckle Dbit collects branches of the selfsame(prenominal) chapter8. An example of Dbit is injunction of sale of a nonexistent is same as that of risky- taking (gharar) sales (hukmu baiil madmi yatbaul gharar)9. This Dbit is applicable to the chapter of buying and selling.Importance of Legal Maxims (Al-Qawid Al-Fiqhiyyah)The great Maliki Jurist of Egypt, Imam Shihbuddn Al-Qarfi (d. 676H) described it as embodying secrets and wisdoms of Sharia10. Legal maxim brings together widely scattered branches of fiqh into a single abstract rule make it well-heeled for jurists, researchers and students of the Islamic law. It also saves cartridge holder in researching injunctions for several matters that are other scattered in different chapters of books of fiqh. That is why, fit Al-Suyti, approximately jurists refer to fiqh as association of similitud es. Legal maxims therefore make it easy to diagnose juristic injunctions, comprehend and memorise auxiliaries and particulars of the law11.The four schools of Islamic Jurisprudence are in agreement over the five of the Universal Maxims that they clasp in spite of appearance themselves the entire quintessence of the Islamic Shariah. They are depicted to be linguistic universal maxims for being all-inclusive and applicable to the entire range of fiqh without any spec12 whereas the rest of the maxims are just elucidations of these fiveMatters are (judged) by their intents (Al-Umru bi-maqsidih)13Hardship begets facility (Al-Mashaqqatu tajlibu Al-Taisr)14No harming and no counter-harming (L darara wa l dirara)15 springer is Authoritative (Al-datu Muhakkamah)16.Certainty is not be overruled by doubt (Al-Yaqnu la yazlu bish-shakki).Beside its general application to three-quarter of Fiqh chapters, Certainty is not overruled by doubtfulness provides basic guidelines for disputes resolut ion in keep downs including commercial and financial transactions. The paper allow discuss in detail the general meaning of the universal maxim Certainty is not overruled by Doubts, its importance and relevance to commercial transactions.This universal maxim is one of the earliest maxims to appear in the discipline of maxims origin (Al-Taqd Al-Fiqhi)17. The earliest reference to it was made by Imam Shafi (d. 204H819C.E.) while discussing admission/ confession. He utter the basis of what I say is that I volition always hold people by what is certain, drop the indeterminate and use that which is most verisimilar18. Al-Karkhi (d. 340H) too in his Usl has enjoind that the basis (in law) is that what was support with deduction undersurfacenot be overruled by doubt and say it is one of the principles the Hanafi School was fore on19. Over time, it was minify into its current dramatis psycheae Certainty is not overruled by doubt (Al-Yaqnu l yazlu bish-Shakk)20.2. CERTAINTY I S NOT OVERRULED BY DOUBT21(Al-Yaqnu l yazlu bish-Shakk)Generally, any matter confirmed to have existed with consequence remains certain until proven with evidence to be otherwise. It is not invalidated by mere(prenominal) doubt or supposition. The same is also said regarding a matter whose non-existence is confirmed continues in that severalize until also proven otherwise. This is because doubt is weaker than certainty. It ordain not, therefore, nullify certainty whether or not the later is positive or negative22. In other words, whenever the existence or non-existence of a matter is established through legally accepted means, a ensuant doubt over the continuance of this introduce testament not affect the legal regard given to the confirmed certainty.Legally, certainty (yaqn) is defined as the knowledge that a detail has either definitely occurred or not. Doubt (shakk), which is the opposite of certainty (yaqn)23, is a vacillation over the occurrence and non-occurrence of a fact. inwardness none between the two possibilities is of higher probability. hardly if either has great probability, the doubt seizes and it is thus certain (yaqn) in the usage of legists (fuqah). This form of yaqn is often inter transplantably used with the term ann. The term ann which literally means assumption is less than certainty in the language of Jurists and Logicians. To them, Certainty (Yaqn) is article of belief that a particular matter is strikebreaker and cannot be unless so-and-so in manner consistent with its reality and essence. In other words, it is the blameless knowledge free from error. Because injunctions of Sharia are applied on what intelligible or conspicuous (zhir) and not absolute certainty, the jurists definition is not as encompassing as that of legists (Fuqah) which includes the most probable event24. This is because there are issues which the Sharia may have considered them as certain though they can logically be incorrect. Example is an ac cepted testimony by witnesses ahead a Court is a legal certainty for its truthfulness, but is come-at-able that they are telling lies. Al-Qarfi says that exigency is the reason why conjecture (ann) is regarded as certain in Sharia for absolute certainty may not be achieved. Possibility of erring in such ann is however lesser. But the doubtful cannot be a basis for a judgement25. This is the reason why scholars of Malikiyya school of thought did not refer to this maxim in the above word, that is Certainty is not overruled by doubt, rather their preferred phrase is The average of Sharia is that Injunctions are but ground on knowledge and that which is in doubt is not considered26.2.1 BASIS OF THE MAXIMIn the Quran, the byword of Allah, the Most HighBut most of them follow nothing but Conjecture (Zann) truly Conjecture can be of no avail against truth. Verily Allah is well aware of all that they do27.One of the meanings of Zann (lit. conjecture) is illusion, i.e. where the fact t hought to apply to a particular matter does not in reality apply to it. In such a situation, such conjecture will not overrule what was known for certain28.Also from Sunnah, the hadith narrated by Abbd bin Tamm from his uncle from the Messenger of Allah, ataraxis be upon him, in which a man complained to the Prophet, peace be upon him of signature something (departing) his body. The Prophet, peace be upon him, told him not leave (his prayers) until he hears a kick the bucket or smells (the gun)29. The hadith means that one should not ignore the certain, which is the state purity before prayer, in favour of that which is uncertain, i.e. the feeling that something has departed his body. Therefore, such doubt will not overrule the pilot certainty.In some other version of the Hadith related by Abu Huraira, the Prophet, peace be upon him, said and if one of you feels something in his belly, and doubts whether something has left his body or not, he should not leave the mosque until he hears a sound or feels a gas30.2.2 SIGNIFICANCE OF THE MAXIMOn the significance of the above Hadith, Al-Nawawi (d. 676H) asserts that this Hadith is a basic source and a great principle31among the principles of fiqh. The principle is that things are judged to remain on their original forms until the certainty of the contrary is established, a subsequent doubt will thus not harm it32.Jurists have unanimously agreed on the usage of this maxim. Imam Al-Qarafi states that this is an agreed upon maxim, the only un same(p)ness among scholars is in some of its applications33. Ibn Daqq al-Eid (d. 702H) also said The Hadith is a basic principle in the usage and/or tossing of doubts and scholars appear to be in agreement on this maxim, even though they differ in some of its applications34.2.3 RELEVANCE TO COMMERCIAL TRANSACTIONBy Commercial Transactions we are referring all Contracts in Sharia relating to the exchange of goods and services. Examples include transactions like bay (sales s hrivel), ijrah (lease), muzraah (farm leasing) partnership (muqradah), waklah (agency) juala (promise of reward for a particular action), kaflah (surety), hawla (transfer of debt), rahn (mortgaging), etc. In fact, all contracts with the exception of sum contract which is not under the scope of this paper.As we have indicated above, certainty in law refers to the most probable assumption. Example of such probable assumption is seeing a man with reasonable wealth possessing a reasonably priced car for several years one can confidently testify that it belongs to him35. It is upon this kind of certainty that many legal injunctions apply36. opposite examples of its relevance to commercial transactions includeWhere there is a contract between two parties and a doubt is raised on whether or not there was dissolution of the contract. The contract is presumed to be subsisting as this is the certainty37.Also where it is confirmed that A owes B certain amount of money. But after As death, a d oubt is raised on whether or not he has paid, lack of payment will be presumed as it is the certainty38which cannot be overruled by doubt.Certainty is not overruled by Doubt is supplemented with many Auxiliary Maxims (qawid fariyyah) and Regulators (Dawbit) which together elaborate its legal implication and significance. These will be classified under three categories, namely Auxiliary Maxims braggy freight to certainty, Auxiliary Maxims emphasising on overlooking of doubt and Maxims indirectly related to the Certainty is not overruled by Doubt. Related maxims to each category will be discussed in the following orderAuxiliary Maxims giving weight to certaintyThe average is that the spatial relation quo remains as it was before (Al-Alu Baqu m kna ala m kna) allow the Ancient rest on its age (Al-Qadmu yutraku al qidamih)The norm (in Sharia) is immunity from liability (Al-Alu barat Al-Dhimmah)The norm (of Shariah) is that acquired places do not exist (Al-Alu fis-Siftil Aridah Al- Adam)The norm in Law is that things are perfect or fit (Al-Alu As-Salama)The Norm (of Sharia) regarding things is permissibility (Al-Alu fil Ashyi al-Ibhah)The Basis in Law Regarding Contracts is that they permissible and binding (on its parties) (Al-Alu fil Uqdi As-Sihhah wal-Luzm)The Norm of law regarding terms and retards is validity (Al-Alu fish-Shurti as-Sihhah)The basic principle is to ascribe the event to the nearest time of occurrence (Al-Alu Idfatul Hadithi il aqrabi auqtih)Auxiliary Maxims emphasising on overlooking of doubtNo attention shall be paid to inferences (implication) in the face of an explicit affirmation (L ibrata lid-Dallati f Muqbalatit Tasrh)No weight is attached to Illusion (L ibrata littawahhumi)No argument is admitted against supposition based upon evidence (laa hujata maal ihtimaalin naashii an daleel)The apparently erroneous supposition is not to be taken into consideration (laa Ibrata biz Zannil bayyni khatauhu)Maxims indirectly related to the Cert ainty is not overruled by DoubtNo averment is imputed by to a psyche who keeps silence, but silence is tantamount to a statement where there is a necessity for speech (L yunsabu il skitin qaulun, wa lkinnas suktu f maradil hjati ill bayni baynu)The original state of words is the literal sense (Al-Alu fil Kalmi Al-Haqqah)No way of life for ijtihd where there is a decisive text (L masgha lilijitihdi f mauridin nass)3. concomitant MAXIMS GIVING WEIGHT TO CERTAINTY3.1 The norm is that the status quo remains as it was before39(Al-Alu Baqu m kna ala m kna)It is a basic provision in Sharia is that the status quo remains as it was before unless it is proven to have changed. To explain further, we can say that a fact whose existence or non-existence is said to be certain in the ago is regarded to be as it was and does not change, until evidence is available to change such status. Such proof is mostly based on evidence, confession, admission, and refusal to take cursing40.This principle of law is referred to as Istishb in Islamic jurisprudence41. Considered to be one of the secondary sources of law, Istishb has been defined as the presumption of continuity of a matter base on its previously established state. The previously confirmed state may either be legal or rational. This maxim represents a form of Istishb which is sequent what the law has confirmed to have existed in the past into the present such as a person who bought a musical composition of land will be presumed to still owe it until anything that may change that presumption is proved42. This type of Istishb applies in cases such as presumption of continuation self-control after execution of a contract the liability of a person who damages anothers property remains until quittance and the existence of a liability on an indebted person where the taking up of the loan is attested to43.An example of the application of the maxim in commercial transaction is where a lender necessitates paying his debtor or a buyer claims paying the price to the seller or a lessee claims paying the lessor but the debtor, the seller and the lessor denied any payment. The statements of the party denying will be accepted. As the norm is the continuance of what has existed, these claims will not be accepted until legally proved44.Another application is when a buyer claims that the condition of a commodity he previously saw has diminished during bringing according to Ibn Qsim (d. 918H), the statement of the seller will command credibility base on this maxim. Ash-hab (d. 204H) on the other hand also states that the claim of the buyer will have legal backing because the legal norm is that the buyer is free from liability (Al-Alu barat al-Dhimmah)45. Hanafis have distinguished between the two by asserting that if much time has lapse from the time of inspection of the commodity and the time of delivery, the statement of the buyer will be backed by the law46until the contrary is proved by the seller.3.2 Le t the Ancient rest on its age47(Al-Qadmu yutraku al qidamih)Provided it does not violate the right of another, a thing that has existed since time immemorial will enjoy legal protection. The law presumes that something that has remained for a very long time has a legal precedence48. This is also regarded as Istishab as it is an accompanying of the past condition, whether it is a proof of ownership through evidence or the admission of a respondent. Such istishab can be relied upon provided it has not been legitimately changed which should be through evidence, admission or refusal to take curse49. This maxim is also closely related the norm is that the status quo remains as it was before50.Example of its application is that whenever ownership of a property is confirmed by either admission of respondent or conclusive evidence, it shall be presumed to continue in Sharia law51. Also where two persons claim the ownership of a property, and both provided evidence of their ownership with date. The presumption of the ownership will be in favour of the person who provides earliest date, because he claims to own the property during a time when the plaintiff does not take exception his ownership. This will remain until the plaintiff can prove the contrary52.3.3 The norm (in Sharia) is freedom from liability(Al-Alu barat Al-Dhimmah)A person is born free from anything and being liable of anything is contrary to the original norm (asl) of law53. Literally, the word asl means root or source, and in the circumstance of this maxim it means the most probable (al-rjih54) evidence upon which the law relies and bases its rulings. This maxim applies to both fact and law.Regarding its application to fact, the general rule is that a person is certainly free from any obligation or liability and making him liable for something is both doubtful and a contradiction of the original state of man being born free from any liability. Claims of liabilities such as debt, obligation that was the result of later cause will only be accepted if proved through means provided by the law. In the absence of any such proof, the Sharia regards a person to have no liability, thus making onus of proof upon the person who alleges a fact or claims it.The maxim is inspired by the Prophets Hadith, peace be upon him, in which he said the onus of proof is on the claimant, and taking of an oath is incumbent upon him who denies.55The hadith provides that the party insisting to disprove the status quo and wants to establish a recently acquired attribute is the claimant and the onus of proof is upon him while the party that clings on the original (asl) attribute is the defendant/respondent and upon him is the oath because he is denying the allegation.56This maxim is an equivalent to what is generally known as the presumption of innocence, though this principle is more general. The expression presumption of innocence implies that it relates principally to cruel procedure, whereas the non-l iability maxim extends to civil litigation and to religious matters generally. The normative state, or the state of certainty for that matter, is that people are not liable, unless it is proven that they are, and until this proof is forthcoming, to attribute guilt to anyone is treated as doubtful. Certainty can, in other words, only be overruled by certainty, not by doubt57.The maxim provides practical solutions in cases of disputes or noises between parties to commercial transactions. Where, or instance, there is a disagreement between the owner and a borrower, a victim and an assailant, the statement of the accused will be accepted because the legal norm is that he is free from an excess liability58.Another example is where there is disagreement on the amount of loan between the lender and the indebted the statement of the indebted will be presumed59. Also, the statement of an agent regarding damage to a property will be accepted, likewise regarding denial of infringement and neg ligence, with oath60.In law however, this maxim is often referred to as The norm (of law) is non-existent (Al-Alu Al-Adamu). To majority of jurists, both these principles refer to the same thing, as lack of an injunction means one is not obliged to carry it out. In other words is not liable for not doing it. A second aspect of this principle also closely related to the notion of original non-existent, is original permissibility (al-ibha al-asliyyah). In this concept, everything is legal ab initio, and one will not be sanctioned for either doing or omission. Jurists refer to it as permission of the reason (Al-Ibh al-Aqliyyah).This implies that it is a presumption of continuation of the original non-existent of injunction base on reason (aql) rather than the words of the Law-giver. This position can as well be deduced from many verses of holy Quran according to many scholars61. An example of such verses is the saying of Allah, the Most HighThose who belt down usury will not stand ex cept as stand one whom the Evil one by his touch Hath driven to madness. That is because they say Trade is like usury, but Allah hath permitted trade and forbidden usury. Those who after receiving means from their Lord, desist, shall be pardoned for the past62.When taking usury was prohibited, the companions of the Prophet feared the consequence of t