Sharia Law An Introduction - by Mohammad Hashim Kamali

66 Sharʑah Law: An Introduction
It thus appears that in the event of there existing a discrepancy
between the apparent and the concealed (ÐÉhir and bÉÏin) while the
latter is known to be the truth, it prevails over the former. This aspect
of the SharÊ‘ah is well articulated in the ÍadÊth-cum-legal maxim that
‘acts are to be judged by the intentions behind them’ (innamÉ al-a‘mÉl
bil-niyyÉt). 42 With reference specifically to contracts, we read in
another maxim of fiqh: ‘Credit is given in contracts to purposes and
meanings not to words and (linguistic) constructs.’ 43
I end this chapter with a comment by al-‘AlwÉni who made the
following assessment: ‘Unlike the early ImÉms of fiqh who worked
out legal stratagems solely for the purpose of sidestepping damage or
loss, scholars of subsequent ages set themselves to the task of inventing
ways to dodge legal responsibilities.’ 44
NOTES
1. Ibn ‘Óbid n, ×Éshiyah Radd al-MukhtÉr ‘ala Durr al-MukhtÉr, I, 56.
2. Ibid.
3. Al-TahÉnawÊ, KashshÉf IÎÏilÉÍÉt I, 36.
4. For further detail see AbË SulaymÉn, TartÊb al-MawdË‘Ét, 91 ff.
5. Cf. AbË SulaymÉn, n.4 at 17.
6. al-SanhËrÊ, MaÎÉdir al-×aqq, I, 78.
7. The earliest collection of legal maxims was attempted by the ×anafi jurist, AbË
al-×asan al-KarkhÊ (d. 961) in his work UÎËl al-KarkhÊ. The best known collections
in the ShÉfi‘Ê school include Taj al-DÊn al-SubkÊ’s (d. 1392) al-AshbÉh
wa’l-NaÐÉ’ir and of JalÉl al-DÊn al-SuyËti’s (d. 1634) work bearing the same
title. Ibn Nujaym al-×anafi has also authored a work bearing the same title. The
well-known equivalent in the MÉlikÊ school is ShihÉb al-DÊn al-QarÉfi’s KitÉb
al-Furuq and in the ×anbali school it is TaqÊ al-DÊn Ibn Taymiyyah’s
al-QawÉ‘id al-NËraniyyah. There are many other equally reputable collections
of legal maxims in almost every madhhab.
8. al-ShÉÏibÊ, al-MuwÉfaqÉt fi UÎËl al-AÍkÉm.
9. Tabrizi, MishkÉt, vol. III, ÍadÊth no. 5097.
10. Ibn Qayyim, IghÉthah al-LahfÉn, I, 346.
11. See for a discussion of these and other similar terms my Jurisprudence, Ch. 4 on
rules of interpretation, 117–67.
12. Al-ShÉÏibÊ, n. 8 at III, 217.
13. Cf. ShalÏËt, al-IslÉm, 501.
14. Cf. al-ØÉbËnÊ et al., Madkhal, 73.
15. For further elaboration see my Jurisprudence, at 29 ff.
16. Muhammad Iqbal, Reconstruction, 149, 156.
17. Ibn Qayyim, I‘lÉm al-Muwaqqi‘Ên, III, 1.
18. Ibn Taymiyyah, MinhÉj al-Sunnah, I,147.