The Golden Collection of the Law’s Maxims

By Mariam Sheibani

Source: Al-ʿAlāʾī, Ṣalāḥ al-Dīn Khalīl. Al-Majmūʿ al-mudhhab fī qawāʿid al-madhhab. Edited by Majīd ʿAlī al-ʿUbaydī and Aḥmad Khudayrʿ Abbās. 2 vols. Amman: Dār ʿImār, 1425/2004.

General Description:

This source, entitled “The Golden Collection of the Law’s Maxims” (al-Majmūʿ al-mudhhab fī qawāʿid al-madhhab), is a two-volume collection of legal and interpretive maxims.[1] Legal maxims (qawāʿid fiqhiyya) are terse dicta expressing fundamental patterns and principles of the law, while interpretive maxims (qawāʿid uṣūliyya) are rules for interpreting textual sources. This passage constitutes the first few pages excerpted from the introduction to al-ʿAlāʾī’s compilation of legal maxims.

Commentary:

Ṣalāḥ al-Dīn Khalīl Kaykaldī al-ʿAlāʾī (d. 761/1359) was a Shāfiʿī jurist raised in Mamlūk-era Damascus, where he received his initial education. He later went on to study in Makkah and Egypt, before finally settling in Jerusalem where he began his scholarly career.[2]

This excerpt is taken from the introduction to his collection of maxims, “The Golden Collection of the Law’s Maxims” (al-Majmūʿ al-mudhhab fī qawāʿid al-madhhab). Al-ʿAlāʾī’s two- volume work is significant because it is considered one of the earliest known and extant compilation of Shāfiʿī legal maxims and the first extant collection that was intentionally authored and fully redacted. This makes the introduction to al-Majmuūʿ al-mudhhab of particular historical value because it provides us with unique insights about the genesis of the genre and how it was developed.

After discussing the virtues of seeking knowledge, and knowledge of the law in particular, in the excerpted passage, al-ʿAlāʾī described his motives in authoring the work and situated it in relation to prior contributions on maxims. He noted for example the quasi- maxim collections preceding his, notably al-Ashbāḥ wa-l-naẓāʾir of Ṣadr al-Dīn Ibn al-Wakīl (d. 716/1317), al-Qawāʿid al-kubrā of ‘Izz al-Dīn b. ʿAbd al-Salām and the Furūq of al-Qarāfī. Notably, he also noted the lessons of his two primary teachers in law as sources for his book: Burhān al- Dīn b. al-Firkāḥ (d. 729/1328), the son of al-Firkāḥ, who studied with Ibn ʿAbd al-Salām, and Abū al-Maʿālī Ibn al-Zamalkānī (d. 727/1326), also a student of al-Firkāḥ. Al-ʿAlāʾī’s list of sources clearly places his work within a tradition of maxim thinking, teaching, and writing among prominent Shāfiʿīs and Mālikīs in Greater Syria and Egypt.

In the penultimate paragraph of his introduction (p. 14), al-ʿAlāʾī outlined the contents of his book in the following way:

1. First, he began his work with a single maxim that encompassed all of the topics in the law, which his teacher al-Zamalkānī had dictated to him orally. This maxim was the central paradigm of Ibn ʿAbd al-Salām’s Qawāʿid al-kubrā: that all legal rulings are reduced to a single expression: protecting interests and removing harms, worldly or otherworldly, and that the entirety of the law was built on this. As noted above, al-Zamalkānī was a student of Ibn al-Firkāḥ, who studied directly with Ibn ʿAbd al-Salām. This may be an indication of the absorption of this paradigm in Damascene Shāfiʿī circles two generations after Ibn ʿAbd al-Salām, here helpfully preserved in writing.

2. Second, al-ʿAlāʾī briefly discussed the distinctions between the two categories of legal rulings: legislative (ḥukm sharʿī) and injunctive legal rulings (ḥukm waḍʿī).

3. Third, he discussed five major maxims of the law to which all legal rulings return along with cases illustrating them (pp. 34-37). Importantly, al-ʿAlāʾī was the first to introduce and frame the discussion of maxims with the five major maxims (pp. 34-37), which he attributes to the Shāfi’ī judge of Baghdad, Qāḍī Hụsayn al-Marwazī (d.462/1069).These five maxims are: (1) Certainty is not overturned by doubt (al-yaqīn lā yazūl biʾl-shakk); (2) Harm must be removed (al-ḍarar yuzāl); (3) Hardship requires accommodation (al-mashaqqa tajlib al-taysīr); (4) Custom is legally authoritative (al-ʿāda muḥakkima); (5) Acts will be judged by their purposes (al-umūr bi-maqāṣidihā). Beginning maxim treatises with these five maxims became standard practice after al-ʿAlāʾī him, as found in treatises authored in the eighth/fourteenth and ninth/fifteenth centuries, such as those authored by Tāj al-Dīn al-Subkī (d. 771/1370), Badr al-Dīn al-Zarkashī (d. 794/1392) Taqī al-Dīn al-Ḥisnī (d. 829/1426), and Jalāl al-Dīn al- Suyūṭī (d. 911/1505).

4. Fourth, the overwhelming bulk of the work is the presentation of maxims, comprising both legal maxims and interpretive maxims, and as al-ʿAlāʾī indicated, he would begin with the most important maxims and move to the least important.

5. Finally, al-ʿAlāʾī closed his work with miscellaneous issues unrelated to their maxims.

Notes:

[1] I translate qawāʿid fiqhiyya as legal maxims, although they are at times translated as precepts, rules, or principles.

[2] On al-‘Alāʿī, see, for example al-Subkī, Ṭabaqāt, 3:444; Ibn Qāḍī Shuhba, Ṭabaqāt, 1:207.

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