BWFS 3053

TOPIC THREE

First maxim: Al-’umūr

bi maqāsidihā wal
‘Amal bil al-niyyat:

‫االمور بمقاصدها والعمل‬

‫بالنية‬
 TABLE OF CONTENTS
 INTRODUCTION
 THE SIGNIFICANT OF AL QAWAID AL FIQHIYYAH (LEGAL
MAXIMS) AS A PRINCIPLES TO UNDERSTAND THE NEW
EMERGING PROBLEMS
 AL QAWAID AL KULIYYAH AL KHAMSAH
 AL UMUR BI MAQASIDUHA AND OTHER RELATED MAXIMS
ARISE FROM IT
 THE APLICATION OF THE MAXIMS IN THE DEVELOPMENT
OF THE ISLAMIC AND BANKING SYSTEM
 CONCLUSION
 INTRODUCTION
 The legal maxim or al qawaid al
fiqhiyyah are general rules which can
be applied in various cases that
come under the common rulings.

 Q.F have a great role in the

formation of Islamic law and are
used as a principles to deduce many
rules of Fiqh
 Arccoding to Mustafa Al Zarqa’ (modern jurist):

 mentioned that although these legal maxims are general

principles, it have significant roles in fiqh, and also solved
most of the minor rules (ahkam) of fiqh. Without Q.F,
these minor rules will have no standing ground which will
make it hard to solve them (al madkhal)
 AL QAWAID AL KULIYYAH AL
KHAMSAH

• The five major maxims are considered as the maxims

which widely cover various issues of fiqh.These maxims are

- Al umur bi maqosiduha (matters are determined

according to intention) (everything depends on the
purpose)

- Al yaqin la yazulu bi al shakk (what is certain cannot be

removed by doubtfull) (Confident could not be removed
by doubt)
Cont…

Al mashaqqah tajlib al taysiri (hardship begets facility)

(The difficulties in the cause of the convenience
and lightness)

La dhorara wa la dhirar (harm shall not be inflicted no

reciprocated) (Harm can not be eliminated by
injury)

Al a’dah muhakkamah (custom is arbitrary)

(customary is used as the Islamic law)
 AL UMUR BI MAQASIDUHA (matters
are determined according to intention

 The meaning of intention is :

 the will directed towards an action, or the directing of the
will towards the action of any human being (everthing
depend on purposes):

It consists of two words:

1) al-umur: al-hal, al-hadathat, al-sya’nu.
2) al-Maqasidi: Istiqamah al-Tariq. hold, consistent
• We also may says that :
It’s a purpose of Islamic law in the matters and
transactions mankinds will be formed based on the purpose
or intent.

When a man (mukhallaf) commits a job with a specific

purpose, automatically he will place certain tenets of
Islam, then when the mankinds doing the same job with a
different purpose then there is another Islamic law.
 Cont…

For instant:
giving property to others have a variety of purposes, such
as hibbah, zakah, sadakah, endowment, some cases, ibra
etc.

So where did the intention start???

The phases of intention:

• Can be divided into 5 phases:

1. al-Hajiz (the first impact of the intention upon the
hearts).
2. al-Khatir(where intent stay in the hearts)
3. al-Nafs (when oscillates between the thought of
commiting the act)
4. al-Hamm (when the intentions to commit the act
overshadows the thought of refraining from it)(near to do
the actions).
5. al-’Azm (where the intention is solidified by the will and
the determination to implement the act.
 THE ORIGIN OF THE MAXIM

• This maxim has its origin from the hadith sohih masyhur from
Umar al Khatab (R.A)
‘Innama al A’mal bin niyat’ wa innama li kull imriin ma nawa’
means “Deeds are judged by intention and every person is
judged according to his intention’
Other hadith Ibn Majjah:
Yub’athu al-naas ‘ala niyatihim.
Means ‘every mankinds been send on their intentions’
Hadith Sunan al-Darami:
Niyatu al-mukmin khayrun min ‘amalihi. Means ‘Intention
someone Mukmin is better than his deed’
Cont…
This hadith clearly stated that all deeds
are judged according to the intention.
The legal of certain deeds are also
based on the intention.

In asbah wa nazair (Ibn Nujaym), Ibn

Nujaym stated ‘laa thawab illa bi al-
niyyat’. According to Ibn Nujaym, this
maxim included all the transaction
such as aqd al-muawadah
(bay’,hibbah, ijarah etc) & also tamlik
maliyyah (ibra’ & dha wa tajjal).
The significant of this maxim towards
Islamic law

 Imam Shafie, Ahmad bin Hanbal, Ibnu Mahdi, Ibnu

Madini, Abu Dawood, Al Dharqatni and others agreed that
the hadith from Umar “it contains 1/3 of knowledge”.
 Imam Shafie is also said that this hadith “within 70 topics
of” means related to fiqh discussion.
 This maxim is not only important in ibadah, jinayah,
munakahah and others but also significant in terms of
uqud maliah (Islamic financial contract) trading activities,
hiba,waqaf, qaradh,dhoman,wakalah, ijarah and others
 The purpose of intention

• Intention played a significant role in all actions of human

being. It can be divided into 2 major roles, such as:

1) To differentiate between ibadah and adah (custom or

personal habit).

For example, GIVING property to others are a variety of

purposes including Hibbah, zakah, charity, some cases,
endowment.
Cont…

2) To differentiate one kind of ibadah and another. For

example in prayer, fasting, bath and hajj. There are
different kind of ibadah such as compulsary, highly
recommended, nazar and others.
For example. slaughter animals (zibahah) have a variety
of purposes, such as to eat his meat, or for the purpose
of getting closer to Allah (taqarrab ila Allah) by passing
the blood of animals. Therefore all of this zibahah must
have the specific intention of purpose of worship to the
Allah.
 Some example the applications of the
maxim in the islamic banking and
finance

• As we mention earlier, the intention is highly significant in

order to justify the certain actions or transactions. Some
examples related to the matter are :
1.A person is giving certain amount of money to the
other person. If he intended the money as a zakat, it is
considered as a compulsory for him and the person whom
received it no need to return the money back to him. The
same case, if he gave his money as hibah or sadaqah,
which it is considered as highly recommended. If he gave
as the loan, the person who took it must return the same
amount he took in the future.
2. Using facilities in Islamic banking and finance. If
he intended his action as an obligatory to avoid riba, the
action become a compulsory and declare as ibadah, he
will be rewarded by Allah. If he just do it as an act of his
daily activities of just because the bank is only nearby,
his action is not considered as ibadah.
3. Aizat aloud Zaidiny to use his house as wadiah yad al-
damanah. If Aizat considered the usage of the house
as an amanah (trust) from Zaidiny and not asking for
services charge, she is not responsible for the damage if
it happened, but if Aizat is charging a service charge/fee
(al ujr), he is responsible for the damages if it
happened.
 OTHER RELATED MAXIMS ARISE FROM THIS
MAXIM and the examples related to islamic
banking and finance:
There are a lot of maxims that arise
from this Maxim. Some related maxims
that arise from the al-umur bi
maqasiduha as follow:
1. “A’damul ishtirat al niat fi ‘ibadat la
takunu ‘adatan au laa taltabis” .
2. “Ishtiratu al-ta’yin fi ma yaltabis
duna ghairih” .
3. “Ma la yushtarat at Ta’arrudu lahu
jumlatan wa tafsilan iza ‘ainahu wa
akhta’a lam yadhurru”
Cont…
4.“Ma Yushtaratu fiha al-ta’yinu falkhota’u fihi
mubtil” .
5. “Ma yajibu at ta’arrudhu lahu jumlatan wa la
yushtarothu ta’yinuhu tafsilan iza ‘ayyanuhu wa
akhta’ dhorra.
6. “An niayatu fil yamini takhassisu al lafza al a’am
wa la tu’ammu al khos”.
7. “Maqosidu al lafzi ‘ala niyyati al laafizi il’la fi
maudhi’e wahidin wa huwa al-yamin ‘inda al qodhi”
8. “Al ‘Ibratu fi al ‘uquddi lil maqosidi wa al ma’ani la
li alfaazi wa al ma’ani”
OTHER RELATED MAXIMS ARISE FROM THIS
MAXIM and the examples related to islamic
banking and finance

1. “A’damul ishtirat al niat fi ‘ibadat la takunu ‘adatan au

laa taltabis” means no need to niat in ibadah that is not
a custom (it is well known or ma’lum) type or the
ibadah is no doubt with other. (niyyat not required in
any type of worship does not consist of adah)

For example, a father is giving money or living expenses

to his son and his family. No need for him to perform
niat as this action is basically his own obligation and no
others.
2nd example, taqwa to Allah, because this ibadah is
different compare to other ibadah.
2. “Ishtiratu al-ta’yin fi ma yaltabis duna ghairih” means it
should be certain (clearly state the object/subject/act)
for a general known (common) action which is needed
to be clarify, if not, cannot determine.

For example,
Should be clearly explained in solat fardu. Because
there are similarities in Zuhur and Asar instead of term
and actions. This two solat (Zuhur & Asar) can not be
distinguished except with a clarify explanations (takyin).
Cont…

2nd example:

Ali have several houses and he wanted to lease one it to

Umar. He must determines the house, the rental price,
the payment date and others. It is also be applied in
Islamic banking financial contracts such as BBA financing
and Ijarah facilities. The I.Bank and the customers need
to be clarify the contents of the contract because the
financial contracts are common in the banking services.
3. “Ma la yushtarat at Ta’arrudu lahu jumlatan wa tafsilan
iza ‘ainahu wa akhta’a lam yadhurru” means any act
which is no need to declare the numbers or details,
if stated, and it went wrong is not a problem/mistake.

For example, If a Muslim want to perform prayers at

home, but he did pray in the mosque. So his solat
accepctable.
CONT…

2nd example:
Ali wanted to buy a kilogram of sugar from Pak Mat stall
but instead, he bought it from Pak Man shop. It is not
considered a false act. It is also the same if you want to
chose the banking facility from Bank X but you went to
Bank Y instead, it is not a problem as long as the bank is
offering the Islamic banking facilities.
4. “Ma Yushtaratu fiha al-ta’yinu falkhota’u fihi mubtil”
means: anything that is suppose to be clarify, and it
gone wrong, it is not valid (Batal).

For example.
Muslim want to perform solat but he niyyah on fasting
(is not valid, batal ni solat)
Cont..

 2nd example:
two parties intended and agreed to
use salam contract to buy/sell of 1
tons of commodities A, but when the
delivery time is due, the seller
delivered 1 tons of commodity B, so in
this case, the agreement is forfeited.
The seller must return the price or get
the same commodities to the buyer
5. “Ma yajibu at ta’arrudhu lahu jumlatan wa la
yushtarothu ta’yinuhu tafsilan iza ‘ayyanuhu wa akhta’
dhorra”

means when it is simply an obligation act and no need

to detail the matters, but when it does, if it done wrong,
it is false (batal).

For example:
in solat, the action (rakaat) is no need for takyiin, but if
the prayer niyyat in his paryer the magrib solat for 5 or
6 rakaat. This is invalid.
Cont
 2nd example:

A Bank choose Aizat as their agent

(wakalah) to buy a corner lot semi-
detach house at Lahad Datu, but on
the other hand, he bought a middle
lot instead. In this case, the contract
becomes invalid and this bank have
the right to withdraw the
agreement.
6. “An niayatu fil yamini tukhassisu al lafza al a’am wa la
tu’ammimu al khos”

means: The intention in the oath in general sentences

can be considered to a certain intention/purpose, but it
can’t reversely applied.

For example:
an oath that he/she would never drink water because of
thirst, it is not considered he violated (agains) his oath
if he ate.
Cont…

 2nd example, Ali is buying a herd of goats from Abu by

saying to him “I buy these goats from you for the price
of RM 10 000”. This aqad is valid even thought he didn’t
mention the goat one by one. It is invalid if he said “I
buy the black goat from you for RM 1000”, but he
intended of buying whole the goats in the barn or the
entire goats.
7. “Maqosidu al lafzi ‘ala niyyati al laafizi il’la fi maudhi’e
wahidin wa huwa al-yamin ‘inda al qodhi”

means aims and objectives of the pronouncement is

referred to the intention of the person who made niyyah
except for one situation such as the oath that done
infront of the judge (hakim).

This is an important maxim for the Islamic judiciary

system.
Cont…

 2nd example:
the application in Islamic finance case, let say two
person are arguing about the payment of debts between
them, and both were considered are speaking honestly
from their heart. In order to solve the argument, the
judge can decided who is speaking the truth by ask both
of them to swear in fornt of the judge. It’s because the
oath in front of the jugde is consider as the judge
niayyah not the two person arguing about this payment.
8. “Al ‘Ibratu fi al ‘uquddi lil maqosidi wa al ma’ani la li
alfaazi wa al ma’ani”

means: in such a contract, effect is given to intention

and meaning not instead of words and forms.

for example:
the giving of hibbah with condition such as say the 1st
party ‘I hibbah to you this item (handphone) in one
condition, you must give me this. (such laptob).
CONT…

 2nd example,
If two parties conclude a contract apparently of a loan
but in consideration for which a specific rental is
provided for, the contract would be regarded as a
contract of hire as its real meaning indicates, and not a
contract of loan as the wording of contract would
suggest. This is commonly used in the contracts applied
in Islamic banking.
 conclusion

 Al Imam Al Sayuthi in his famous book “al ashbah wa-

nadzoir” once stated that Imams mujtahidin (Islamic
prominent scholars) have agreed and come out which the
trivial and the great value in hadith (Inna a’malu bi
niyyah…) regarding its precious towards Islamic Fiqh.
 It is clear from the above discussion that the knowledge
of intention is important because it is essential in order to
establish the correct juridical rule and failure to
comprehend it might result in departure from justice
 As its roles in the emerging of the Islamic banking and
finance, the understanding in this maxim are the
necessary knowledge for Islamic scholars in every single
aspects.
 The jurists are guided with the deep discussion in the
topic. This allowed them to come out with the solutions
especially related to the new instruments and products.
 For instance, they must clearly understand reasons for
the innovation, the modification and the introduction of
the new products as well as the needs of the Muslim in
banking and finance. In the end, people can avoid from
using the riba in banking system.
 The influenced of the maxim ‘al umur bi maqosiduha”
drives the development of Islamic banking and finance in
all Islamic countries, especially in Malaysia.

 The introduction of Syariah Advisory Council, the

introduction of sukuk, the application of Islamic money
market are some easy examples regarding the intention
of providing the syariah appliances in banking and finance
facilities.
‫انتهي الباب ‪ :‬مع التوفيق‬