Legal maxims in Islamic law have been an area that has been emphasized in relation to both fiqh and usūl issues since the early periods. The legal maxims of "al-umūru bi maḳāṣidihā", "al-yaḳīnu lā yazūlu bi al-shakk", "al-mashaḳḳa tajlibu al-taysīr", "aḍ-ḍararu yuzāl" and "al-'āda muḥaḳḳama" in Islamic law classifies as “al-qawāid al-khamsa/al-qawāid al-kulliyya al-kubrā.” These legal maxims have a differ-ent position among other legal maxims and form the basis of other legal maxims. We see that the “five grand legal maxims” can be extended to all areas of fiqh, that they are applied to the solution of fiqh issues, and that fiqh issues are tried to be connected with these legal maxims. Five grand legal maxims appear as a step that facilitates the understanding of fiqh in the positioning between fiqh and usūl. Although Abū Tāhir al-Debbās is the first name to be reached regarding this hier-archical distinction among the legal maxims, ‘Alāī is known as the first author who made this classification clearly. ‘Alāī, in his work called al-Macmū‘ al-muẕehheb fī ḳavā‘id al-Madhab, considers these five legal maxims separately from other legal maxims and adopts a hierarchical classification among the legal max-ims. Another point that makes ‘Alāī important in the systematization of "al-qawāid al-khamsa/al-qawāid al-kulliyya al-kubrā" among the legal maxims is his meticulous effort to determine the basis of the legal maxims from the nass (verses and had-iths). This emphasis is also important in terms of discussions about the position of the legal maxims between fiqh and usūl. Associating the legal maxims directly with the nass increases the impact power of the legal maxims. When we look at the works on the qawāid literature, we can say that ‘Alāī focuses on the connec-tion between nass and the legal maxims more intensely than other authors, and while determining the basis of the legal maxims from the verses and hadiths, he gives more place to the verses besides the hadiths comparing the later authors. It is seen that ‘Alāī pioneered the hierarchical prioritization of the five grand legal maxims in the qawāid literature and the examination of them as a kind of basis of other legal maxims under separate headings. This hierarchical distinction be-tween the legal maxims that ‘Alāī brought to the agenda was also significantly followed by the authors after him who wrote works in the field of qawāid. For example, authors who have works in the field of qawāid such as Ibnu's-Subkī, Ibn Nujaym, and Suyūtī have also compiled their works by taking this approach of ‘Alāī into account. Although this situation is understandable when the works are examined systematically, the authors also make many references to ‘Alāī and show that they are inspired by ‘Alāī in this system. This approach finds its equiv-alent even in Majalla and in its commentaries. It is stated that the legal maxims in Majalla are derived from the basic legal maxims and these five grand legal max-ims are frequently referred to in the solution of problems. Our study focuses on how the five grand legal maxims which are corresponded to “al-qawāid al-khamsa/al-qawāid al-kulliyya al-kubrā” in the classification of the uni-versal rules in Islamic law is handled and which role is given to the legal maxims in al-Mecmū' al-muẕehheb fī ḳavā'id al-Madhab by ‘Alāī known as the first to make this classification. In our study, firstly, we focused on the ‘Alāī, who is the first name who classifies legal maxims on the hierarchical classification and exemplified his effect on the authors in the next process. We gave brief information about ‘Alāī and his work before examining the legal maxims. Later, we discussed “al-qawāid al-khamsa” in the order of the author's work and by giving place to his patterns (sīga) in the work. While examining the legal maxims; we have chosen an order in the form of the basis of the legal maxims, their explanations, and the sample fiqh issues asso-ciated with them, the exceptions of the legal maxims. We have included the verses and hadiths pointed out by ‘Alāī of the basis of the legal maxims, with brief ex-planations, and we have referred to relevant sources for details. Regarding the explanation of the legal maxims and exemplary fiqh issues, we primarily took the work of ‘Alāī as a basis, but we have also benefited from the works that had been written before his. In order to see the traces of ‘Alāī in the works written after him, we benefited from the works of later qawāid authors. However, since our work focused on the works of qawāid, we did not particularly dwell on the investiga-tion of the fiqh issues associated with the legal maxims from the works of the madhhabs. Regarding the exceptions of the legal maxims, we did not deal with the issues one by one but included some sample issues that ‘Alāī dealt with by trying to explain the reason for being exempted from the legal maxims.
The Role Assigned to al-Qawāid al-Khamsa in ‘Alāī 's al-Macmū‘ al-Muẕehheb
2023
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