Appraisal Of The Maxim Of Al-ibaḥah Al-aṣliyyah (original Lawfulness) And The Scope Of Its Applications
ABSTRACT
This paper appraised the maxim of original lawfulness which is
often cited as a basis for legislating on matters upon which the
Sharī’ah is silent. It demonstrates the easiness and simplicity of
Sharī’ah as living law that benefits mankind. Using doctrinal
methodology through hermeneutical and inductive approaches,
the author analysed the maxim of original lawfulness, its legal
basis and jurists’ positions. The paper finds that the maxim is
applicable to mundane or worldly matters only. The maxim is a
source based that originates from the Qur’an and Sunnah.
Majority of jurists have accepted it as the principle that governs
matters upon which the law is silent. However, the maxim does
not apply to spiritual acts (worship) or where the matter is
harmful to human being. The paper recommends amongst other
things that scholars must observe certain conditions in exploiting
this maxim; the matter must be mundane. Silence of the law as
well as its relative benefit must be considered.
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