Relevance Of The Maxim Certainty Philosophy Essay

Published Date: 23 Mar 2015

The maxim: Certainty is not overruled by doubt is one of the universal maxims in Islamic law. It applies to three-quarter of fiqh. Some positions maintain that the maxim does not have significant effect on commercial transactions. The work started by discussing the legal basis of the maxim. It also discussed the detailed meaning of certainty and doubt in Islamic law and jurisprudence and the principles with which they are applied to the particulars of law. Relevant particulars of commercial matters related to it were cited as examples after analysis of the general meaning of each maxim. These examples reveal the significance of the maxim in providing basic principles for dispute resolution as well as the responsibility of proving allegations between parties to commercial transactions. It also laid out in detail the party upon whom the onus of proof lies in litigations to counter what is presumed by law.

Keywords: Certainty (yaqĩn), Conjecture (Zann), Doubt (shakk), Illusion (Waham), Commercial Transactions, Dispute resolutions, presumption of law, onus of proof.

* Higher Sharia Court Judge, Kala Balge Sharia Court and overseeing Rann Sharia Court, Borno State Judicial Service Commission, Borno State, Nigeria. E-mail: [email protected]

* Senior Lecturer, Faculty of Law, Department of Sharia, University of Maiduguri, Nigeria. E.-mail: [email protected]

** Lecturer, Faculty of Law, Department of Sharia, University of Maiduguri, Nigeria. E.-mail: ………

1. INTRODUCTION:

Legal maxims (Al-Qawã'id Al-Fiqhiyyah) are imperative in Islamic jurisprudence as they encapsulate perceptions and precepts that can abet to figure out the factual essence of the Islamic Law in details. Reflective of a consolidated reading of fiqh by great jurists, it is a handy tool for researchers who need to expand their grasp and understanding of content and objective of the law. More importantly, they ease to arrive at the appropriate ruling where is no direct text is available a particular matter.

The word al-Qawa'id is a plural qã'idah, a derivative of qa'ada and literally has the meanings of fixation, consistency, and being well established. Qa'ida on the other hand means base, and Qawa'id means a foundation of a building, as Allah, the Most High says:

"And remember Ibrahim and Isma'il raised the foundations (Qawã'id) of the House" [1] 

Technically, it is a general rule applicable to all its related particulars. Sadrush SharÄ©'ah (d. 747) defined Qawã'id as general propositions [2] . Examples are Qa'ida Nahwiyyah (Rule of Grammar), Qã'idah Mantiqiyya (Rule of Logic), Qa'ida UsÅ©liyya (Rule of Jurisprudence), etc.

Fiqhiyya (lit. of law) is the adjective of Qãida (maxim); a derivative of fiqh (law) which literally means understanding. Fiqh is a term that came to denote Muslim jurists' detailed study of practical aspect of the Devine ordainments. Imam Shafi'i (d. …) defined it as the knowledge of the practical injunctions of Shari'a acquired from its detailed evidences [3] .

The two words, i.e. Al-Qawã'id al-Fiqhiyya, referred herein as Legal Maxims has several definitions which basically revolves around two positions. The often quoted definition of legal maxims is that "it is a general rule which applies to all of its related particulars [4] . As this is an extension of the technical meaning of term Qã'ida in other discipline to the Qã'ida in law (fiqh), this definition has failed to encapsulate the concept of legal maxims and thus not reflective of its essence. Al-Hamawi (d. 1098H=1687AD) has stated that Qã'ida of legists (fuqahã) is different from Qã'ida in other disciplines such as Grammar (Nahwu), Logic (Mantiq) and even Jurisprudence (UsÅ©lul Fiqh). In these disciplines, it is a rule applicable to all its related particulars. [5] 

From the foregoing we can say that a "legal maxim is a general proposition of law that applies to most of its related particulars" [6] .

The reason for opting to this definition is that maxims do not apply to all particulars that seem related to it. The particulars that do not apply to a general principle are known as exceptions (mustathnayãt). These exceptions often represent independent or auxiliary maxims in themselves. The exceptions do not however negate the general application of maxims, as the principles of the maxim still represent application to majority; and exceptions are but of minority in all maxims [7] .

Another characteristic of a legal maxim worth noting is that a maxim applies to most of its related particulars, which are scattered in various themes or chapters of fiqh. But a principle that only applies on one particular theme or chapter of fiqh is referred to as a Regulator (Dãbit). In other words, a Regulator (Dãbit) is limited to one chapter and provides a legal principle on injunctions of a particular chapter of Fiqh. According to Al-SuyÅ©ti (d. 911H) says a maxim collects branches from different chapters while Dãbit collects branches of the same chapter [8] . An example of Dãbit is: injunction of sale of a nonexistent is same as that of risky-taking (gharar) sales (hukmu bai'il ma'dÅ©mi yatba'ul gharar) [9] . This Dãbit is applicable to the chapter of buying and selling.

Importance of Legal Maxims (Al-Qawã'id Al-Fiqhiyyah):

The great Maliki Jurist of Egypt, Imam ShihãbuddÄ©n Al-Qarãfi (d. 676H) described it as "embodying secrets and wisdoms of Sharia" [10] . Legal maxim brings together widely scattered branches of fiqh into a single abstract rule making it easy for jurists, researchers and students of the Islamic law. It also saves time in researching injunctions for several matters that are otherwise scattered in different chapters of books of fiqh. That is why, according Al-SuyÅ©ti, some jurists refer to fiqh as knowledge of similitudes. Legal maxims therefore make it easy to diagnose juristic injunctions, comprehend and memorise auxiliaries and particulars of the law" [11] .

The four schools of Islamic Jurisprudence are in agreement over the five of the Universal Maxims that they clasp within themselves the entire quintessence of the Islamic Shari'ah. They are depicted to be universal maxims for being all-inclusive and applicable to the entire range of fiqh without any specification [12] ; whereas the rest of the maxims are just elucidations of these five:

"Matters are (judged) by their intents" (Al-UmÅ©ru bi-maqãsidihã) [13] ;

"Hardship begets facility" (Al-Mashaqqatu tajlibu Al-TaisÄ©r) [14] ;

"No harming and no counter-harming" (Lã darara wa lã dirara) [15] ;

"Custom is Authoritative" (Al-'Ãdatu Muhakkamah) [16] .

"Certainty is not be overruled by doubt" (Al-Yaqĩnu la yazũlu bish-shakki).

Beside its general application to three-quarter of Fiqh chapters, Certainty is not overruled by Doubt provides basic guidelines for disputes resolution in contracts including commercial and financial transactions. The paper will discuss in detail the general meaning of the universal maxim "Certainty is not overruled by Doubts", its importance and relevance to commercial transactions.

This universal maxim is one of the earliest maxims to appear in the discipline of maxims derivation (Al-Taq'Ä©d Al-Fiqhi) [17] . The earliest reference to it was made by Imam Shafi'Ä© (d. 204Hº819C.E.) while discussing admission/ confession. He said: "the basis of what I say is that I will always hold people by what is certain, drop the doubtful and use that which is most probable" [18] . Al-Karkhi (d. 340H) too in his UsÅ©l has stated that the basis (in law) is that what was confirmed with certainty cannot be overruled by doubt" and say it is one of the principles the Hanafi School was based on [19] . Over time, it was abridged into its current form: Certainty is not overruled by doubt (Al-YaqÄ©nu lã yazÅ©lu bish-Shakk) [20] .

2. CERTAINTY IS NOT OVERRULED BY DOUBT [21] 

(Al-YaqÄ©nu lã yazÅ©lu bish-Shakk)

Generally, any matter confirmed to have existed with certainty remains certain until proven with evidence to be otherwise. It is not invalidated by mere doubt or supposition. The same is also said regarding a matter whose non-existence is confirmed continues in that state until also proven otherwise. This is because doubt is weaker than certainty. It will not, therefore, nullify certainty whether or not the later is positive or negative [22] . In other words, whenever the existence or non-existence of a matter is established through legally accepted means, a subsequent doubt over the continuance of this state will not affect the legal regard given to the confirmed certainty.

Legally, certainty (yaqÄ©n) is defined as the knowledge that a fact has either definitely occurred or not. Doubt (shakk), which is the opposite of certainty (yaqÄ©n) [23] , is a vacillation over the occurrence and non-occurrence of a fact. Meaning none between the two possibilities is of higher probability. But if either has greater probability, the doubt seizes and it is thus certain (yaqÄ©n) in the usage of legists (fuqahã). This form of yaqÄ©n is often interchangeably used with the term ẓann. The term Ẓann which literally means conjecture is less than certainty in the language of Jurists and Logicians. To them, Certainty (YaqÄ©n) is belief that a particular matter is so-and-so and cannot be but so-and-so in manner consistent with its reality and essence. In other words, it is the perfect knowledge free from error. Because injunctions of Sharia are applied on what evident or conspicuous (zãhir) and not absolute certainty, the jurists' definition is not as encompassing as that of legists (Fuqahã) which includes the most probable event [24] . This is because there are issues which the Sharia may have considered them as certain though they can logically be incorrect. Example is an accepted testimony by witnesses before a Court is a legal certainty for its truthfulness, but is possible that they are telling lies. Al-Qarãfi says that necessity is the reason why conjecture (ẓann) is regarded as certain in Sharia for absolute certainty may not be achieved. Possibility of erring in such ẓann is however lesser. But the doubtful cannot be a basis for a judgement [25] . This is the reason why scholars of Malikiyya school of thought did not refer to this maxim in the above phrase, that is Certainty is not overruled by doubt, rather their preferred phrase is: The Norm of Sharia is that Injunctions are but based on knowledge and that which is in doubt is not considered [26] .

2.1 BASIS OF THE MAXIM:

In the Qur'an, the saying of Allah, the Most High:

"But most of them follow nothing but Conjecture (Zann): truly Conjecture can be of no avail against truth. Verily Allah is well aware of all that they do" [27] .

One of the meanings of Zann (lit. conjecture) is illusion, i.e. where the fact thought to apply to a particular matter does not in reality apply to it. In such a situation, such conjecture will not overrule what was known for certain [28] .

Also from Sunnah, the Hadith narrated by Abbãd bin TamÄ©m from his uncle from the Messenger of Allah, peace be upon him, in which a man complained to the Prophet, peace be upon him of feeling something (departing) his body. The Prophet, peace be upon him, told him not leave (his prayers) until he hears a sound or smells (the gas) [29] ". The hadith means that one should not ignore the certain, which is the state purity before prayer, in favour of that which is uncertain, i.e. the feeling that something has departed his body. Therefore, such doubt will not overrule the original certainty.

In another version of the Hadith related by Abu Huraira, the Prophet, peace be upon him, said: "… and if one of you feels something in his belly, and doubts whether something has left his body or not, he should not leave the mosque until he hears a sound or feels a gas" [30] .

2.2 SIGNIFICANCE OF THE MAXIM:

On the significance of the above Hadith, Al-Nawawi (d. 676H) asserts that: this Hadith is a basic source and a great principle [31] among the principles of fiqh. The principle is that things are judged to remain on their original forms until the certainty of the contrary is established, a subsequent doubt will thus not harm it [32] .

Jurists have unanimously agreed on the usage of this maxim. Imam Al-Qarafi states that: this is an agreed upon maxim, the only disagreement among scholars is in some of its applications [33] . Ibn DaqÄ©q al-'Eid (d. 702H) also said: The Hadith is a basic principle in the usage and/or tossing of doubts; and scholars appear to be in agreement on this maxim, even though they differ in some of its applications [34] .

2.3 RELEVANCE TO COMMERCIAL TRANSACTION:

By 'Commercial Transactions' we are referring all Contracts in Shari'a relating to the exchange of goods and services. Examples include: transactions like bay' (sales contract), ijãrah (lease), muzãra'ah (farm leasing) partnership (muqãradah), wakãlah (agency) ju'ala (promise of reward for a particular action), kafãlah (surety), hawãla (transfer of debt), rahn (mortgaging), etc. In fact, all contracts with the exception of marriage contract which is not under the scope of this paper.

As we have indicated above, certainty in law refers to the most probable assumption. Example of such probable assumption is seeing a man with reasonable wealth possessing a reasonably priced car for several years; one can confidently testify that it belongs to him [35] . It is upon this kind of certainty that many legal injunctions apply [36] .

Other examples of its relevance to commercial transactions include:

Where there is a contract between two parties and a doubt is raised on whether or not there was dissolution of the contract. The contract is presumed to be subsisting as this is the certainty [37] .

Also where it is confirmed that A owes B certain amount of money. But after A's death, a doubt is raised on whether or not he has paid, lack of payment will be presumed as it is the certainty [38] which cannot be overruled by doubt.

"Certainty is not overruled by Doubt" is supplemented with many Auxiliary Maxims (qawã'id far'iyyah) and Regulators (Dawãbit) which together elaborate its legal implication and significance. These will be classified under three categories, namely: Auxiliary Maxims giving weight to certainty, Auxiliary Maxims emphasising on overlooking of doubt and Maxims indirectly related to the "Certainty is not overruled by Doubt". Related maxims to each category will be discussed in the following order:

Auxiliary Maxims giving weight to certainty:

The norm is that the status quo remains as it was before (Al-Aá¹£lu Baqã'u mã kãna 'ala mã kãna);

Let the Ancient rest on its age (Al-QadÄ©mu yutraku 'alã qidamih)

The norm (in Sharia) is freedom from liability (Al-Aá¹£lu barã'at Al-Dhimmah);

The norm (of Shariah) is that acquired attributes do not exist (Al-Aá¹£lu fis-Sifãtil Aridah Al-Adam)

The norm in Law is that things are faultless or fit (Al-Aá¹£lu As-Salama)

The Norm (of Sharia) regarding things is permissibility (Al-Aá¹£lu fil Ashyã'i al-Ibãhah)

The Basis in Law Regarding Contracts is that they permissible and binding (on its parties) (Al-Aṣlu fil 'Uqũdi As-Sihhah wal-Luzũm)

The Norm of law regarding terms and conditions is validity (Al-Aṣlu fish-Shurũti as-Sihhah)

The basic principle is to ascribe the event to the nearest time of occurrence (Al-Aá¹£lu Idãfatul Hadithi ilã aqrabi auqãtih)

Auxiliary Maxims emphasising on overlooking of doubt:

No attention shall be paid to inferences (implication) in the face of an explicit statement (Lã 'ibrata lid-Dalãlati fÄ© Muqãbalatit TasrÄ©h)

No weight is attached to Illusion (Lã 'ibrata littawahhumi)

No argument is admitted against supposition based upon evidence (laa hujata ma'al ihtimaalin naashi'i 'an daleel)

The apparently erroneous supposition is not to be taken into consideration (laa 'Ibrata biz Zannil bayyni khata'uhu)

Maxims indirectly related to the "Certainty is not overruled by Doubt:

No statement is imputed by to a person who keeps silence, but silence is tantamount to a statement where there is a necessity for speech (Lã yunsabu ilã sãkitin qaulun, wa lãkinnas sukÅ©tu fÄ© ma'radil hãjati ilãl bayãni bayãnu)

The original state of words is the literal sense (Al-Aá¹£lu fil Kalãmi Al-HaqÄ©qah)

No room for ijtihãd where there is a decisive text (Lã masãgha lilijitihãdi fÄ© mauridin nass)

3. AUXILIARY MAXIMS GIVING WEIGHT TO CERTAINTY

3.1 The norm is that the status quo remains as it was before [39] :

(Al-Aá¹£lu Baqã'u mã kãna 'ala mã kãna)

It is a basic provision in Sharia is that the status quo remains as it was before unless it is proven to have changed. To explain further, we can say that a fact whose existence or non-existence is said to be certain in the past is regarded to be as it was and does not change, until evidence is available to change such status. Such proof is mostly based on evidence, confession, admission, and refusal to take oath [40] .

This principle of law is referred to as Istis'hãb in Islamic jurisprudence [41] . Considered to be one of the secondary sources of law, Istishãb has been defined as the presumption of continuity of a matter base on its previously established state. The previously confirmed state may either be legal or rational. This maxim represents a form of Istishãb which is: accompanying what the law has confirmed to have existed in the past into the present; such as a person who bought a piece of land will be presumed to still owe it until anything that may change that presumption is proved [42] . This type of Istishãb applies in cases such as presumption of continuation ownership after execution of a contract; the liability of a person who damage's anothers property remains until repayment and the existence of a liability on an indebted person where the taking up of the loan is attested to [43] .

An example of the application of the maxim in commercial transaction is where a lender claims paying his debtor; or a buyer claims paying the price to the seller; or a lessee claims paying the lessor; but the debtor, the seller and the lessor denied any payment. The statements of the party denying will be accepted. As the norm is the continuance of what has existed, these claims will not be accepted until legally proved [44] .

Another application is when a buyer claims that the condition of a commodity he previously saw has diminished during delivery; according to Ibn Qãsim (d. 918H), the statement of the seller will command credibility base on this maxim. Ash-hab (d. 204H) on the other hand also states that the claim of the buyer will have legal backing because the legal norm is that the buyer is free from liability (Al-Aá¹£lu barã'at al-Dhimmah) [45] . Hanafis have distinguished between the two by asserting that if much time has lapsed from the time of inspection of the commodity and the time of delivery, the statement of the buyer will be backed by the law [46] until the contrary is proved by the seller.

3.2 Let the Ancient rest on its age [47] 

(Al-QadÄ©mu yutraku 'alã qidamih)

Provided it does not violate the right of another, a thing that has existed since time immemorial will enjoy legal protection. The law presumes that something that has remained for a very long time has a legal precedence [48] . This is also regarded as Istishab as it is an accompanying of the past condition, whether it is a proof of ownership through evidence or the admission of a respondent. Such istishab can be relied upon provided it has not been lawfully changed which should be through evidence, admission or refusal to take oath [49] . This maxim is also closely related the norm is that the status quo remains as it was before [50] .

Example of its application is that whenever ownership of a property is confirmed by either admission of respondent or conclusive evidence, it shall be presumed to continue in Sharia law [51] . Also where two persons claim the ownership of a property, and both provided evidence of their ownership with date. The presumption of the ownership will be in favour of the person who provides earliest date, because he claims to own the property during a time when the plaintiff does not challenge his ownership. This will remain until the plaintiff can prove the contrary [52] .

3.3 The norm (in Sharia) is freedom from liability:

(Al-Aá¹£lu barã'at Al-Dhimmah)

A person is born free from anything; and being liable of anything is contrary to the original norm (asl) of law [53] . Literally, the word asl means root or source, and in the context of this maxim it means the most probable (al-rãjih [54] ) evidence upon which the law relies and bases its rulings. This maxim applies to both fact and law.

Regarding its application to fact, the general rule is that a person is certainly free from any obligation or liability and making him liable for something is both doubtful and a contradiction of the original state of man; being born free from any liability. Claims of liabilities such as debt, obligation that was the result of later cause will only be accepted if proved through means provided by the law. In the absence of any such proof, the Sharia regards a person to have no liability, thus making onus of proof upon the person who alleges a fact or claims it.

The maxim is inspired by the Prophet's Hadith, peace be upon him, in which he said: "the onus of proof is on the claimant, and taking of an oath is incumbent upon him who denies." [55] The hadith provides that the party insisting to disprove the status quo and wants to establish a recently acquired attribute is the claimant and the onus of proof is upon him; while the party that clings on the original (asl) attribute is the defendant/respondent and upon him is the oath because he is denying the allegation. [56] 

This maxim is an equivalent to what is generally known as the presumption of innocence, though this principle is more general. The expression presumption of innocence implies that it relates principally to criminal procedure, whereas the non-liability maxim extends to civil litigation and to religious matters generally. The normative state, or the state of certainty for that matter, is that people are not liable, unless it is proven that they are, and until this proof is forthcoming, to attribute guilt to anyone is treated as doubtful. Certainty can, in other words, only be overruled by certainty, not by doubt [57] .

The maxim provides practical solutions in cases of disputes or disagreements between parties to commercial transactions. Where, or instance, there is a disagreement between the owner and a borrower, a victim and an assailant, the statement of the accused will be accepted because the legal norm is that he is free from an excess liability [58] .

Another example is where there is disagreement on the amount of loan between the lender and the indebted; the statement of the indebted will be presumed [59] . Also, the statement of an agent regarding damage to a property will be accepted, likewise regarding denial of infringement and negligence, with oath [60] .

In law however, this maxim is often referred to as: The norm (of law) is non-existent (Al-Aá¹£lu Al-'Adamu). To majority of jurists, both these principles refer to the same thing, as lack of an injunction means one is not obliged to carry it out. In other words is not liable for not doing it. A second aspect of this principle also closely related to the notion of original non-existent, is original permissibility (al-ibãha al-asliyyah). In this concept, everything is legal ab initio, and one will not be sanctioned for either doing or omission. Jurists refer to it as permission of the reason (Al-Ibãh al-'Aqliyyah).

This implies that it is a presumption of continuation of the original non-existent of injunction base on reason (aql) rather than the words of the Law-giver. This position can as well be deduced from many verses of holy Qur'an according to many scholars [61] . An example of such verses is the saying of Allah, the Most High:

"Those who devour usury will not stand except as stand one whom the Evil one by his touch Hath driven to madness. That is because they say: "Trade is like usury," but Allah hath permitted trade and forbidden usury. Those who after receiving direction from their Lord, desist, shall be pardoned for the past" [62] .

When taking usury was prohibited, the companions of the Prophet feared the consequence of the wealth they accumulated through usury before the prohibition. Then this verse reveals that what they have earned before the prohibition remains on the original non-liability, thus legal wealth [63] . But anything collected through usury henceforth is prohibited.

3.4 The norm (of Shariah) is that acquired attributes (of things) do not exist [64] 

(Al-Aá¹£lu fis-Sifãtil Aridah Al-Adam)

In Sharia, matters have two forms of attributes: the original and acquired attributes. The original attribute accompanies the existence of matters from their beginning. Such as the absence of any profit or lost in muḍãraba capital [65] . An example of this is where a Muḍãrib (the Entrepreneur in a contract of Muḍãraba) claimed not making any profit. As profits are essentially acquired attribute of the capital that does not originally exist, the onus of proving otherwise is on the financier (rabb al-mãl). Likewise, where a Muḍãrib's claim of a profit is rebuffed by the financier to be higher; the onus is still on the financier to prove the excess profit, because the norm is lack of any excess [66] .

Another example of the maxim's application is in case of a dispute over defective merchandise, the above sub-rule requires presumption of occurrence of defect after sale unless the buyer can prove prior presence thereof.

3.4.1 The norm in Law is that things are faultless or fit

(Al-Aá¹£lu As-Salama)

Fitness or faultlessness is essential in commercial transaction both for the merchandise and the party to a contract. This regulator (ḍãbit) is related to the maxim as one of implications of the earlier maxim is that original attribute of things are presumed to continue. It implies that a party in a contract is presumed to be fit and free from any physical or mental ailment that may impede his capacity to contract [67] . In other words, a party to a contract is presumed to have full legal capacity [68] . The presumption also extends to merchandise or object of a contract (Mahal Al-'Aqd), that it is free from any defect [69] .

3.5 The Norm (of Sharia) regarding things is permissibility [70] :

(Al-Aá¹£lu fil Ashyã'i al-Ibãhah):

The default rule in Islamic law is that all conducts and contracts are permissible but that which the law has prohibited.

Allah, the Most High, has permitted the halal, prohibited the haram, established the hudÅ©d (boundaries), obliged the farḍ and prescribed the Sunnah in Qur'an and on the tongue of His Messenger, peace be upon him; and kept silence on some other things, out of compassion for us and not due to forgetfulness. Ibn al-Qayyim (d. 701AHº1302C.E.) says: "Allah's silence regarding a thing's permissibility or prohibition is a pardon from Him. It will therefore be unwarranted for anyone to prohibit it as halãl is what Allah has declared as permissible and harãm is what He declared as prohibited, and what he is silent upon is a pardon (from him)" [71] . This is declared from the Qur'an as follows:

"O ye who believe! Ask not questions about things which, if made plain to you, may cause you trouble. But if ye ask about things when the Qur'an is being revealed, they will be made plain to you, Allah will forgive those: for Allah is Oft- forgiving, Most Forbearing" [72] .

Also:

"It is He Who hath created for you all things that are on earth" [73] .

The Prophet, peace be upon him, is also reported to have said in a Hadith narrated by Abu Tha'labata al-Khushani: "Allah the Almighty has laid down religious duties, so do not neglect them. He has set boundaries, so do not cross them. He has prohibited some things, do not violate them. About some things He was silent-out of compassion for you, not forgetfulness, so seek not after them" [74] . This is the position of majority of scholars [75] . Even though some scholars such as Ibn Hãmid (d. 403H), Qãdi Abu Ya'lã (d. 458H) and some Mu'tazilites; and some scholars of Hadith according to Ibn Nujaim have differed on this [76] , it is clear that majority scholars have taken this view.

Examples of the maxim's applications is that Sharia considers matters that people are accustomed to in order to secure their interests, needs and social relationship and are not in contravention with the principles of Sharia as permissible. Examples are food, ceremonies, gatherings, visitations, etc such can be a special or general custom in a locality or among certain people [77] . Therefore, unless it has broken principle of Sharia such as incorporation of usury, all modern commercial transactions are permissible, etc.

3.5.1 The Norm of Law Regarding Contracts is that they are permissible and binding (on its parties) [78] :

(Al-Aṣlu fil 'Uqũdi As-Sihhah wal-Luzũm)

An auxiliary regulator of this maxim is Al-Aá¹£lu fÄ© al-Mu'ãmalãt al-Ibãhah (The legal norm regarding transactions is they are lawful) which applies exclusively in commercial transactions. This includes all sorts of non-nominal contracts that do not contravene the explicit provision and the philosophy of Sharia. In Islamic law, all contract transactions entered by person at their volition are permissible with the exception of those that have been forbidden. The party alleging invalidity of contract due to some impediments such as absence of free will or legal capacity to contract will have to prove his allegation [79] . Therefore, whenever there is dispute on the validity of a contract or argument over elements that impede its validity such as coercion or insanity, the presumption is that it is conclusive and binding. The party claiming it not to be binding on him or that it is invalid needs to provide evidence thereof. This is the position of most schools of thought [80] .

3.5.2 The Norm of law regarding terms and conditions is validity

(Al-Aṣlu fish-Shurũti as-Sihhah)

In Islamic law of contracts, every term or condition agreed upon by contracting parties is binding upon them unless such term and condition has either contradicted the provision of the law or the objective of the contract itself. This maxim is backed by the Prophetic tradition in which the Prophet, peace be upon him, said: "Muslims are bound by their stipulations" [81] . The Hadith means that all terms and conditions agreed upon by contracting parties must be obliged to. A condition would be said to have contradicted the provision of law if it permits what Allah has forbidden or forbids what Allah permitted as another version of the Hadith has indicated [82] . Also where a condition sets aside the objective of a contract of transaction, which in sales contract is transfer of ownership, and bars such transfer, such a condition will be considered invalid. But where the condition does not consist of either of the above two elements, and the parties are clearly in agreement to the stipulation; it will be considered valid condition. [83] 

3.6 The basic principle is to ascribe an event to the nearest time of occurrence [84] :

(Al-Aá¹£lu Idãfat al-Hãdithi ilã aqrabi auqãtih)

Where the time of occurrence of an incident is the fact in issue with parties disagreeing on whether or not it occurred recently, Sharia will presume the recent as both are in agreement that it was present during this time [85] . In other words when there is a dispute regarding the period of occurrence of a particular incident, the law determines nearest period and ascribe it to that time, unless there is a proof connecting it to a furthest time [86] . The reason for this is that in cases where the legal implication is dependent on the period of occurrence, the law will ascribe to the time in which all the parties agreed upon while the farthest time is doubtful as it is a claim of one party only. [87] 

Example of the maxim's application is where there is a dispute regarding a defect in merchandise, whether it occurs before or after delivery; unless the defect is original, Sharia presumes that it occurs after delivery for it is the moment both sides concur on the presence of the defect. [88] In other words, where an item sold and delivered to the buyer, the buyer subsequently claims it to be defective and the seller says the defect occurred while the item is in the possession of the buyer and none of them having decisive evidence, the statement of the party claiming the defect's occurrence in the nearest time with his oath will be presumed right, who is the seller in this case [89] . The defect will be regarded to have occurred at the hand of the buyer unless it is an original defect as indicated above [90] .

4. AUXILIARY MAXIMS EMPHASISING ON

OVERLOOKING OF DOUBT

As we have stated earlier, doubt is the possibility of either existence or non-existence of a thing, with none of the two possibilities having preference over the other [91] . Another definition states that its a person's vacillation between two contradicting facts with none having preference over the other [92] . We can also say that among jurists, doubt is a form of ignorance; though the earlier is more specific than the later [93] .

According to Al-Nawawi: "whenever legists (fuqahã') mention doubt in their works, they mean indecisiveness (or confusion) between the existence and non-existence of a fact; whether these two probabilities weigh equally or one is weightier than the other. Among jurists (UsÅ©liyyÅ©n) however, if the two possibilities weigh equally then it is doubtful (shakk), if not, the weightier [94] is conjecture (zann) and the outweighed (marjÅ©h) is illusion (wahm). The statement of the jurists is in agreement with the linguistic definition. Ibn Faris (d. 395H) said doubt (shakk) is the opposite of certainty (yaqÄ©n). [95] 

The above definitions of doubt imply ambiguity of the subject matter. This makes it related to conjecture, illusion and ignorance. Doubt among legists is also a form of ignorance. Ignorance may be total unawareness of the contradictory; or the awareness of both without knowing which outweighs which. Thus, all doubt is ignorance and not all ignorance is doubt [96] .

From the discussion above, we can note that, injunctions or legal provisions in Sharia are always base on certainty and anything that is doubtful cannot a basis for applying legal provisions and for establishing rights and liabilities. An example is in the barter of usurious merchandise, equality in quantity is essential in legality of such exchange, whether measured or weighed [97] . This is embodied in the Maxim: "Ignorance of equality is essentially Certainty of differentiation or inequality" (Al-Jahlu bil mumãthalah kahaqÄ©qatit Tafãḍul) [98] . Also contracts to carry out uncertified actions or stipulations will have no legal validity for the possibility of gharar. It is on this basis that transactions like insurance have been declared invalid because there is no clear line drawn indicating the responsibility of each party as the insured factor is unknown [99] .

The following are some of the maxims embodying Sharia provisions that the doubtful are disregarded:

4.1 No attention shall be paid to inferences (implication) in the face of an explicit statement [100] 

(Lã 'ibrata lid-Dalãlati fÄ© Muqãbalatit TasrÄ©h)

The word al-Dalãla refers to any gesture that implies some meaning and al-TasrÄ©h is an explicit and clear declaration either verbal or written. The maxim means no reliance is given to mere inference from gesture over actual expression. In other words, no legal weight is given to implied signification or denotation when there is explicit statement contradicting it. [101] 

An example for this maxim is that where a person hires a truck customarily used to pick a particular commodity; the presumption is that there is an implied permission from the owner for him to use it for the accustomed purpose. If however, the owner has stated it to the hirer that he has not permitted him to use the vehicle for that accustomed purpose he will have no such right; as explicit statement has overridden the implied usage [102] .

There is presumption that a trustee is allowed to travel with what is entrusted to his hand. But where a depositor prevents his trustee from travelling with his deposit then he has no power to travel with it as an explicit statement has overruled the customary presumption [103] .

A seller has the right to withhold delivery of article until the consideration is paid. But where a buyer took possession of the article in the presence of seller who does not move to stop him, he has lost the right to withhold as his silence will be regarded as implied permission to take possession. However, if he has explicitly stated that he will not deliver it until the payment of consideration, the buyer's acquisition does not drop his right to withhold delivery as "No attention shall be paid to inferences (implication) in the face of an explicit statement" [104] .

Nevertheless, an exception to the application of this maxim can be noticed in the following example: Where a person purchases an article and subsequently discovers a defect, but went on to use it for his benefit despite stating that he does not accept the sale. His usage will take priority as an implied acceptance rather than his declared statement of non-acceptance. [105] 

4.2 No weight is attached to Illusion [106] 

(Lã 'ibrata littawahhumi)

Illusion (Al-wahm) has been described as perception of fact with remote possibility of occurrence. Such fact will not constitute a basis for judgement in Islamic law [107] .

Example of the maxim is that, if witnesses testify that a particular testator's heirs have been identified and they do not know any other heir. Assumption of the possibility of another heirs appearing will not attract any legal weight [108] to delay distribution of the estate.

Also: An unappointed agent (fuḍuliyy) cannot claim the silence of an owner to be approval. Such claim is illusion from his side as it cannot be backed by any evidence.

4.3 No argument is admitted against supposition based upon evidence.

(laa hujjata ma'al ihtimaal al-nãshi' 'an dalÄ©l)

Generally, any argument tainted by proved possibility of accusation or biasness will not be entertained. The maxim has been attributed to Al-Qãdi Al-DabbÅ©s Al-Hanafi (d. 430H) in his book Ta'sÄ©s Al-Naẓar where he opined that a conduct will be judged invalid whenever it is overshadowed by an accusation. [109] 

Example of the maxim is a testator's admission of being indebted to one of his heirs during death sickness will be ineffective unless confirmed by the other heirs. The Sharia presumes that the confessor (legator) intends to deprive the other hairs. This position is held by Hanafis and Hanbalis. But in Malikiyyah if there is no ground for accusing the testator or he is a credible and pious person, the will shall be executed; else it is invalid. Shafi'is on the other hand sees such Will as valid and must be executed without investigating his intention. [110] 

4.4 The apparently erroneous supposition is not to be taken into consideration.

laa 'Ibrata biz Zannil bayyni khata'uhu

Az-Zann has been defined as a fact whose existence is provable; as injunctions of Sharia are applicable to that which is conspicuous (ẓahir) [111] . This maxim provides that a fact proved to be erroneous shall not be relied on in judgement even though it is probable. In other words, Sharia will not rely on an apparently defective supposition or conjecture. In other words, the apparently erroneous suspicion must not be depended upon; rather it shall be overlooked and deemed non-existent. Any judgment based on such supposition is void.

Example of the maxim is where a person disposes in a property thinking that it is his own or has the right to dispose in, but later became clear that it does not belong to him, such disposition is invalid and his error will not have any legal backing. [112] 

5. MAXIMS INDIRECTLY RELATED TO THE UNIVERSAL MAXIM

5.1 No statement is imputed by to a person who keeps silence, but silence is tantamount to a statement where there is a necessity for speech [113] :

Lã yunsabu ilã sãkitin qaulun, wa lãkinnas sukÅ©tu fÄ© ma'radil hãjati ilãl bayãni bayãnu:

Silence is unreliable to have conclusive meaning; a statement cannot therefore be attributed to a silent or a conduct to an inert. In commercial transactions, statements and conducts are central for objectives to be attained and silence is unreliable to be conclusive indicator of intents.

Example is where an unappointed agent (fuḍũliyy) sells a property in the presence of its owner who does not prevent him. Such silence or lack of conduct cannot constitute a basis for approval of the selling [114] . But it will be an approval from the owner if, the buyer takes possession of the merchandise in his presence without preventing it. [115] 

The second part of the maxim constitutes an exception to the argument of the earlier proposition which is that silence itself can constitute a statement. The following are the circumstances in which a silence can be relied upon:

The state of the silent is indicative of approval such that if it was not a statement, he would not have been silent. An example is the silence of the Prophet, peace be upon him, in situation where if he sees a particular action but was silent upon, his silence is regarded a statement of permission. This is referred to as Sunnah TaqrÄ©riyya (Prophetic approval) and agreed upon by scholars. This is comparable to the taking of possession of merchandise after being sold in the presence of the owner without him preventing it as we have indicated earlier. Another example of the application of this part of the maxim is that if a judge asks a respondent or defendant regarding the claim against him, but he insists on keeping quiet, his silence will be regarded a denial of the claim and the plaintiff will be asked to prove thereof [116] .

Where the silence was statement due to a social status the person involved, such as the silence of a virgin and it is considered as approval of the proposed suitor [117] .

According to majority scholars, a party whose interest will be harmed by his silence such as the silence of preemptor after he became aware of selling will be considered as dropping of his right of preemption [118] .

5.2 The original state of words is the literal sense

(Al-Aá¹£lu fil Kalãmi Al-HaqÄ©qah)

It means the literal sense of a statement is presumed to be the intended meaning. In other words, unless proven otherwise, literal sense of statements should be presumed. An example is that the word "gift" which is transfer of property without consideration should not be interpreted to meaning selling, unless the context of the speech (i.e. offer and acceptance) suggests otherwise.

The subject of this maxim is concerned with interpretation and understanding of statements. Unless there is a contrary indication, a literal sense of statements will be considered in law.

A vivid example of this maxim is that if an individual of eighteenth century wrote "I endowed my house to the experts of Sharia in my country", this should not be interpreted to mean experts of Sharia who acquired legal qualification in the present time only, rather anyone who shall be considered an expert in Islamic law during his time as it is the literal meaning of his words [119] .

5.3 No room for ijtihãd where there is a decisive text [120] :

(Lã masãgha lilijitihãdi fÄ© maurid al-naṣṣ)

Because ijtihãd is a personal effort to arrive at an injunction, it cannot abrogate absolute nass of the law. This maxim forbids any ijtihad to make some laws in the availability of clear and explicit text from the Qur'an and Sunnah and such ijtihãd will be considered null and void.

Under financial transactions, we can refer attempts to legalise bank interests on loans an example of the application of this maxim. Usury is malum prohibitum as the texts invalidating usurious transactions are very clear. Claims such as riba or usury forbidden in the law is only where charges on loans are extravagant, but low interest rates do not come under provision that provides:

"And Allah hath permitted trade and forbidden usury" [121] 

… will not gain any legal weight. Such opinions will only be regarded as attempts to change the law of Allah, the Sharia base on inferences and inductions influenced by worldly desires away from any Devine guidance.

6. CONCLUSION

Conclusively, having relied on the provisions of the Qur'an and Sunnah and a jurisprudential evidence, istis'hãb, the maxim certainty is not overruled by doubt is one of the most important maxims in Islamic law. Therefore, rulings implied by them are conclusive rulings in the absence of texts contradicting them. Along with its auxiliary maxims, it provides principles and guidelines with which disputes are resolved.

Identifying the meaning of certainty in Islamic law will make it possible to avoid some critical comments about the application of the maxim on temporal matters. Some writers are of the view that certainty is nearly impossible to ascertain in commercial transactions. For example the capacity of contracting parties cannot be identified with certainty. But as we saw in this paper, the law has several branches applying the maxim to commercial matters. Also determination of the difference between the logical or absolute certainty with the legal certainty, which is probable assumption, makes it clear that the maxim does apply to many commercial transactions and basic provides rules of resolution in cases of conflicts. The principle contained in this maxim has also been used by jurists in their analysis of the certainty and immutable nature of the texts of Islamic law.