In court proceedings, there are often questions of fact that do not have a rich collection of evidence on the basis of which the judge can draw factual conclusions. In such cases, the judge will rely on prima facie evidence (ẓāhir) to create at least one factual basis. Habit will often play a decisive role in such cases. For example, a father can take legal action against his daughter, claiming that the jewelry and clothes he gave his daughter on her wedding day were more of a loan than a gift and that he is now looking to return them. The girl, of course, will claim that it was a gift that gave her the property. The judge establishes a factual starting point based on the custom in force. If the dominant custom is for a father to give her the jewelry and clothes that the girl wears on her wedding day, then this will be the factual basis. That is, it is prima facie assumed that this property was a gift – until the father is able to prove otherwise (this is known in common law as a presumption of progress). However, if it is customary for such property to be lent only to the girl and it is unusual for it to be given to her, the judge will assume that the girl`s property has been lent – unless the girl proves otherwise.87 Qāʿida is commonly used to refer to a legal principle and a maxim, which covers this principle. A ḍābiṭ (pl. ḍawābiṭ) is similar in that it is a general legal principle. However, they are often distinguished by the fact that the former permeates different areas of substantive law, while the latter deals with a particular legal entity.12 For example, a principle dealing with the specific subject matter of property law or contract law would be considered ḍābiṭ.
However, it should be noted that this differentiation is not always followed consistently. Sometimes a principle related to a particular area of law is incorporated into a work purportedly dedicated to the collection of qawāʿid. This inconsistency in use may be due to the fact that such formal definitions often appear in later work aimed at achieving some degree of systematization in the use of terms and phrases. The temporal separation between the initial use of terms and the appearance of formal definitions often contributes to inconsistencies in use. Nevertheless, and although this formal differentiation is not entirely consistent, it is worth remembering that some principles permeate many areas of law and are very broad in their application, while others are specific to an area of law or even a subfield of law. Custom may also serve as a basis for dismissing an appeal on unfounded grounds. Ibn al-Qayyim, in his work on judicial proceedings, states that any legal claim based on a factual allegation that violates customs must be rejected and not heard by the judge – unless the plaintiff has at least some evidence to support the factual claim.90 Ibn al-Qayyim illustrates the example of someone who owns a house and is seen, for a greater number of years who use and appreciate the house as an owner. If another person has observed this for an extended period of time and after years they decide to take legal action claiming that the apartment belongs to them, the judge may dismiss the lawsuit as unfounded.91 This is because it is not common for a person who is entitled to property to observe this condition and remain silent for such a long number of years, before taking legal action. After the period of formation of Islamic law, when identifiable law schools began to form, lawyers began to recognize legal models in the substantive decisions of the courts of their respective schools. The importance of these legal models lay in the fact that they allowed lawyers, through a procedure known as Takhrīj, to extend their school`s legal position on an issue to an unprecedented case, provided that it corresponded to a case that had already been decided by this faculty of law.10 These new analogous cases, which were similar to the cases previously decided, were called naẓāʾir. It is therefore not surprising that the latest works devoted to the compilation of legal maxims have often included the word naẓāʾir in their titles.
In this commentary, I have selected a set of maxims codified in the Ottoman Majallat al-aḥkām al-ʿadliyya. Although the Majalla is a codification of the Ḥanafī law, its maxims are generally accepted by all law schools (with differences in application). In my comment, I have generally relied on examples that are widely accepted in most or all law schools. If the court decision cited is specific to a particular school, I have noted it either in the body of the text or in the footnotes. 95 That is, of course, the legal decision based on what is obvious. If, in his opinion, the person intended to include seafood in his testimony, he would be violating his oath. Without explicit explanation, however, no one but himself will be aware of this, and so God will be the only one holding him accountable. 13 The maxims “The word is not attributable to a silent person” (lā yunsabu li sākitin qawl) and “An event is attributed to the most recent of the proposed epoch” (al-ḥadīth yuḍāf ilā aqrab awqātih) are, in my view respectful, subject to exceptions, so that they can hardly be considered principles.