Introduction
There are five major legal maxims in Islam. One of them is matters are determined according intention. Under this kind of legal maxim, all the behaviors and attitudes of everyone are depends on their intentions. This is a comprehensive maxim that has implications that Islamic scholars have discussed in various areas, including devotional matters, commercial transactions and crimes. The element of intent often plays a crucial role in differentiating, for example, a murder from unintended killing in criminal. Every action of human beings must stem from their will, i.e. their choice for such action. The will geared in its turn towards an act for a specific purpose, which is the intent. (1)
Bases of the maxim
This legal maxim was based by Al Quran and As Sunnah. Allah the Almighty said;
“It is not for any soul to die, save by the leave of God, by His decree, a prescribed (kitāban, here a verbal noun, that is, God has prescribed this) term, that is to say, [a term fixed] in time, neither brought forward nor deferred, so why did you retreat [in defeat]? Defeat does not ward off death, nor does standing one’s ground sever life. And whoever desires, by his deeds, the reward of this world, that is, his requital in it, We will give him of it, what has been allotted to him, but he shall have no share in the Hereafter; and whoever desires the reward of the Hereafter, We will give him of it, that is, of its reward; and We will requite the thankful”. (2)
On the authority of Abu Hafs, Umar Ibn al-Khattab, who said: ‘I heard the Messenger of Allah:
“The actions are Innama (only, certainty) tied to the intentions and every person will earn that which he intended. Therefore, he whose migration was for Allah and His Messenger (s.a.w), then his migration will be for Allah and His Messenger; and he whose migration was to achieve some worldly gain or to take a woman in marriage, then his migration will be for that for which he migrated.” (3)
Meaning of the word An-Niyyah
Linguistically, An-Niyyah means ‘intention.’ Therefore one’s Niyyah is ‘to do something’. An-Niyyah is also used to describe the direction or the place that one intends to go to, or the meaning that one intends to deliver. It is also used to describe the heart’s intending an action or planning to do an action. In Islamic terminology, there is NO special meaning for the word “An-Niyyah”. Giving a special meaning to the word An-Niyyah in the Islamic Terminology has no proof. An-Niyyah is one’s intention of the heart to perform an action. In other word, the meaning of intention, therefore, is the will directed towards the action. (4)
According to some jurists, intention is divided into five phases. Firstly, Al-hajis or the first impact of the intention upon the heart. Secondly, al-khatir, where intent permeates in the heart. Thirdly, hadith al-nafs, where a person oscillates between the thought of committing the act and that of refraining from it. Fourthly, al-hamm, where the intention to commit the act overshadows the thought of refraining from it. Lastly, al-‘azm, where the intention is solidified by the will and the determination to implement the act. The first two stages are not included in the category of the will or the choice of action; therefore they do not carry liability. The third stage does not carry a liability of either, according with the prophet saying,” My people may be excused for their self-talk.” A person is also not answerable for the fourth stage in compliance with the prophet said: “A resolve (hamm) to do well is registered as a pious deed, while a resolve to commit evil is not registered as an evil”. But the last stage was a matter of controversy into which we shall not go and commit. (5)
Many examples of usage can be taken as a guide. There are two ways of examples as follows;
1. Use that involves the observance, practice and custom.
Involving the use of this category are many and wide. Even we can see many things in life that touches the human being and as a Muslim. What is meant with the touch of life as a man who is involved the practice of the habit or custom. When things that touches as a Muslim, it focuses more to practice or observance of “ta'abbud” to Allah. For an example, “Wudhuk” and bath have various purposes. It may be aimed at soothing the body and to clean the body of any types of impurity. On the other hand, it also can be act of the worship with the purpose or intention to lift the “hadas” or ritual impurity. Also when a man is sitting in the mosque, the aims to be at rest and may also “iktikaf”. All depend on the intention and purpose. (6)
2. Involving the use in legislation and judicial.
Through examples and finding of the case, we can ensure that the extent to which intention play an important role for the Court when judge are making their decisions.
i. In the case, Zainurin bin Mohammad vs. Fatimah binti Hj.Ismail (7), Plaintiff has filed a legitimate request for a divorce. Plaintiff has pronounced divorce against defendant on 23 Ogos 1997 with "I divorce you with a talaq". On 22 September 1997, plaintiff with the words and deeds has been referred back (ruju’) to the defendant. However, on 23 September 1997, Plaintiff has called the defendant by phone and has said that "our past rujuk was invalid, you are not my wife". Had the same problems arose through Plaintiff words; the second divorce would still be valid between the parties. Meanwhile, after the first divorce, plaintiff gets back with the defendant and they had sex for several times. The Court decided that the 23 Ogos divorce is valid. But for the second words of divorce, court finds that it was invalid. It is because the words were in the form of kinayah. Under this kind of talaq, the husband must have the intention to divorce. Plaintiff however cannot determine his own intention whether he has intention for divorce or not. Normally intention is referred as qarinah or circumstantial evidence that leads to the meaning of divorce. In this case, Judge Dr. Hj. Mohd Naim bin Hj. Mokhtar has listed 4 kinds of circumstantial evidence to endorse that the intention of the divorce does not exist in second pronouncement.
ii. In the case Syarie Public Prosecutor of Pahang vs V.V. Aboo (8), the judge said that he was satisfied that the offender was entering the casino with intention to gamble with two circumstantial evidence, firstly, offender wearing “batik” and secondly offender was caught in the casino. In addition, the judge said, intention was in their heart so as human, we cannot determine other people’s intentions, but we can assume their intention with “qarinah” or circumstantial evidence.
iii. In the case Syarie Public Prosecutor of Kelantan vs. Yusundy bin Josan (9), court have gave their ruling for the case of intoxicated as below:-
“Two bottles of Carlsberg, two glasses and payment bills should be accepted as “qarinah” or circumstantial evidence. It was strong evidence with the corroboration of evidence by witnesses”.
Intention from the Western Legal Maxims
In criminal law, mens rea– the Latin term for "guilty mind"– is usually one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase; actus non facit reum nisi mens sit rea, which means that "the act does not make a person guilty unless the mind is also guilty". Thus, in jurisdictions with due process, there must be an actus reus accompanied by some level of mens rea to constitute the crime with which the defendant is charged (see the technical requirement of concurrence). The Criminal Law does not usually apply to a person who has acted with the absence of mental fault; this is a general rule.
The exception is strict liability crimes (in the civil law, it is not usually necessary to prove a subjective mental element to establish liability, say for breach of contract or a tort, although if intentionally committed, this may increase the measure of damages payable to compensate the plaintiff as well as the scope of liability). Quite simply therefore mens rea refers to the mental element of the offence that accompanies the actus reus. In some jurisdictions the terms mens rea and actus reus have been superseded by alternative terminology. (10)
In the case of Pendakwa Raya lwn Mohan Dass a/l Ganesan, Abd Halim PK held-
“(3) The words in s 302 of the Penal Code stipulates the words mens rea to be proved fully, ie, the accused must be proven to have an intention in the beginning to kill the deceased. One should not just be convicted as a result of negligence, dangerous action, or just by having knowledge. There must be direct intention and need to be proven beyond reasonable doubt. From what was gathered from the witnesses’ evidence, it is difficult to prove the existence of means rea on the part of the accused (see para 25)
(4) The court therefore held that the prosecution had failed to prove a prima facie case against the accused on a charge under s 302 of the Penal Code. However the court held that there was a prima facie case against the accused for a charge under s 304(a) of the Penal Code successfully proven by the prosecution. Therefore the court ordered that the charge against the accused be amended and the accused had pleaded guilty to the said amended charge (see paras 32,34). (11)
From the general rule above, we can find another legal maxim as follows;
1) In Contracts effect is given to intention and meaning and not words and Forms
The rule above means that any contracts refers to its meaning and purpose, not to words and forms or acceleration. (12) The Meaning of the rules is that the assumption lies in the “akad”, its meaning and purpose and not to forms and words. (13) That means, in any valid contract in which there is a distinction between the intention and purpose of the covenant that is seen through words or what is remarked upon in the contract.
Ibn Rusyd explains in his al-Muqaddimat wa al-Mumhidat that the rule is recognized with the rules: Where the laws are for the meanings. In other word, something in the contract takes approximate purposes and meanings of words in the contract and its goal and not forms of the word. Therefore the words in the form of a contract must use a certain word or intention to become legitimate. (14) An example, if there are two people who do a contract with word to give a good that has been provided with payment and has received a good before the price is fixed. The contract is a sale and purchase contract. This is because the final contract to buy or sell was intended by them or both of the contracts and not as a meaningless verbal contract.
In the case of Keng Soon Finance Bhd. vs. M. K. Retnam Holdings Sdn. Bhd. & Anor, [Privy Counsel Appeal No. 2 of 1986] 6 March 1989, Lord Oliver of Aylmerton said:
“the question whether covenants are to be held dependent or independent of each other is to be determined by the intention and meaning of the parties as it appears on the instrument, and by the application of common sense to each particular case; to which intention, when once discovered, all technical forms of expression must give way.” (15)
2) In principles, word shall be construed according their real meaning
The words “al-haqiqah” according to the language of rights means something when it was fixed to the word itself. According to the original meaning is the term given to something words of speech and have the same term or any term conversation of syara'. (16) For example, according to a conversation such as the use of the words murder is intended to kill or destroy the life or spirit. And as an example the term of syara' the use of word “wasiat” is an ownership or what have given after “pewasiat” died.
The words “al-Majaz” also intend to reverse the fact that the meaning given to words of speech. Thus can be understood is the words Al-haqiqah is the fact that the desired from the words itself with the purpose and intent. The words “majazi” is the meaning behind the fact. This is based on qarinah or the speaker showed signs that it wanted and intended meaning is not the al-haqiqah but the majazi meaning. (17) For example the word court, according to the understanding and meaning is the place where the trial was held. However, when the speaker intended meaning and desire is the judge, the judge was the meaning.
Thus, that means some words or speech should be referring to the real meaning. This is consistent with the legal maxim: “The right of speech was taken to the fact.” The fact is that the reverse majazi is unclear or different than the usual. However, sometimes the facts of the majazi is still there when the relationship between words has qarinah or signs that show the meaning which is not true. So that, based on the implementation of this rules, the person who did the “akad” should be brought words intrinsic to the meaning of the fact unless there are signs or the meaning intended to majazi words. (18)
Formulation of this understanding rules, speech or word can be deciphered or conclusion according to the intrinsic meaning and also majazi, the intrinsic meaning (al-haqiqah) should be held and accepted use. An examples, if a person should constitute his house into a waqf for the benefit of his sons, if he should have sons and grandsons at the time of his death, the grandsons would not be entitled to any benefit because the real sense of the Word "sons" does not include grandson. (19) Because the real purpose of word walad for children only, wald al-sulb and not the grandson.
3) When the real meaning cannot be applied the metaphorical sense may be used.
The rules is means that when the intrinsic difficulty can not be understood or implemented the use of majazi. Each word or any speech was given rights from the point of fact, because some of them basically can be used and carried out according to the essential. (20) However, if the fact of the words can not be implemented, the implementation will move to the majazi. This follow the rules below:
1) The Origin of the word al-haqiqah, and if there is suffer to the word al-haqiqah, move to understanding majazi.
2) The origin of words al-haqiqah when speech is the fact in the form of absolute, and once in a while to exchange it with the understanding majaz by intention.
3) The origin of words al-haqiqah when the fact is inescapable, and it should not be taken to the understanding of majaz but with proof.
In the example we have cited just before, if the constituter of the waqf had made his sons the beneficiaries had no sons and grandsons but at the time of his death, the word sons would be construed to mean grandsons by way of metaphor because it is impossible to apply the real literal meaning and the grandsons would be entitled to receive the income of the property. (21) In the case of Hooi Chuk Kwong vs. Lim Saw Choo, (F) High Court Penang 23 October 1957, CJ Thomson said:
“In considering that provision there are two points to be observed. The first is that the tenant (or some person occupying the premises under him) must have committed a breach of certain laws affecting the premises. It is the tenant and not the landlord who must have committed the breach. The second point is that the breach committed by the tenant must "expose" the landlord to a "penalty, fine or forfeiture." We listened to a great deal of argument supported by quotations from a number of standard dictionaries as to the meaning of the word "expose". In my judgment much of that argument is beside the point. The word "expose" considered in isolation is probably not capable of very exact definition, particularly when used, as here, in a metaphorical sense. Its meaning must depend on the context in which it is used. In the present connection the question is, who is exposed to what and in what circumstances? The answer clearly is that it is the landlord who is exposed to "any penalty, fine or forfeiture" by reason of a breach of certain laws on the part of the tenant”. (22)
The Hanafi jurists have divided speech from the point of view of connotation into two categories. Firstly, explicit, is that speech which conveys a definite and clear meaning. Secondly, metonymic, is that speech in which intention is hidden and requires explanation for proper understanding, and is deduced from the wording of the text or its references or implications. Similarly, explicit speech is opposed from another side by meanings which are implicit in certain situation. (23)
For an example, most school sanction bay’al-ta’ati which is sale by actual exchange indicating acceptance. Its means, the purchaser pays to the seller the price and receives the commodity without either of them uttering a word. In this case, the implicit meaning of the facts has fulfilled the functions of offer and acceptance. (24) Another example, when the husband divorces his wife in kinayah word such as “You and I are separated”. In this situation, the judges shall ask a husband about is intention or related his word from the evidences. We also can see in the case, Soon Singh s/o Bikar Singh vs Pertubuhan Kebajikan Islam Malaysia (PERKIM) Kedah and Anor, the judges use the implicit meanings to determined jurisdictions of Syariah Court involving a “murtad” jurisdictions. The judges remarked;-
From the analysis of the State Enactments, it is clear that all State Enactments and the Federal Territories Act contain express provisions vesting the syariah courts with jurisdiction to deal with conversion to Islam. On the other hand, only some State Enactments expressly confer jurisdiction on the syariah courts to deal with conversion out of Islam. In this regard, we share the view of Hashim Yeop A Sani CJ (Malaya) in Dalip Kaur that 'clear provisions should be incorporated in all State Enactments to avoid difficulties of interpretation by the civil courts,' particularly in view of the new cl (1A) of art 121 of the Constitution which as from 10 June 1988 had taken away the jurisdiction of the civil courts in respect of matters within the jurisdiction of the syariah courts. Be that as it may, in our opinion, the [*502] jurisdiction of the syariah courts to deal with the conversion out of Islam, although not expressly provided in the State Enactments, can be read into them by implication derived from the provisions concerning conversion into Islam. It is a general rule of construction that if the meaning of a statute is not plain, it is permissible in certain cases to have recourse to a construction by implication and the court may draw inferences or supply the obvious omissions.”
The judges also stated in their judgment that-
“In the instant case, in our opinion, the general rule of construction applies and the court can have recourse to a construction by implication. Implication may arise from the language used, from the context, or from the application of some external rule. They are of equal force, whatever their derivation (Bennion's Statutory Interpretation (2nd Ed) p 362).” (25)
This is affirmed by Federal Courts in Lina Joy vs. Majlis Agama Islam Wilayah Persekutuan & Anor, (26) two of Federal Court judges, Ahmad Fairuz Chief Justice and Ahmad Alauddin FCJ concurring as follows:-
“Mengenai kritikan peguam terpelajar perayu atas rujukan yang dibuat oleh Mahkamah Persekutuan kepada Craies on Statute Law dan kes Albon v Pyke, saya hanya perlu tekankan bahawa Tindal CJ juga gunakan [*616] perkataan-perkataan implikasi perlu (necessary implication). Justeru itu Mahkamah Persekutuan berpendapat bahawa adalah sejajar dengan logik untuk Mahkamah Syariah, yang telah dengan jelasnya diberi bidang kuasa untuk mengadili perkara-perkara yang berkaitan dengan pemelukan agama Islam adalah, secara implikasi perlu, juga mempunyai bidang kuasa untuk mengadili perkara-perkara yang berkaitan dengan keluarnya seorang Muslim dari agama Islam atau kemurtadan. Saya tidak nampak sebarang kecacatan dalam taakulan penghakiman Mahkamah Persekutuan itu. Oleh demikian saya tiada lain pilihan melainkan menjawab soalan ketiga itu dengan mengatakan bahawa kes Soon Singh telah diputuskan dengan betul."
4) A Word Should Be Construed As Having Some Meaning Rather Than Being Disregarded.
This method means that a speech or words which may be translated from its meaning must be used and accepted with that meaning. (27) That is to say, if any particular meaning can be attributed to a word it may not be neglected as devoid of meanings. (28) Sometimes, each word or speech we used can give us clear objectives or intentions on its meaning. Thus, if the word was clearly meant, it must be used and accepted with their original meanings or intentions. For example, in divorce problems, if the husband divorce his wife with one talak means it is clear that his wife had divorced with one talak.
According to Imam Taj al-Din al-Subky, what is meant by this is some intention or objective from our greeting or words is in the middle of their objectives whether it may be implemented or ignored. However, if the speech is hanging or suspended or it is not complete or in the form of a question, the situation is not included in this method. Thus, it is preferred not to be applied in greeting. For example, if someone says "I donate a garden”. According to Jumhur, this speech and word cannot be implemented and not valid. The reason being this is not clear and is still hanging or suspended. (29)
In addition, it can be understood from the above method that if the word does not give a clear meaning or intention about things, then to use for the word or speech is more important than ignoring it. This means, use of the word is more suitable than to ignore it. For example, in the charitable case, someone has donates his property to their children where as all the children were die but he had only his grandchildren. Regarding this method, the charitable property belongs to the grandchildren. (30) This opinion affirmed by al-Rafi'i because it is so difficult to give a right or true intentions or objectives to the statement and avoid from the use of the word. (31)
Fraction of the Method
Another legal method exist apart from the above method which can be divided into four portion as below;-
1. If no meaning can be attached to a word, if it is disregarded altogether.
This means; if any word or speech is blurring or doesn’t have their meanings or purpose whether it is from hakiki or majazi, the word or speech should be abandoned or unimplemented. (32) It also means that it is abandoned when the speech is useless. (33) That is to say, if a word cannot be construed in either a real or metaphorical sense it is neglected as being devoid of meaning. (34) There are several obstacles facing this method where the words or speech can be divided into two as follows;-
a. In hissi or reality obstruction and the majazi or symbolic obstruction. As one example of each, firstly, Obstruction in hissi, when a husband makes an admission that his wife is his daughter while his wife is elder than him and came from a different lineage. Hissi and a clear recognize of reality and logic is not and cannot be accepted. It's clear that his wife is from another lineage and the other reason is; children are much younger than their father. Secondly, Obstruction in majazi, if the husband makes an admission that his wife is his daughter with intension she is his granddaughter and then that admission is far from reality and even less logic. (35)
b. Because of prohibition by hukum syarak such as a men claimed that her female relatives is received two portion or double in the inheritance more from him. The claim is clearly not acceptable and may not be entertained because hukum syarak determined that inheritance is the men received two portion from the female portion and the female must received half from the men portion. Similarly, if the majazi, like as bringing a meanings of inheritor to the wills. It is also cannot be acceptable because the heirs may not receive the wills and indeed cannot give testament to the heirs. (36)
If the real and the metaphorical meanings should conflict and the former were derelict, effect should be given to the latter. But there existed a difference of opinion concerning which meaning is to be preferred when in some localities the metaphorical meaning has been predominant by force of custom. Firstly, Imam Abu Hanifah said that effect should be given to the real. His companions Abu Yusof and Syaibani, al –Ghazali and other jurist held that preference should be given to the metaphorical and the customary if they continuous and predominant. (37)
2. Creation of a basic rule or originate is more important rather than strengthen.
It means, if some of the word or speech are meaningful and understood whether the word means to create a basic rule or make a new start or to strengthen or build up the word, then in this situation the word means to create a basic rule or make a new starter should be more important rather than strengthen the word. In other words, if the word or speech is possible to function as ta'sis and also as ta'kid then become the main virtue or necessity of the word or interesting speech to function in ta'sis. (38) The laws include in this method, if a man said to his wife: "I divorce you, I divorce you", without any intention to repeat his word. According to Jumhur, it should mean as the beginning of a speech or make a simple base, there cannot be and not mean speech utterance consolidate the earlier. (39)
3. A reference to part of an indivisible thing is regarded as a reference to the whole.
The purpose of this law is if only to bring in any hidden matters or in the hidden affairs or in any circumstances that are so difficult to understand the instructions, it should get an assessment from the point of syarak as a proposition that can be used for something basic to the provisions of law. (40) The laws included in this method is for example, life of a Bank employee who works out or deal with affairs in the incoming money for any banks is found living with the luxury, have a big house, luxury car, or while the source of wealth that cannot be determined or not clearly known source. (41)
The situation has become a dilalah or validity that corruption occurs there or the workers makes something’s unlawful against the bank or during its work. Based on the evidence, the employee can be arrested, and investigated or removed or dismissed from his work and all his property from a source of income that are not clear or may be doubtful are obtained. (42)
4. Describe a differences that existed before as not legitimate, and un-existed is accept.
This method means a situation where someone giving opposite specific nature to the things in front of them, so this nature is invalid and unacceptable. But, if that situation is opposite where the given natures are un-existed in front of them, so it is acceptable. (43) A description with reference to a thing present is of no consequence, but the contrary is the case such thing is not present. (44) Some laws which built up from this method are a person wants to sell a red car where it is exist in front of him while sale and purchase took place and he said; “I sell this white car” and show it simultaneously. In this situation, a sale and purchase are acceptable but the nature of the car is invalid. But if the opposite situation happens, where he wants to sell the car which is not with him and he claims that it was a white car but exactly it is a red car, so the sale and purchase are unacceptable and invalid. (45)
In cases where the object of sale is present, its characteristics are apparent and need no elucidation. If the description is erroneous, it has no effect. But if the object of sale is not present, its characteristics are presumed to be unknown and therefore require exposition. Thus, the meanings of words and adjectives differ according to different circumstances and occasion. (46)
CONCLUSION
Understanding the meaning and implications of Islamic legal maxims is a necessity; in fact, an obligation of every Muslim researcher and practitioner. Knowledge and understanding are so intertwined for successful implementation of an endeavor that a Muslim researcher or practitioner must take it seriously to have proper understanding of the maxims. Review and analysis of the maxims above is very important to be implemented in judiciary and legal profession in syariah or civil fields in Malaysia.
REFERENCES
(1) Mahmassani, Falsafah al-tashri’ fi al-Islam, Translated By Farhat J. Ziadeh, Open Press, Kuala Lumpur, 2000, page 159.
(2)http://www.altafsir.com/Tafasir.aspMadhNo=1&tTafsirNo=74&tSoraNo=3&tAyahNo=145&tDisplay=yes&UserProfile=0&LanguageId=2, date: 23 Mac 2009, time: 10:52pm
(3) Sahih al-Bukhari and Muslim.
(4) Mahmassani, Falsafah al-tashri’ fi al-Islam, Translated By Farhat J. Ziadeh, Open Press, Kuala Lumpur, 2000, page 159.
(5) Ibid, page 159-160.
(6) Qawa’id Fiqhiyyah, Haji Muhammad Salleh bin Haji Ahmad, Pustaka Haji Abdul Majid (2002), pg 576.
(7) Jurnal Hukum, Jld. Xlll Bhg ll, pg. 247-252.
(8) Jurnal Hukum, Jld Vll, Bhg. ll, pg 235.
(9) Jurnal Hukum Jld IX Bhg ll, pg 206
(10) http://en.wikipedia.org/wiki/Mens_rea, date on 23 Mac 2009, time: 11.15pm.
(11) 4 MLJ 87, 89
(12) Ustaz Abdul Latif Muda & Ustazah Rosmawati Ali @ Mat Zin, Perbahasan Kaeadah-kaedah Fiqh, Edisi Pertama, Pustaka Salam,Oktober 2000.
(13) Ibid.
(14) Ibid
(15) CLJ_1989_1
(16) Ustaz Abdul Latif Muda & Ustazah Rosmawati Ali @ Mat Zin, Perbahasan Kaeadah-kaedah Fiqh, Edisi Pertama, Pustaka Salam,Oktober 2000.
(17) Ibid.
(18) Ibid.
(19) S.Mahmassani, Falsafah al-tashri’ fi al-Islam, Translated By Farhat J. Ziadeh, Open Press, Kuala Lumpur, 2000.
(20) Ustaz Abdul Latif Muda & Ustazah Rosmawati Ali @ Mat Zin, Perbahasan Kaeadah-kaedah Fiqh, Edisi Pertama, Pustaka Salam,Oktober 2000.
(21) Mahmassani, Falsafah al-tashri’ fi al-Islam, Translated By Farhat J. Ziadeh, Open Press, Kuala Lumpur, 2000.
(22) Current Law Journal, LNS_1957_1_27.
(23) S.Mahmassani, Translated By Farhat J. Ziadeh, Falsafat Al-Tashri’ Fi Al- Islam: The Philosophy Of Jurispridence In Islam, The Open Press, Kuala Lumpur, 2000 page 164.
(24) Ibid.
(25) [1999] 1 MLJ 489, 502.
(26) [2007] 4 MLJ 585, 615-616.
(27) Abdul Latif Muda, Rosmawati Ali@ Mat Zin, Perbahasan Kaedah-Kaedah Fiqh, Oktober 2006, Ilham Abati Enterprise, page 349.
(28) S.Mahmassani, Translated By Farhat J. Ziadeh, Falsafat Al-Tashri’ Fi Al- Islam: The Philosophy Of Jurispridence In Islam, The Open Press, Kuala Lumpur, 2000 page 163.
(29) Abdul Latif Muda, Rosmawati Ali@ Mat Zin, Perbahasan Kaedah-Kaedah Fiqh, Oktober 2006, Ilham Abati Enterprise, Ibid, pages 349-350.
(30) Ibid, halaman 350.
(31) Imam Jalaluddin Abdul Rahman al-Suyuti, Ashbahu Wa Al-Nadhair Fi Qawaid Al-Fiqhiyyah, Penterjemah, Haji Mardiya Mukhtar, 1999, Penerbitan Darul Iman, halaman 282.
(32) Abdul Latif Muda, Rosmawati Ali@ Mat Zin, Perbahasan Kaedah-Kaedah Fiqh, Oktober 2006, Ilham Abati Enterprise halaman 351.
(33) Penterjemah Md. Akhir Haji Yaacob,Al-Ahkam Al-Adliyyah, Undang-Undang Sivil Islam, 1994, Dewan Bahasa dan Pustaka, Kuala Lumpur, halaman 19.
(34) S.Mahmassani, Translated By Farhat J. Ziadeh, Falsafat Al-Tashri’ Fi Al- Islam: The Philosophy Of Jurispridence In Islam, The Open Press, Kuala Lumpur, 2000 page 16.
(35) Abdul Latif Muda, Rosmawati Ali@ Mat Zin, Perbahasan Kaedah-Kaedah Fiqh, Oktober 2006, Ilham Abati Enterprise halaman 352.
(36) Ibid. Penterjemah Md. Akhir Haji Yaacob,Al-Ahkam Al-Adliyyah, Undang-Undang Sivil Islam, 1994, Dewan Bahasa dan Pustaka, Kuala Lumpur, halaman 19.
(37) S.Mahmassani, Translated By Farhat J. Ziadeh, Falsafat Al-Tashri’ Fi Al- Islam: The Philosophy Of Jurispridence In Islam, The Open Press, Kuala Lumpur, 2000 page 163.
(38) Imam Jalaluddin Abdul Rahman al-Suyuti, Ashbahu Wa Al-Nadhair Fi Qawaid Al-Fiqhiyyah, Penterjemah, Haji Mardiya Mukhtar, 1999, Penerbitan Darul Iman, halaman 296.
(39) Abdul Latif Muda, Rosmawati Ali@ Mat Zin, Perbahasan Kaedah-Kaedah Fiqh, Oktober 2006, Ilham Abati Enterprise, halaman 351.
(40) Ibid, halaman 35.
(41) S.Mahmassani, Translated By Farhat J. Ziadeh, Falsafat Al-Tashri’ Fi Al- Islam: The Philosophy Of Jurispridence In Islam, The Open Press, Kuala Lumpur, 2000 page 163.
(42) Ibid, halaman 353.
(43) Ibid, halaman 353 – 354.
(44) S.Mahmassani, Translated By Farhat J. Ziadeh, Falsafat Al-Tashri’ Fi Al- Islam: The Philosophy Of Jurispridence In Islam, The Open Press, Kuala Lumpur, 2000 page 16.
(45) Abdul Latif Muda, Rosmawati Ali@ Mat Zin, Perbahasan Kaedah-Kaedah Fiqh, Oktober 2006, Ilham Abati Enterprise, halaman 354.
(46) S.Mahmassani, Translated By Farhat J. Ziadeh, Falsafat Al-Tashri’ Fi Al- Islam: The Philosophy Of Jurispridence In Islam, The Open Press, Kuala Lumpur, 2000 page 163
A
