The are some scholars who believe that

 

The meaning of this maxim
is that all matters are connected to the intention behind them, as described by
al-Lahji. The Hadith that provides that “Acts are only judged in accordance
with the intention behind them” is where this maxim is acquired from.1  There were various comments among the
commentators for the intended definition of the hadith mentioned. The scholars
who believed that the meaning of this hadith is that only when there is an
intention, only then the acts are conclusive, regarded that developing an
intention is mandatory. However, there are some scholars who believe that the
definition is that acts are unfinished or unrewarded without an intention and
think that intention is not a requirement for validity.

The word ‘intention’ in
the plain and ordinary sense means purpose or motive; in the legal context, the
definition was provided by Ibn al-Salah and al-Nawawi where it relates to the
tenacious dedication of the heart. Whether an action is allowed or forbidden in
Islam is decided by the implications of that action.2 It is said that contracts
are not to be understood by words and phrases used, but in relation to their
intention and substance. For instance, someone grows a halal product like
grapes. However, his intention is to market it to a producer of wine, a product
which is something haram to Muslims. Thus, his action will be deemed haram
because of his intention. Whether the act is legal or unlawful depends on the
intention of the person who done the act.

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The Al-Quran (2:225)
provides that “Allah will not call you to account for that which is
unintentional in your oaths, but He will call you to account for that which
your hearts have earned. And Allâh is Oft-Forgiving, Most-Forbearing.” This
Ayah has been given opinion by Ibn Hazm mentioning that the matter that is being
directed to do acts is the soul; yet the instrument is the body, so there can
be nothing other than what the soul has aimed before if it intends to do
something by its instrument (the body). 3

As long as the
unequivocal terms of the agreement are formally inside the limits of the law.4 H?anaf? and Al-Sh?fi’?
legal scholars are more prepared to ask into the genuine intentions of the parties.
The moral obligation of contracting parties has been where M?lik? and H?anbal?
perspectives slant towards. The essence of the law has been seemingly disregarded
which is no doubt why the two schools protest against the use of hiyah (legal
stratagems). the foundation for the debate that in contractual agreements the
parties’ intended meanings may perhaps vary was developed by the maxim
mentioned. In order to form a legitimate meaning in conformity to Islamic law,
the composition and interpretation in a bank’s contractual agreement may be disregarded
on purpose or re-interpreted. The door remains slightly open for additional discussion
on the problem of modern mortgages and their legality on account of conflict
rather than consensus about an agreement’s legality when it lacks of clear
intention.

Scholars have examined
this maxim in numerous sectors, including devotional issues, commercial
transactions and crimes as it is a broad maxim that has significance.5How to make a distinction
of theft from in culpable stealing of possessions, or a homicide from erroneous
killing, is where the aspect of intent plays a vital function. The standard expressed
in this maxim is equally relevant to other scopes of activity including Islamic
finance even though it has been applied by early jurists generally on acts of
rituals. Rather than the announcement, it is actual activities and policies
that concludes the intention. This is so on account of a sub-rule which regulates
contractual responsibilities.

The judge in the case of case Syarie Public Prosecutor of Pahang vs V.V.
Aboo6 was convinced
through circumstantial evidence7
that the lawbreaker was entering the casino with intention to gamble. He was
primarily wearing batik and he was caught in the casino. The judge also added
that they cannot conclude other people’s intentions since intention was in their
heart, so they assume intention through circumstantial evidence.

 

‘Verdicts on all physical
or verbal acts of someone sane shall be decided in conformity with the intent
of the person who executed the action’ is the straightforward meaning of this
maxim in criminal law.8 Only when the intention of
the criminal has been made clear that an act can be construed as culpable and
punishable. Generally, without first examining the intention of the offender,
an act cannot be fairly established as criminal. To illustrate, one cannot deduce
that theft has happened until the wrongdoer’s objective has been shed light on.
Where a person takes others’ possession in public area that does not belong to
him, he may be carrying out the act of stealing, or he might have been performing
as trustee to save the rightful owner’s possession. Mens rea works variously
depending on the type of the purported crime in Islamic law. In hudud cases,
before a person can be found liable of the crime particularly in crimes like
adultery and consumption of alcohol, mens rea must coincide with the actus
reus. Islamic jurists provided a benchmark for deliberate homicide in murder
cases.9 ‘Mens rea of murder is established
when the perpetrator uses an equipment devised for killing’- according to the
Hanafis. Thus, it can be said that someone has intended to kill if he had used
a gun or a knife against someone.

 

1 An
Introduction to Qawa’id al-Fiqhiyyah and the 5 maxims that govern shariah law

Retrieved from
assessed on 19 Dec 2017

2 Mohamad
Akram Laldin. 2006. Islamic law: An introduction . International Islamic
University Malaysia

3 Al-Qawâ?id
Al-Fiqhiyyah (Legal Maxims of Islamic Jurisprudence)

4 Al-Sh?fi’?,
Al-Umm, Vol. 3, 65, quoted by Sanhur, Masdar, Vol. 4, 57-58

5 The
Application of Islamic Legal Maxims to Islamic Banking and Finance


assessed on 19 Dec 2017

6 (1991)
JH VII/II 203

7
assessed 19 Dec 2017

8
Luqman Zakariyah: ( Legal Maxims in
Islamic Criminal Law: Theory and Applications) 61,65

9 Al-Zuhayli,
Wahbah, al-Fiqh al-Islami, vol 7, p5658; Awdah, al-Tashri al-Jinai. Vol 2, p32.