Concept of Equity in Islam

Submitted by: Aatika Zarnab

Roll No: 6038-FSL/LLB/F20
Submitted to: Ma'am Syeda Lubna
Contents
The Concept of Equity in Islam ..................................................................................................................... 4
Abstract ......................................................................................................................................................... 4
Introduction .................................................................................................................................................. 4
Section 1: Understanding Equity in Western Legal Tradition ........................................................................ 5
1.1 The Evolution of Equity ....................................................................................................................... 5
1.2 The 12 Maxims of Equity ..................................................................................................................... 6
1.3 Role of Equity in Providing Justice and Fairness ................................................................................. 6
1.4 Equity’s Remedies ............................................................................................................................... 6
Section 2: The Foundation of Equity in Islamic Jurisprudence ..................................................................... 6
2.1 Sharia: The Islamic Legal System ......................................................................................................... 7
2.2 Justice and Fairness in Islam ............................................................................................................... 7
2.2.1 Quranic Verses on Justice and Fairness........................................................................................ 7
2.2.2 Hadiths on Justice and Fairness ................................................................................................... 8
2.2.3 Explanation................................................................................................................................... 9
2.3 The Principle of Istihsan: Equity in Action ........................................................................................... 9
2.4 Equity Through Other Islamic Legal Concepts .................................................................................... 9
Section 3: Parallel Between the Maxims of Equity and Islamic Teachings .................................................. 10
3.1 Equity Regards as Done What Ought to be Done ............................................................................. 10
3.2 Equity Will Not Suffer a Wrong to be Without a Remedy ................................................................. 10
3.3 Delay Defeats Equity ......................................................................................................................... 11
3.4 He Who Seeks Equity Must Do Equity............................................................................................... 11
3.5 He Who Comes into Equity Must Come with Clean Hands............................................................... 12
3.6 Equity Imputes an Intention to Fulfil an Obligation .......................................................................... 12
3.7 Equity Acts in Personam .................................................................................................................... 12
3.8 Equity Looks to the Intent Rather Than the Form............................................................................. 12
3.9 Equity Aids the Vigilant, Not Those Who Slumber on Their Rights................................................... 13
3.10 Equity is Equality ............................................................................................................................. 13
3.11 Equity Regards the Beneficiary as the True Owner ......................................................................... 14
3.12 Equity Does Not Aid a Volunteer..................................................................................................... 14
Section 4: Comparative Analysis ................................................................................................................. 14
 4.1 Shared Values in Pursuit of Justice .................................................................................................... 14
4.2 Flexibility and Adaptability of Legal Systems .................................................................................... 15
4.3 Distinct Approaches to Achieving Equity .......................................................................................... 15
4.4 Universal Principles Across Legal Traditions...................................................................................... 15
Conclusion ................................................................................................................................................... 15
References:.................................................................................................................................................. 17
The Concept of Equity in Islam

Abstract
The concept of equity within Islamic jurisprudence, juxtaposing it with the
traditional maxims of equity as understood in Western legal systems, and
exploring its manifestation through the principle of Istihsan (jurisprudential
preference) is discussed. By examining the 12 maxims of equity alongside Islamic
teachings, the intrinsic alignment between Islamic legal principles and the essence
of equity is unveiled, highlighting how Islam inherently embeds fairness and
justice within its legal and moral fabric.

Introduction
The concept of equity, with its deep roots in the pursuit of fairness, justice, and
the rectification of legal rigidity, transcends cultural and legal boundaries.
Historically developed as a complement to the often-rigid common law system,
equity seeks to mitigate the harshness and fill the gaps left by statutory laws and
legal precedents. This foundational principle of legal jurisprudence is not unique
to the Western legal tradition; it finds a resonant echo in the rich tapestry of
Islamic law (Sharia). Islamic jurisprudence, with its comprehensive approach to
law, morality, and societal welfare, encapsulates a nuanced understanding of
equity through its doctrines, principles, and legal mechanisms, particularly in the
concept of Istihsan (jurisprudential preference).
This research paper aims to explore the concept of equity as it is manifested
within Islamic jurisprudence, drawing parallels to the 12 maxims of equity
recognized in Western legal systems. These maxims, which serve as guiding
principles to ensure fairness and justice, provide a framework through which we
can examine similar underpinnings in Islamic legal thought. Of particular interest
is the principle of Istihsan, a jurisprudential tool that allows Muslim jurists to
depart from strict legal analogies in favor of outcomes that better serve justice
and public interest. Istihsan, therefore, represents a form of Islamic equity,
providing flexibility and discretion in the pursuit of the most equitable outcomes.
Through a detailed comparison of these maxims with corresponding Islamic
teachings and concepts, this paper seeks to reveal the inherent alignment
between the two systems in their quest for equity. This exploration is not merely
academic; it serves to highlight the universal values of justice, fairness, and
compassion that underpin legal systems across the world. By understanding the
application and implications of equity in Islam, we can appreciate the broader
relevance and adaptability of Islamic legal principles in addressing contemporary
issues of justice and equity.
Structured around a comprehensive analysis of each maxim of equity and its
Islamic counterpart, the discussion extends into the practical implications of these
principles, illustrated through the lens of Istihsan. This comparative approach not
only sheds light on the conceptual and practical synergies between Islamic
jurisprudence and the maxims of equity but also underscores the importance of
equitable considerations in the administration of justice across diverse legal
traditions. Through this exploration, the paper endeavors to contribute to a
deeper understanding of how equity, as a universal legal and moral principle, is
woven into the fabric of Islamic law and how it mirrors the essence of equity in
the Western legal tradition.

Section 1: Understanding Equity in Western Legal Tradition

Equity, within the context of Western legal tradition, embodies the principle of
fairness, acting as a counterbalance to the sometimes rigid and inflexible nature of
common law. Originating in the medieval English legal system, equity arose out of
necessity, addressing situations where the strict application of common law would
result in injustice or where the law provided no remedy. This system, historically
administered by the Court of Chancery, sought to mitigate the shortcomings of
common law by emphasizing moral fairness and ethical judgment. In his
foundational treatise, Blackstone describes equity as "a laborious but effectual
method of supplying the defects of the common law." While common law focused
on rigid legal forms and writs, equity offered a more flexible approach based on
fairness and good conscience1.
1.1 The Evolution of Equity
The evolution of equity is marked by its development alongside common law, with
its distinct set of principles and remedies aimed at achieving justice in cases
where common law was inadequate. Equity's role was to "soften" the harshness
of common law, offering more nuanced and flexible solutions to legal disputes. It
1
Stone, Sir William Blackstone. Commentaries on the Laws of England (1765-1769)
introduced remedies such as injunctions, specific performance, and equitable
estoppel, which were not available in common law courts.2
1.2 The 12 Maxims of Equity
The principles of equity are encapsulated in 12 maxims, which serve as
fundamental guidelines for equitable justice. These maxims include notions that
equity will not suffer a wrong without a remedy, that it looks to the intent rather
than the form, and that one must come to equity with clean hands. These maxims
highlight equity’s focus on fairness, moral righteousness, and the importance of
intentions and equitable conduct.
1.3 Role of Equity in Providing Justice and Fairness
The role of equity in the Western legal tradition cannot be overstated. It provides
a mechanism for the legal system to adapt to social changes and complexities,
ensuring that justice is served in a manner that aligns with contemporary values of
fairness and moral integrity. Equity's flexibility allows it to address unique cases,
providing remedies that reflect a deeper understanding of justice beyond the
literal application of law.
1.4 Equity’s Remedies
Equitable remedies are a cornerstone of how equity achieves fairness in legal
disputes. Unlike legal remedies, which typically involve monetary compensation,
equitable remedies are tailored to the specific needs of the situation, aiming to
provide a just and fair outcome. This includes ordering parties to act or refrain
from acting in certain ways (injunctions), compelling the fulfillment of contracts
(specific performance), or preventing parties from benefiting from their
wrongdoing (unjust enrichment).

Section 2: The Foundation of Equity in Islamic Jurisprudence

Islamic jurisprudence, or Sharia, offers a comprehensive legal framework that
governs not only religious practices but also personal, social, and economic
aspects of a Muslim's life. Rooted in the Quran and the Sunnah (practices of the
Prophet Muhammad), Sharia is complemented by secondary sources such as Ijma

2
Mitford, John. A Treatise on the Pleadings in the Courts of Chancery (1802). Mitford's treatise delves into the
specific remedies offered by the Court of Chancery, such as injunctions which could prevent an action from taking
place, specific performance which could enforce the fulfillment of a contract, and equitable estoppel which could
prevent someone from acting inconsistently with their previous statements or actions.
(consensus of scholars) and Qiyas (analogical reasoning), providing a rich and
dynamic legal system. Within this system, the concept of equity is intrinsic,
manifesting through various principles and mechanisms designed to ensure
fairness, justice, and compassion in the application of law.
2.1 Sharia: The Islamic Legal System
Sharia encompasses a wide range of legal, moral, and ethical guidelines, with the
primary objective of promoting welfare (Maslahah) and preventing harm
(Mafsadah). It aims to achieve justice (Adl), equity, and the common good, guided
by the overarching principles of Islamic teachings. Sharia's flexibility and
adaptability to changing circumstances are evident in its mechanisms for
interpretation and application, such as Istihsan, which allows for equitable
solutions in complex legal situations.
2.2 Justice and Fairness in Islam
Justice and fairness are core tenets of Islamic teachings, with numerous Quranic
verses and Hadiths emphasizing their importance. Islam considers justice to be an
essential aspect of worship and a divine attribute, with Allah being the ultimate
source of justice. Equity, in this context, is seen as an expression of divine justice,
requiring that individuals are treated with fairness and compassion, and that legal
rulings consider the broader context and implications for societal welfare.
2.2.1 Quranic Verses on Justice and Fairness
2.2.1.1 Surah An-Nisa (4:135)
"O you who have believed, be persistently standing firm in justice, witnesses for
Allah, even if it be against yourselves or parents and relatives. Whether one is rich
or poor, Allah is more worthy of both. So follow not [personal] inclination, lest you
not be just. And if you distort [your testimony] or refuse [to give it], then indeed
Allah is ever, with what you do, Acquainted."3
2.2.1.2 Surah Al-Maidah (5:8)
"O you who have believed, be persistently standing firm for Allah, witnesses in
justice, and do not let the hatred of a people prevent you from being just. Be just;
that is nearer to righteousness. And fear Allah; indeed, Allah is Acquainted with
what you do."4

3
Surah An-Nisa (4:135)
4
Surah Al-Maidah (5:8)
2.2.1.3. Surah Al-Hujurat (49:9)
"And if two factions among the believers should fight, then make settlement
between the two. But if one of them oppresses the other, then fight against the
one that oppresses until it returns to the ordinance of Allah. And if it returns, then
make settlement between them in justice and act justly. Indeed, Allah loves those
who act justly."5
2.2.2 Hadiths on Justice and Fairness
2.2.2.1. Hadith on Justice from Sahih Bukhari and Sahih Muslim
It has been narrated on the authority of 'Abdullah b. 'Umar that the Messenger of
Allah (may peace be upon him) said: Behold! the Dispensers of justice will be
seated on the pulpits of light beside God, on the right side of the Merciful, Exalted
and Glorious. Either side of the Being is the right side both being equally
meritorious. (The Dispensers of justice are) those who do justice in their rules, in
matters relating to their families and in all that they undertake to do."6
2.2.2.2. Hadith on Fairness
ُ‫ن اب ِْن‬ َ ، َ‫سلَ ْي َمان‬
ُِ ‫ع‬ ُ ‫ْن‬ ُِ ‫ن آ َد َُم ب‬ُُ ‫ ح َوأ َ ْنبَأَنَا ُم َح َّم ُُد ْب‬،‫ع ْم ٍرو‬ َ ‫ن‬ َ ،ُ‫س ْفيَان‬
ُْ ‫ع‬ ُ ‫ل َح َّدثَنَا‬ َُ ‫ قَا‬،ٍ‫س ِعيد‬ َ ‫ن‬ ُُ ‫أ َ ْخبَ َرنَا قُت َ ْيبَ ُةُ ْب‬
‫ع ْم ِرو‬ َ ‫ْن‬ َُِّ ‫ع ْب ُِد‬
ُِ ‫ّللا ب‬ َ ‫ن‬ َ ،‫ْن أ َ ْو ٍس‬
ُْ ‫ع‬ ُِ ‫ع ْم ِرو ب‬ َ ‫ن‬ ُْ ‫ع‬
َ ،‫َار‬ٍ ‫ْن دِين‬ُِ ‫ع ْم ِرو ب‬
َ ‫ن‬ َ ،َ‫ع َي ْينَة‬
ُْ ‫ع‬ ُ ‫ْن‬ُِ ‫س ْف َيانَُ ب‬
ُ ‫ن‬ ُْ ‫ع‬
َ ،‫ار ِك‬ َ ‫ْال ُم َب‬
ُْ ‫علَى َمنَابِ َُر ِم‬
‫ن‬ َ ‫ّللا تَعَالَى‬ َُِّ ‫ن ْال ُم ْق ِس ِطينَُ ِع ْن َُد‬ َُّ ‫ي ِ صلى هللا عليه وسلم قَا َلُ " ِإ‬ ُ ِ‫ن النَّب‬ُِ ‫ع‬ َ ،‫اص‬ ِ َ‫ْن ْالع‬ ُِ ‫ب‬
‫ل ُم َح َّمدُ ِفي َحدِي ِث ُِه " َو ِك ْلت َا‬ َُ ‫ قَا‬." ‫ن الَّذِينَُ َي ْع ِدلُونَُ ِفي ُح ْك ِم ِه ُْم َوأ َ ْه ِلي ِه ُْم َو َما َولُوا‬ ُِ ‫الرحْ َم‬
َّ ‫ين‬ ُِ ‫علَى َي ِم‬ َ ‫ور‬ ٍُ ُ‫ن‬
" ُ‫يَ َد ْي ُِه يَ ِمين‬.
The Prophet [SAW] said: "Those who are just and fair will be with Allah, Most
High, on thrones of light, at the right hand of the Most Merciful, those who are
just in their rulings and in their dealings with their families and those of whom
they are in charge." Muhammad (one of the narrators) said in his Hadith: "And
both of His hands are right hands."7
2.2.2.3. Hadith on Responsibility and Justice
ْ ُ‫َ ْ ْ ُ ََ َ َ ه‬ َ ْ َ َ َ ْ ُ ُ ْ َ ُ َ َ َ ْ َ ‫َ َّ َ َ َ ْ َ ُ َ ْ َ َ َ َ ْ ُ ه‬
‫ َعن‬،‫اَّلل َعن ُه َما‬ ‫ض‬ ِ ‫ر‬ ‫ر‬ ‫م‬‫ع‬ ‫ن‬ ‫اب‬ ‫ن‬‫ع‬ ،‫ع‬ ٍ ْ ِ َ ‫ ُ عن‬،‫وس َب ُ ُّن ُ عق َبة‬
‫اف‬ ‫ن‬ ‫ أخ َبنا م‬،‫اَّلل‬
ِ ‫ أخ َبنا عبد‬،‫حدثنا عبدان‬
َ َ َ ُ ُ َّ َ ِ َ ُ َ ْ َ َّ َ ْ ْ َ ْ ُ ُّ ُ َ َ َ ‫َّ ي َ ه ه ُ َ َ ْ َ َ ه‬
‫ والرجل ر ٍاع عّل‬،‫ واْل ِمب ر ٍاع‬،‫" كلكم ر ٍاع وكلكم مسئول عن ر ِعي ِت ِه‬:‫ قال‬،‫الن َِ ِب صّل اَّلل علي ِه وسلم‬
ُ ُ ُّ ُ ُ ُّ ُ َ َ َ َ َُ ْ َْ
‫ فكلك ْم َر ٍاع َوكلك ْم َم ْسئول َع ْن َر ِع َّي ِت ِه‬،‫ َوال َم ْرأة َر ِاع َية َعّل َب ْي ِت ز ْو ِج َها َو َول ِد ِه‬،‫"أه ِل َب ْي ِت ِه‬
The Prophet Muhammad (peace be upon him) said: "Each of you is a shepherd
and each of you is responsible for his flock. The ruler is a shepherd and he is

5
Surah Al-Hujurat (49:9)
6
Sahih Muslim, Book of Leadership (Kitab Al-Imara), Book 20, Hadith Number 4493
7
Sunan an-Nasa'i, Vol. 6, Book 49, Hadith 5381; In-book reference: Book 49, Hadith 1.
responsible for his flock; a man is the shepherd of his family and he is responsible
for his flock..."8 (Bukhari and Muslim)
2.2.3 Explanation
These Quranic verses and Hadiths not only urge Muslims to uphold justice and
fairness but also establish these principles as central to Islamic faith and life. They
underscore the importance of being just in all circumstances, irrespective of
personal bias or societal pressures, and highlight the significant consequences of
justice and fairness for both worldly life and the hereafter.
2.3 The Principle of Istihsan: Equity in Action
Istiṣlāḥ, (Arabic: “to deem proper”) in Islamic law, consideration of benefit, a norm
employed by Muslim jurists to solve perplexing problems that find no clear
answer in sacred religious texts. In such a situation, the judge reaches a decision
by determining first what is materially most beneficial to the community as a
whole, then what benefits the local community, and finally what benefits the
individual. Almost all Muslim schools of theology acknowledge the usefulness and
legitimacy of istiṣlāḥ, for they accept the premise that whatever is materially
beneficial for humanity in general is almost certainly beneficial to individuals.
Istiṣlāḥ may not be used when the material advantage to an individual or
community directly conflicts with explicit teachings of Islam.
This principle directs the judge to reach a decision by determining first what is
materially most beneficial to the community as a whole, then what benefits the
local community, and finally what benefits the individual, in this way this principle
creates flexibility in law. Istihsan is thus a concept which is similar to equity as
both lead to flexibility.
2.4 Equity Through Other Islamic Legal Concepts
Beyond Istihsan, several other Islamic legal concepts and mechanisms contribute
to the realization of equity. For instance, the principles of Maslahah (consideration
of public interest) and Maqasid al-Sharia (objectives of Islamic law) guide the
interpretation and application of legal rulings to ensure they serve the welfare of
individuals and society. Additionally, the concept of Qard Hasan (benevolent loan)

8
Sahih al-Bukhari, Hadith 5200.
exemplifies the spirit of equity in financial transactions, encouraging assistance
without burdening the borrower with interest.

Section 3: Parallel Between the Maxims of Equity and Islamic Teachings

The exploration of the maxims of equity within Western legal tradition and their
counterparts in Islamic jurisprudence reveals a profound intersection of values,
principles, and objectives that underpin both systems. This section delves into
each maxim, drawing parallels with relevant Islamic teachings, concepts, and
practices, and highlighting how Istihsan aligns with these equitable principles.
3.1 Equity Regards as Done What Ought to be Done
In Islamic jurisprudence, the emphasis on intentions (Niyyah) mirrors this maxim.
Actions in Islam are valued based on the intentions behind them, a principle
encapsulated in the Hadith:
‫ُ َ ُ َ ه‬ َ َ َ ُ ْ َ ُ َ ‫ي َأب َح ْفص ُع َم َر ْبن ْال َخ َّطاب َر‬ َ ‫َع ْن َأمب ْال ُم ْؤمن‬
‫اَّلل صّل للا عليه‬ ِ ‫ س ِم ْعت رسول‬:‫ض للا عنه قال‬ ِ َ ِ ِ
ُ َُ ْ َ ُ َ َ ‫َ َ ْ َ َ ْ ْ َُ ُ َ ه‬ َ َ َ ِ ْ ‫َ َّ َ ُ ِ ي‬ َّ ‫ ِ َّ َ ِ ِ ْ َ ْ َ ُ ٍ ي‬: ُ ُ َ
‫ول ِه ف ِهجرته‬ ِ ‫اَّلل ورس‬ ِ ‫ فمن كانت ِهجرته إل‬،‫ و ِإنما ِلكل ام َر ٍئ م َا نوى‬،‫ات‬ ِ ‫وسلم يقول " إنما اْلعمال ِبالني‬
َ‫ َر َو ُاه إ َماما‬."‫اج َر َإل ْيه‬ َ ‫ت ه ْج َرُت ُه ل ُد ْن َيا ُيص ُيب َها أ ْو ْام َرأة َي ْنك ُح َها َفه ْج َرُت ُه َإل َما َه‬ ْ َ َ ْ َ َ
‫ان‬ ‫ك‬ ‫ن‬ ‫م‬ ‫و‬ ، ‫ه‬ ‫ول‬ ‫س‬ ِ
‫َ ه‬
ُ ‫اَّلل َو َر‬ ‫إل‬
َِ ِ ِ ِ ِ ِ ِ
ُ َ ْ ُ ْ َ ُْ َ َْ ِ َ ُ ْ َ ْ َ ْ ُ ُ َّ َ ُ ْ َ
ِ َ
ُ َ ‫ُْ َ ي‬
‫ وأبو‬، ‫للا محمد بن ِإسم ِاعيل بن ِإبر ِاهيم بن الم ِغبة بن بر ِدزبه البخاري الجع ِ ِف‬ ِ ‫المحد ِثي أبو عب ِد‬
َ َ َ ُ ْ َ ُ َ ِ ‫بن ْال َحجاج بن م ْس ِلم القشبي الني َسابوري ر‬
َ ُ ْ َّ ْ َ ُ ْ ُ َّ ُ ‫ْال ُح َس ْي ُم ْسلم‬
‫ض للا عنه َما ِ ِف "ص ِحيح ْي ِه َما" اللذين‬ ِ ِ
َ َّ َ ُ ْ ُ ُ ْ َ َ َ ُ
‫هما أصح الكت ِب المصنف ِة‬
It is narrated on the authority of Amirul Mu'minin, Abu Hafs 'Umar bin al-Khattab
(ra) who said:
I heard the Messenger of Allah (‫ )ﷺ‬say: "Actions are (judged) by motives (niyyah),
so each man will have what he intended. Thus, he whose migration (hijrah) was to
Allah and His Messenger, his migration is to Allah and His Messenger; but he
whose migration was for some worldly thing he might gain, or for a wife he might
marry, his migration is to that for which he migrated."9 [Bukhari & Muslim]
This reflects the equitable idea that the fulfillment of obligations and rectifications
of wrongs are considered based on the intended outcome.
3.2 Equity Will Not Suffer a Wrong to be Without a Remedy
The Islamic legal framework ensures that injustices are addressed through various
forms of redress, such as Qisas (retribution), Diyya (blood money), and Ta'zir

9
Sahih Muslim 4927
(discretionary punishment). This principle is aligned with the maxim that equity
seeks remedies for wrongs, ensuring that justice is served and harm is redressed.
3.3 Delay Defeats Equity
Prompt justice is a crucial aspect of Islamic law, echoing the maxim that delays in
justice can lead to injustice. The Quran emphasizes the importance of timely
justice, aligning with the equitable principle against undue delay in resolving
disputes and administering justice.
3.4 He Who Seeks Equity Must Do Equity
Reciprocity and fairness are fundamental in Islamic teachings, reflecting the
equitable requirement for fairness in actions. The Quran instructs believers to be
just and fair, even against themselves or close relatives, underscoring the principle
that those seeking justice must themselves be just.
Surah An-Nisa (4:135):
َ ُ َ ‫ّل َأ ُنفس ُك ْم َأو ٱ ْل َو ل َد ْين َوٱ ْ َْل ْق َرب‬ ٰٓ َ ‫ي بٱ ْلق ْسط ُش َه َد ٓا َء ِ هَّلل َو َل ْو َع‬ ُ ُ ُ َ َ َ ‫َ ٰٓ َ َ ه‬
َ ‫ونوا َق َّو م‬
۞ ‫ي ۚ ِإن َيك ْن غ ِن ًّيا‬ ِ َ َ َ ‫َ ْ َ ُِ ُ َ ِ َّ ه‬ ِ ِ ْ ِ ِ ِ َ َ ‫َيـأيَها ٱل ِ َذين ء َام َنوا ك‬
َ َ ُ َ ُ َ َ ٰٓ َّ َ ُ ‫أ ْو فق ربا فٱ ه‬
‫َّلل أ ْول ِب ِه َما ۖ فل تت ِب ُعوا ٱل َه َوى أن تع ِدلوا ۚ و ِإن تلوۥا أو تعرضوا ف ِإن ٱَّلل كان ِبما تعملون خ ِب ر ًۭبا‬
َ ْ َ ْ ْ ٰٓ ُ َ ْ
ًۭ ِ
١٣٥
" O believers! Stand firm for justice as witnesses for Allah even if it is against
yourselves, your parents, or close relatives. Be they rich or poor, Allah is best to
ensure their interests. So do not let your desires cause you to deviate ˹from
justice˺. If you distort the testimony or refuse to give it, then ˹know that˺ Allah is
certainly All-Aware of what you do.10."
َ َ
‫ب صّل للا عليه‬
َّ ْ َ
‫الن َ ي‬ ‫ن‬‫ع‬ ‫سلم‬ ‫و‬ ‫عليه‬ ‫للا‬ ‫صّل‬
‫ه‬
‫اَّلل‬
ِ ‫ول‬ ‫س‬ُ ‫للا َع ْن ُه َخادم َر‬
ِ
ُ ‫ض‬ َ ِ ‫َع ْن أب َح ْم َز َة أ َنس ْبن َم ِالك َر‬
ِِ ِ ِ ِ ِ َِ
َ‫سلم َقال‬ ‫و‬:
َْ َ َّ ُ ََّ َ ْ ُ ُ َ َ ُ ْ ُ َ
"‫يه َما ُي ِحب ِلنف ِس ِه‬
ِ ِ ِ ‫"ل يؤ ِمن أحدكم حب ي ِحب‬.
‫خ‬ ‫ْل‬
َ ْ َ ْ
[‫ ] َر َو ُاه ال ُبخاري‬.[45:‫ َو ُم ْس ِلم ]رقم‬،[13:‫َر َو ُاه ال ُبخاري ]رقم‬
On the authority of Abu Hamzah Anas bin Malik (may Allah be pleased with him) -
the servant of the Messenger of Allah (peace and blessings of Allah be upon him) -
that the Prophet (peace and blessings of Allah be upon him) said:

10
Surah An-Nisa (4:135)
"None of you will believe until you love for your brother what you love for
yourself.11"
This Hadith, although often quoted in the context of brotherhood and love, also
underscores the principle of reciprocity and fairness in dealings. It implies that
equitable treatment is not just a legal requirement but a moral and ethical one
that extends to all aspects of life, including justice. Believers are encouraged to
treat others as they would like to be treated, reinforcing the concept that seeking
fairness requires one to be fair in their actions.
These texts from the Quran and Sunnah (the teachings and practices of the
Prophet Muhammad) illustrate the deep embedding of equity, fairness, and
reciprocity in Islamic teachings. They highlight that in Islam, justice is not only a
divine commandment but also a reciprocal responsibility, where those seeking
justice must also be willing to act justly and equitably in all their dealings
3.5 He Who Comes into Equity Must Come with Clean Hands
Islamic law emphasizes sincerity and integrity, resonating with the principle that
one must not benefit from their own wrongdoing. The emphasis on honesty and
ethical conduct in Islam reflects the equitable notion that those seeking justice
must do so with clean hands.
3.6 Equity Imputes an Intention to Fulfil an Obligation
In Islam, fulfilling obligations is paramount, and the intention to fulfill these
obligations is considered intrinsic. This mirrors the equitable principle that
recognizes the intent behind fulfilling obligations, aligning with Islamic contracts
where the moral and ethical intention is a key component.
3.7 Equity Acts in Personam
Islamic justice often considers individual circumstances and intentions, akin to the
equitable principle that remedies and judgments can be tailored to individual
cases. This personal approach in Islamic law, especially in matters of Qisas and
Diyya, reflects the flexible nature of equity.
3.8 Equity Looks to the Intent Rather Than the Form
The emphasis in Islamic jurisprudence on the spirit and objectives (Maqasid) of
the law over its literal form aligns with the equitable maxim of prioritizing intent

11
Al-Bukhari and Muslim, Hadith 13, 40 Hadith an-Nawawi
over form. This principle allows for the consideration of the broader purposes of
Islamic law, ensuring that rulings serve justice and the common good.
3.9 Equity Aids the Vigilant, Not Those Who Slumber on Their Rights
Islamic law encourages the prompt assertion of rights and responsibilities,
resonating with the equitable admonition against inaction. This principle is
evident in the emphasis on seeking justice and fulfilling obligations without undue
delay.
3.10 Equity is Equality
Equality before the law and the equitable treatment of individuals, regardless of
status, is a core principle in Islam. The Quranic emphasis on equality and justice
for all reflects the equitable principle that justice is blind to status, wealth, or
power.
Surah Al-Hujurat (49:13):
ُ َ ْ َ ‫َ ٰٓ َ َ َّ ُ َّ َ َ ْ َ ُ ي َ َ َ ُ َ َ َ َ ْ َ ُ ْ ُ ُ ر َ َ َ ٓ َ َ َ َ ُ ٰٓ َّ َ ْ َ َ ُ ْ َ ه‬
‫َّلل أتقىك ْم‬
ِ ‫وبا وقبا ِئل ِلتعارفوا ۚ ِإن أ كرمكم ِعند ٱ‬
ًۭ ‫ۚي َّـأي هها َ ٱ َلناس ِإ َنا خلقنـكم من ذك ٍر وأنب وجعلنـكم شع‬
١٣ ‫ِإن ٱَّلل ع ِليم خ ِب ًۭب‬
"O mankind, indeed We have created you from male and female and made you
peoples and tribes that you may know one another. Indeed, the most noble of you
in the sight of Allah is the most righteous of you. Indeed, Allah is Knowing and
Acquainted12."
This verse emphasizes the equality of all humans in the eyes of Allah, stating that
the only criterion for superiority is righteousness and piety, not race, wealth, or
social status.
The Prophet Muhammad (peace be upon him) said:
‫عرب ول ْلبيض عّل‬
ِ َ ‫ْلعجم عّل‬
ِ ‫أعجم ول‬
ِ ِ َ ‫ ل فضل‬.‫كل الناس سواسية كأسنان المشط‬
‫لعرب عّل‬
‫أسود ول ْلسود عّل أبيض إل بالتقوى والعمل الصالح‬
"All humans are equal as the teeth of a comb. There is no superiority for an Arab
over a non-Arab, nor for a non-Arab over an Arab, nor for a white person over a
black person, nor for a black person over a white person, except by piety and good
deeds." (Reported by Ahmad)

12
Surah Al-Hujurat (49:13)
This Hadith explicitly addresses equality and denounces racial or color-based
superiority, emphasizing that the only thing that distinguishes people in the sight
of Allah is their piety and good actions.
Both the verse and the Hadith underline the Islamic principle that everyone is
equal before the law and that justice should be administered impartially, without
favoritism or discrimination. This reinforces the notion that equity and equality
are fundamental to Islamic jurisprudence and moral teaching, aligning closely with
the principle that justice is blind to status, wealth, or power.
3.11 Equity Regards the Beneficiary as the True Owner
In the context of Islamic trusts (Waqf13), the rights and welfare of the beneficiaries
are paramount, reflecting the equitable principle that considers the interests of
the beneficiary as of utmost importance. This aligns with the idea of equitable
ownership and the protection of beneficiary rights.
3.12 Equity Does Not Aid a Volunteer
Islamic law emphasizes the importance of formalizing agreements and ensuring
that actions are grounded in recognized legal or moral obligations. This principle
mirrors the equitable notion that benefits are not conferred upon those who act
without a legitimate basis or expectation of reward.

Section 4: Comparative Analysis

The exploration of equity within Islamic jurisprudence through the lens of Istihsan
and the maxims of equity in Western legal tradition reveals a fascinating
convergence of principles across these distinct legal systems. This comparative
analysis underscores the universal appeal and application of equity,
demonstrating how both traditions prioritize fairness, justice, and the welfare of
the community in their legal reasoning and outcomes. This section synthesizes the
insights gained from the parallel examination of the maxims of equity and Islamic
teachings, highlighting the shared values and distinct approaches that enrich the
global legal landscape.
4.1 Shared Values in Pursuit of Justice
A core finding of this analysis is the shared commitment to justice, fairness, and
the alleviation of hardship that underpins both Islamic law and the Western

13
https://www.britannica.com/topic/waqf
tradition of equity. Both systems recognize the limitations of rigid legal
frameworks and the necessity for flexibility to address unique circumstances and
ensure just outcomes.
4.2 Flexibility and Adaptability of Legal Systems
The concept of Istihsan and the application of the maxims of equity both illustrate
the dynamic nature of legal systems and their capacity to adapt to changing
societal needs and moral understandings. These mechanisms allow for discretion
and judicial creativity in interpreting and applying legal principles, ensuring that
the law remains relevant and responsive to the human condition. This adaptability
is crucial for the evolution of legal systems and their ability to administer justice in
diverse and complex societies.
4.3 Distinct Approaches to Achieving Equity
While Islamic jurisprudence and Western equity share similar goals, they employ
distinct approaches and frameworks to achieve these ends. Istihsan, rooted in the
comprehensive sources of Sharia, offers a unique perspective on equity that
integrates legal, moral, and ethical considerations, guided by the overarching
objectives of Islamic law14. In contrast, the maxims of equity, emerging from the
historical context of the English legal system, provide a set of principles that
operate within the broader framework of common law to correct or mitigate its
shortcomings.
4.4 Universal Principles Across Legal Traditions
The comparative analysis reveals that the pursuit of equity transcends legal,
cultural, and historical boundaries, embodying universal principles that resonate
across different legal traditions. The alignment between Istihsan and the maxims
of equity highlights the common human quest for fairness, compassion, and
justice. This universality suggests that despite the diversity of legal systems, there
exists a shared moral foundation that guides the quest for equitable solutions to
legal and ethical dilemmas.

Conclusion
The concept of equity within the realms of Islamic jurisprudence was explored,
drawing parallels to the maxims of equity as understood in Western legal

14
https://islamicbankers.files.wordpress.com/2015/08/the-objectives-of-islamic-law-151.pdf
tradition. Through a detailed examination of these maxims alongside Islamic
teachings and the principle of Istihsan, it was uncovered that a profound
alignment between these seemingly distinct legal systems. Both traditions, despite
their unique historical and cultural contexts, embody a deep commitment to
fairness, justice, and the alleviation of hardship, underscoring the universality of
equity as a fundamental legal and moral principle.
The exploration of the 12 maxims of equity through the lens of Islamic law
revealed not only compatibility but also a shared ethos that transcends legal
traditions. The principle of Istihsan, in particular, emerged as a cornerstone of
equity in Islamic jurisprudence, offering flexibility and discretion to achieve just
outcomes in a manner that resonates with the essence of the equitable maxims.
This alignment underscores the adaptability of legal systems to the complexities of
human life, emphasizing the importance of context, intention, and the
overarching objectives of justice and welfare in legal reasoning.
In conclusion, the study of equity in Islamic jurisprudence, particularly through the
prism of Istihsan, and its comparison with the maxims of equity in Western law,
enriches understanding of legal traditions and the universal quest for justice. It
reaffirms the idea that despite diverse origins and methodologies, the core values
of fairness, justice, and compassion are universal constants in the pursuit of
equitable legal outcomes.
References:
Books:
• Islamic Law: A Very Short Introduction by Joseph Schacht (2002)
• "Islamic Law and Its Contemporary Applications" by Wael Hallaq (2009):
This book provides a comprehensive overview of Islamic Law, including
discussions on equity and legal reasoning.
• "The Formation of Islamic Law" by Joseph Schacht (2003): This book delves
into the historical development of Islamic legal principles, offering insights
into the evolution of equitable considerations within Islamic jurisprudence.
• Justice and Equity in the Muslim World: A Historical Account by Noah
Feldman (2012)
• An Introduction to Islamic Law by Mohammad Hashim Kamali (2008)
Articles:
• "The Concept of Gender Equality and Equity: An Islamic View" by Mohamed
S. Ismail, Indriaty Ismail & Zul' Azmi Yaak
https://www.researchgate.net/publication/372076797_The_Concept_of_G
ender_Equality_and_Equity_An_Islamic_View
• "Maslaha and Istislah in Islamic Law" by Khaled Abou El Fadl
https://en.wikipedia.org/wiki/Maslaha (Islamopedia): This online resource
provides a concise explanation of Maslaha (public interest) and Istislah
(juristic preference) as key concepts in achieving equity within Islamic Law.
• "The Maxims of Equity in Islamic Law" by Islamopedia Staff
https://en.wikipedia.org/wiki/Maxims_of_equity (Islamopedia): This online
resource explores the concept of equity in Islamic Law and provides some
examples of equitable principles applied in Islamic jurisprudence.
• "Equity and the Common Law Tradition in the Muslim World" by Wael
Hallaq, The American Journal of Comparative Law, Vol. 43, No. 1 (1995):
This article delves into the historical development of equity in Islamic legal
thought and compares it to the common law tradition.
 • "Istihsan and the Evolution of Islamic Law" by Mohammad Hashim Kamali,
The International Journal of Middle East Studies, Vol. 12, No. 1 (1980): This
article explores the concept of Istihsan and its role in the dynamic evolution
of Islamic Law in response to changing circumstances.
• "Justice and Equity in Islamic Law: The Role of Qiyas and Istihsan" by
Abdullah Saeed, Islamic Law and Society, Vol. 6, No. 1 (1999): This article
examines the role of Qiyas (analogy) and Istihsan in achieving justice and
equity within Islamic legal reasoning.
Websites:
• "Human Rights in Islam" by International Islamic University Malaysia
http://irep.iium.edu.my/29397/1/Human_Rights_Law_%281%29.pdf
• "Social Justice in Islam" by Pakistan Judicial Academy https://pja.gov.pk/