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Quote rami Replybullet Topic: The Objectives of Islamic Law
    Posted: 15 April 2007 at 7:01am
Bi ismillahir rahmanir raheem

assalamu alaikum

Maqasid al Shariah: The Objectives of Islamic Law
By Dr Mohammad Hashim Kamali

Introduction

This essay is presented in five sections beginning with a general characterisation of the maqasid al-Shariah and its origins in the Quran. The next section addresses the classification of the maqasid and a certain order of priority that is integrated into the structure of the maqsid. Section three is devoted to historical developments and the contributions of some of the leading ulama especially that of Abu Ishaq Ibrahim al-Shatibi, to the theory of the maqasid. Section four looks into the differential approaches the ulama have taken toward the identification of the maqasid. The last section highlights the relevance of the maqasid to ijtihad and the ways in which the maqsid can enhance the scope and calibre of ijtihad.

Textual Origins

Maqasid al-Shari`ah, or the goals and objectives of Islamic law, is an evidently important and yet somewhat neglected theme of the Shariah. Generally the Shari`ah is predicated on the benefits of the individual and that of the community, and its laws are designed so as to protect these benefits and facilitate improvement and perfection of the conditions of human life on earth. The Quran is expressive of this when it singles out the most important purpose of the Prophethood of Muhammad (peace be on him) in such terms as: "We have not sent you but a mercy to the world" (21: 107). This can also be seen perhaps in the Qurans characterisation of itself in that it is "a healing to the (spiritual) ailment of the hearts, guidance and mercy for the believers" (and mankind) (10: 57).

The two uppermost objectives of compassion (rahmah)and guidance (huda)in the foregoing verses are then substantiated by other provisions, in the Quran and the Sunnah that seek to establish justice, eliminate prejudice, and alleviate hardship. The laws of the Quran and the Sunnah also seek to promote cooperation and mutual support within the family and the society at large. Justice itself is a manifestation of Gods mercy as well as an objective of the Shariah in its own right. Compassion (rahmah) is manifested in the realisation of benefit (maslahah)which the Ulam have generally considered to be the all-pervasive value and objective of the Sharah and is to all intents and purposes synonymous with rahmah.

Educating the individual (tahdhib al-fard) is another important objective of the Shariah so much so that it comes, in order of priority, even before justice and maslahah. For these are both socially-oriented values which acquire much of their meaning in the context of social relations, whereas tahdhib al-fard seeks to make every individual a trustworthy agent and carrier of the values of the Sharah, and it is through educating the individual that the Shariah seeks to realise most of its social objectives. The overall purpose of a great deal of the laws and values of the Shariah, especially in the spheres of ibadat and moral teaching, is to train an individual who is mindful of the virtues of taqwa and becomes an agent of benefit to others.

The Quran is expressive, in numerous places and a variety of contexts, of the rationale, purpose and benefit of its laws so much so that its text becomes characteristically goal-oriented. This feature of the Qurnic language is common to its laws on civil transactions (muamalat)as well as devotional matters (ibadat). Thus when the text expounds the rituals of wud (ablution for prayer) it follows on to declare that "God does not intend to inflict hardship on you. He intends cleanliness for you and to accomplish his favour upon you" (5: 6). Then with regard to the prayer itself, it is declared that "truly salh obstructs promiscuity and evil" (29: 45). With reference to jihd the Quran similarly proclaims its purpose in such term that "permission is granted to those who fight because they have been wronged" (22: 39). The purpose, in other words, of legalising jihd is to fight injustice (zulm) and the purpose of salah is to attain spiritual purity and excellence that is accomplished together with physical cleanliness through ablution before prayer. With reference to the law of just retaliation (qisas), the text similarly declares that "in qisas there is life for you, o people of understanding" (2: 179); and with regard to poor-due (zakah), the Quran validates it "so that wealth does not circulate only among the wealthy" (57:7). According to another text, the believers are under duty to lower their gaze in their encounter with members of the opposite sex, "for this will help you to attain greater purity" (24: 30).

One can add many more examples of the law which show how the Quran and the Sunnah are expressive of their goal justification, cause and benefit in the affirmative sense, just as one finds numerous references to evil conduct and crime which is reprimanded and made punishable, in the negative sense, in order to prevent injustice, corruption and prejudice. In the area of commerce and muamalt, the Quran forbids exploitation, usury, boarding and gambling which are harmful and jeopardise the objective of fair dealing in the market-place. The underlying theme in virtually all of the broad spectrum of the ahkam is realisation of benefit (maslahah)which is regarded as the summa of the maqasid. For justice is also a maslahah and so is tahdhib al-fard. The masalih (pl. of maslahah), thus become another name for the maqasid and the ulama have used the two terms almost interchangeably.

Classification Of Benefits

The ulama have classified the entire range of masalih-cum-maqasid into three categories in a descending order of importance, beginning with the essential maslih, or daruriyyat, followed by the complementary benefits, or hajiyyat, and then the embellishment tahsiniyyat. The essential interests are enumerated at five, namely faith, life, lineage, intellect and property. These are, by definition, essential to normal order in society as well as to the survival and spiritual well being of individuals, so much so that their destruction and collapse will precipitate chaos and collapse of normal order in society. The Shariah seeks to protect and promote these values and validates measures for their preservation and advancement. Jihad has thus been validated in order to protect religion, and so is just retaliation (qisas) which is designed to protect life. The Shariah takes affirmative and also punitive measures to protect and promote these values. Theft, adultery and wine-drinking are punishable offences as they pose a threat to the protection of private property, the well-being of the family, and the integrity of human intellect respectively. In an affirmative sense again, but at a different level, the Shariah encourages work and trading activity in order to enable the individual to earn a living, and it takes elaborate measures to ensure the smooth flow of commercial transactions in the market-place. The family laws of the Shariah are likewise an embodiment largely of guidelines and measures that seek to make the family a safe refuge for all of its members. The Shariah also encourages pursuit of knowledge and education to ensure the intellectual well-being of the people and the advancement of arts and civilisation. The essential masalih, in other words, constitute an all-encompassing theme of the Shariah as all of its laws are in one way or another related to the protection of these benefits. These benefits are an embodiment, in the meantime, of the primary and overriding objectives of the Shariah.

The second class of the interests, known as hajiyyat, or complementary interests, are not an independent category as they also seek to protect and promote the essential interests, albeit in a secondary capacity. These are defined as benefits, which seek to remove severity and hardship that do not pose a threat to the very survival of normal order. A great deal of the concessions (rukhas)such as the shortening of salah, and opening of the fast for the sick and the traveller, which the Shariah has granted, are aimed at preventing hardship, but they are not essential since people can live without them if they had to. In almost all areas of obligatory ibadat the Shariah has granted such concessions. Similarly, in the area of criminal law, the hadith which proclaims that "prescribed penalties are suspended in all cases of doubt" protects a secondary interest in that it regulates the manner in which punishments are enforced. These punishments are in turn designed to protect the essential interests through judicial action. In the sphere of muamalat, the Shariah validated certain contracts, such as the sale of salam, and also that of lease and hire (ijarah)because of the peoples need for them notwithstanding a certain anomaly that is attendant in both. In the sphere of family law, once again the Sharah permits divorce in situations of necessity by way, that is, of a concession, which is aimed, in the final analysis, at ensuring the well-being of the family and defending it against intolerable conflict.

A maslahah of the second class is elevated to the rank of the essential maslahah when it concerns the public at large. To illustrate this, the validity of ijarah may be of secondary importance to an individual but it is an essential interest for the society at large. Similarly, certain concessions that are granted in the sphere of ibadat may be secondary to the survival of an individual but it becomes, a matter of primary interest for the community as a whole. In the event of a conflict arising between the various classes of interest, the lesser of these may be sacrificed in order to protect a higher interest. When there is a plurality of conflicting interests and none appears to be clearly preferable, then prevention of evil takes priority over the realisation of benefit. This is because the Shariah is more emphatic on the prevention of evil, as can be seen in the hadith where the Prophet (peace be on him) has reportedly said: "When I order you to do something, do it to the extent of your ability, but when I forbid you from something, then avoid it (altogether)".

The third class of maslih, known as tahsniyyt, are in the nature of desirabilities as they seek to attain refinement and perfection in the customs and conduct of people at all levels of achievement. The Sharah thus encourages cleanliness of body and attire for purposes of prayer and recommends, for instance, the wearing of perfume when attending the congregational Friday prayer; contrariwise, it discourages the consumption of raw garlic on that occasion. The Shariah also encourages charity to those in need beyond the level of obligatory taxes, and in ibadat, it recommends supererogatory prayers, and so forth. In customary matters and relations among people, the Shariah encourages gentleness (rifq), pleasant speech and manner (husn al-khulq)and fair dealing (ihsan). The judge and the head of state are similarly counselled not to be too eager in the enforcement of penalties, such a course being considered a desirable one to take. The purpose of all this is the attainment of beauty and perfection in all areas of human conduct.

This last category of interests is perhaps of special importance as it is pervasive and relates to all other masalih. One can perform the obligatory salah, for example, in different ways, with or without proper concentration and giving each of its parts their due attention, or perform it in a hasty and thoughtless manner, and the difference between them is that the first is espoused with the attainment of both the essential and the desirable, and the second can at best be discharged as a duty. One can extend this analysis to almost every area of human conduct and the implementation of almost all of the ahkam of the Shariah. It should be obvious, then, that the classification of masalih need not be confined to the ahkam of the Shariah or to religious matters alone as it is basically a rational construct that applies to customary, social, political, economic and cultural affairs and so forth. To build the first hospital in a town is likely to be necessary and essential, but to build a second and third may be only complementary and desirable. And then to equip each one with the latest and most efficient health care facilities may fall under the category either of the second or the third classes of interests, depending, of course, on the general conditions of each locality. From this analysis, it also appears that classifying a certain interest and maslahah under one or the other of these categories is likely to be relative and involve value judgement that contemplate the attendant circumstances of each case.

History In Brief

As a theme of the Sharah in its own right, the maqasid did not receive much attention in the early stages of the development of Islamic legal thought and, as such, they represent rather a later addition to the juristic legacy of the madhhib. Even to this day many a reputable textbook on Usl al-Fiqh does not mention maqsid al-Sharah in their usual coverage of familiar topics. This is partly due perhaps to the nature of the subject, which is largely concerned with the philosophy of the law, its outlook and objective, rather than the specific formulations of its text. Although the maqsid as a distinctive theme of the Sharah are obviously relevant to ijtihd, they have not been treated as such in the conventional expositions of the theory of ijtihd.

Islamic legal thought is, broadly speaking, preoccupied with concerns over conformity to the letter of the divine text, and the legal theory of Usl al-Fiqh has advanced that purpose to a large extent. This literalist orientation of the juristic thought was generally more pronounced in the approach of the tendency - the traditionist - the Ahl al-Hadth - than that of the Rationalists - the Ahl al-Ray. The literalists thus tended to view the Sharah as a set of rules, commands and prohibitions that were addressed to the competent individual mukallaf and all that the latter was expected to conform to its directives. The precedent of the leading Companions indicated, on the other hand, that they saw the Sharah both as a set of rules and a value system in which the specific rules were seen as tangible manifestations of the overriding values. The textualist tradition of the first three centuries did not take much interest in maqsid al-Sharah and it was not until the time of al-Ghazl (d. 505/1111) and then al-Shtibi (d. 790/1388) that significant developments were made in the formulation of the theory of maqsid.

The basic outlook that was advocated by the theory of the maqsid was not denied by the leading schools, yet the maqsid remained on the fringes of the mainstream juristic thought that was manifested in the various themes and doctrines of Usl al-Fiqh. Except for the Zhirs who maintained that the maqsid are only known when they are identified and declared by the clear text, the majority of ulam did not confine the maqsid to the clear text alone. For they perceived and understood the Sharah to be rational, goal-oriented and its rules generally founded on identifiable causes. A mere conformity to rules that went against the purpose and outlook of the Sharah was., therefore, generally considered unacceptable. A totally different approach to the maqsid was taken by the Btiniyyah who held, contrary to the Zhirs, that the essence and objective of the nuss were always to be found, not in the explicit words of the text, but in its hidden meaning (i.e. btin), hence their name, the Btiniyyah. There were also differences of orientation among the leading madhhib toward the maqsid: some were more open to it than others, but elaboration into the goals and objectives of the Sharah was generally not encouraged. This rather unspoken attitude contrasted with the fact that the Qurn itself exhibits considerable awareness of the underlying purposes and objectives of its laws and often expounds the causes and rationale on which they are founded. The general reticence of the ulam in respect of the identification of the maqsid might have partly been due to the elements of projection and prognostication that such an exercise was likely to involve. Who can tell, for sure, for example, that this or that is the purpose and overriding objective of the Lawgiver, without engaging in a degree of speculation, unless of course, the text itself declared it so. But then to confine the scope of the maqsid only to the clear declaration of the texts was also not enough, as I shall presently elaborate.

It was not until the early fourth century that the term maqsid was used in. the juristic writings of Ab Abd Allh al-Tirmidh al-Hakm (d. 320/932) and recurrent references to it appeared in the works of lmm al-Haramayn al-Juwayn (d. 478/1085) who was probably the first to classify the maqsid al-Sharah into the three categories of essential, complementary and desirable (darriyyt, hjiyyt, tahsniyyt)which has gained general acceptance ever since. Juwayns ideas were then developed further by his pupil, Ab Hamd al-Ghazl who wrote at length on public interest (maslahah)and ratiocination (tall)in his works, Shif al-Ghall and al-Mustasf. Ghazl was generally critical of maslahah as a proof but validated it if it promoted the maqsid of the Sharah. As for the maqsid themselves, Ghazl wrote categorically that the Sharah pursued five objectives, namely those of faith, life, intellect, lineage and property which were to be protected as a matter of absolute priority.

A number of prominent writers continued to contribute to the maqsid, not all of them consistently perhaps, yet important to the development of ideas. Sayf al-Dn al-mid (d. 631/1233) identified the maqsid as criteria of preference al-tarjh among conflicting analogies and elaborated on an internal order of priorities among the various classes of maqsid. mid also confined the essential maqsid to only five. The Mlik jurist, Shihab al-Din al-Qarf (d. 684/1285) added a sixth to the existing list, namely the protection of honour (al-ird)and this was endorsed by Taj al-Din Abd al-Wahhab ibn al-Subki (d. 771/1370) and later by Muhammad ibn Ali al-Shawkn (d. 1250/1834). The list of five essential values was evidently based on a reading of the relevant parts of the Qurn and the Sunnah on the prescribed penalties (hudud). The value that each of these penalties sought to vindicate and defend was consequently identified as an essential value. The latest addition (i.e. al-ird)was initially thought to have been covered under lineage (al-nasl, also al-nasab), but the proponents of this addition relied on the fact that the Shariah had enacted a separate hadd punishment for slanderous accusation (al-qadhf), which justified the addition. Izz al-Dn Abd al-Salm al-Sulamis (d. 660/1262) renowned work, Qawaid al-Ahkam, was in his own characterisation a work on maqasid al-ahkam and addressed the various aspects of the maqasid especially in relationship to illah (effective cause) and maslahah (public interest) in greater detail. Thus he wrote at the outset of his work that "the greatest of all the objectives of the Qurn is to facilitate benefits (maslih)and the means that secure them and that the realisation of benefit also included the prevention of evil." Sulam added that all the obligations of the Shariah (al-takalif)were predicated on securing benefits for the people in this world and the next. For God Most High is Himself in no need of benefit nor is He in need of the obedience of His servants. He is above all this and cannot be harmed by the disobedience of transgressors, nor benefit from the obedience of the righteous. The Sharah is, in other words, concerned, from the beginning to the end, with the benefits of Gods creatures.

Taqi al-Din ibn Taymiyyah (d. 728/1328) was probably the first scholar to depart from the notion of confining the maqasid to a specific number and added, to the existing list of the maqasid, such things as fulfilment of contracts, preservation of the ties of kinship, honouring the rights of ones neighbour, in so far as the affairs of this world are concerned, and the love of God, sincerity, trustworthiness, and moral purity, in relationship to the hereafter. Ibn Taymiyyah thus revised the scope of the maqasid from a designated and specified list into an open-ended list of values, and his approach is now generally accepted by contemporary commentators, including Ahmad al-Raysuni, Yusuf al-Qaradawi and others. Qaradawi has further extended the list of the maqasid to include social welfare and support (al-takaful), freedom, human dignity and human fraternity, among the higher objectives and maqasid of the Shariah. These are undoubtedly upheld by both the detailed and the general weight of evidence in the Quran and the Sunnah.

I propose to add economic development and strengthening of R & D in technology and science to the structure of maqasid as they are crucially important in determining the standing of the ummah in the world community. It would appear from this analysis that the maqsid al-Shariah remain open to further enhancement which will depend, to some extent, on the priorities of every age.

Identification Of Maqasid

As already indicated the ulama have differed in their approach to the identification of the maqsid. The first approach to be noted is the textualist approach, which confines the identification of the maqasid to the clear text, commands and prohibitions, which are the carriers of the maqasid. The maqsid, according to this view, have no separate existence outside this framework. Provided that a command is explicit and normative it conveys the objective maqsud of the Lawgiver in the affirmative sense. Prohibitions are indicative of the maqsid in the negative sense in that the purpose of a prohibitive injunction is to suppress and avert the evil that the text in question has contemplated. This is generally accepted, but there are certain tendencies within this general framework. While the Zahiris tend to confine the maqasid to the obvious text, the majority of jurists takes into consideration both the text and the underlying illah and rationale of the text. The chief exponent of the maqasid, Shatibi, has spoken affirmatively of the need to observe and respect the explicit injunctions, but then he added that adherence to the obvious text should not be so rigid as to alienate the rationale and purpose of the text from its words and sentences. Rigidity of this kind, Shatibi added, was itself contrary to the objective (maqsud)of the Lawgiver, just as would be the case with regard to neglecting the clear tent itself. When the text, whether a command or a prohibition, is read in conjunction with its objective and rationale, this is a firm approach, one which bears greater harmony with the intention of the Lawgiver. Shatibi elaborated that the maqasid that are known from a comprehensive reading of the text are of two types, primary (asliyyah)and secondary (tabiyyah). The former are the essential maqsid or darriyyt which the mukallaf must observe and protect regardless of personal predilections, whereas the supplementary maqsid -hajiyyat- are those which leave the mukallaf with some flexibility and choice.

A comprehensive reading of the textual injunctions of the Shariah has given rise to such questions as to whether the means to a wjib or harm should also be seen as a part of the objective that is pursued by that injunction; whether the means to a command, in other words, is also an integral part of that command. Another question raised is whether avoiding the opposite of a command is integral to the goal and objective that is sought by that command. The general response given to these questions is that the supplementary aspects of commands and prohibitions are an integral part of their objectives, although disagreements have emerged over details. There is a general agreement that the opposite of a command amounts to a prohibition in the event where that opposite can be clearly identified. Most of the injunctions of the Sharah are easily understood, and their objectives as well as their opposites can be known and ascertained from the reading of the clear text. It is thus noted that whatever might be necessary for the carrying out of a command or a wjib is also a part of that wjib. Shtib has similarly concluded that whatever is complementary to the maqsid and in the service thereof is also a part of the maqsid. The question then arises regarding the silence of the Lawgiver in respect of a certain conduct in situations especially where a general reading of the relevant evidence sheds light on the value of that conduct. The question may be put as follows: We know that the maqsid are known from clear injunctions, but can they also be known from a general reading of the nuss by way of induction? This is where Shatibi has given an original response, and this is what we take up next.

Induction (istiqra) to Shatibi is one of the most important methods of identifying the maqsid of the Sharah. There may be various textual references to a subject, none of which may be in the nature of a decisive injunction. Yet their collective weight is such that it leaves little doubt as to the meaning that is obtained from them. A decisive conclusion may, in other words, be arrived at from a plurality of speculative expressions. Shtib illustrates this by saying that nowhere in the Qurn is there a specific declaration to the effect that the Sharah has been enacted for the benefit of the people. Yet this is a definitive conclusion which is drawn from the collective reading of a variety of textual proclamations. Shtib then adds that the benefits (maslih)are to be understood in their broadest sense which is inclusive of ail benefits pertaining to this world and the hereafter, those of the individual and the community, material, moral and spiritual, and those which pertain to the present as well as the interests of the future generations. This broad meaning of benefits also includes prevention and elimination of harm. These benefits cannot always be verified and ascertained by human reason alone without the aid and guidance of divine revelation.

The typical classification of the maqsid into the three categories of essential,-complementary and desirable, and the conclusion that the Lawgiver has intended to protect these are based, once again, on induction-as there is no specific declaration on them in the textual sources. On a similar note, the ruling of the Shariah that the validity of an act of devotion (ibadah)cannot be established by means of ijtihd is an inductive conclusion which is drawn from the detailed evidence on the subject, as there is no specific injunction in the sources to that effect. These conclusions are, in the meantime, of great overall importance; they are not open to doubt, nor is their credibility a matter of speculative reasoning. It is also the same inductive method which has led the ulama to the conclusion that the protection of the five values of faith, life, intellect, property and lineage is of primary importance to the Shariah - there being no textual ruling to specify any category or number of values in that order.

Shatibis inductive method is not confined to the identification of objectives and values but also extends to commands and prohibitions, which may either be obtained from the clear text, or from a collective reading of a number of textual proclamations that may occur in a variety of contexts. Shatibi then goes a step further to say that the inductive conclusions and positions that are so established are the general premises and overriding objectives of the Shariah and thus have a higher order of importance than specific rules. It thus becomes evident that induction is the principal method of reasoning and proof to which Shatibi resorted in his theory of the maqasid and it is also in this regard that he has made an original contribution to this theme.

Shatibis approach to induction is reminiscent of the knowledge that is acquired of the personality and character of an individual that is based on sustained association with that individual and observation of his conduct over a period of time. This kind of knowledge is broad and holistic, as it is enriched with insight, and likely to be more reliable when compared to the knowledge that might be based only on the observation of specific, isolated incidents in the daily activities of the individual concerned.

Maqasid And Ijtihad

Having expounded his theory of the maqsid, Shatibi accentuated the knowledge of the maqsid as a prerequisite of attainment to the rank of a mujtahd. Those who neglect acquiring mastery of the maqsid do so to their own peril as it would make them liable to error in ijtihd. Included among these were the proponents of pernicious innovation (ahl al-bidah)who only looked at the apparent text of the Quran without pondering over its objective and meaning. These innovators (an allusion to the Khrijites) held on to the intricate segments of the Quran (almutashabihat)and premised their conclusions on them. They took a fragmented and atomistic approach to the reading of the Quran which failed to tie up the relevant parts of the texts together. The leading ulama have, on the other hand, viewed the Shariah as a unity in which the detailed rules should be read in the light of their broader premises and objectives. Tahir ibn Ashur, the author of another landmark work on the maqasid, Maqasid al-Shariah al-Islamiyyah, has also confirmed that knowledge of the maqasid is indispensable to ijtihad in all of its manifestations. Some ulama who confined the scope of their ijtihad only to literal interpretations have found it possible, Ibn Ashur added, to project a personal opinion into the words of the text and fell into error as they were out of line with the general spirit and purpose of the surrounding evidence. This may be illustrated by reference to the different views of the ulama on whether the zakah on commodities such as wheat and dates must be given in kind or could it also be given in their monetary equivalent. The Hanafis have validated giving of zakah in monetary equivalent but al-Shafii (d. 204/820) has held otherwise. The Hanaf view is founded on the analysis that the purpose of zakah is to satisfy the need of the poor and this can also be achieved by paying the monetary equivalent of a commodity. Ibn Qayyim al-Jawziyyah has likewise observed regarding (sadaqat al-fitr)that there are ahdith on the subject which refer sometimes to dates and at other times to raisins or foodgrains as these were the staple food of Madnah and its environs at the time. The common purpose in all of these was to satisfy the need of the poor rather than to confine its payment in a particular commodity. To give another example, Mlik (d. 179/795) was asked about a person who paid his zakah ahead of time, that is, prior to the expiry of one year, whether he was liable to pay it again at the end of the year. Mlik replied that he was and drew an analogy with the ritual prayer (salah). If someone performs his prayer before its due time, he must perform it again its proper time. Subsequent Maliki jurists, including Ibn al-Arabi (d. 543/1148) and Ibn Rushd (d. 520/1126), have reversed this position and stated that early payment of zakah was -permissible. There was, they added, a difference between salh and zakah in that the former was time-bound to specific times, but no such time had been stipulated for the payment of zakah. Hence zakah may be paid earlier especially if it is prepaid by only a few weeks or even longer. Abu Hanifah (d. 150/767) has often been criticised by the Ahl al-Hadith for-having departed on occasions from the wording of ahadith to an alternative ruling. But on closer examination it becomes clear that Abu Hanifah has done so only when he reached a different conclusion by reading a particular hadith in conjunction with other relevant evidence in the Quran and the Sunnah.

It will also be noted that on occasions mujtahidsand judges have issued decisions in disputed matters, which were found upon further scrutiny to be in disharmony with the goals and objectives of the Sharah. Instances of this nature are also encountered with reference to contracts since a contract may duly have been signed and made binding on the parties and only then it was found to be unfair to one of the parties due to some unexpected change of circumstance. In that eventuality the judge and mujtahid can hardly ignore the subsequent changes and insist on the obligatoriness of the said contract on purely formal grounds. For a contract is no longer the governing law of contracting parties (shariat al-aqidayn)if it proves to be an instrument of injustice. Such a contract must be set aside and justice, which is the goal and maqsd of the Lawgiver, must be given priority over considerations of conformity to an untenable contract. Without going into details, instances of conflict between the overriding objectives of the Sharah and a particular ruling thereof can also arise with reference to the rulings of analogy (qiyas). A rigid adherence to qiyas in certain cases may lead to unsatisfactory results, hence a recourse may be had to istihsan in order to obtain an alternative ruling that is in harmony with the objectives of the Shariah.

Another feature of the maqsid which is important to ijtihd is the attention a mujtahid must pay to the end result and consequence of his ruling. For a fatwa or ijtihad would be deficient if it fails to contemplate its own consequences (maalat). We note in the Sunnah of the Prophet (peace be on him) instances where the Prophet paid attention to the consequence of his ruling often in preference to other considerations. There were cases, for instance, where the Prophet (peace be on him) knew about the subversive activities of the hypocrites but he did not pursue them for reasons, as he stated himself, that I fear people might say that Muhammad kills his own Companions". The Prophet (peace be on him) also avoided to change the location of the Kabah to its original foundations where the patriarch Prophet, Ibrahim, had laid them. The pre-Islamic Arabs of Makkah had evidently changed that location, and when Aishah suggested to the Prophet (peace be on him) that he could perhaps restore the Kabah to its original position, he responded: "I would have done so if I didnt fear that this may induce our people into disbelief." In-both of these cases, the Prophet (peace be on him) did not take what would be thought to be the normal course, that is, to kill the hypocrites, and-to restore the Kabah to its original foundations because of the adverse consequences that were feared as a result of so doing.

The normal course in the context of crimes and penalties is, of course, to apply the punishment whenever the cause and occasion for it is present. There may be cases, however, where pardoning the offender appears a preferable course to take, and it is for the judge and mujtahid to pay attention to them, and then reflect them in his judgement. Shatibi has in this connection drawn a subtle distinction between the normal illah that invokes a particular ruling in a given case and what he terms as verification of the particular illah (tahqiq al-manat al-khass)in the issuance of judgement and ijtihd. The scholar (mujtahid)may be investigating the normal illah and identify it in the case, for example, of a poor person who qualifies to be a recipient of zakah, and also with references to the uprightness of a witness, but such an enquiry may take a different course when it is related to a particular individual as to what might seem appropriate or inappropriate to be applied in that particular case. The mujtahid needs, therefore, to be learned not only of the law and specific evidence but must also have acumen and insight to render judgement that is enlightened by both the overall consequences and special circumstances of each case.

Conclusion

The Maqasid are undoubtedly rooted in the textual injunctions of the Quran and the Sunnah, but they look mainly at the general philosophy and objectives of these injunctions often beyond the specialities of the text. The focus is not so much on the words and sentences of the text as on the goal and purpose that is advocated and upheld. By comparison to the legal theory of the sources, the Usul al-Fiqh, the maqasid al-Shariah are not burdened with methodological technicality and literalist reading of the text. As such the maqasid integrates a degree of versatility and comprehension into the reading of the Shariah that is, in many ways, unique and rises above the vicissitudes of time and circumstance. At a time when some of the important doctrines of Usul al-Fiqh such as general consensus (ijma), analogical reasoning (qiyas)and even ijtihd seem to be burdened with difficult conditions, conditions that might stand in a measure of disharmony with the prevailing socio-political climate of the present-day Muslim countries, the maqasid have become the focus of attention as it tends to provide a ready and convenient access to the Shariah. It is naturally meaningful to understand the broad outlines of the objectives of the Shariah in the first place before one tries to move on to the specifics. An adequate knowledge of the maqasid thus equips the student of the Shariah with insight and provides him with a theoretical framework in which the attempt to acquire detailed knowledge of its various doctrines can become more interesting and meaningful.

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Notes and References

1. Cf. Wahbah al_Zuhayl, Nazariyyat al-Darrah al-Shariyyah, 4th edn. (Beirut: Muassassat al-Rislah, 1405/1985), 50
2. See Jamal al-Din Abd Allah ibn Yusuf al-Zaylai, Nasb al-Rayah li ahadith al-Hidayah (Surat: al-Majlis al-Ilmi, 1938), 3: 333, Kitab al-Hudud.
3. Cf. Ysuf al-Qaradw, al-Madkhal li Dirst al-Sharah al-Islamiyyah (Cairo: Maktabah Wahbah, 1411/1990), 70-71.
4. AI-Nas, Sunan, Manisik, Wujb al-hajj.
5. Cf. Ahmad al-Raysn, Nazariyyat al-Maqsid ind al-Imm al-Shtib (Rabat, Morocco: Matbaat al-Najh al-Jaddah, 1411/1991), 149.
6. Ab Hmid Muhammad al-Ghazl, al-Mustasfa min ilm al-Usl (Cairo: al-Maktabah al-Tijriyyah, 1356/1937), 1: 287.
7. Qaradw, Madkhal, 73.
8. Izz al-Dn Abd al-Salm al-Sulam, Qawid al-Ahkm f Maslih al-Anm, ed., Th Abd al-Raf Sad (Cairo: al-Matbaah al-Husayniyyah, 1351 AH), 1: 8.
9. Taq al-D-m ibn Taymiyyah, Majm Fatw Shaykh al-Islm Ibn Taymiyyah, comp., Abd al-Rahmn ibn Qsim (Beirut: Muassasat al-Rislah, 1398 AH), 32: 134.
10. Raysn, Nazriyyat al-Maqsid, 44.
11. Qaradw, Madkhal, 75.
12. Ab Ishq Ibrhim al-Shtib, al-Muwafaqat f Usl al-Sharah, ed., Shaykh Abd Allh Dirz (Cairo: al-Maktabah al-Tijriyyah al-Kubr, n.d.), 2: 393.
13. Ibid., 3: 394.
14. Ibid., 2:6; see also Ibn Qayym al-Jawziyyah, Ilam al-Muwaqqin an Rabb al-lamn, ed., Muhammad Munr al-Dimashq (Cairo: Idrt al-Tibah al-Munriyyah, n.d.), vol. 1; Qaradw, Madkhal, 58.
15. Shtib, Muwfaqt, 1: 243; Qaradw, Madkhal, 64-65.
16. Shtib, Muwfaqt, 2: 49-51; idem, al-Itishm (Makkah al-Mukarramah: al-Maktabah al-Tijriyyah, n.d.), 2: 131-35.
17. Shtib, Muwafaqat, 3: 148.
18. Ibid., 4: 179.
19. Muhammad Thir ibn shr, Maqsid al-Sharah al-Islmiyyah (Tunis: Matbaat al-Istiqmah, 1966), 15-16.
20. Ibid., 27.
21. Ibn Qayym, Ilam, 3: 12; Raysn, Nazariyyat al-Maqsid, 336.
22. Cf. Raysn, Nazariyyah, 338-39.
23. Cf. Wahbah al-Zuhayl, al-Fiqh al-Islmi wa Adillatuh, 3rd edn. (Damascus: Dr al-Fikr, 1409/1989), 4: 32. See for detailed illustrations of this type of Istihsn, Mohammad Hashim Kamali, Principles of Islamic Jurisprudence (Cambridge: The Islamic Texts Society, 1991), 225 ff.
24. See for details the chapter on Istihsn, Ibid.
25. Al-Bukhr, Sahih, Kitb al-Manqib, Bab M Yunh min Dawa I-Jahliyyah.
26. Mlik ibn Anas, al-Muwatta, Kitb al-hajj, Bab M J f Bin al-Kabah; Raysn, Nazariyyah, 354.
27. Shtib, Muwfaqt, 4: 97.

I dot necessarily agree with every point in the above article.


Edited by rami
Rasul Allah (sallah llahu alaihi wa sallam) said: "Whoever knows himself, knows his Lord" and whoever knows his Lord has been given His gnosis and nearness.
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