20837037 Maqasid Al Shariah - The Objective Of Islamic Law

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"MAQĀṢID AL-SHARĪ'AH": THE OBJECTIVES OF ISLAMIC LAW Author(s): MOHAMMAD HASHIM KAMALI Reviewed work(s): Source: Islamic Studies, Vol. 38, No. 2 (Summer 1999), pp. 193-208 Published by: Islamic Research Institute, International Islamic University, Islamabad Stable URL: http://www.jstor.org/stable/20837037 . Accessed: 13/02/2012 01:57 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected].

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IslamicStudies 38:2 (1999)

MAQASID AL-SHARl'AH: THE OBJECTIVES OF ISLAMIC LAW MOHAMMAD HASHIMKAMALf

INTRODUCTION This essay is presented in five sections beginning with a general characterisation

of themaqasid

al-Shari'ah

and its origins

in theQur'an.

The next sectionaddresses theclassificationof themaqasid and a certain order of prioritythat is integratedinto the structureof themaqasid. Section threeis devoted tohistoricaldevelopmentsand thecontributions of some of the leading 'ulamd\ especially thatofAbu Ishaq Ibrahimal Shatibl, to the theoryof themaqasid. Section four looks into the differentialapproaches the 'ulamd'have takentoward the identification of themaqasid. The last sectionhighlightstherelevanceof themaqasid to ijtihddand theways inwhich themaqasid can enhance the scope and calibre of ijtihad.

TEXTUALORIGINS Maqasid

al-Shari'ah,or

the goals

and objectives

law,

is an

so as to protect

these

of Islamic

and yet somewhatneglected themeof theSharVah. evidentlyimportant the ispredicatedon thebenefitsof the individualand Shari'ah Generally that of the community,

and its laws are designed

and perfectionof the conditionsof benefitsand facilitateimprovement human lifeon earth.The Qur'an is expressiveof thiswhen it singlesout themost important purpose of theProphethoodofMuhammad (peace be on hiln) in such termsas: "We have not sentyou but a mercy to the world" (21: 107). This can also be seen perhaps in the Qur'an's

Mohammad Hashim Kamali, Professor, Kulliyyah of Laws, Islamic University ofMalaysia, Gombak, Malaysia.

International

194

mohammad

hashim KAMAu/Maqasid

al-SharVah:

The Objectives

of Islamic

Law

characterisationof itselfin thatit is "a healing to the (spiritual)ailment of the hearts, guidance and mercy for the believers" (and mankind) (10: 57). The twouppermostobjectivesof compassion (rahmah)and guidance (hudd) in theforegoingverses are thensubstantiated by otherprovisions in theQur'an and theSunnah thatseek to establish justice, eliminate prejudice, and alleviatehardship.The lawsof theQur'an and theSunnah also seek to promote cooperationandmutual supportwithin the family and the societyat large. Justiceitselfis a manifestationofGod's mercy as well as an objective of theSharVah in its own right.Compassion (rahmah) ismanifested in therealisationof benefit(maslahah)which the 'ulamd'

have

generally

considered

to be

the all-prevasive

value

and

objective of theSharVah and is to all intentsand purposes synonymous

with rahmah.

Educating the individual (tahdhib al-fard) is another important objective of theSharVah somuch so thatitcomes, inorder of priority, even before justice and maslahah. For theseare both socially-oriented values which acquire much of theirmeaning in the contextof social relations,whereas tahdhibal-fard seeks tomake every individual a agent and carrierof thevalues of the SharVah, and it is trustworthy througheducating the individualthattheSharVah seeks to realisemost of its social objectives. The overall purpose of a greatdeal of the laws and values of theSharVah, especially in thespheresof 6ibdddt andmoral teaching, is to train an individual who ismindful and becomes an agent of benefit to others.1

of the virtues of taqwd

in numerous places and a variety of is expressive, Qur'an of the contexts, rationale, purpose and benefit of its laws so much so that text This feature of the becomes its characteristically goal-oriented. The

Qur'anic

language

is

common

to

its

laws

on

civil

transactions

(mu'dmaldt)as well as devotionalmatters ('ibdddt).Thus when the text expounds the rituals of wudu' (ablution for prayer) it follows on to declare that "God does not intendto inflicthardshipon you. He intends cleanliness foryou and to accomplishhis favourupon you" (5: 6). Then with regard to theprayer itself,it is declared that "trulysaldh obstructs promiscuityand evil" (29: 45). With referenceto jihad theQur'an similarlyproclaims itspurpose in such termthat "permissionis granted to thosewho fightbecause theyhave been wronged" (22: 39). The purpose, in otherwords, of legalisingjihad is to fightinjustice(zulm) and thepurpose of saldh is to attainsprititualpurityand excellence that is accomplished togetherwith physical cleanliness throughablution before prayer.With referenceto the law of just retaliation(qisds), the

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text similarlydeclares that "in qisds there is lifefor you, o people of understanding"(2: 179); andwith regardtopoor-due (zakah), theQur'an it "so that wealth

validates

does not circulate

the wealthy"

only among

(57:7). According to anothertext,thebelievers are under duty to lower theirgaze in theirencounterwithmembers of theopposite sex, "forthis will help you to attaingreaterpurity" (24: 30). One can addmany more examples of the lawwhich show how the Qur'an and theSunnah are expressive of theirgoal justification,cause and

benefit

in the affirmative

sense,

as

just

one

finds

numerous

referencesto evil conduct and crimewhich is reprimandedand made punishable, in the negative sense, in order to prevent injustice, corruption

and prejudice.

In the area of commerce

and mu'dmaldt,

the

Qur'an forbidsexploitation,usury, boarding and gamblingwhich are harmfuland jeopardise theobjective of fairdealing in themarket-place. The underlyingthemeinvirtuallyall of thebroad spectrumof theahkdm is realisationof benefit (maslahah)which is regardedas the summa of themaqdsid. For justice is also a maslahah and so is tahdhibal-fard. The masdlih (pi. of maslahah), thus become another name for the and the 'ulamd' have used

maqdsid

the two terms almost

interchange

ably.

CLASSIFICATIONOF BENEFITS The

'ulamd' have classified

the entire range of masdlih-cum~maqdsid

into

threecategories ina descendingorderof importance, beginningwith the essentialmasdlih,ordariiriyydt, followedby thecomplementary benefits, or hdjiyydt,and then the embellishmentstahsiniyydt.The essential interests are enumerated

at five, namely faith, life, lineage, intellect and are, by definition, essential to normal order in society

property. These

as well as to thesurvivaland spiritualwell-being of individuals,somuch so thattheirdestructionand collapse will precipitatechaos and collapse

of normal these

order

values

advancement.

in society. The SharVah measures validates

and

Jihad has thus been validated

to protect and promote and their preservation in order to protect religion,

seeks

for

and so is just retaliation(qisas) which is designed to protect life.The

SharVah

promote

punitive measures Theft, adultery and wine-drinking

takes affirmative

these values.

and also

to protect and are punishable

offencesas theypose a threatto theprotectionof privateproperty,the well-being of the family, and the integrityof human intellect respectively.

In an affirmative sense again, but at a different level, the

SharVah encourageswork and tradingactivity in order to enable the individual

to earn a living, and it takes elaborate measures

to ensure

the

196

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mohammad

smooth flow of commercial

al-SharTah:

transactions

The Objectives

in themarket-place.

of Islamic

The

Law

family

laws of theSharVah are likewisean embodimentlargelyof guidelines andmeasures thatseek tomake the familya safe refugefor all of its members. The SharVah also encourages pursuit of knowledge and education to ensure the intellectualwell-being of the people and the advancementof arts and civilisation. The essentialmasalih, in other words, constitutean all-encompassingthemeof theSharVah 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

overridingobjectives of theSharVah. The

second

complementary

as hajiyyat, or the interests, known are an as not interests, independent category they also class

of

seek toprotectand promote theessential interests,albeit in a secondary capacity. These are defined as benefitswhich seek to remove severity and hardship thatdo not pose a threatto thevery survivalof normal order.A greatdeal of theconcessions (rukhas)such as theshorteningof saldh, and opening of the fastfor the sick and the traveller,which the SharVah has granted,are aimed at preventinghardship,but theyare not essential since people can livewithout themif theyhad to. In almost all areas of obligatory

'ibadat

the SharVah

has granted such concessions.

Similarly, in thearea of criminal law, thehadithwhich proclaims that "prescribedpenalties are suspended in all cases of doubt"2 protects a secondary interestin that it regulatesthemanner inwhich punishments essential

to protect These punishments are in turn designed interests through judicial action. In the sphere of mu'dmaldt,

SharVah

validated

are enforced.

certain contracts,

such as the sale of saiam,

the the

and also

thatof lease and hire (ijarah) because of thepeople's need for them notwithstanding

a certain anomaly

that is attendant in both. In the sphere

of familylaw, once again theSharVah permitsdivorce in situationsof

necessity

by way,

that is, of a concession,

which

is aimed,

in the final

analysis, at ensuringthewell-being of thefamilyand defendingitagainst intolerable conflict.

A maslahah of the second class is elevated to the rank of the essentialmaslahah when itconcerns thepublic at large.To illustratethis, thevalidityof ijarahmay be of secondary importanceto an individual but it is an essential interestfor the societyat large. Similarly, certain concessions thatare granted in the sphereof 'ibadatmay be secondary to the survival of an individualbut it becomes a matter of primary In the event of a conflict arising interest for the community as a whole. the various classes of interest, the lesser of these may be between

When thereis a plurality sacrificed inorder to protecta higher interest.

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of conflictinginterestsand none appears to be clearlypreferable, then preventionof evil takespriorityover the realisationof benefit.3This is

because

the SharVah

ismore

emphatic on the prevention

of evil, as can

be seen in thehadithwhere theProphet (peace be on him) has reportedly said: "When I order you to do something,do it to the extentof your ability, but when I forbid you from something, then avoid it (altogether)".4

are in thenature The thirdclass ofmasdlih, known as tahslniyydt, and perfectionin the of desirabilitiesas theyseek to attain refinement customsand conductof .peopleat all levelsof achievement.The SharVah thusencouragescleanlinessof body and attireforpurposes of prayerand 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 SharVah also encourages charityto those inneed beyond the levelof obligatorytaxes, and in Hbdddt,it recommendssupererogatory prayers,and so forth.In customary matters

the SharVah

and relations among people,

encourages

gentleness (rifq),pleasant speech andmanner (husn al-khulq) and fair dealing (ihsdn).The judge and thehead of stateare similarlycounselled 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 lastcategoryof interestsis perhaps of special importanceas it

is pervasive

and

relates

to all other masdlih.

One

can perform

the

ways, with orwithoutproper obligatorysaldh, forexample, indifferent concentrationand giving each of itsparts theirdue attention,or perform it in a hasty and thoughtless manner,

and the difference between

them is

thatthefirstis espousedwith theattainmentof both theessentialand 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

of almost all of theahkdmof theSharVah. It shouldbe implementation

obvious,

then, that the classification

of masdlih

need not be confined

to

theahkdmof theSharVah or to religiousmatters alone as it is basically

a rational construct that applies

to customary,

social, political,

economic

and culturalaffairsand so forth.To build thefirsthospital in a town is may likelyto be necessary and essential,but to build a second and third be only complementaryand desirable. And thento equip each one with the latest and most efficienthealth care facilitiesmay fall under the depending, categoryeitherof thesecond or the thirdclasses of interests, of course, on the general conditions of each locality. From this analysis, under one it also appears that classifying a certain interest and maslahah

198

mohammad

hashim kamAulMaqasid

al-Shari'ah:

The Objectives

of Islamic

Law

or theotherof thesecategories is likelytobe relativeand involvevalue judgmentthatcontemplatetheattendantcircumstancesof each case.

HISTORY INBRIEF As a themeof theSharVah in itsown right,themaqdsid did not receive much attentionin the early stages of thedevelopmentof Islamic legal thoughtand, as such, theyrepresentrathera lateraddition to thejuristic legacyof themadhdhib. Even to thisdaymany a reputabletextbookon Usul al-Fiqh does not mention maqdsid al-SharVah in their usual coverage of familiartopics.This is partlydue perhaps to thenatureof the subject,which is largelyconcernedwith thephilosophyof the law, of itstext. itsoutlook and objective, ratherthanthespecificformulations as a are the theme distinctive of Shari'ah the Although maqdsid obviously relevantto ijtihdd,theyhave not been treatedas such in the conventionalexpositionsof the theoryof ijtihdd. Islamic legal thought is, broadly speaking, preoccupied with concerns over conformityto the letterof thedivine text,and the legal theoryof Usul al-Fiqh has advanced thatpurpose to a largeextent.This literalist orientation of the juristic thoughtwas generally more ? ? pronounced in theapproachof thetendency thetraditionist theAhl al-Hadlth

?

than that of

the Rationalists

?

the Ahl

al-Ra'y.

The

literaliststhus tendedto view theSharVah as a set of rules, commands and prohibitions

thatwere addressed

to the competent

individual mukallaf

and all that the latterwas expected to conform to itsdirectives.The precedentof the leadingCompanions indicated,on theotherhand, that theysaw theSharVah both as a set of rules and a value systeminwhich the specific ruleswere seen as tangiblemanifestationsof theoverriding values. The textualisttraditionof thefirst threecenturiesdid not take much

interest inmaqdsid

al-SharVah

and itwas

not until the time of al

GhazalT (d. 505/1111) and thenal-Shatibi (d. 790/1388) thatsignificant developments

were made

in the formulation of the theory of maqdsid.

The basic outlook thatwas advocatedby the theoryof themaqdsid was not denied by the leadingschools, yet themaqdsid remainedon the fringesof themainstream juristic thoughtthatwas manifested in the various themesand doctrinesofUsul al-Fiqh. Except fortheZahirls who and maintained thatthemaqdsid are onlyknownwhen theyare identified declared by the clear text, themajority of 'ulamd' did not confine the text alone. For they perceived and understood the 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 SharVah was, therefore, generally considered

maqdsid SharVah

to the clear

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unacceptable.A totallydifferentapproach to themaqdsid was takenby theBatiniyyahwho held, contraryto theZahirls, thatthe essence and objective of thenususwere always tobe found,not in theexplicitwords of the text,but in itshiddenmeaning (i.e. bdtiri),hence theirname, the Batiniyyah.5Therewere also differencesof orientationamong the leading madhdhib toward themaqdsid: somewere more open to it thanothers, but elaboration into the goals and objectives of the SharVah was generallynot encouraged.This ratherunspoken attitudecontrastedwith the fact that theQur'an itselfexhibits considerable awareness of the underlyingpurposes and objectives of its laws and often expounds the causes and rationaleon which theyare founded.The general reticence of the 'ulamd' in respectof the identification of themaqdsid might have partlybeen due to the elementsof projection and prognosticationthat such an exercise

was

likely to involve. Who

can

tell, for sure,

for

example, thatthisor thatis thepurpose and overridingobjective of the Lawgiver, withoutengaging ina degree of speculation,unless of course, the textitselfdeclared itso. But thento confinethescope of themaqdsid only to theclear declarationof the textswas also not enough, as I shall presently elaborate.

Itwas notuntil theearly fourthcenturythattheterm 'maqdsid'was used in the juristicwritings of Abu 'Abd Allah al-Tirmidhlal-Haklm (d. 320/932) and recurrentreferencesto it appeared in theworks of Imamal-Haramaynal-Juwaynl(d. 478/1085) who was probably thefirst to classify themaqdsid al-Shari'ah intothe threecategoriesof essential, which hdjiyydt,tahslniyydt) complementaryand desirable (daruriyydt, has gained general acceptance ever since. JuwaynT'sideas were then developed furtherby his pupil, Abu Hamld al-GhazalTwho wrote at lengthon public interest(maslahah) and ratiocination (ta'Ul) in his works,

Shifd' al-Ghalil

and al-Mustasfd.

GhazalT was

generally

critical

ofmaslahah as a proofbut validated it if itpromotedthemaqdsid of the SharVah. As for themaqdsid themselves,GhazalT wrote categorically that theSharVah pursued five objectives, namely those of faith, life, intellect, lineage and property which were absolute priority.6

to be protected as a matter of

A number of prominentwriters continued to contribute to the maqdsid, not all of them consistentlyperhaps, yet importantto the developmentof ideas. Sayf al-DIn al-Amidl (d. 631/1233) identifiedthe maqdsid as criteriaof preferenceal-tarjlh among conflictinganalogies and elaborated on an internalorder of priorities among the various classes of maqdsid. AmidI also confined the essentialmaqdsid to only five. The MalikI jurist,Shihab al-Din al-Qarafi (d. 684/1285) added a

200

Mohammad

hashim KMAMjIMdQdsid

al-SharVah:

The Objectives

of

Islamic

Law

sixth to theexisting list,namely theprotectionof honour (al-'ird) and thiswas endorsed by Taj al-DTn 'Abd al-Wahhab ibn al-Subki (d. 771/1370) and laterbyMuhammad ibn 'AITal-Shawkanl (d. 1250/1834). The listof five essentialvalues was evidentlybased on a readingof the relevantparts of theQur'an and theSunnah on theprescribedpenalties {hudud). The value thateach of thesepenalties sought to vindicate and defend was

consequently

identified as an essential

value.

The

latest

addition (i.e. al-'ird) was initiallythoughtto have been covered under lineage (al-nasl, also al-nasab), but theproponentsof thisadditionrelied on thefact thattheSharVah had enacteda separatehadd punishmentfor slanderousaccusation (al-qadhf),which justifiedtheaddition.7'Izz al-DIn 'Abd al-Salam

Ahkdm, was

renowned work, Qawa'id al (d. 660/1262) own a on in his characterisation work 'maqdsid al-ahkam' al-Sulami's

and addressed the various aspects of the maqdsid especially in relationshipto 'illah (effectivecause) and maslahah (public interest)in greaterdetail. Thus he wrote at theoutsetof his work that "thegreatest of all theobjectives of theQur'an is to facilitatebenefits(masdlih) and themeans that secure them and that the realisation of benefit also includedthepreventionof evil".8 SulamI added thatall theobligationsof were predicated on securingbenefits for the the SharVah (cd-takdlif) world and in thenext. For God Most High isHimself inno this people nor He inneed of theobedience of His servants.He is need of benefit is above all this and cannot be harmed by the disobedience of

of the righteous. The transgressors, nor benefit from the obedience the from in other SharVah words, concerned, is, beginning to the end, creatures. with the benefits of God's

TaqI al-DTn ibnTaymiyyah (d. 728/1328) was probably thefirst scholar to depart fromthenotion of confiningthemaqdsid to a specific number and added, to theexisting listof themaqdsid, such thingsas fulfilment of contracts, preservation

of the ties of kinship, honouring

the

rightsof one's neighbour, in so far as the affairsof thisworld are

concerned,

and the love of God,

sincerity,

trustworthiness,

and moral

purity, in relationshipto thehereafter.9IbnTaymiyyah thusrevised the scope of themaqdsid froma designatedand specified list intoan open ended list of values, and his approach is now generally accepted by contemporary

commentators,

including Ahmad

al-Raysuni,

Yusuf

al

QaradawT and others.10QaradawT has furtherextended the list of the maqdsid to include social welfare and support (al-takaful), freedom, human dignityand human fraternity, among thehigher objectives and maqdsid of theSharVah.11These are undoubtedlyupheld by both the

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detailed and the general weight of evidence in theQur'an and the Sunnah.

I propose toadd economicdevelopmentand strengthening ofR & D in technology and science to the structureof maqasid as they are crucially importantin determiningthe standingof the ummah in the world community.Itwould appear fromthisanalysis thatthemaqasid enhancementwhich will depend, to al-SharVah remainopen to further some extent, on the priorities of every age.

IDENTIFICATIONOF MAQASID As already indicatedthe 'ulama' have differedin theirapproach to the identificationof themaqasid. The first approach to be noted is the of themaqasid to textualistapproach,which confines the identification theclear text,commandsand prohibitions,which are thecarriersof the maqasid. The maqasid, according to this view, have no separate existence outside this framework.Provided thata command is explicit and normative it conveys theobjectivemaqsud of theLawgiver in the affirmativesense. Prohibitions are indicativeof themaqasid in the negative sense in that the purpose of a prohibitive injunction is to suppress and avert the evil thatthe text in question has contemplated. This is generally accepted, but thereare certain tendencieswithin this While theZahirls tendto confinethemaqasid to the general framework. obvious text,themajority of juriststakes intoconsiderationboth the text The chiefexponent and theunderlying 'illah and rationaleof the text.12 of theneed to observe of themaqasid, ShatibI, has spoken affirmatively and respecttheexplicit injunctions,but thenhe added thatadherence to theobvious text should not be so rigid as to alienate the rationaleand purpose of the textfrom itswords and sentences.Rigidity of thiskind, ShatibI added, was itselfcontrary to the objective (maqsud) of the Lawgiver, just as would be thecase with regard to neglecting theclear text itself.When

the text, whether

a command

or a prohibition,

is read

in conjunctionwith itsobjective and rationale, this is a firmapproach, one which bears greaterharmonywith the intentionof theLawgiver.13 ShatibI elaboratedthatthemaqasid thatare known froma comprehensive readingof the textare of two types,primary (asliyyah) and secondary which the (tab'iyyah).The formerare theessentialmaqasid or daruriyyat of must and observe protect regardless personal predilections, mukallaf ? ? whereas thesupplementary hajiyyat are thosewhich leave maqasid themukallafwith some flexibilityand choice. A comprehensivereadingof the textual injunctionsof theSharVah has given rise to such questions

as to whether

the means

to a wdjib

or

202

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al-SharT'ah\

The Objectives

of Islamic

Law

hardm should also be seen as a part of theobjective that is pursued by whether themeans toa command, inotherwords, is also thatinjunction; an integralpart of thatcommand.Another question raised is whether avoiding theopposite of a command is integralto thegoal and objective that is soughtby thatcommand. The general response given to these aspectsof commandsand prohibitions questions is thatthesupplementary are an integralpart of theirobjectives, althoughdisagreementshave 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

Most of the injunctionsof theSharVah are easily be clearly identified. understood,and theirobjectives as well as theiropposites can be known and ascertainedfrom the readingof theclear text. It is thusnoted that

whatever

might

be necessary

for the carrying out of a command

or a

wdjib is also a part of thatwdjib. ShatibThas similarlyconcluded that whatever is complementaryto themaqdsid and in the service thereofis also a part of themaqdsid. The question thenarises regardingthesilence of theLawgiver in respectof a certainconduct in situationsespecially where a general readingof therelevantevidence sheds lighton thevalue of thatconduct.The questionmay be put as follows:We know thatthe maqdsid are known fromclear injunctions,but can theyalso be known froma general readingof thenusus byway of induction? This iswhere an ShatibThas given original response,and this iswhatwe takeup next. Induction(istiqra') toShatibTis one of themost important methods of identifying themaqdsid of theSharVah. Theremay be various textual referencesto a subject,none ofwhichmay be in thenatureof a decisive injunction.Yet theircollectiveweight is such that it leaves littledoubt as to themeaning that is obtained from them. A decisive conclusion may, in other words, be arrived at from a plurality of speculative expressions.

ShatibT illustratesthisby saying thatnowhere in theQur'an is therea specificdeclaration to theeffectthattheSharVah has been enacted for thebenefitof thepeople. Yet this is a definitiveconclusionwhich is

drawn from the collective

reading of a variety of textual proclamations.14

ShatibTthenadds thatthebenefits(masalih) are tobe understood in their broadest sensewhich is inclusiveof all benefitspertainingto thisworld and thehereafter,thoseof the individualand thecommunity, material, moral and spiritual,and thosewhich pertain to thepresentas well as the interests of the future generations. This broad meaning includes prevention and elimination of harm. These

of benefits also

benefits

cannot

always be verified and ascertained by human reason alone without and guidance of divine revelation.15

the aid

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The typicalclassificationof themaqdsid intothethreecategoriesof essential, complementaryand desirable, and the conclusion that the has

Lawgiver

intended

to protect

these are based,

once

again,

on

inductionas there is no specific declaration on them in the textual sources.On a similarnote, therulingof theSharVah thatthevalidityof an act of devotion ('ibddah) cannotbe establishedbymeans of ijtihddis an inductiveconclusionwhich isdrawn fromthedetailed evidence on the subject, as there is no specific injuction in the sources to thateffect.

These

conclusions

are, in themeantime,

of great overall

importance;

they

are not open to doubt, nor is theircredibilitya matter of speculative reasoning.16It is also the same inductivemethod which has led the 'ulamd' to theconclusion thattheprotectionof the fivevalues of faith, life, intellect,property and lineage is of primary importanceto the SharVah ? therebeing no textual ruling to specify any category or number of values

in that order.

ShatibI's inductivemethod is not confined to the identification of to and values but also extends commands and objectives prohibitions, which may eitherbe obtained from the clear text,or froma collective reading of a number of textual proclamations

thatmay occur

in a variety

of contexts.17ShatibI thengoes a step furtherto say thatthe inductive conclusions and positions thatare so establishedare thegeneralpremises and overridingobjectives of theSharVah and thushave a higherorder of importancethanspecificrules. It thusbecomes evident thatinduction is theprincipalmethod of reasoningand proof towhich ShatibI resorted inhis theoryof themaqdsid and it is also in thisregardthathe hasmade an original contributionto this theme. ShatibT's approach

to induction is reminiscent of the knowledge

that

is acquired of thepersonalityand characterof an individualthatisbased 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 enrichedwith insight,and likely to be more reliable when compared to the knowledge thatmight be based only on the observation individual

of specific, concerned.

isolated

incidents

in the daily

activities

of the

MAQASID AND IJTIHAD Having expounded his theoryof themaqdsid, ShatibI accentuated the knowledge of themaqdsid as a prerequisiteof attainmentto the rankof a mujtahid. Those who neglect acquiringmastery of themaqdsid do so to theirown peril as itwould make them liable to error in ijtihdd. Included

among

these were

the proponents

of pernicious

innovation

(ahl

204

mohammad

hashim Km

Maqasid

al-Shan'ah:

The Objectives

of Islamic

Law

al'bid'ah) who only looked at theapparent textof theQur'an without ponderingover itsobjective andmeaning. These innovators(an allusion to theKharijites) held on to the intricatesegmentsof theQur'an (al mutashabihaf) and premised theirconclusions on them.They took a fragmentedand atomisticapproach to the readingof theQur'an which failed to tie up the relevantparts of the texts together.The leading 'ulamd' have, on the other hand, viewed

the SharVah

as a unity inwhich

thedetailed rules should be read in the lightof theirbroader premises work and objectives.18Tahir ibn 'Ashur,theauthorof anotherlandmark

on themaqasid,

Maqasid

al-Shari'ah

al-Isldmiyyah,

has also confirmed

thatknowledge of themaqasid is indispensibleto ijtihdd in all of its Some 'ulama' who confinedthe scope of theirijtihdd manifestations.19 have found itpossible, Ibn 'Ashuradded, only to literal interpretations toproject a personal opinion intothewords of thetextand fell intoerror as theywere out of linewith the general spirit and purpose of the surroundingevidence.20This may be illustratedby reference to the views of the 'ulamd'onwhether thezakdhon commoditiessuch different as wheat and datesmust be given in kind or could italso be given in theirmonetary equivalent.The Hanafis have validated giving of zakdh inmonetary equivalentbut al-Shafi'i (d. 204/820) has held otherwise. The HanafT view is foundedon theanalysis thatthepurpose of zakdh is to satisfytheneed of thepoor and thiscan also be achieved by paying themonetary equivalentof a commodity.IbnQayyim al-Jawziyyahhas likewiseobserved regarding(sadaqat al-fitr)thatthereare ahddithon the subject which

refer sometimes

to dates and at other times to raisins or

foodgrainsas thesewere the staple food ofMadTnah and itsenvironsat the time.The commonpurpose inall of thesewas to satisfytheneed of the poor rather than to confine

its payment

in a particular

commodity.21

To give anotherexample,Malik (d. 179/795)was asked about a person who paid his zakdh ahead of time, that is, prior to theexpiry of one year,whetherhe was liable topay itagain at theend of theyear.Malik replied thathe was and drew an analogywith the ritualprayer (saldh). If someone performshis prayerbefore itsdue time,hemust perform it again in itsproper time. SubsequentMalik! jurists, includingIbn al 'Arabl (d. 543/1148) and IbnRushd (d. 520/1126), have reversed this position and stated thatearlypaymentof zakdhwas permissible.There was, theyadded, a differencebetweensaldh and zakdh in thattheformer was

time-bound

to specific

times, but no such time had been

stipulated

for thepaymentof zakdh.Hence zakdhmay be paid earlier especially if it is prepaid by only a fewweeks or even longer.22

205

Islamic Studies 38:2 (1999)

Abu Hanlfah (d. 150/767)has oftenbeen criticisedby theAhl al~ Hadith forhaving departedon occasions fromthewording of ahadith to an alternative

ruling. But on closer

examination

it becomes

clear

that

Abu Hanlfah has done so onlywhen he reacheda differentconclusionby readinga particularhadith in conjunctionwith other relevantevidence in theQur'an and theSunnah. Itwill also be noted thaton occasions mujtahids and judges have issued decisions in disputedmatters,which were foundupon further scrutiny to be in disharmonywith the goals and objectives of the Instances of this nature are also encountered with reference to

Shari'ah.

contractssince a contractmay duly have been signed andmade binding on theparties and only then itwas found to be unfair to one of the parties

due

to

some

unexpected

change

of

In

circumstance.

that

eventualitythe judge and mujtahid can hardly ignore the subsequent changes and insiston theobligatorinessof the said contracton purely formal grounds. For a contract is no longer the governing law of contractingparties (sharVatal-'aqidayri) if itproves tobe an instrument of injustice.Such a contractmust be set aside and justice,which is the goal and maqsud of the Lawgiver, must be given priority over considerations

of conformity

to an untenable

contract.23 Without

going

intodetails, instancesof conflictbetween theoverridingobjectives of the SharVah and a particularrulingthereofcan also arisewith referenceto therulingsof analogy (qiyds).A rigidadherence toqiyds incertaincases may

lead

to unsatisfactory

results, hence

a recourse may

be had

to

istihsan inorder to obtain an alternativerulingthat is inharmonywith theobjectives of theShari'ah.24 Another featureof themaqdsid which is importantto ijtihddis the attentiona mujtahidmust pay to theend resultand consequence of his ruling.For afatwd or ijtihddwould be deficientif itfails to contemplate its own consequences

(ma'dldt). We

note in the Sunnah

of the Prophet

(peace be on him) instanceswhere the Prophet paid attentionto the consequence There were

of his

cases,

ruling often in preference to other considerations. for instance, where the Prophet (peace be on him)

knew about the subversive activitiesof thehypocritesbut he did not pursue themfor reasons, as he statedhimself, that 'T fearpeople might The Prophet (peace be Muhammad kills his ownCompanions" .25 say that on him) also avoided to change the locationof theKa'bah to itsoriginal foundationswhere thepatriarchProphet, Ibrahim,had laid them.The pre-IslamicArabs ofMakkah had evidentlychanged that location,and when 'A'ishah suggestedto theProphet (peace be on him) thathe could perhaps restore theKa'bah to its original position, he responded: "I

206

mohammad

hashim kamali/Maqasid

The Objectives

a/Sharf'ah:

of Islamic

Law

would have done so ifI didn't fear thatthismay induceour people into disbelief".26Inboth of thesecases, theProphet (peace be on him) did not takewhat would be thoughtto be thenormal course, that is, to kill the hypocrites,and to restoretheKa'bah to itsoriginal foundationsbecause of the adverse

consequences

that were

feared as a result of so doing.

The normal course in the contextof crimes and penalties is, of whenever thecause and occasion for it course, to apply thepunishment is present. There may be cases,

however, where

pardoning

the offender

appears a preferablecourse to take,and it is for thejudge andmujtahid topay attentionto them,and thenreflecttheminhis judgment.ShatibI has in this connectiondrawn a subtle distinctionbetween the normal 'illah thatinvokesa particularruling ina given case andwhat he terms as verificationof theparticular 'illah (tahqiq al-mandtal-khdss) in the issuance of judgment and ijtihdd. The scholar (mujtahid)may be investigatingthenormal 'illah and identifyit in thecase, forexample, of a poor personwho qualifies tobe a recipientof zakah, and also with referencesto theuprightnessof a witness, but such an enquirymay take a differentcoursewhen it is relatedto a particular individualas towhat might seem appropriateor inappropriateto be applied in thatparticular case. The mujtahid needs, therefore,to be learnednot only of the law and specific evidence butmust also have acumen and insightto render judgmentthatis enlightenedby both theoverall consequencesand special circumstances

of each case.27

CONCLUSION The Maqasid are undoubtedlyrooted in the textual injunctionsof the Qur'an and theSunnah, but theylookmainly at thegeneral philosophy and objectives of these injunctionsoftenbeyond the specialitiesof the text. The

focus is not so much

on the words

and sentences of the text as

on thegoal and purpose thatis advocated and upheld. By comparison to the legal theoryof thesources, theUsiil al-Fiqh, themaqasid al-Shan'ah are not burdenedwithmethodological technicalityand literalistreading of the text.As such themaqasid integratesa degree of versatilityand comprehensioninto the readingof theSharVah that is, inmany ways, unique and rises above thevicissitudesof timeand circumstance.At a timewhen some of the importantdoctrines of Usiil al-Fiqh such as general consensus (ijmdc),analogical reasoning(qiyds) and even ijtihdd seem tobe burdenedwith difficultconditions,conditionsthat might stand inameasure of disharmonywith theprevailingsocio-politicalclimateof the present-day Muslim countries, themaqasid have become the focus of attention as it tends to provide a ready and convenient access to the

Islamic Studies 38:2 (1999)

207

Shari'ah. It is naturallymeaningful to understandthebroad outlines of theobjectives of theShari'ah in thefirstplace beforeone triestomove on to the specifics.An adequate knowledge of themaqdsid thusequips the studentof the SharVah with insightand provides him with a theoreticalframeworkinwhich theattempttoacquiredetailedknowledge of its various

doctrines

can become more

interesting and meaningful.

'Cf.Wahbah (Beirut: Mu'assasat

al-Zuhayfi, Nazariyyat al-Darurah al-Shar'iyyah, 4th edn. al-RisMah, 1405/1985), 50. 2See Jamal al-Din 'Abd Allah ibn Yusuf al-Zayla'I, Nasb al-Rdyah li

Ahadlth al-Hidayah (Surat: al-Majlis al-'Ilmi, 1938), 3: 333, Kitab al-Hudud. 3Cf. YUsuf al-QaradawT, al-Madkhal liDirdsat al-Shan'ah al-Isldmiyyah (Cairo: Maktabah Wahbah, 1411/1990), 70-71. 4A1-Nasa1, Sunan, Mandsik, Wujub al-Hajj. 5Cf. Ahmad al-Raysunl, Nazariyyat al-Maqdsid 'ind al-Imdm al-Shatibi Morocco: Matba'at (Rabat, al-Najah al-Jadidah, 1411/1991), 149. 6AbuHamid Muhammad al-Ghazall, al-Mustasfd min 7/m al-Usul (Cairo: al-Maktabali al-Tijariyyah, 1356/1937), 1: 287.

7QaradawI, Madkhal, 73. 8
ibn Taymiyyah, Majmu' Fatdwd Shaykh al-Isldm Ibn 4Abd al-Rahman ibnQasim (Beirut: Mu'assasat al-Risalah, Taymiyyah, comp., 1398 ah), 32: 134. ^aql

al-DIn

10RaysunI,Nazariyyat uQaradawI, Madkhal, ,2Abu Ishaq Ibrahim Shaykh 'Abd Allah Diraz 2: 393.

al-Maqdsid, 75.

44.

al-Shatibi, al-Muwdfaqdt ft Usul al-SharVah, ed., (Cairo: al-Maktabah al-Tijariyyah al-Kubra, n.d.),

"Ibid., 3: 394. 'an "Ibid., 2:6; see also Ibn Qayyim al-Jawziyyah, Vldm al-MuwaqqVln Rabb al-'Alamin, ed., Muhammad Munlr al-Dimashqi (Cairo: Idarat al-Tiba'ah al-Muriiriyyah, n.d.), vol. 1; Qaradawi, Madkhal, 58. ,5Shatibi,Muwdfaqdt, 1: 243; Qaradawi, Madkhal, 64-65. l6ShatbI,Muwdfaqdt, 2: 49-51; idem, al-Vtisdm (Makkah al-Mukarramah: al-Maktabah al-Tijariyyah, n.d.), 2: 131-35. ,7ShatibI,Muwdfaqdt, 3: 148.

nIbid., 4: 179. ,9Muhammad Tahir ibn' Ashur, Maqdsid Matba'at ' al-Istiqamah, 1966), 15-16. 20Ibid., 27. 2,IbnQayyim, Flam,

al-SharVah al-lsldmiyyah (Tunis:

3: 12; RaysunI, Nazariyyat al-Maqdsid,

336.

208

Mohammad

hashim KMAAu/Maqdsicf

a/Shan'ah:

The Objectives

of Islamic

Law

22Cf.RaysunI, Nazariyyah, 338-39. 23Cf. Wahbah al-Zuhayll, al-Fiqh al-Islami wa Adillatuh, 3rd edn. Dar al-Fikr, 1409/1989), 4: 32. See for detailed illustrationsof this (Damascus: of Hashim Kamali, Istihsdn, Mohammad type Principles of Islamic The Islamic Texts ff. 225 Society, 1991), Jurisprudence (Cambridge: 24See for details the chapter on Istihsan, Ibid. 25A1-Bukharl, Sahih, Kitab

al-Manaqib,

Jahiliyyah. 26Malik ibn Anas, aUMuwatta\ Ka'bah; RaysunI, Nazariyyah, 354. 27ShatibI,Muwafaqdt,

4: 97.

Bab Ma

Kitab al-Hajj,

Yunhd min Da'wa

Bab Ma

7

Ja' ft Bind' al

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