Thursday, October 11, 2018

Maqāṣid/ Maṣlaḥa based Approaches in Islamic Legal Theories: A Brief Outline of Past and Present Efforts

 According to Auda, maqāṣid al-sharīʿa “is a system of values that could contribute to a desired and sound application of the Shari’ah”.[i] The concept of maqāṣid al-sharīʿa is present and has been employed as legal hermeneutical tools in premodern Islamic law ( or legal theory ,usul ul fiqh[ii], to be more precise) since the third century Hijri  at least.[iii] It is based on the idea that Islamic law is purposive in nature, that is to mean that Islamic law serves particular purposes (e.g. promoting people’s benefit and welfare and protecting them from harm) which are either explicitly present in or can be derived from the fountainheads of the sources of Islamic law, namely the Qurʿān   and the Sunna. Maqāṣid al-sharīʿa is also an umbrella concept for a number of  other concepts which have been closely linked to it in the premodern Islamic tradition, most notably  the idea of  a public interests (al masaliḥ al- ammah)[iv]and  unrestricted interests (al-masali al-mursala)[v] as well as other principles such as istiḥsān (juridicial preference),  istiḥsāb  ( presumption of continuity) and avoidance of mischief ( mawsada) all of which are considered to be directives in accordance with  God’s Will.[vi]
 As ably documented by Auda[vii] past and present works which  referred to or employed the  conceptions of maqāṣid (apart from those cited in this section) include Al Tirmidhi Al-Hakim’s ( d.296/ 908) Al-Salah wa Maqāṣiduha,[viii] Abu Zayd Al-Balkhi’s ( d.322/930), al-Ibanah ‘an ‘ilal al-Diyanah /Masaliḥ al-Abdan wa al-Anfus,[ix] Ibn Babawayh al-Qummi’s ( d.381/991) ‘Ilal al-Shara’i,[x]Al-‘Amiri al-Faylasuf’ al-I’lam bi-Manaqib al-Islam[xi] to those classical works which deal with the concept of maqāṣid more systematically such as Abu Al-Ma’ali  Al-Juwayni’s ( d.478/1085) Al-Burhan fi usul al-Fiqh,[xii] Al-‘Izz Ibn Abd AL Salam’s (660/1209)  Qawa’id al-Ahkam fi masaliḥ al-Anam,[xiii]  Shihab al-Din Al-Qarafi’s ( 684/1258) al-Furuq, [xiv] Ibn Al-Qayyim’s(748/1347) I’lam al-Muwaqqi’in [xv] and  Al-Shatibi’s ( d.790/1388) Al-Muwafaqat fi usul al –Shari’a[xvi] and those maqāṣid-oriented works among modern Muslim scholar’s such as R.Rida’s ( D. 1354/19350) Al-Wahi al Mohammadi:  Thubut al-Nubuwwah bi al-Qurʿān  ,[xvii] Ibn Ashur’s  Maqāṣid al-Shari’ah al-Islamiyyah,[xviii] Al-Qaradawi’s Kayf Nata’aamal Ma’a al-Qurʿān   al-‘Azim[xix] and T. Al-Alwani’s Maqāṣid al-Shari’ah.[xx]

The premodern jurists’ idea of maṣlaḥa has been developed to ensure that the maqāṣid of Islamic law are preserved and protected when adjudicating legal cases[xxi]. Since both maqāṣid and maṣlaḥa concepts are premised on the essentially same principle ( i.e. purposive nature of Islamic law)  and serve the same ultimate purpose ( promotion of social welfare of people)  two concepts are found to be acting in harmony with each other.[xxii] As such interpretational models ( manahij)  which highlight the importance of these principles in reforming  premodern Islamic law will be referred to in this  volume as maqāṣid cum maṣlaḥa approaches to Islamic law.
Premodern Muslim scholarship recognised that neither in the Qurʿān   nor in the Sunna do we find a definite list of all the maqāṣid or the masaliḥ.  Premodern jurists, as product of their ijtihad, have identified several maqāṣid (for example Al Ghazali has identified five such objectives, namely preservation of life, religion, reason, progeny and property)[xxiii]and have formed the opinion that the masaliḥ are potentially limitless and change according to time and context.[xxiv]
Importantly, the majority of premodern jurists restricted the scope of the maqāṣid to those falling outside of the realm of ʿibādāt (worship rites) and some explicit and unambiguous Qurʿān -Sunna  injunctions  (muqadarāt)  such as  the faraʿid of inheritance, and the (corporal) punishments  hudūd.[xxv] Additionally, although maṣlaḥa and maqāṣid have been recognized as legitimate and important principles in Islamic law by a vast majority of jurists, they have differed on the question of the scope and the hermeneutical positioning of the maqāṣid cum maṣlaḥa approaches to Islamic law vis-a-vis the clear and decisive legal rulings found in the Qurʿān   and the Sunna.[xxvi]
For example, the four main Islamic schools of thought differed somewhat on the issue of the scope of maṣlaḥa. Al-Shafi’i did not consider it as an independent source of law because it did not restrict itself to the basic religious sources such as the Qurʿān   and the Sunna and considered that maṣlaḥa was a pure product of reason. He was of the view that  the Qurʿān   and the Sunna were fully inclusive of all of the concepts and issues pertaining to people’s welfare.[xxvii] Malik and Abu Hanifa considered maṣlaḥa as an independent source of law but restricted its scope only to cases in which there was absence of clear Qurʿān   and Sunna evidence and not when maṣlaḥa was going against the clear (and decontextually) interpreted Qurʿān   and Sunna injunctions. As far as  Ibn Hanbal is concerned , he considered maṣlaḥa  to be an auxiliary  source of law and an appendage of the maqāṣid al shari’ah.[xxviii]  Thus, when it comes to   incorporating  the concept of  maqāṣid al-shari’a  into  the  theoretical  formulations  of Islamic law it  is evident   that in the kinds of medieval  jurists  the  legal  aims ( maqāṣid) were  not  considered  by  any  school  of  jurisprudence  as  a distinguished  legal  source  similar  to that of  qiyās,  istiḥsān  or  maṣlaḥa  mursala.[xxix]

 However, there have been some important dissenting voices among premodern jurists who have gone beyond these limits imposed on maqāṣid cum maṣlaḥa approaches. One of the first premodern Muslim scholars who  endorsed the concept of maṣlaḥa as the essence of and the ultimate purpose in interpretation and the very objective of   Qurʿān   and Sunna was Najmal-Din Al –Tufi (d. 716 AH). For example, in Moosa’s examination of Al-Tufi’s work, he comes to the conclusion that Tufi  considered  maṣlaḥa as having a regulatory function over all other established sources[xxx] and gave it “a universal and humanist status in the [Islamic] law” by  giving preference to public interest (maṣlaḥa) over clear meaning of the text thereby “subordinating the text to the divination of the universal intentions and purposes of the Shari’ah”. [xxxi] Furthermore, Moosa maintains that in Tufi’s thought

 In terms of function and philosophy, the sources of law were actually representations of public interest …and stressed that ethical values and the priority of the sociological purposes of law over epistemology, in line with the meta-purpose of law.[xxxii]

Al Tufi was not alone in this. According to Moosa, Abu Hamid al-Ghazali ( d.1111 AH) , another central premodern Muslim jurist and theologian, although at first not taking the principle of  maṣlaḥa as one of the sources of usul-ul fiqh, considered that in several instances the maṣlaḥa doctrine “secures the purpose of revelation (maḥafaza ʿala maqṣud al-shar).[xxxiii] Moosa summarises Ghazali’s approach to the question of maṣlaḥa by stating:

If one examines the primary sources –The Qurʿān   and Sunna-carefully, he [Ghazali] said, one will find that maṣlaḥa is indeed implicitly and explicitly evident as the purpose of the law. Ghazali thus endorsed maṣlaḥa stealthily, progressing from disparaging it as ‘fanciful’ at first, to viewing it later as the grounds of all legal pronouncements to be found in the canonical sources.[xxxiv]

Al-Shatibi (d.790 AH), a 13th century scholar from Muslim Spain, and one of the most systematic theoreticians behind the maqāṣid cum maṣlaḥa approach to Islamic law, considered al-maqāṣid to be ‘the fundamentals of religion, basic rules of the law, and the universals of belief (usul al-din wa qawaʿid al-shariʿa wa kulliya al-milla).[xxxv] For contemporary Muslim thinkers such as H. Hanafi( b.1935-) , M.Al-Jabiri (d.2010) and N. Madjid (d.2007) the concept of maqāṣid and  maṣlaḥa dimensions of Islamic law  are seen as the essence of the Qurʿān   and that interpretations founded on these interpretational mechanisms  can take precedence over  clear  Qurʿān  ic text.[xxxvi]
However, these minority voices were too few and came too late to significantly shape the Islamic law. Kamali notices this dimension of the pre-modern usul-ul-fiqh by stating:
Another aspect of the conventional methodology of usul, which merits attention, is its emphasis on literalism and certain neglect, in some instances at least, of the basic objective and the rationale of the law. The early formulations of usul have not significantly addressed this issue and it was not until al- Shatibi who developed his major theme on the objectives and the philosophy of Shari’ah (maqāṣid al-shari’ah). Al-Shatibi’s contribution came, however, too late to make a visible impact on the basic scheme and methodology of usul.[xxxvii]
Echoing this sentiment is Muhammad Fathi al-Darimi, a contemporary Syrian legal scholar, who maintains that there has been no inductive or logical study of the philosophy and the purposes of the pre-modern Sunni Muslim jurisprudence in the discourse of law and legal theory.[xxxviii]
Similarly,  a contemporary scholar Auda asserts that the pre-modern theories of maqāṣid were studied as a secondary topic within usul-ul fiqh under the category of unrestricted interests (al-masaliḥ al-mursalah)  or the appropriate attribute for analogy (munāsaba al-qiyās) and not as a independent discipline or as premised on the basis of forming a “fundamental methodology”.[xxxix]
Thus, increasing number of contemporary Muslim scholars have become acutely aware of these premodern lacunae in the hermeneutical employment of the maqāṣid cum maṣlaḥa approaches to Islamic law which present an important avenue for their various reformist projects.
Modern and contemporary scholars have also broadened the scope of the five traditional maqāṣid. For example, Rashid Rida( d. 1935) included reform and women’s rights in his theory of maqāṣid[xl]; Muhammad Al Ghazali ( d.1996) added justice and freedom to the premodern five maqāṣid[xli];Yusuf al-Qaradawi ( 1926-), included human dignity and rights in his theory of maqāṣid and Ibn Ashhur included values such as equality, freedom and orderliness , among others, in his as part of universal maqāṣid of Islamic law,[xlii] and Taha Al Alwani’s[xliii] concept of developing civilization on earth (ʿimrān) as well as Attia’s identification of 24 essential maqāṣid ( in contrast to  classical five as per Al-Ghazali)  falling  into four levels realms ( individual, family, ummah and all humanity).[xliv]
The works of these scholars, are important contemporary contributions which aim to fill in the hermeneutical gap left by the premodern maqāṣid cum maṣlaḥa approaches to Islamic law.  This contemporary Islamic scholarship on maqāṣid cum maṣlaḥa approaches to Islamic law not only builds upon the premodern but, importantly, expands both on the scope of the maqāṣid cum maṣlaḥa and, in fewer cases, elevates hermeneutically  the maqāṣid cum maṣlaḥa approaches above the clear nuṣūs ( texts)  found in the Qurʿān   and Sunna. Importantly, it also at times evaluates these efforts from a critically constructive perspective.
Taken from the introduction of this book ( free PDF).

[i] Jasser Auda, “A Maqasidi approach to contemporary application of the Shari’ah”, Intellectual Discourse, 19 (2011), 193-217, 194.
[ii] For the purposes of this volume  I will use Islamic law and Islamic legal theory interchangeably although strictly speaking these two are not the same.
[iii] See for example, Imran Nyazee, The Outlines of Islamic Jurisprudence, ( Islamabad: Advanced Legal Studies institute, 2000), 162-175.
[iv] See Abdul al-Malik Ibn Abdullah, Al-Juwayni, Al-Burhan  fi  usul al-fiqh (annotated by Abdul- Azim al-Deeb) (Qatar: Wazarat al-Shu’un al-Diniyyah, 1400 AH),183
[v]  See Abu Hamid Al-Ghazali, Al-Mustasfa fi ‘ilm ul usul . (Beirut: Dar al-Kutub al- Ilmiyyah., 1413),Vol. 1, 172.
[vi] See Hashim Kamali, The Principles of Islamic Jurisprudence, ( Cambridge: Islamic Texts Society, 1991), 235.
[vii] Auda,Y. Maqasid Al- Shari ah as Philosophy of Islamic Law . London: IIT, 2008. I have kept thspelling of the listed works as found in Auda.
[viii] Ahmed Al-Raysuni, Nazariyyat al-Maqasid ‘ind al-imam al-Shatibi,1st ed. (Herndon: IIIT, 1992).
[ix] See Muhammad K. Imam,  Al-dalil al-irshadi Ila maqasid Al-Shari’ah al-islamiyyah, (London:  Maqasid Research Centre,2006.)
[x] Ed. Mohammad Sadiq Bghar al-ulum, (Najaf:  Dar al Balaghah,1966).
[xi] Ed. Ahmed Ghurab, (Cairo: Dar al Kitab al-‘Arabi,1967).
[xii] Ed. Abdul Al Azim al-deeb, (Mansurah: Al-Wafa,1998).
[xiii] (Beirut: Dar al-nashr, n.d).
[xiv] Ed. Khalil Mansour, (Beirut: Dar al- kutub al-‘ilmiyyah,1998).
[xv] Ed. Taha Abdul rauf Saad, (Beirut: Dar al Jil,1973).
[xvi] (Misr: Matba'at al maktabah al-tujariyah,1920.)
[xvii] (Cairo: Mu’asasah ‘izz al-din,n.d).
[xviii] Ed. El-tahir el-Mesnawi,Kuala Lumpur,Al-fajr,1999.
[xix] 1st ed. ,Cairo, Dar al-Shoruq,1999.
[xx] 1st ed. Beirut and Dar al-Hadi,2001.
[xxi] Nyazee, Outlines of Muslim Jurisprudence, 134.
[xxii] See Al-Ghazali, Al-Mustasfa fi ‘ilm ul usul, (Cairo: Makba'at dar al-kutub al-misriyya, 1997).
[xxiii] Ibid.
[xxiv] Kamali, The Principles of Islamic Jurisprudence, 235
[xxv] Kamali, The Principles of Islamic Jurisprudence, 235.
[xxvi] In relation to this question the maṣlaḥa categories  developed by the premodern Islamic jurists have been classified into (1) recognized maṣlaḥa (maṣlaḥa mutabara): the maṣlaḥa that has been clearly stated in the Qur’an and the Sunna, or has gained the consensus (ijma) of the fuqaha’; (2) nullified maṣlaḥa (maṣlaḥa mulgha): the maṣlaḥa that is in clear contradiction to the Qur’an and the Sunna, and does not have the support of the fuqahaʿ; and (3) conveyed maṣlaḥa (maṣlaḥa mursala): the maṣlaḥa that is not in explicit agreement or disagreement with the Qur’an or the Sunna or the ijma of the fuqahaʿ. See Muhammad Shalabi, Talıl al-ahkam (Cairo: Matbaat al-Azhar, 1943), 281.
[xxvii] Muhammad Al-Buti , Dawabit al-maṣlaḥa fı al-sharı’a al-islamiyya (Damascus: al-Maktaba al-Amawiyya, 1966), 377.
[xxviii] Ibid, 369.
[xxix] Yasir S. Ibrahim, “Rashīd Riḍā and Maqāṣid al-Sharī'a”, Studia Islamica, 102/103, (2006):160.
[xxx] i.e. Qur’an , Sunna, ijma’ and qiyas.
[xxxi] Ebrahim Moosa, “The Poetics and Politics of Law After Empire: reading Women’s Rights in the Contestations of Law”, in 1 UCLA, J. Islamic & Near E.L.1, 1-28.11. Al-Tufi uses words that maṣlaḥa is  “qutb maqsud ash-shar”- the aim and the very pillar of religion.
[xxxii]Ibid., 11.
[xxxiii] Ibid.,  5
[xxxiv] Ibid.,10.
[xxxv]Jasser Auda,  Maqasid Al-Shari’ah as Philosophy of Islamic Law, (London: IIT, 2008), 21.
[xxxvi] Yudian Wahyudi, The Slogan “Back to the Qur’an and Sunnah”- A Comperative Study of the Responses of Hasan Hanafi, Muhammad Abid Al-Jabiri and Nurcholish Madjid, (Ph.D. diss.,  Mc Gill University, Canada, 2002), 266, 285.
[xxxvii] Hashim Kamali, “Methodological Issues in Islamic Jurisprudence”, Arab Law Quarterly, 11 (1996): 5
[xxxviii] M. Fathi Al-Darini, Khasa’is al-Tashri al-Islami fi’l Siyasa wa ‘l Hikma , 1987. Cf. Tahir Ibn  Al-Ashur, Alaysa al-Subh bi Qarib? Al-Shakirah al-Tunisiyyah li-funun al-rasm,( Tunis, 1988), 237.
[xxxix] Auda, Maqasid Al Shari’ah, xxv.
[xl] Rida,  Al-Wahy al-Muhammadi.

[xli] Muhammad  Al-Ghazali,  Nazart fi al-Qur’an, (Cairo: Nahdat Misr, 2002).
[xlii] Ibn Ashur, Maqasid al-Shari’ah al-Islamiyyah.

[xliii] Taha Al-Alwani, Issues in contemporary Islamic thought,( Washington and London: IIIT, 2005).
[xliv] Gamal Eddin Attia, Toward Realization of the Higher Intent of Islamic Law ( Maqasid al Shari’ah) : A Functional Approach, tr. By Nancy Roberts,( Kuala Lumpur: IIIT,   2010),116-151.

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