Renewal of Islamic Law and
Maqāṣid sharīʿa in the Thought of Mohammad Hashim Kamali
Mohammad Hashim Kamali( b.1944) is one of the leading
contemporary scholars writing on the concept of renewal (tajdīd) of Muslim thought
and maqāṣid sharīʿa for
over four decades. In this lecture Dr.Duderija aims to present some of
Professor Kamali’s ideas on renewal of Islamic law with the specific emphasis
on the role of maqāṣid sharīʿa in this respect.
In the first part, Dr.Duderija discusses the concept of tajdid hadari as
understood by Kamali. The second part of the lecture Dr. Duderija outlines
various avenues and methods Kamali uses in his writing on renewal of Islamic
law with the emphasises on the nature of the shari’a, Qur'an, sunna and the
role of reason in Islamic law and ethics. In the final part Dr.Duderija
presents Kamali’s views on tajdid oriented maqasid al sharia.
Brief Biographical Note
Mohammed Hashim Kamali was born on February 7, 1944, in Lalpur, Nangarhar,
Afghanistan. He received his bachelor’s degree in law and political science
from Kabul University in 1965 and his master’s degree in law (comparative law)
and his doctorate from the University of London in 1972 and 1976, respectively.
Most of his teaching career has been spent at McGill (Montreal, Canada) and the
International Islamic University (Kuala Lumpur) where he was teaching and
researching issues pertaining to Islamic law. He is a prolific scholar and one
of the world leading authorities on Islamic law. Moreover, Professor Kamali has
been very active in a number of committees and has chaired several of
organizations. He is the founding chairperson and CEO of the International
Institute of Advanced Islamic Studies, Malaysia, and editor-in-chief of its
journal, Islam
and Civilisational Renewal, that began with publication in 2008.
Nature of Islamic Law Renewal:
Tajdīd Haḍari
Kamali has been advocating for renewal in Islamic thought and in
Islamic law and legal theory, in particular, for well over three decades.
The idea of tajdīd haḍari is often employed by Kamali in the context of defining and
discussing another major concept in his thought, namely, Islam haḍari, or civilizational Islam, I am interested in discussing the
Islam haḍari concept only insofar as it is useful for us to understand the
nature of tajdīd
as a means of
Islamic law renewal in Kamali’s thought.
In his discussion of the definition, nature, and scope of Islam
haḍari, Kamali asserts that the idea of tajdīd, or renewal, is central to it because it
is “germane to every aspect of Islam haḍari and is a well-established concept
in the Islamic intellectual tradition as we have known it.” Importantly, apart
from noticing its value of “authenticity” as a concept that is firmly rooted in
the history and the normative sources of Islam, Kamali defines tajdīd as an inherently
open and contextual process that, unlike taqlīd and ijtihād, cannot be subject to a predetermined
methodology and framework. He argues further that tajdīd is representative
of “the need for renewal, interpretation and ijtihād” especially on issues that do not have a
historical precedent in the Islamic tradition. Kamali defends the need for
tajdīd not only on the basis of its embeddedness in the Islamic historical
experience but also by asserting that Muslim communities have, over time, “lost
touch” with the “original impulse and premises of Islam,” which have been
diluted or even lost due to “taqlīd, colonialisation, and rampant secularism.”
Significantly, Kamali, in the context of delineating the scope
of tajdīd, links this concept with that of maqāṣid. Here he makes a distinction
between two types of tajdīd, both of which he considers to be valid and
authentic.
The first type of tajdīd can be directly linked to, and is
subsumed under, the five essential maqāṣid[BB1] ( namely, protection of life,
protection of property, protection of health, protection of religion, and
protection of dignity-) as per classical Islamic legal theory (e.g.Abu
Hamid Al-Ghazali d.1111). The second kind of tajdīd does not need to be traced back
to the five essential maqāṣid and is valid as long as it does not alter “the
immutable norms and principles of Islam,” by which Kamali means the basic
beliefs and pillars of Islam. In the case of this second type of tajdīd, Kamali
believes that it is not
necessary to provide affirmative evidence directly from the Qurʾān and Sunna in order to prove tajdīd’s acceptability
since this type of tajdid is aligned with the underlying purposes and
objectives of the Qur’an and Sunna.
Finally, Kamali considers tajdīd to be a dynamic process/concept
that is both specific and responsive to the prevailing societal circumstances
to which it is being applied at any given point in time.
This characterization and definition of tajdīd clearly permits
Kamali to widen the scope of renewal that is not bound by the legal
methodologies inherited from the past.
The Idea of the Renewal of Islamic Law
Kamali, in his numerous writings, has unequivocally expressed
his view of the need for Islamic law renewal for a number of different reasons
both internal and external to the religious tradition. In this context he
remarks:
The increased isolation of sharīʿa from the realities of law and
government in contemporary Muslim societies accentuates the need for fresh
efforts to make the sharīʿa a viable proposition and a living force in society.
Our problems over taqlīd are exacerbated by
the development of a new dimension to taqlīd as a result of Western colonialism
which has led to indiscriminate imitation of the laws and institutions of the
West. The prevailing legal practice in many Muslim countries, and indeed
many of their
constitutions, are modeled on a precedent that does not claim its origin in the legal
heritage of Islam.
Elsewhere he states that the recent Islamic revivalist thought
has increased Muslim awareness of the need to renew links with their heritage and
find their own solutions to the issues that concern them by returning to the sharīʿa
as its most civilizationally distinct and tangible aspect. He emphasizes,
however, that these efforts must attempt to relate sharīʿa
to the living conditions of the people and be relevant to the contemporary
needs and realities of Muslim societies.
According to Kamali, for renewal to take place, this would
entail an imaginative reconstruction and ijtihad[BB3] ( innovative thinking) including
revision and modification of the rules of fiqh so as to translate the broad
objectives of the sharīʿa into the laws and institutions of contemporary society.
Importantly, the nature of Kamali’s envisaged renewal, apart
from its emphasis on authenticity, is conceptualized in very pragmatic and
realistic terms. It favors a gradual and realistic approach to legislation and
social renewal that is averse to abrupt revolutionary changes. Kamali advocates
for a renewal that aims to the fullest extent possible to utilize the legacy of
premodern Muslim thought, including Islamic law and legal theory.
If this is so, on what grounds does Kamali frame the possibility
of this renewal of Islamic law and legal theory in particular?
Avenues and Methods of Renewal
Now I describe Kamali’s understanding of the nature
of and the delineating features of sharīʿa, the Qurʾān, the Sunna, and how the relationship between revelation and
reason creates a space for renewing Islamic law.
The first significant element in Kamaliʿs conceptualization of sharīʿa
for renewal purposes is that sharīʿa has certain aims and
purposes (maqāṣid). At the broadest level, these include
the realization of people’s welfare (maṣlaḥa) with regard to their worldly life as well as the hereafter and
their protection from corruption and evil. Importantly, Kamali asserts that
this description of the aims and purposes of sharīʿa includes its laws both in
the sphere of rituals (ʿibādāt) and civil
transactions (muʿmalāt). In this
context he argues that the overall purpose of the majority of Islamic laws and values,
especially those concerning the rituals and morals (akhlāq), is to train the
individual to be more God conscious (taqwā) and a better human
being by becoming a beneficial member of the society in which
he/she lives.
Significantly, he also emphasizes that the underlying message of
Islam is the realization of people’s benefits (maṣlaḥa), which are closely linked to the purposes and objectives of sharīʿa.
Having stated that in the very concept of sharīʿa certain aims
and objectives are inherent, Kamali also refers to the nature of sharī’a in a particular manner. As a corollary to the argument
about the aims or purposes of sharīʿa, he refers to it as being primarily an
ethico-religious values-based construct, which is essential to the primary
message of Islam, its safeguarding, and its continued future relevance. He
argues against the dominant view as espoused by both many (pre)modern Muslim
jurists and Western scholars of Islam of the legalistic nature of sharīʿa as
forming its core. In this regard he makes an important distinction between the
legal and moral aspects of sharīʿa. The legal aspects of shari’a , unlike the
moral, are only peripheral to the original message and purpose of shari’a.
Importantly,
Prof.Kamali argues that the laws of sharīʿa,
including the clear texts of the Qurʾān and ḥadīth, must not be isolated from their proper purposes.
Significantly, he also makes an assertion that maintaining harmony with the spirit of sharīʿa
may at times entail a certain departure from its letter.[BB4] [AD5]
Making a clear conceptual distinction between sharīʿa and fiqh
is another very prominent feature of Kamali’s thinking in relation to the
possibility of renewal of Islamic law. He considers sharīʿa to be closely
related to and mainly grounded in Revelation (wahy), whose only sources are the
Qurʾān and the Sunna. Fiqh is a legal science developed by jurists
and is therefore a product of ijtihād, of human reason. Kamali considers sharīʿa,
which comprises in its scope not only law but also theology and moral teaching,
to be a wider concept than fiqh, which primarily addresses practical legal
rules.
For Kamali, the sharīʿa
originates in the Qurʾān and it consists of both specific rulings and broad
principles of legal and moral import. Kamali argues further that clear and
specific injunctions of the Qurʾān and the Sunna constitute the core of the
sharīʿa and the understanding that they impart is expected to be self-evident
and leaves little room for interpretation.
While sharīʿa provides general directives, the detailed
solutions to particular and unprecedented issues are explored by fiqh. Fiqh is
therefore an understanding of sharīʿa and not sharīʿa itself. Whereas sharīʿa demarcates
the path that the believer has to tread in order to obtain guidance, fiqh means
human understanding and knowledge. Fiqh is thus positive law that does not
include morality and dogma. It is a “mere superstructure and a practical
manifestation of commitment to sharīʿa values.”
By making these distinctions Kamali prepares the ground for the
argument that Islamic law as contained in fiqh manuals can be subject to critical
scrutiny and criticism that opens up avenues for its renewal.
Another important aspect of Islamic law renewal is based on his
understanding of the nature of the relationship between reason and revelation,
which according to him is one of complementarity. The following quote
encapsulates well Kamali’s thinking on this issue:
Revelation expounds the purpose of the creation of man, the
basic framework
of his relationship with the creator, and the nature of his role
and
mission in this life. Revelation also spells out the broad
outline of values
that human reason should follow and promote. Without the aid of
revelation
the attempt to provide a basic framework of values is likely to
engage man in perpetual doubt as to the purpose of his own
existence
and the nature of his relationship with God
and His creation. Revelation thus complements reason and gives it a sense of
assurance and purpose which helps prevent it from indulgence in boundless
speculation… Islam’s vision of reality, truth, and its moral values of right
and wrong are initially determined by revelation and then
elaborated and
developed by reason.
This reasoning leads Kamali to the conclusion that there exists
a convergence of values between sharīʿa and natural law and of Islam as
din al-fiṭra (the natural religion) with natural values. He
emphasizes that
although each moral-legal system has distinct approaches to the
question of
right and wrong, the values upheld by all of them are
substantially in agreement
as both presuppose and are based upon the notion that the moral
values are
derived from eternally valid standards, “which are ultimately
independent
of human cognizance and adherence.” The only difference between
them lies in the manner of their
attribution/justification (moral values determined by God vs those inherent in
nature).
Kamali identifies several features of the nature of the Qurʾān
and the Sunna that make them considerably interpretationally “flexible,”
“dynamic,” and accommodative of renewalist thinking. First, such a feature is
with regard to the nature of the Qurʾānic message and its laws, which Kamali
maintains is goal-oriented both in the sphere of ʿibādāt and muʿamalāt. Second,
the Qurʾān and the Sunna are primarily embodiments of certain ethico-religious
values. In his words:
A cursory perusal of the Qurʾān would be enough to show that the
Qurʾān’s
primary concern is with values and objectives such as justice
and benefit,
mercy and compassion, uprightness and taqwa, promotion of good
and
prevention of evil, fostering goodwill and love among the
members of the
family, helping the poor and the needy, cooperation in good
work, and
so forth. The Qurʾān may thus be said to be goal-oriented, and
that it
seeks to foster a structure of values which has a direct bearing
on human
welfare. It is, for the most part, concerned with the broad
principles and
objectives of morality and law, rather than with specific
details and technical
formulas that occupy the bulk of the uṣūl[BB6] works.
Third, the Qurʾān and its injunctions of sociolegal imports as
the principal source of sharīʿa in particular come in form of primarily general
principles. He adds that when the Qurʾān does provide more specific detail it
does so for the purpose of gaining a better understanding of the general principles.
He also argues that the greater part of the Qurʾān, including
its legal verses (ayāt al-aḥkām), consists of
general (ʿamm[BB7] ) and unqualified
(muṭlaq[BB8] ) expressions and
as such they are on the whole open to further
interpretation. Kamali
also asserts that the Qurʾān is expressive too, at
numerous places and in a variety of contexts, of the goals,
purposes, rationale,
and benefits of its laws such as raḥma (mercy), hudā (guidance),
protection
of life, and so on in the spheres of muʿmalāt as well as ʿibādāt.
He considers that this maqāṣid nature of Qurʾān is also
signified by the fact that there exists a theme-oriented Qurʾānic commentary
genre known as tafsīr
mawḍūʿī[BB9] , whose approach,
is conceptualized by Kamali as being goal-oriented.
Kamali also considers that the most notable companions of the
Prophet, as embodiment and perpetuators of the Sunna of the Prophet, especially
Caliph Umar, took a rational approach
toward the text and message of the Qurʾān and the Sunna
and that their understanding and interpretation of the text was not confined to
the meaning of words but also included its underlying rationale, effective
cause, and purpose.
The reason for this interpretationally flexible nature of the
Qurʾān, argues Kamali, is because the Qurʾān wanted the Muslim community and its
leaders, the Ūlū l-‘amr, to elaborate on them in light of prevailing
conditions.
Another feature of the Qurʾān, which is accountable for
flexibility and change in the sharīʿa as identified by Kamali, is the presence
of speculative (zannī), in contradistinction with definitive (qaṭʿī), rulings
throughout the holy Book. Kamali argues that a ruling of the Qurʾān may totally
or partially fall under one or the other of these two categories. A qaṭʿi[BB10] text, which leaves little room for interpretation and ijtihād,
is one in which the language of the text and the ruling that it conveys is
“clear, self-contained, and decisive,” whereas the zanni[BB11] texts of the Qurʾān, which Kamali
identifies as forming its larger part, are “open to interpretation, analysis,
and development.”
Another important delineating feature of the Qurʾān and the
Sunna, which makes them inherently dynamic, according to Kamali, is the
notion
that, outside of the sphere of the ʿibādāt, they are
rationalist in essence. Kamali refers to the concept of taʿlīl (ratiocination)
in the Qurʾān as evidence to support this view. In this context he asserts that
the Qurʾān “expounds on numerous instances and in a large variety of themes,
both legal and nonlegal, the rationale, cause, objective, and purpose of its
text, the benefit or reward that accrues from conformity to its guidance or the
harm and punishment that may follow from defying it.”
Kamali supports the taʿlil [BB12] nature of the Qurʾān and its laws by making reference to many
instances in the Qurʾān where the exercise of sound reasoning and judgment is
affirmed, and rational thinking, observations, and conclusions made on their
basis are encouraged. Importantly, Kamali links the taʿlil nature of Qurʾān and
its laws to the concept of maqāṣid sharīʿa
(and maṣlaḥa). He argues that ta’lil in the Qurʾān means that the laws of sharīʿa
are “not imposed for their own sake, nor for want of mere
conformity to rules, but that their aim is the realization of
certain benefits and objectives,” and “when the effective cause, rationale, and
objective of an injunction is properly ascertained, they serve as basic
indicators of the continued validity of that injunction.” This, in turn,
implies that when a ruling of sharīʿa outside the sphere of rituals “no longer
serves its original intention and purpose, then it is the proper role of the
mujtahid to substitute it with a suitable alternative because the failure to do
so would mean neglecting the objective (maqṣud) of the Lawgiver.”
Another salient characteristic of the Qurʾān and the Sunna that
makes sharīʿa dynamic and open to change is the idea of their contextualist
nature or what Kamali refers to as the unmistakable presence of
the time-space factor in them. Although the general import of the Qurʾān and
the inspiration and guidance that it provides tend to transcend particularities
of time and space, the Qurʾān also contains specific provisions and concrete rulings,
which “like most of the Sunna, involves a time-space element.” If this element
is ignored, argues Kamali further, it results in fragmentation and neglect of
the internal values of the Qurʾān and the Sunna. As one
argument for the presence of the time-space factor in the Qurʾān
and the Sunna (and therefore sharīʿa), Kamali cites the practice of the Prophet to accept the
majority of social values of seventh-century Arabia.
An additional argument in
favor of the contextualist nature of the Qurʾān can be found in Kamali’s
assertion that “God Most High revealed His message to the people in
contemplation of their capacity at receiving it and the realities
with which they were surrounded in Makkah and Madinah
respectively.”
The concepts of gradual revelation, abrogation, and replacement
of some of its own laws are also cited as evidence of the contextualist nature
of the ethico-legal elements in the Qurʾān and the Sunna.
Consistent with his tajdīd haḍari approach described earlier, Kamali
employs and adapts a number of what I call maqāṣid-allied concepts existent in classical
uṣūl al-fiqh to argue for a maqāṣid-oriented uṣūl al-fiqh as an authentic and
legitimate way of renewing Islamic law.
These include maṣlaḥa,
istiḥsān, ijtihād, ijmāʿ, qawāʿid (legal maxims), ḥikma, ʿilla,
and asbāb al-nuzūl. However, due to time limitations I am unable to discuss them.
Maqasid oriented Tajdid
Finally, I just want to briefly explain
Kamali’s original contribution to maqasid al shari’a for the purposes of
maqasid - oriented tajdid.
Regarding the question of the nature of the maqāṣid, Kamali
forms the view that they are dynamic and subject to change in tandem with
social change and that they resonate more strongly with advancement of
essential human rights. In other words, he subscribes to the view that the maqāṣid
can evolve with the evolution of civilization. As such Kamali argues for an open-ended
scale of values for maqāṣid because “as sharīʿa has no limit nor do the maqāṣid
values.”
In this context his words are instructive:
Our understanding of sharīʿa is one of continuing relevance,
development,
and growth through independent reasoning (ijtihād), renewal, and
reform (tajdīd,iṣlāḥ). Hence the goals and purposes of sharīʿa
must
also remain an evolving chapter of the juristic and
civilisational edifice
of Islam.
In addition to the maqāṣid identified by classical and some
modern scholars he identifies social justice, equality, fundamental freedoms
and rights, cultivation of human intellect through education and science, and
cooperation as additional maqāṣid.
Kamali also describes the
nature of maqāṣid by maintaining that they must be constant/permanent (ṭabit),
zahir ( evident), general (ʿamm), and exclusive and that they must operate
without any socio-temporal constrains.
Kamali has also developed novel ideas in relation to the issue
of the methodology of identification of maqāṣid. In this context he has
identified a number of what he terms “principal indicators” or methods of
identifying maqāṣid. These include clear and definitive texts (nuṣūs) found in the
Qurʾān and ḥadīth: istidlāl (sound reasoning); al-ʿaql (reason); al-tajriba (experience);
al-fiṭra (innate nature); and al-istiqrāʿ (corroborative induction).
Cognizant of the importance of methodological accuracy in the
new maqāṣid theories, Kamali himself has attempted to develop such a theory.
One aspect of it concerns novel interpretation of the Qurʾān
itself based on what he terms the “newly developed genre of tafsīr,” or the
“maqāṣid-based tafsīr.” Kamali finds antecedents of this new tafsīr genre in
the existence of
thematic-based tafsīr (tafsīr mawḍūʿī), which aims to uncover
the unity of
theme and content in the Qurʾān. The complementary nature of mawḍūʿī
and maqāṣid tafsīr stems from the fact that the identification
of a goal or
purpose is only possible once one has interpretationally taken
into account
all of the evidence pertaining to a particular theme or subject
matter, which
is the very task of the tafsīr mawḍūʿī. Reflecting this unity of
theme and content
in the legislative sphere of the Qurʾān would be the task of the
maqāṣid-based
tafsīr.
The final novel aspect of Kamali’s maqāṣid-based
tafsīr I want to mention is that it
interpretationally unifies what we could term as “the ethico-religious
dimensions” of the Qurʾānic message with those dealing with the aḥkām when
interpreting
the legal Qurʾānic injunctions. Kamali
argues for the validity of this approach by stating that the Qurʾān is not meant
to be a law book but a book of moral and spiritual guidance and as such this
implies that the aḥkām verses must share a common purpose with the
ethico-religious teachings of the Qurʾān. This, in turn, increases the scope of
evidence of ayāt upon which aḥkām are to be made. It integrates the
ethico-religious verses with those of the ayāt al aḥkām, all of which are used
as indicators (dalāl) to help
identify maqāṣid. This same methodology
would also apply to the Sunna, that is, to aḥkām al ḥadīth. With respect to
maqāṣid in the Sunna, Kamali adds further that the detailed rulings of ḥadīth
must be interpreted in light of the maqāṣid as done by Companions and that
specific requirements of the Sunna can be relaxed, interpreted differently, or reversed
if these actions realize a higher maqāṣid of sharīʿa.
Based on the ideas presented (and additional ones that I did not
have time to discuss), Kamali has identified areas that require urgent renewal
in contemporary Muslim contexts . These include issues relating to political
leadership and methods of succession; support for constitutional government and
democracy and support for fundamental constitutional rights and liberties of
the individual to name but a few.
Conclusion
In conclusion Professor Hashim Kalami has
been a major contributor to the discourse on the renewal of Islamic law with
specific reference to the role of maqasid al shari’a in this respect. He has
developed many innovative and systematic conceptual and methodological insights
to the idea of the renewal of Islamic law that can help the Islamic
civilisation reawaken and flourish in the 21st century.
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