History of Maqasid Shariah

7/28/2019 History of Maqasid Shariah

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Jurists contribution in writing of

maqasid al-Shariah and its history

IntroductionAs a theme of the Sharah in its own right, the maqasid did notreceive much attention in the early stages of the development ofIslamic legal thought and, as such, they represent rather a lateraddition to the juristic legacy of the madhhib. Even to this daymany of reputable textbooks on Usl al-Fiqh do not mention maqsidal-Sharah in their usual coverage of familiar topics. This is partlydue perhaps to the nature of the subject, which is largely concernedwith the philosophy of the law, its outlook and objective, rather thanthe specific formulations of its text. Although the maqsid as adistinctive theme of the Sharahare obviously relevant to ijtihd,they have not been treated as such in the conventional expositionsof the theory of ijtihd.


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School of Hadith & Scholar of Opinionin understanding the Maqasid

Islamic legal thought is, broadly speaking, preoccupied withconcerns over conformity to the letter of the divine text, and thelegal theory ofUsl al-Fiqhhas 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 Sharahas a set of rules,

commands and prohibitions that were addressed to the competent

individual mukallafand 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 Sharahboth as a setof 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-Sharahand it was not until the time of al-

Ghazl (d. 505/1111) and then al-Shtibi (d. 790/1388) thatsignificant developments were made in the formulation of the theory


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The Approaches of Muslim Jurists inunderstanding the Maqasid

The basic outlook that was advocated by the theory ofthe maqsidwas not denied by the leading schools,yet the maqsidremained on the borders of themainstream juristic thought that was manifested in thevarious themes and doctrines ofUsl al-Fiqh.Except

for the Zhirswho maintained that the maqsidareonly known when they are identified and declared bythe clear text, the majority of ulamdid not confinethe maqsidto the clear text alone. For they perceivedand understood the Sharahto be rational, goal-oriented and its rules generally founded on identifiablecauses. A mere conformity to rules that went against

the purpose and outlook of the Sharahwas.,therefore, generally considered unacceptable. Atotally different approach to the maqsid wastaken bythe Btiniyyah who held, contrary to the Zhirs, thatthe essence and objective of the nusswere always tobe found, not in the explicit words of the text, but in its

hidden meaning (i.e. btin),hence their name, theBtiniyyah.


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Maqaasid al-Shariah in the view ofMuslim Jurists

There were also differences of orientation among the leading madhhibtoward the maqsid: some were more open to it than others, butelaboration into the goals and objectives of the Sharahwas generally notencouraged. This rather unspoken attitude contrasted with the fact thatthe Qurn itself exhibits considerable awareness of the underlyingpurposes and objectives of its laws and often expounds the causes andrationale on which they are founded. The general reticence of the ulamin respect of the identification of the maqsidmight have partly been dueto the elements of projection and prognostication that such an exercisewas likely to involve. Who can tell, for sure, for example, that this or that isthe purpose and overriding objective of the Lawgiver, without engaging in

a degree of speculation, unless of course, the text itself declared it so. Butthen to confine the scope of the maqsidonly to the clear declaration ofthe texts was also not enough.


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History of Writing of Maqaasid Duringthe Early Century of Islam

It was not until the early fourth century that the term maqsidwas usedin. 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-Haramaynal-Juwayn (d. 478/1085) who was probably the first to classify themaqsid al-Sharahinto the three categories of essential, complementaryand desirable (darriyyt, hjiyyt, tahsniyyt)which has gained general

acceptance ever since. Juwayns ideas were then developed further by hispupil, Ab Hamd al-Ghazl who wrote at length on public interest(maslahah)and ratiocination (tall)in his works, Shif al-Ghalland al-Mustasf. Ghazl was generally critical ofmaslahah as a proof butvalidated it if it promoted the maqsid ofthe Sharah. As for the maqsidthemselves, Ghazl wrote categorically that the Sharahpursued fiveobjectives, namely those of faith, life, intellect, lineage and property whichwere to be protected as a matter of absolute priority.


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Muslim Jurists and Their Roles inWriting the Maqaasid

A number of prominent writers continued to contribute to the maqsid, not all ofthem consistently perhaps, yet important to the development of ideas. Sayf al-Dnal-mid (d. 631/1233) identified the maqsidas criteria of preference al-tarjhamong conflicting analogies and elaborated on an internal order of prioritiesamong 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 tothe existing list, namely the protection of honour (al-ird)and this was endorsed byTaj al-Din Abd al-Wahhab ibn al-Subki (d. 771/1370) and later by Muhammad ibnAli al-Shawkn (d. 1250/1834). The list of five essential values was evidentlybased on a reading of the relevant parts of the Qurn and the Sunnah on theprescribed penalties (hudud). The value that each of these penalties sought tovindicate and defend was consequently identified as an essential value. The latestaddition (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 theShariahhad enacted a separate haddpunishment for slanderous accusation (al-qadhf), which justified the addition.


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Izz al-Dn Abd al-Salm al-SulamiIzz al-Dn Abd al-Salm al-Sulamis (d. 660/1262) renowned work,

Qawaidal-Ahkam, was in his own characterisation a work on maqasid al-ahkamand addressed the various aspects of the maqasidespecially inrelationship to illah (effective cause) and maslahah (public interest) ingreater detail. Thus he wrote at the outset of his work that "the greatestof all the objectives of the Qurn is to facilitate benefits (maslih)and the

means that secure them and that the realisation of benefit also includedthe prevention of evil." Sulam added that all the obligations of theShariah(al-takalif)were predicated on securing benefits for the people inthis world and the next. For God Most High is Himself in no need ofbenefit nor is He in need of the obedience of His servants. He is above allthis and cannot be harmed by the disobedience of transgressors, norbenefit from the obedience of the righteous. The Sharah is, in otherwords, concerned, from the beginning to the end, with the benefits ofGods creatures.


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Taqi al-Din ibn Taymiyyah, Ahmad al-Raysuni and Yusuf al-Qaradawi

Taqi al-Din ibn Taymiyyah (d. 728/1328) was probably thefirst scholar to depart from the notion of confining themaqasidto a specific number and added, to the existing listof the maqasid, such things as fulfilment of contracts,preservation of the ties of kinship, honouring the rights ofones neighbour, in so far as the affairs of this world areconcerned, and the love of God, sincerity, trustworthiness,and moral purity, in relationship to the hereafter.Ibn Taymiyyah thus revised the scope of the maqasidfrom adesignated and specified list into an open-ended list ofvalues, and his approach is now generally accepted bycontemporary commentators, including Ahmad al-Raysuni,Yusuf al-Qaradawi and others.


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History of Maqasid Shariah

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