Journal of Business and Tourism Special Issue: ICCSS, Indonesia November, 2017 Makrum & Fitri 267 ISSN: 2520 - 0739 Terrorism: Considering Maslahah and Madharat in the Perspective of Maqâshid S harî’ah Makrum Islamic Law Faculty of State Islamic Institute of Pekalongan, Indonesia Email: [email protected]Ahmad Asrof Fitri Arabic Departement of Al-Aziz Islamic Institute Indramayu, West Java, Indonesia [email protected]Abstrak This paper examines the positive (maslahah) and negative (madharat) aspects of terrorism viewed by the maqâshid sharî’ah’s perpective. The writing is inspired by the facts that since the attack on the World Trade Center (WTC) on September 11, 2001 and the expansion of the United States into the Middle East, terrorist acts have become increasingly widespread. The terrorists, who act in the name of jihad, seek the legitimacy of religious texts. This raises a negative view among the wider community that Islam legalizes terrorism to strengthen its position. In fact, this understanding is not true. The data obtained from library research of various research results, books, and news in the mass media were analysed by using a qualitative approach. The results of this study indicate that terrorism causes a lot of madharat rather than mashlahah, at least causing bad image of Islam. In this case, maqâshid sharî’ah jihad can be divided into three, namely: First, maqâshid âmmah jihad, i.e. justice and freedom. Second, maqâshid khâshshah , namely.e. the fulfilment of the basic human right to live. Third, maqâshid juz`iyyah , i.e. fighting oppression, protecting people from outsiders threatening salvation, warning the polytheists to be consistent on the agreement or the result of collective agreements, and eradicating disbelief. Terrorism which has a religious motif in Islam arises because of the application of jihad ghairu muqtadhâ al - hâl (regardless of the context of the problem and the type of solution required). If extremists fully understand the concept of jihad muqtadhâ al -hâl (contextual, in a solutive way), undoubtedly the acts of terrorism which they believe to be jihad fi sabilillah, will not be pursued. Keywords: terrorism, maslahah, madharat, maqâshid sharî’ah Introduction This paper examines the positive (maslahah) and negative (madharat) aspects of terrorism by using maqâshid sharî’ah as a point of view. The writing of this article is inspired by the available facts that since the attack on the World Trade Center (WTC) on September 11, 2001 and the expansion of the United States (US) into the Middle East, terrorist acts are becoming increasingly widespread. Moreover, the study of terrorism since the event of 11 September 2001 received serious attention. The collapse of the WTC building that was hit by Boeing 767 and Boeing 757 American Airlines seemed to be the first milestone in the study
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Journal of Business and Tourism Special Issue: ICCSS, Indonesia
November, 2017
Makrum & Fitri 267 ISSN: 2520 - 0739
Terrorism: Considering Maslahah and Madharat in the Perspective of Maqâshid S
harî’ah
Makrum
Islamic Law Faculty of State Islamic Institute of Pekalongan, Indonesia
of gentleness).6 The term al-irhâb comes from the word arhaba-yurhibu which means to
intimidate or threaten,7 and also to mean akhâfa which means to create fear, and fazza'a
which means to make horror.8 In the Qur'an itself, the terms related to jihad are physically
mentioned among others in surah. At-Taubah, 9: 29, 107, 123; Al-Maidah, 5: 33; and Ali
Imran, 3: 167.
The issue of terrorism is often associated with the movement of fundamentalism and
radicalism. According to Abu Ridho, fundamentalism (al-ushûliyah ) is an ideology that
tends to fight for something radically. While radicalism (al-judzriyah) is the idea that requires
change or social and political reform in a violent or drastic way. This understanding rejects
the gradual improvement of economic, social and political conditions.9 According to M. Dian
Nafi', the difference between fundamentalism and radicalism lies in the realm of its
implementation. Fundamentalism is still in the realm of ideology or thought, whereas
radicalism demands a real change in the form of action.10
One example of the fundamentalist movement that once coloured the history of Islam is
the Wahabi movement which was acclaimed Muhammad bin Abdul Wahab (1703-1792 AD),
which includes the theme of purification of Islam (purification). This movement is divided
into two, namely Wahabi Haraki and Tarbawi.
To realize his ideals, Wahabi Haraki proclaims jihadist movement destructively and
offensively, while Wahabi Tarbawi jihad through the provision of educational facilities and
infrastructure, worship, book procurement, and other educational things to spread their
understanding.11
6 Muhammad bin Mukarram bin Manzhûr Al -Afriqî Al-Mishrî, Lisân Al -'Arab, Juz 4, Beirut:
Dâr Shâdir, t.th., p. 97.
7 Ahmad Warson Munawwir, Al-Munawwir Dictionary, Surabaya: Progessif Library, t.th., p.
539.
8 Muhammad bin Mukarram bin Manzhûr Al -Afriqî Al-Mishrî, Lisân Al -'Arab, Juz 4, Beirut:
Dâr Shâdir, t.th., p. 436. See also Louis Ma'luf, Al-Munjid fî Al-Lughah wa Al-A'lâm , p. 282.
9 Abu Ridho, Terrorism, Jakarta: Pustaka Terbiatuna, 2003, p. 97 and 101.
10 M. Dian Nafi ', the material was presented in "Capacity Building Training for All Elements
of Abah Luthfi Center Foundation", on Friday, August 28, 2015, in Ungaran, Semarang, Central Java.
11 Kaswar of Salenda, Terrorism and Jihad in the Perspective of Islamic Law, Cet. I, Jakarta:
Research and Development Agency and Ministry of Religious Affairs RI, 2009, p. 6-7.
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Referring to the definition of Nafi', Wahabi movement can be regarded as a movement
of fundamentalism, but also radicalism at once. In the context of thought, both Wahabi
Tarbawi and Haraki belong to the category of fundamentalist movement and radicalism,
because they not only play in the realm of understanding, but also practice, despite using
different and very contrasting methods - one is done subtly, while others use the way they
tend to be destructive. Nevertheless, there is a clear distinction between Wahabi Tarbawi and
Haraki, if referring to Abu Ridho's definition. Wahabi Tarbawi cannot be said to be a
radicalist movement because the methods that they use are not frontal and carried out
systematically. Unlike Wahabi Haraki who uses offensive actions to realize his idealism.
Therefore, Wahabi Haraki's movement includes the movement of radicalism.
According to Law no. 15 Year 2003 Article 6,
"Terrorism is an act perpetrated by anyone who deliberately uses violence or the threat
of violence to create an atmosphere of terror or fear of a widespread or massive victim by
seizing independence or loss of life and property of another person or causing damage or
destruction of strategic or environmental vital objects or public facilities or international
facilities."12
However, according to Azra, not all terror can be included in the category of terrorism. In
other words, the act of terror is not necessarily terrorism because terror may be perpetrated by
a criminal for personal and criminal purposes.13
Referring to Azra's view, it can be seen that
the motive of terrorism is much more complex and has communal elements than ordinary
crime. Terrorism usually has a more ideological and complex motive than a criminal
behavior that is generally driven by economic interests.14
Muniroh and Ahmad for example, stated that the discourse of terrorism is not always
related to the discourse of radicalism and religious fundamentalism. According to them,
terrorism has pushed into various fields and segments of human life. Terrorism not only
adorns social, legal, and cultural faces, but also politics. In fact, terrorism can be said to be
12
Law of the Republic of Indonesia Number 15 Year 2003 regarding Stipulation of
Government Regulation in Lieu of Law Number 1 Year 2002 on Eradication of Criminal Acts of
Terrorism. Elucidation of Article 6 can be seen in Government Regulation in Lieu of Law Number 1
Year 2002 on Eradication of Criminal Acts of Terrorism.
13 Azyumardi Azra, "Jihad and Terrorism", in Tabrani Sabirin (ed.), Sues Terrorism, Jakarta:
Karsa Rezeki, 2002, p. 70.
14 Abu Ridlo, Terrorism ..., p. 73.
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quite attached to the world of politics, because it can be used as a supporting justification at a
certain time or condition, but at other times it can also be a dangerous opponent.15
US political policy can be a real example of the argument. In combating terrorism, the
US uses a double standard that is far from objectivity. Since the incident of terrorist attacks
on September 11, 2001, the US is keen to invade countries in the Middle East. The 9/11 event
is used as a justification to legitimize its offensive policy. They strongly condemn terror
attacks in Western countries, but innocently, it supports Israeli aggression over Palestine.
In this context, there is a bias on the definition of terrorism. If a country commits acts
of terror over another country, is its action justified to be a right action? If a group fights
against a repressive and destructive government, is its action considered terrorism? More
specifically, if a country annexed another country by resorting to violence in order to achieve
its objectives, does it not include terrorism?
Therefore, it is necessary to clarify the criteria of actions that can be categorized as
terrorism. According to Kasjim Salenda, an act can be called terrorism if it meets the
following criteria:
1. There is an act of threats or illegal violence.
2. Such actions affect the society, whether physical, psychic, their property and public
facilities, both domestic and international scale.
3. Increase fear and panic of a group or community.
4. There is a goal or interest to be achieved by the perpetrators, who are generally political
nuances.
5. Victims of action are not always directly related to the objectives to be achieved.
6. The perpetrator may be an individual, an organized group, or a ruler within a legitimate
government.16
However, the criteria offered by Salenda seem to use only one point of view: from
government or country only. This can be viewed from the first point that states the legality of
an act of violence. In other words, Salenda states, if an act of terror is conducted illegally,
15
Siti Mumun Muniroh and Maghfur Ahmad, Women Behind Terrorists: Religiosity,
Adjustment and Relationship Pattern, Pekalongan: Ministry of Religious Affairs of the Republic of
Indonesia, 2013, p. 37-38.
16 Kaswar of Salenda, Terrorism and Jihad in the Perspective of Islamic Law, Cet. I, Jakarta:
Research and Development Agency and Ministry of Religious Affairs RI, 2009, p. 85.
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then it will be labelled as terrorism. However, if it is conducted by state order, the act may be
justified.
The first criterion raises the understanding that the state is authorized to create chaos
that is available for specific purposes. When a country experiences difficult times, the
government is allowed to perform repressive actions, both in the form of threats and terror
with the pretext of maintaining state stability. Therefore, according to the author's opinion,
the first criterion needs to be changed into: the existence of threats or violations that are
inconsistent with the law and universal values, whether committed by a group or a state.
Thus, any terror action deliberately set by the state for a particular interest can be categorized
into terrorism. Similarly, the act of annexation of a state over another country by the way of
terror, including acts of terrorism, or even be regarded as colonialism.
The Evolution of the Meaning of Jihad
Linguistically, jihad is derived from the words "al-juhdu" and "al-jahdu" which means
ability (ath-thâ qqah), difficulty (al-masyaqqah), and effort (al-wus'u). From these two words
then develop the term ijtihad which means an outpouring of all efforts to probe the legal
provisions of the Qur'an and As-Sunnah through the qiyas method; and the term jihad is
defined as fighting the enemy by expending all effort and ability, either through speech or
deeds.17
Jihad, according to Romli and Sjadzili, undergoes a meaningful evolution that, in
chronologies, can be categorised in six stages. Firstly, during the phase of Makkah (610-622
AD). Here Jihad means an individual struggle in the face of difficult Muslim conditions
because of the actions of enemies of Islam. Secondly, jihad means individual and communal
struggles with the Makkah polytheists, in the form of material, psychological, and spiritual
sacrifices when the hijra. Thirdly, jihad means fighting the infidels who want to attack
Muslims in Medina. Fourthly, jihad also means fighting until the polytheists in Makkah will
believe, which occurs during the fathu Makkah and afterwards. Fifth, jihad still means war,
targeting those who deny the religious teachings of the scribes and who violate the Medina
17
Muhammad bin Mukarram bin Manzhûr Al -Afriqî Al-Mishrî, Lisân Al -'Arab, Juz 3, Beirut:
Dâr Shâdir, t.th., p. 133.
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Charter (Mitsaq Madinah). Sixth, jihad changes its meaning into a spiritual and moral
struggle in the face of life problems.18
In this case, jihad experiences contextualization of meaning according to the condition
of Muslims. In fact, in the early days of the development of Islam, jihad is not only
interpreted by war. Referring to the opinions of Romli and Sjadili, jihad has four meanings,
including psychological sacrifices (bears on the torture of the polytheists), spiritual
(reinforcing the faith in responding to problems that arise), material (providing material aid
for Islamic propagation), and physical (war). Among of the six meanings of jihad expressed
by Romli and Sjadili, there are three meanings of jihad which mean war, but it does not
necessarily indicate that jihad is identical with warfare. However, at that time, the situation
and conditions demanded that Muslims must defend themselves against the infidels' attacks,
thus inevitably having to fight to protect their rights.
In the current context, in countries where the rights of Muslims are ensured, the
relevant form of jihad is spiritual jihad through academic (intellectual) and social efforts to
overcome life challenges and difficulties. However, in a conflict-prone country that causes
oppressions to Muslims, such as in Palestine, the meaning of jihad as a war or physical
resistance, is considered to be more relevant, because Muslims in Palestine are the victims of
Israeli atrocities that illegally annex Palestinian territories.
This is in line with Majid Khadduri's statement that Islam permits jihad (in the sense of
war) in order to defend the sovereignty of the state, which is divided into three forms. First,
fighting for the sovereignty of a foreign invasion (occupation or annexation state). Second,
expand territory of Islam. And third, protect against the attacks of Muslims who undermine
the integrity of the state. In fact, if Muslims are attacked by enemies (other countries), then
all members of society, including women and children, are required to defend the sovereignty
of the state. The law of jihad which was originally fardhu kifayah rose its level to fardhu
'ain.19
Terrorism in Islamic History and Contemporary Period
18
Moh. Guntur Romli and A. Fawaid Sjadzili, From Jihad to Ijtihad, Jakarta: LSIP, 2015, p.
14-15.
19 Majid Khadduri, War and Peace in the Law of Islam, Virginia: The William Byrd Press,
1955, p. 59-62.
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In the history of Islam, terrorism is identical with the existence of the Khawârij, the
group of followers of Alî bin Abî Thâlib who came out and broke away because of
disillusionment over Alî's policy of doing tahkîm (arbitration) to settle the dispute with
Mu'âwiyah bin Abî Sufyan. The Khawârijs then disbelieved Alî and Mu'âwiyah and all those
who agreed with the policy, with the consequences they may be killed for being political
opponents.20
According to Azra, Khawârij is indeed synonymous with acts of terrorism,
using acts of violence. They do not even hesitate to commit murder and mistreatment of
people who disagree, both in religion and politics.21
Even so, before the Caliphate of Alî bin Abî Talib, precisely at the time of Caliph
Utsmân bin Affân, ripple of terrorism has emerged. Various rebellions took place in Islamic
jurisdictions because of the dissatisfaction of the Utsmân government which was considered
wasteful in the use of the treasures of the baitul mal and gave the title only to his family of
Umayyad descendants. This is further exacerbated by the propaganda of Abdullah bin Saba`
which says that Alî bin Abî Talib should be appointed as caliph after the death of the Prophet.
The propaganda managed to inflame the spirit of the supporters of Alî and those who disliked
Uthmân's Khalîfah, who ultimately attacked Madinah and killed Uthmân ibn Affân.22
Violent acts of guilt also occurred during the Abbasid period, the era of the Caliph Al-
Ma'mûn (813 -833 H), Al-Mu'tashim (833-842 H), and Al-Watsiq (842-847 H). The
Mu'tazilite Caliphs impose their understanding that the Qur'an is a being. In fact, the scholars
joined the victims, one of whom is Imam Ahmad bin Hanbal, who was thrown into prison. In
Shi'a, there is an Assassin Sect, an extremist splinter of Ismaili Shi'ah, led by Hassan Ash-
Shabah. He permitted the killing of his political opponents from the Bani Saljuq in the 11th
and 13th
centuries.23
It also used the extreme Isma'ili Islami doctrine that encouraged the
seizure of both urban and mountainous areas. Many people became the victims of this group's
ferocity. One of them was Nizam Al-Mulk, the minister of the Sultan of Baghdad. His terror
20 Kasjim Salenda, Terorisme dan Jihad..., p. 2. Lihat juga, Harun Nasution, Teologi Islam:
Aliran-aliran, Sejarah Analisa Perbandingan, Jakarta: UI-Press, 1986, p. 6-7, 11-13.
21 Azyumardi Azra, "Jihad and Terrorism", in Tabrani Sabirin (ed.), Sues Terrorism, Jakarta:
Karsa Rezeki, 2002, p. 72-73.
22 Abu Ja’far Muhammad bin Jarir Ath-Thabari, Târîkh Ath-Thabari: Târîkh Ar-Rasûl wa Al -
Mulûk , Juz III, Kairo: Dar Al-Ma’ârif, 1963, p. 450-465.
23 The Chief of Salenda, Terrorism and Jihad ..., p. 3.
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continued to spread to Persia, Syria and Palestine. The majority of the victims they killed
were Sunni Muslims.24
From the early twentieth century up to now, terrorist groups have sprung up since the
establishment of the Ikhwanul Muslimin.25
Although, it is not directly responsible for the
birth of extremist groups, the Ikhwanul Muslimin is considered to be the "inspiration" of
resistance to colonialism and oppression. This theory is related to the birth of a terrorist group
as a splinter of the Ikhwanul Muslimin, it was not purely born from the Ikhwanul Muslimin's
womb. Salenda noted that the pattern of the Ikhwanul Muslimin's struggle can be grouped
into two, namely the Ikhwanul Muslimin version of Hudaibism which took the parliamentary
path (demanded systemic change) and the Qutbism Ikhwanul Muslimin opted for a radical
way. At a later stage, this Qutbism version of the Ikhwanul Muslimin inspired the birth of a
group of thought-shaped splits radicals, such as Tanzhim Al-Jihad, At-Takfir wa Al-Hijrah,
Al-Jama'ah Al-Islamiyah, and An-Najun min An-Nar.26
In addition to Egypt, the terrorist movement also existed in Afghanistan, formed by
Osama bin Laden with the name Al-Qaeda. Originally, the movement was established with
the aim of recruiting and financing Arab mujahedeen in the battle against the Soviet Union in
Afghanistan. However, in later developments, Osama bin Ladin expanded his jihad field by
joining other radical organizations, such as the Taliban.27
Al-Qaeda also has a major role in
the emergence of a number of terrorist groups, including the Islamic State in Iraq Syria
(ISIS). Although "officially" established in 2013, the embryo of ISIS has existed since 2004.
24
A. M. Hendropriyono, Terrorism: Fundamentalist, Christian, Judaism, Islam, Jakarta:
Kompas, 2009, p. 57.
25 The Ikhwanul Muslimin Movement was formed by Hasan Al-Banna in 1928 in response to
the British government's occupation of Egypt, as well as the rise of Christianization and secularization
among Egyptian society due to British influence. Therefore, at first, the Ikhwanul Muslimin intended
to liberate Muslims in Egypt from British colonization, as well as straighten their creed and lifestyle
that began to be contaminated by Western culture. To confront the threat of Britain and Israel, Hasan
Al-Banna formed Tanzhim al-Khash in 1940 which eventually took to the battlefield between
Palestine against Israel in 1948 and defeated the Israeli army. See A. Yani Abeveiro, "Starting from
Al-Ikhwan Al-Muslimun; Shouting Jihad Spreads Terror ", in A. Maftuh Abegebriel, A. Yani
Abeveiro, and SR-Ins Team, State of God; The Thematic Encyclopaedia, Cet. 1, Jakarta: SR-Ins
Publishing, 2004, p. 287-289.
26 The terms Hudaibism and Qutbism appear to be derived from the names of Ikhwanul
Muslimin leaders who have contradictory thoughts. The Hudaibism version was pioneered by Hasan
al-Hudaibi, the leader of the Ikhwanul Muslimin post Hasan Al-Banna, who tended to be
compromising the political and peaceful path. The Qutbism version is driven by Sayyid Qutb, who
calls for jihad and physical resistance (war). The Chief of Salenda, Terrorism and Jihad ..., p. 175-
178.
27 Kasjim Salenda, Terrorism and Jihad ..., p. 185-186.
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Historically, the origin of ISIS is inseparable from the existence of Tawheed wa Al-Jihad, the
insurgent group against America and its allies. The group's leader, Abu Mushab Al-Zarqawi
of Jordan, later declared al-Qaeda's allegiance (bai’at). However, in June 2006, Al-Zarqawi
was declared dead and replaced by Abu Hamzah Al-Muhajir, which was later taken over by
Abu Umar Al-Baghdadi.28
On October 15, 2006, the group of Tawheed wa Al-Jihad then allied with various tribes
in Iraq. The combination of Tawhid wa Al-Jihad and the tribes in Iraq then formed the Islamic
State in Iraq (ISI) and chose Abu Umar Al-Baghdadi as the leader.29
After fighting the US and
Iraqi government for 4 years, in 2010 Abu Umar al-Baghdadi was killed. The ISI Command fell
into the hands of Abu Bakr Al-Baghdadi.30
On April 17, 2013, the ISI declared independence
from Al-Qaeda fi Al-Iraq (AQI). After leaving AQI, Al-Baghdadi officially proclaimed the
establishment of the Islamic State of Iraq and the Levant/Syria (ISIL/ISIS).31
History of Maqâshid Sharî’ah Study
Etymologically, maqâshid sharî’ah derives from the two words: maqâshid and sharî'ah.
Maqâshid (plural of the word maqshûd ) means purpose,32
whereas sharî'ah means "the way to
water".33
Shaltut defines sharî'ah as the rules created by God to be a guidance for
mankind in arranging its relationship with God, human (both Muslim and non-Muslim),
nature, and whole life.34
Thus, maqâshid sharî’ah can be defined as the purpose of Allah and
His Messenger in formulating Islamic laws. Such a purpose can be traced in verses of the
28 Reno Muhammad, ISIS: The Cruelty of Global Conspiracy, Cet. I, Bandung: Noura Books,
2014, p. 29-30.
29 Reno Muhammad, ISIS: The Cruelty of Global Conspiracy ..., p. 31.
30 Aaron Y. Zelin, "Al-Qaeda Announce an Islamic State in Syria", in The Washington Institute
for Near East Policy, on April 9, 2013.
31 Reno Muhammad, ISIS: The Cruelty of Global Conspiracy ..., p. 31-32. Al-Qaeda's top
official officially declared a severance of al-Qaida's relationship with ISIS on February 2, 2014. See,
Aaron Y. Zelin, "Al-Qaeda Disaffiliates with the Islamic State of Iraq and al-Sham", in The
Washington Institute for Near East Policy, on 4 February 2014.
32 Hans Wehr, A Dictionary of Modern Written Arabic, London: Mac Donald & Evan Ltd.,
1980, p. 767.
33 Muhammad bin Mukarram bin Manzhûr Al -Afriqî Al-Mishrî, Lisân Al -'Arab, Juz VIII,
Beirut: Dâr Shâdir, t.th., p. 175.
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34 Mahmud Syaltut, Islam: 'Aqeedah wa Sharî’ah, Cairo: Daar al-Qalam, 1966, p. 12.
Qur'an and hadith as a logical reason for the formulation of a law oriented to the benefit of
man.35
Most Muslim academics use the thoughts of Asy-Syatibi when they discuss maqâshid
sharî’ah. He was mentioned as a scholar who popularized maqâshid sharî’ah in the study of
ushul fiqih. However, according to Raisuni, maqâshid sharî’ah has actually been developed
by the Mujtahids before Asy-Syatibi. According to Raisuni, the term maqâshid itself was first
used by At-Turmudzi Al-Hakim which mentions the term maqâshid sharî’ah in his books,
among others Al-Shalat wa Maqâshiduha, Al -Hajj wa Asraruh, Al-'Illah, 'Ilal Ash-Sharî’ah,
and 'Ilal Al-'Ubudiyyah.36
However, to be investigated further, de facto, the use of the principle of maqâshid
sharî’ah in istinbath al-ahkâm actually already existed since the time of the scholars of the
mazhab. Imam Malik ibn Anas (d.164 H) in the Book of Al-Muwaththa' for example, has
written a tradition narrated on the case of the use of maqâshid in the days of the Companions
of the Prophet. After that, Imam Asy-Shafi'i (w. 204 H) in his book, Ar-Risâlah, mentions
ta'lil al-ahkâm (the search for reasons of laws) and some elements of maqâshid kulliyât such
as hifzh an-nafs and hifzh al-mâl .37
After Imam Asy-Shafi'i, Al-Hakim At-Turmudzi appeared, followed by Abu Bakr
Muhammad Al-Qaffal Al-Kabir (w. 365 H) with his Mahâsin Ash-Sharî'ah which reviewed
the reasons and wisdoms of a law to be more easily understood and accepted by humans.
Thereafter, there is Ash-Shaykh Ash-Shadiq (w. 381 H) in his book 'Ilal Asy-Syarâ'i' wa Al-
Ahkâm collected ta'lil al-ahkâm narrations from Shi’a scholars, and Al-'Amiri (w. 381 H)
through his work Al-I'lam bi Manaqib Al-Islam which alludes to adh-dharû riyât al -khamsah
(five aspects of the primary needs of human life: keeping religion, soul, mind, descent, and
possessions).38
Imam Al-Juwaini (d.478 H) came after him by examining three aspects of human need
(dharû riyâ t, hajiyâ t, and tahsȋniyâ t) in his work, Al-Burhân fi Ushûl Al -Fiqh. Then there was
Imam Al-Ghazali (w 505 H) which discussed some methods of knowing maqâshid , while
35 Satria Effendi M. Zein, Ushul Fiqih, Jakarta: Kencana, 2005, p. 233.
36 Ahmad Ar-Raisuni, Nazhariyyat Al-Maqâshid 'inda Al -Imam Asy-Syathibi, Beirut: Al-
Muassasah Al-Jami'iyyah Li Al-dirasat wa Al-Nasyr wa Al-Tauzi', 1995, p. 32.
37 Ghilman Nursidin, Construction of Thought Maqâshid Syarî'ah Imam Al-Haramain Al-
Juwaini (Socio-Historical Review), Synopsis of Thesis, Semarang: IAIN Walisongo, 2012, p. 9.
38 Ghilman Nursidin, Construction Thought Maqâshid Syarî'ah ..., p. 9-10.
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offering a way to keep maqâshid sharî’ah through two sides, namely al-wujud (affirming its
existence) and al-'adam (guarding of things that can ruin it). After that, there was the Imam
of Ar-Râzi (w 606 H), then Al-Amidi (w 631 H), Izzuddin Abdussalam (660 H), Al-Qarafi
(684 H), Najmuddin Ath-Thufi 716 AH), Ibn Taymiyyah (728 AH), Ibn Al-Qayyim Al-
Jawziyah (pp. 751 AH), and then followed by Asy-Syatibi.39
However, according to Nawir Yuslem, Asy-Syatibi was the third person after Imam Al-
Haramain Al-Juwaini and Al-Ghazali, who developed the theory of maqâshid . Al-Juwaini
was the man who first developed the (pioneer) maqâsh id sharî’ah. While Asy-Syatibi
repeated and referred the ideas that have been matured by Al-Ghazali, who previously was
initiated by Al-Juwaini.40
Method of Identifying Maqâshid sharî’ah
According to Abdul Wahab Khallaf, the content of the Qur'an as the main source of
Islamic law, can be classified into three broad categories. First, aqidah, which deals with the
fundamentals of faith. Second, khuluqiyah, which is related to ethical and moral issues.
Third, amaliyah, which is related to human speech and deeds. 41
Islamic law has certain
characteristics that make it different from other laws. The Islamic scholars explore the trait of
the characteristics by performing a series of identification of various laws and the process of
determination made by Allah as the Maker of Shari'a (Ash-shâri’). Although scholars
disagree on some of the characteristics of Islamic law, in general the principle they express
has the common point.
Kasjim Salenda identifies the five characteristics of Islamic law, among others: First,
universal or relevant to all mankind, when and where they are. Islamic law still protects those
who are non-Muslims. Second, it is elastic and dynamic. Elasticity of Islamic law is to
respond to various problems that arise. Therefore, Islamic law concerns with various aspects
of life such as the areas of worship, muamalah, morals, jinâyah , and siyâsah (politics). This
39 Ghilman Nursidin, Construction Thought Maqâshid Syarî'ah ..., p. 10.
40 Nawir Yuslem, "Maqâshid Ash-Sharî'ah Al-Ghazali on the Development of Islamic Law" in
Amir Mahmud (ed.), Islam and Social Reality in the Eyes of Indonesian Muslim Intellectuals, Jakarta:
Edu Indonesia Synergy, 2005, p. 241.
41 Abdul Wahhab Khallaf, Ilm Ushul Fiqh, Beirut: Daar al-Fikr, t.th., p. 32.
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November, 2017
Makrum & Fitri 279 ISSN: 2520 - 0739
dynamicity of Islamic law allows for a change of law in accordance with the changing illat
that lies behind a case.42
Third, Islamic law is perfect and systematic, which contains fundamental principles that
cover all dimensions of human life in a global form related to human relationships with God,
human beings with humans, and people with the environment. Fourth, humanity and
morality, namely Islamic law contains social solidarity that teaches the virtues that directly
come into contact with the intent of human beings, both material and non material. Fifth, is
ta'aqquli in the realm of worship mahdhah and ta'abbudi in the realm of mu'amalah.43
Those characteristics of Islamic law are in line with the purpose of establishing the
Shari'a (maqâshid sharî’ah), namely bringing benefit to humanity and rejecting all forms of evil. Jasser Auda classifies maqâshid into three. First, Maqâshid â mmah, the common values
and meanings that exist in all tasyri conditions' or in most of them, such as justice, freedom, and
convenience. Second, maqâ shid khâshshah , are serious benefits and values to be realized in a
special chapter in the law, such as providing a deterrent effect (on the application of
Qisas) and eliminating gharar (vagueness) in Muamalah. Third, maqâ shid juz`iyyah, are the
purpose and values to b e realized in specific legislation, such as honesty and rote learning
objectives in the provision of the number of witnesses that is more than one person,
eliminating the problem of the permission of not fasting for those who cannot afford since
there udzur shar'i.44
In the view of Asy-Syatibi, maqâshid sharî’ah can be seen from two points of view.
First, based on the purpose of Allah as the Maker of Sharî’ah (qashdu Ash-Shâri '). Secondly,
based on the objective of the man who is exposed taklȋf law (qashdu al-mukallaf). The first
viewpoint contains four aspects, namely God's original purpose in setting Shari'a (qashdu
ash-shâri’ fi wadh’i ash-sharî’ah ibtidâ`an ), the purpose of the determination of law as
something that can be understood (qashdihi fi wadh’iha lil ifhâm ), the purpose of the
establishment of shari’a as something that must be conducted according to the context
42 Kasjim Salenda, Terrorism and Jihad .., p. 46-51. There is a rule that says, "Al-hukmu yadûru
ma'a illatih wa sababih wujûdan wa 'adaman " which can be interpreted by "the existence of a law
relating to the presence or absence of illat (reason) or the accompanying cause". Therefore, God
associates a law with a cause or reason. If the cause or reason is lost, then the rule also declines. See