The following are some reflections by Sheikh Mohammad Akram Nadwi delivered during a course on the topic recently.
Today I will be talking about the maqasid of the Shari’ah. My main focus
will be the argumentation, the reasoning, of great jurists of the early period.
I will try to give the reasons, partly philosophical and partly historical, for
the differences on this issue between the early and contemporary jurists. But I
want to begin by explaining why it is important for us to be reflecting on this
topic now.
Many people, including some very learned and
pious Muslims with the best of intentions, use the concept of maqasid to justify the acceptance by
Muslims of legal norms and regulations which they consider to be authentically Islamic
rulings or fully compatible with authentically Islamic rulings. In other words,
they use the concept of maqasid as a
source of Islamic law. They use it as a means of entering into the Shari’ah certain
laws, for example the laws dealing with what are called human rights, which
have no obvious basis in the Islamic
legal tradition. These new laws and the thinking behind them are said to
conform to the maqasid of the
Shari’ah and are considered to be acceptable to Muslims on that basis.
Now, it is most important to be clear at
this point on what we are discussing here. The issue is not about the right or
wrong of the particular legal rulings that are being advocated in this way. The
issue is whether it is correct to claim that they are Islamic. Muslims do not
have a monopoly on virtue or wisdom or intelligence: I do not know of any text
in Qur’an or Sunnah that would lead one to make such a claim. Rather, Muslims
are expected to look for virtue and intelligence in other peoples, and to learn
from them, because God gives to these as well as those -- the treasuries of His
grace and favour are absolutely under His command and will. So, we must not be
distracted into the fruitless debate about whether such a norm or ruling is
Western in origin and to be rejected as unIslamic simply on the grounds of its
non-Islamic origin. Instead, if we
reject, it must be for better reasons than that. Equally, if we accept norms or
rulings of non-Islamic origin – whether we do this out of necessity, having no
practical alternative, or we do this out of some personal preference – we
should not, without very careful and cautious reasoning, claim that these norms
and rulings that we have accepted are Islamic; we should avoid giving them the
authority and dignity of Islamic law. Just because lots of Muslims have to do
something or choose to do something does not make it Islamic. People do things for reason of necessity or
convenience – but necessities and conveniences change from one time and place
to another. What we understand as Islamic law is supposed to be more stable and
enduring than that; in certain matters, indeed, it is or should be
unchangeable.
What I fear is going on in the use to which
the concept of maqasid is being put in our time is similar to what is done in
many commentaries on the Qur’an. The commentators find an idea or sentiment
that appeals to them, and which they are convinced will lead to improvement in
people’ s understanding and behaviour and then they claim that this is what the Qur’an means. They say so
even if that is not at all what the Qur’anic words say; they say so even when
they know that neither the Prophet nor his Companions ever understood those
words to mean any such thing. What they could be doing is advocating that idea
or sentiment that they believe in on the authority of their own reasoning and
their own behaviour. But they do not take that heavy responsibility. Instead,
they claim for that idea or sentiment the authority of the Qur’an. In effect,
they are claiming that this idea or sentiment is what should have been revealed
by God as the Qur’an, even when it was not.
The temptation to do this is not restricted to modern times, when
Muslims are politically weak in the world; rather, it has existed throughout
Islamic history from at least the time of the Mu’tazila. Nor is the temptation
to do this restricted to very foolish or very clever people who wish to harm
Islam or the Muslims. Little harm comes to Muslims from such people, because
their bad motives soon become obvious. The harm comes rather from the
well-intentioned and pious Muslims who believe that, by their interpretations,
they are serving Muslims and Islam. Despite
their faith and piety, they find the Qur’an and Sunnah inadequate; they are not
inwardly satisfied with the mercy of God embodied in the Qur’an and Sunnah; they
think that these sources of Islamic faith, culture and law need improving. In
our time, the improving takes the form of calls to reformation and
enlightenment, on the lines of what happened to the faith and religious culture
of Christians and Jews in the West. Qur’an and Sunnah are, for them, not a mercy
but an obstacle, a hindrance, that they must use their wits and energies to get
around.
In the end, the heart of the issue is
submission or islam, the acceptance
of boundaries to the autonomy of human reason and judgement and human
will. Muslims, on the whole, being muslim, accept such boundaries;
non-Muslims on the whole refuse them. My fear is that the concept of maqasid is liable to abuse in order to authorize
and legitimize the adoption of norms and laws that have no sound basis in
Islamic legal tradition. And because the
Islamic legal tradition is an expression of islam,
of the submission that is the heart of our faith, I fear that contemporary misunderstanding
of the concept of maqasid is a danger
to the faith as well as to the religion and culture, to iman as well as din.
The word maqasid is a plural form of maqsid,
meaning literally goal or purpose or function. But in our context, that meaning
is taken in the narrower sense of ‘benefit’ -- ‘function’ in the sense of
‘usefulness’. So the maqasid of the
Shari’ah means the good purposes or benefits that the Shari’ah is expected to secure for an Islamic society. Now, these purposes or benefits are not
spelled out as such in specific texts of either the Qur’an or Sunnah. Rather,
these purposes and benefits are supposed to reside in the Shari’ah as a whole,
so that, in some sense, the maqasid
represent key elements of the overall spirit, or overall framework, of Islamic
law. One way of applying this concept of
maqasid is to argue against the
derivation of rulings by analogy with particular texts of either Qur’an or
Sunnah because implementing such rulings might lead to outcomes which
contradict the maqasid, which
contradict the overall spirit of Islam. For example, certain rulings might lead
to injustice, or do more harm than good in a particular situation, and so on. As I will explain in a minute, the Hanafi
jurists did not develop this concept, because they had another that served the
same purpose of blocking legal analogies that would lead to rulings that, in
certain situations, did more harm than good. This concept was istihsan. Imam Shafi’s rejected this
concept, and his rejection of it is the basis of the development of the maqasid concept in Shafi’i fiqh.
Let us pause there to reflect on the fact
that both these concepts represent a human effort to understand and interpret
Islamic law. Both are avenues for, and exercises of, human reason and human
judgement. As we would expect, the great Islamic jurists are without exception
very circumspect, very reserved, when they do this. They do it only when they
cannot find any other way to establish justice or prevent injustice. This is
because the fundamental reason for Islamic law is the necessity of obedience to
the command of God. Of course, Muslims are required to love God and His
Messenger, not just to obey them. While the Law can in a general way encourage,
it cannot expressly require the love of God. The Law concerns itself directly
with the hukm of God, His command,
and the how, the detail, of how that command is to be obeyed. Sometimes, either
in the Qur’an or in the teaching of the Prophet, the hikma (the good reason, the wisdom and benefit) in the command is clearly indicated. ‘Do this, because it is
better for you’. But the reason for obeying the command is the fact that it is
God’s command, not that it has some benefit (known or unknown). The virtue of obedience to God rests in the
confidence that God does not command what he does not also enable (you are never
commanded to do what is impossible) and that He is all-merciful, and
accordingly what He commands cannot but benefit those who obey. The true reward for obedience, the reward you can
depend upon absolutely, is hereafter.
That said, obedience becomes easier when we
have a reason for it. There is little harm in saying things like ‘pork is
forbidden because it goes off more quickly than other meat’ or ‘because pigs
have more diseases that are transferable to humans’. But there is great harm in
thinking that human convenience justifies human obedience to God’s command. Only
a little reflection will tell you that if the alleged hazards of pork can be
removed, it does not therefore become permissible to eat it. The command stands regardless of its
convenience or inconvenience. It stands
because it is the command of God.
Similarly, we may reason, following the
clear indications in the Qur’an to that effect, that wine is forbidden because
it is intoxicant. Muslims were forbidden to approach the prayer when their
consciousness of what they were doing was impaired by drinking wine. Now people
can become so absorbed by many things (sport, poetry, stories, etc.) that their
consciousness of what they are doing when they are praying is impaired. But we
would not be right to pronounce these people intoxicated, nor to pronounce as
forbidden the activities which led to their distraction from prayer or during prayer.
And yet, as we know, Muslim jurists in all
epochs were faced with questions of what is lawful or unlawful in situations
that were new, for which there was no clear precedent in the Qur’an and Sunnah.
Sometimes they were faced with situations in which different, even
contradictory, rulings might be applied. So how did they deal with such
situations? We know that they exercised their conscience and reason. But on
what basis? What principles guide or regulate human judgement in matters of
Law?
This is an issue that arises in every legal
system whatsoever. For very minor infractions, like for example violation of
parking regulations, judgment can be mechanical, so much so that a machine
could decide the penalty -- £50 for one yellow line, £100 for double yellow,
and so on. But as soon as motive, evidence, situational context, and other
factors have to be taken into account, a human judge is needed to weigh the
relevant factors against the law as written by the sovereign power in the
jurisdiction concerned. The letter of
the law must be applied within the margins allowed to the judge, but the judge
can in certain instances issue a new ruling, set or upset a precedent, or make
comments that, eventually, contribute to a change in the written law. There are
rules, written and unwritten, that determine the scope of what judgements
judges can pass.
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