29 يونيو, 2017 - 5 Shawwal 1438

The Higher Objectives of Islamic Law

The Higher Objectives of Islamic Law

 

Maqasid Al-Shari’ah
Introduction

Shari’ah in its general sense means the way, and thus the Islamic Shari’ah is the way revealed to Prophet Muhammad (PBUH). Allah Almighty says: “Then We put thee on the (right) Way [Shari’ah] of Religion: so follow thou that (Way)”[Q 45:18]. This revealed text has been understood and interpreted through the application of Prophet Muhammad (PBUH) as well as the Ijtihad of Muslims through centuries. Shari’ah in its more specific sense means legislation, Allah Almighty says: “To each among you have we prescribed a law [Shir’ah] and a method” [5:48]. The Islamic legislation constitutes meanings, laws, rules and principles concerning human actions. It particularly, it aims at identifying the legal rulings for the actions of the legally competent persons.

Muslim jurists—depending on the religious texts as well as the vast literature of Hadith, Exegesis as well as their deep understanding of the Arabic linguistics—provide fatwas, in responses to questions posed to them, and deduce legal rulings for each and every human action. They make their utmost effort to not only understand the texts but also to remain faithful to the Shari’ah’s spirit. For this reason, Muslim jurists and scholars of the science of Principles of Jurisprudence (Usul al-Fiqh) has developed a system of higher objectives that correspond to the purposes and aims Islam has come to convey upon humankind and preserve the Shari’ah’s spirit. This system of objectives is called “Maqasid.” A more general approach that pinpoints the objectives behind the corpus of rulings (al-ahkam at-tashri`iyyah) found in scriptural sources is what Muslim scholars believed is needed. Their goal was to extract and classify the “higher objectives of law” (maqasid ash-shariah) and thereby to constitute a general philosophy of Islamic law that can be integrated in the production of legal rulings, fatwas and good-manners.

The term “maqsid” (plural: maqasid) refers to a purpose, objective, principle, intent, goal, or end. The Maqasid of the Islamic law are the objectives/purposes/intents/ends/principles behind its rulings. The Shari’ah generally has come to the benefits of the individual and the community, and so, its laws are designed so as to protect these benefits and to facilitate the improvement and perfection of the life conditions of the human beings. Allah Almighty says: “We have not sent you but as a Mercy to the worlds” (21:107), which means that Qur’an singles out Mercy as the most important purpose of the Prophethood of Muhammad (PBUH): This can also be seen in the Qur’an’s characterization of itself as “a healing to the (spiritual) ailments of the hearts” and “a Guidance and Mercy” for the believers and mankind (10:57). Muslim scholars have, thus, considered Mercy to be the all-pervasive objective of the Shari’ah, which is considered in all intents and purposes to imply the benefit of interest (maslaha).

Accordingly, Muslim scholars agreed on five main objectives to be considered the Shari’ah’s high objectives. These five objectives are: the preservation of the self; the preservation of the reason; the preservation of the religion; the preservation of the property/monetary; and the preservation of lineage. Abû Ishâq ash-Shâtibî(died 790) is a prominent Muslim figure in the categorization of these universal higher objectives of the shariah in his book “Al-Mwafaqat fi Usul al-Ahkam) in the science of Usul al-Fiqh. We will come back to shed more lights on these five objectives in this article.

Maqasid as Understood From the Holy Qur’an

A vital principle that motivated Muslim scholars to develop such system of higher objectives is that they found in Qur’an and in Hadith a tremendous amount of texts and indicators that affirm the fact that Shari’ah is all-purposeful and that God’s deeds and rulings are of wisdom as He is All-Knowing All-Merciful.
Some of the Quranic passages that indicate and affirm that everything is created with purpose are:

“And in no way did We create the heaven and the earth and whatever is between them as playing.”(21:16)
And other passages explicitly refer to the “intent”or “purpose” of the Islamic laws:

“Allah intends for you ease and does not intend for you hardship and [wants] for you to complete the period and to glorify Allah for that [to] which He has guided you; and perhaps you will be grateful.”(2:185)

Imam al-Ṭabarī, Abū Jaʿfar Muḥammad b. Jarīr(224-310/839-923) in his interpretation of this verse sates: “Allah has intended for you O believers the ease as He knows how hard [is the rulings] on you in such cases [i.e. in pilgrimage]

Another verse that further explain how Allah intend ease to mankind by His Shari’ah and its rulings:

“Indeed, We have revealed to you, [O Muhammad], the Book in truth so you may judge between the people by that which Allah has shown you. And do not be for the deceitful an advocate.”(4:105)
Thus, the purpose of revealing the Book of Allah is the just judgment among people through it.

And so was the purpose of all the revealed texts to all of the previous Prophets (peace and blessings upon them), Almighty says:

“Indeed, We sent down the Torah, in which was guidance and light. The prophets who submitted [to Allah ] judged by it for the Jews, as did the rabbis and scholars by that with which they were entrusted of the Scripture of Allah , and they were witnesses thereto. So do not fear the people but fear Me, and do not exchange My verses for a small price. And whoever does not judge by whatAllah has revealed - then it is those who are the disbelievers.” (5:44).

The Qur’an thus is expressive, in numerous places and in a variety of contexts, of the purpose, rationale and benefit of its laws, to the extent that the texts stipulating these laws are characteristically goal-oriented. This feature of the Qur’an is common to its laws, teachings and good-manners, or “ethics”. As Ethics are the good human characters of which Prophet Muhammad (PBUH) has said to have come to perfect them as mentioned in the famous Hadith narrated by Malik that he had heard that the Messenger of Allah, may Allah bless him and grant him peace, said, “I was sent to perfect good character”.

Maqasid as Understood in Hadith
Besides, the above mentioned Quranic verses that affirm the purposefulness of Shari’ah, there are many prophetic reports and companions’ sayings that clearly indicate the existence of maqasid in the Islamic Shari’ah.

Examples of these Hadiths are:
The Hadith narrated by Malik from Amr ibn Yahya al-Mazini from his father that the Messenger of Allah, may Allah bless him and grant him peace, said, “There is no harm nor return of harm.” This Hadith is understood as establishing one of the most important general rules in Islamic law that is applied variably in issuing fatwas and deducing legal rulings. Such rule is the basis of one of the Shari’a higher objectives, that is, the preservation of the self.

Another examples of Hadiths that are basis of higher objectives or indicators of the validity of developing a system of higher objectives are:

The Hadith narrated that Sa’d said, the Prophet came to visit me when I was in Makkah. I said: 'O Messenger of Allah, shall I bequeath all my money?' He said: 'No.' I said: 'One-half?' He said: 'No.' I said: 'One-third?' He said: '(Bequeath) one-third, and one-third is a lot. If you leave your heirs independent of means, that is better than if you leave them poor and holding out their hands to people.” In this Hadith, the Prophet (PBUH) is clearly concerned with the consequences of the advice he gives to his companions and wellness of their families by means of securing their living-expenses even after Sa’id dies. From this Hadith and many others, Muslim scholars were able to establish the preservation of the property/money as one of Shari’ah’s higher objectives as it is the basis of people’s life on earth and their welfare.

These are just few examples of the many other Quranic texts and Hadith reports that indicate the existence of the maqasid in all Shari’ah rulings and teachings.

The Five Higher Objectives of Islam
Imam Abu Hamid al-Ghazali (d.111) has stated that “The Shari’ah’s purposes of the creation are five: to preserve their religion, their souls, their mind, their offsprings and their money. So, everything that includes preserving these five principles is considered a maslaha (interest). And everything that result in failure of these principles is a harm that should be fought and tuned to an interest. The prohibition of failing or restraining these five principles has always been included in all religions and Shari’ah, as Shariha comes for the interest of humankind.”

Therefore Muslims believe that the purpose of the provisions of the legislation is to keep these five essentials. These essentials are indispensable in the interests of the religion and the world, so if they are lost so are the interests of the world. The world would be of corruption and all human destiny in the afterlife to manifest loss. The reason why these five essentials are called objectives is that all of the Shari’ah legal rulings are emerged and based upon them as will be shown in the coming examples.

The first higher objective of Islam: the preservation of religion
Religion is the sum of beliefs, rituals and rules commanded by God Almighty to regulate people's relationship to their Lord and relationships with each other. God Most High has intended through those provisions to establishing religion and install it in the people’s souls as they follow it. The reservation of religion is legitimated in many Shari’ah texts that call to faith and encourage it and forbid infidelity. Some of these Quranic texts are:

“And whoever desires other than Islam as religion - never will it be accepted from him, and he, in the Hereafter, will be among the losers.” (3:85).
And:

“Surely the religion in the Providence of Allah is Islam. And in no way did the ones to whom the Book was brought differ (among themselves) except even after the knowledge came to them, being inequitable among themselves. And whoever disbelieves in the signs of Allah, then surely Allah is swift at the reckoning.” (3: 19).

The second higher objective of Islam: the preservation of the self/soul
Islam has devoted a significant amount of texts and teaching into establishing the preservation of one’s soul as the most fundamental principle of all. It is through life that Mankind is able to maintain or preserve all of Almighty’s provisions and principles. Therefore, Islam has not only protected the soul from being killed or wasted but also established a set of rules to ensure its welfare spiritually and humanly—that is to secure surviving needs such as food, marriage, shelter, drinks and clothing—as well as establishing rules that deny and forbid the all means of self’s distractions.

Allah Most High says:
“And in no way is it for a believer to kill a believer, except it be by mistake; and whoever kills a believer by mistake must set free a believing slave, and present a blood money (diya) to [the deceased’s] family, unless they [charitably] remit it. As if [the slain] was from a people hostile to you and he was a believer, then [the penance is] to set free a believing slave; and if [the slain] was from a people between whom and you there is a covenant, then a blood money (diya) is to be presented to his family and [also] a believing slave must be set free. And whoever does not find [the means to do so] must fast two months consecutively, a penance from Allah. And Allah has ever been Knowing, Wise. (Q 4:92)”
And says:

“O you who believe! Retaliation (qiṣāṣ) is prescribed on you for the ones murdered; the freeman for the freeman, the slave for the slave, and the female for the female. But whoever is forgiven somewhat by his [slain] brother (i.e., his family), then adhering to with fairness and payment ( adāʾ) [of blood money] to him in kindness (iḥsān). That is an alleviation and mercy from your Lord, but whoever transgresses [the limits of Allah] after that, he shall receive a painful torment. (Q 2:178)
Also:

“And do not kill the soul which Allah has forbade[to be killed] except by [legal] right. This has He instructed you that you may use reason.” (6:33)

As well as many other examples from Quran and Hadith.

The third higher objective of Islam: the preservation of the mind
Allah Most High has commanded us to preserve our minds and has forbid all the means to disable it through the toxicities, alcohols. That is Allah Almighty has granted and distinguished humans from all other creatures by the grace of the mind, which means the ability to distinguish and making choices, and solving the difficulties faced in life. Allah has made humans, therefore, His successor on earth, and so they need to maintain the their mind, which is the basis of the discourse of the succession on earth. Numerous amount of Islamic teachings exhorts on the realization of the mind, its importance, and the describes it as the altitude grace. Some of the Quranic texts that encourage humans to use their mind to contemplate upon the creation of Allah Almighty and to understand their succession on earth are:

“So have they not traveled through the earth and have hearts by which to reason and ears by which to hear? For indeed, it is not eyes that are blinded, but blinded are the hearts which are within the breasts.” (22: 46)
And:

“Who remember Allah while standing or sitting or [lying] on their sides and give thought to the creation of the heavens and the earth, [saying], "Our Lord, You did not create this aimlessly; exalted are You [above such a thing]; then protect us from the punishment of the Fire.” (3:191)

And regarding forbidding what affects the mind or disables it, the intoxicants, Allah Almighty says:
“O you who have believed, indeed, intoxicants, gambling, [sacrificing on] stone alters [to other than Allah ], and divining arrows are but defilement from the work of Satan, so avoid it that you may be successful.” (5:90)

The fourth higher objective of Islam: the preservation of lineage/offspring
For the sake of persevering human’s offspring, Shari’ah has legitimized marriage and reproduction, and for the sake of protecting it, Shari’ah has forbade adultery and assigned a legal punishment (had) for whoever commit it. Moreover, Shari’ah also assigned a legal punishment for whoever lies about or render someone guilty unjustly of committing it (had al-Qazf). This proves that in maintaining the lineage a necessity for the purity of offspring from any potential distortion or corruption by mixing it so one does not even know who are their parents or who are their own children. In Quran we find the forbiddance of adultery is stated clearly and affirmly, Allah Most High says: “And do not approach unlawful sexual intercourse. Indeed, it is ever an immorality and is evil as a way. (17:32). And its punishment is stated in: “The [unmarried] woman or [unmarried] man found guilty of sexual intercourse - lash each one of them with a hundred lashes, and do not be taken by pity for them in the religion of Allah , if you should believe in Allah and the Last Day. And let a group of the believers witness their punishment.” (24:23)

The fifth higher objective of Islam: the preservation of wealth
Shari’ah has commanded for the purpose of preserving human’s wealth the pursuit of earning a living and permitted transactions and exchanges and trade. Shari’ah also, for the sake of preserving wealth as well, forbid and placed punishments upon theft, deception, treason and consuming people’s wealth unjustly, in addition to discouraging the squandering of money.

Money, as well as everything, belongs to God Almighty, who has granted humans the status of successors on earth, and so they are commanded to preserve such grace not to waste it.
Allah Almighty says in Holy Qur’an:

“And do not consume one another's wealth unjustly or send it [in bribery] to the rulers in order that [they might aid] you [to] consume a portion of the wealth of the people in sin, while you know [it is unlawful].” (2:188)

“And give to the orphans their properties and do not substitute the defective [of your own] for the good [of theirs]. And do not consume their properties into your own. Indeed, that is ever a great sin.” (4:2)

“Those who consume interest cannot stand [on the Day of Resurrection] except as one stands who is being beaten by Satan into insanity. That is because they say, "Trade is [just] like interest." But Allah has permitted trade and has forbidden interest. So whoever has received an admonition from his Lord and desists may have what is past, and his affair rests with Allah . But whoeverreturns to [dealing in interest or usury] - those are the companions of the Fire; they will abide eternally therein.” (2:275)

“Allah expunges riba (Interest or other unlawful) and He augments donations, and Allah does not love every most disbelieving most-vicious person.”(2:276)

The Islamic Shari’ah has thus established and reserved these five higher necessities and embodied them in all of its rulings, teachings and good-manners. Besides, Shari’ah has built a system of rulings to construct these objectives so that all that lead to them is permissible and all that apposes them are forbidden. Thus we see that all rituals are legislated for the preservation of religion; all norms (such as food, cloth, shelter, and drink) are legislated for the preservation of the self; all transactions are legislated for the preservation of wealth and lineage; and all punishments are legislated to prevent all harms and ward off that may occur on the way of achieving or fulfilling these higher objectives.

Muslim scholars have classified the entire range of maqasid (principles) based on the human’s interest, into three descending categories of importance: (i) the essentials, (ii) the complementary, (iv) and the desirable or the embellishments. The essentials are these five objectives, that are conceived as absolute requirements to the survival and spiritual well-being of individuals, to the extent that their destruction or collapse would precipitate chaos and the demise of normal order in society. The Shari’ah, on the whole, seeks, primarily, to protect and promote these essential values, and validates all measures necessary for their preservation and advancement. There is also a general agreement that the preservation of these necessities is the ‘objective behind any revealed law, not just the Islamic law.

The second category of maqasid, the complementary or the needs (hajiyat), are less essential for human life. Examples are marriage, trade, and means of transportation. Islam encourages and regulates these needs. However, the lack of any of these needs is not a matter of life and death, especially on an individual basis.

The third category of maqasid, the embellishments or luxuries (tahsiniyat) are ‘beautifying purposes,’such as using perfume, stylish clothing, and beautiful homes. These are things that Islam encourages, but also asserts how they should take a lower priority in one’s life.

Shari’ah is all Mercy and Justice

All of the Shari’ah rulings and teachings are to bestow mercy and justice upon mankind. Although some of the legal rulings and required rituals may seem of hardship, they are doable for ordinary people. Besides, Shari’ah has only intended ease to mankind as mentioned above, and so, such difficulty found in the rulings and ritual practices are meant to bring benefits for the believers. And any ritual that has a hardship in itself is not part of the Islamic Shari’ah. This concept is further assured in the Prophetic report that one of the companions took an oath on himself to fast while standing under the sun, and so the Prophet Muhammad (PBUH) has ordered him to continue his fast but forbade him from remaining under the sun while fasting, and said: “Ruined, were those who indulged in hair-splitting”. He (the Holy Prophet) repeated this thrice. This points out to the forbiddance of any rituals that are of unbearable hardship to the believers.

And in another Hadith reported by Anas (Allah be pleased with him) reported that some of the Companions of Allah’s Messenger, asked his (the Prophet's) wives about the acts that he performed in private. Someone among them (among his Companions) said: I will not marry women; someone among them said: I will not eat meat; and someone among them said: I will not lie down in bed. He (the Holy Prophet) praised Allah and glorified Him, and said: “What has happened to these people that they say so and so, whereas I observe prayer and sleep too; I observe fast and suspend observing them; I marry women also? And he who turns away from my Sunnah, he has no relation with Me”

These are examples of the Prophetic application of Allah Most High’s Words in the Qura’n as He says: “Allah intends for you ease and does not intend for you hardship” (2:185)

Legal Maxims Related to the Higher Objectives of Islam
The First maxim: discomfiture is removed. This maxim is based on the Quranic verse: “He has chosen you and has not placed upon you in the religion any difficulty” (22:78).

Examples of the application of this maxim are: the forbiddance of Monastic, and the legitimacy of marriage.

The second maxim is: difficulty brings about ease. This maxim is based on the Quranic verse: “Allah intends for you ease and does not intend for you hardship” (2:185)

Examples of the application of this maxim are: the permissibility to break Ramadan’s fasting if sick or in travel. As well as all the Shari’ah legal licenses such as shortening prayers in travel as well.

The third maxim is: necessities allow prohibitions. This maxim’s legitimacy source is found in Quran (5:3): “But whoever is forced by severe hunger with no inclination to sin - then indeed, Allah is Forgiving and Merciful.” Examples are: eating dead animals in case of extreme hunger or uttering the disbelieving words in case of facing death threats.

The fourth legal maxim that is related to maqasid is: necessities are to be estimated according to its particular situation and are not to be exaggerated. This maxim’s legitimacy source is found in Quran (16:106) “Whoever disbelieves in Allah after his belief... except for one who is forced [to renounce his religion] while his heart is secure in faith.” For example, eating dead animals in extreme hunger is permissible only to the extent that one is surviving death and not until being full.

The fifth maxim is: preventing harms is to be put forward before brining benefits. This maxim is based on the Quranic verse: “They ask you concerning wine and games of chance. Say, "In (both) is great vice, and profits for mankind; and the vice in them is greater than the profit."”(2:219). Examples following this maxim are: forbiddance of intoxicants, and forbiddance of usury.

The sixth legal maxim concerning the higher objectives of Islam is: harm is to be removed, which is based on the abovementioned Hadith: “,“There is no harm nor return of harm.” Examples following this maxim are: the legitimacy of the Shof’ah sale (of which a partner is worthier of buying his/her partner’s portion of the shared property than any other stranger so that such partner is not harmed by new undesirable partners).
The seventh maxim is: harm is not to be removed by other types of harm. This maxim is based on the Quranic verse: “No woman giving birth shall be harmed on account of her child, nor shall a man to whom a child is born (be harmed) on account of his child” (2:233). Examples of the application of this maxim are: the obligation of looking after the circumstance of the woman who has the custody over the child, bankrupt debtor is to be given a period of time to payback his/her debts. Etc.

The eighth maxim related to the higher objectives of the Shariha is: the individual harm is bearable if it prevents a communal harm. Allah almighty says:“[As for] the thief, the male and the female, amputate their hands in recompense for what they committed as a deterrent [punishment] from Allah And Allah is Exalted in Might and Wise.” (5:38). So, cutting the theft’s hand to protect people’s property is bearable. And so are all the punishments that secure the community’s structure and interests.