Goals of Shariah
Maqaasid al-Shariah (The Goals of the Shariah)
2012 Spring Session (March 25 to May 27 2012)
Class taught by Shaikh Jamaal Zarabozo
This is a topic that has received a lot of attention lately, especially with respect to making judgments in the light of the goals of the Shariah alone.
Time: Sundays 3:10 PM - 4:10 PM PST
“Lofty objectives” behind Allah’s laws
Application to usool al-fiqh and Fiqh
The Goals of the Shariah
Application of the Principle of the Goals of the Shariah
Possible Abuse of the Concept
2012-03-25 Class Notes
Note: The duration of this class will be for one quarter only. It may reappear later on as a 3 or 4 quarter length course. There are a number of books on this topic, but the Shaikh does not recommend any of them. Some of them are quite good, some of them have some good parts, but as whole there are issues.
Higher objectives of the Shariah or the intents behind the Shariah
Assume that everyone knows the meaning of the word shariah. We will define a number of terms before we begin. The whole idea behind this topic is if you think of what we are practicing, it is easy to lose sight of the bigger picture when you are focusing on the details of the practice. We focus on trees and don’t see the beautiful forest. Our goal is to see the bigger picture and try to understand and appreciate it. This topic has received a lot of attention recently.
Some people look at the idea of maqasid as a cure for all of our ailments. Here are some titles of academic papers submitted to a conference in 2006:
Maqaasid and Civilizational Reform
Maqaasid and challenges of modernity
Maqaasid and related bio ethical concerns
The use of maqaasid Al-Shareeah and its use in urban design
It is being used for re-forming and re-analyzing everything associated with Islam.
Purposes of this course:
- An appreciation of Allah’s mercy in sending the Prophet (SAWS) and the sending of the Shari’ah. It is not just for ‘ibaadah, but it also has a purpose.
- This knowledge should allow us to come closer to Allah (swt) and increase our love for Allah (swt).
- It is another example of highlighting the importance of having proper belief in Allah (SWT) and in particular his names and attributes.
- Once we understand how the different pieces of the Shari’ah fit together, the whole thing will make more sense. The more something makes sense, the more relevant it will be and the easier it will be to attach yourself to it and internalize it. Those who know the shari’ah the best are the ones who love it the most. And knowing it means also knowing its goals as well as it
- We should also see that the Law of Allah (swt) is to bring about good and benefit and repel evil and harm from the mankind.
- When you understand and see the shariah as a whole, then you will see that shariah as a whole is beneficial to mankind and we humans can never come up with a Law which is so comprehensive and beneficial to all mankind.
- Shariah has been attacked, many muslims don’t have confidence in shariah and it is rooted in their incorrect understanding of shariah. No human designed system is going to come anywhere close to shariah.
- When it comes to fiqh, understanding goals of shariah is important to get to the correct conclusions of fiqh. It is important to understand shariah correctly, specially in the absence of any specific texts from quran or sunnah, it is important to understand the maqaasid of the shariah in order to come to a proper ruling.
- At the same time, like any other tool, it must understood and applied properly, and it must not be abused or exaggerated or applied incorrectly. Unfortunately some people are using the maqasid of shariah to remove the concept of shariah as a whole as understood by us. Regarding our knowledge of Maqasid as Shariah our principles must be clear from the quran and sunnah.
- It is an important topic in the field of dawah, since it emphasizes the beauty of islam and what it brings to humanity. According to ibn Qayyim, the wisdom behind shariah points to veracity and truthfulness of the prophet, and it is the greatest sign pointing to his claim of being the prophet of Allah (swt).
Understanding some of the above goals or benefits are part of this course. The more we know about Allah swt the greater should be your imaan and your desire to get closer to Allah swt. This type of knowledge is very beneficial and at all different levels of understanding as long as it is applied correctly. If it is not applied correctly then it can become very dangerous.
This is also true of other parts of Islam. E.g. the concept of Ta’weel. It’s a very important tool in usool, but if it is abused, it can be very dangerous and can lead to very wrong results. We should learn lessons from the past, and should not make the same mistake with maqaasid al-shareeah.
Footnote based on Q&A session
IIIT (International Institute of Islamic Thought) produced the five volumes on maqaasid, however their goal as stated by Taha Jaabir Al-Alwaany, one of its founders, is to reform the muslim way of thinking. If this reformation means that going back to proper way of thinking based on Quran and Sunnah then this is good. If this reformation is not based on Quran and Sunnah then it is very dangerous. The book by Al-Raizooni that includes an interesting discussion of Al-Shaatiby, but overall it is dangerous.
Think of the word tajdeed (this is verbal noun of Form II). It means to revive. Take something that was alive and bring it back to life. The way of the Sahaabah existed but aspects of it have died away. The Prophet (SAWS) said that every century someone will be sent to revive the religion. It is very good, but it can be abused. You cannot come up with something new and call it tajdeed.
Many people are attributing their thoughts about tajdeed to Al Shaatiby, so we will try to analyze Al Shaatiby’s works and what he really meant. His works have been published in Arabic but not translated in English. Link to one volume of his book translated into English. If this is indeed translated then it should be a recommended text for us, according to Shaikh.
Some claim to be reviving Islam, but in reality they are reforming the understanding of Islam. They use the words islaah and muslaah, which is to make something better or reform. If you look at the Arab Spring, there are many leaders (e.g. Rashid al Ghanooshi in Tunisia) are using the term maqaasid al shariah, such as the leader from Tunisia who is claiming that his way is the maqaasid al shariah.
Defining the technical terms for Maqaasid al Sharee’ah
Definition of Sharee’ah
Sharee’ah in the Arabic means ”source of water” or “path leading to the source of water”. What is the importance of water in a human being’s life? It implies that this is the path for survival in this life and the hereafter.
Technically speaking, when we use the word Sharee’ah and the word fiqh and you want to distinguish these two: Shariah = The texts of Quran and Sunnah (coming out of Quran and Sunnah coming in Qatai or Definitive ways). You could also drop the words “the texts of” and simply refer it to as Quran and Sunnah.
Definition of Fiqh
Fiqh = All the laws derived and based upon the Quran and Sunnah
Many times in common speech even Ulema do not distinguish between Fiqh and Shariah. Technically there is a difference: The Shariah cannot change but the Fiqh could be something which can be time limited. For example, the Fiqh of Iraq from a millenium ago does not have to be necessarily applicable to us today. However, the Shariah in Iraq a millenium ago was the same as today.
The field existed long before it was codified and documented in books, which is true with any field. Even the word sunnah was used by many scholars to mean aqeedah (e.g. an important book titled “al Sunnah” by Imam Ahmad ibn Hanbal is all about Aqeedah) and then secondly the application. Important thing is the concept.
Definition of Maqaasid
It comes from the root qasada, which means to direct yourself or aim or intention or object. You are trying to arrive at something or fulfilling some aim. Singular is maqsad and plural is maqaasid. It is used for both the intention and the object of the goal.
Definition of Maqaasid al Sharee’ah
When you put Maqaasid and Shariah together, then we talk about Maqasid al Shariah or long term goals of the Shariah.
Early scholars knew Maqasid al Shariah but did not write it down, however, the later scholars write books about it.
First book is by Ibn Ashoor: The general objectives of the Islamic Laws are the meanings and wise purposes on the part of the Lawgiver which can be discerned in most or all the situations to which the Law applies such that they can be seen not to apply exclusively to a particular type of ruling. (Imam al-Shatibi’s Theory of the Higher Objectives and Intents of Islamic Law by Ahmad Al-Raysuni, pg. xxii)
It is like induction, that you look at all the laws as a whole and you see that this wisdom applies to all the laws.
Al-Raisuni: The purposes for which Law was established to fulfill for the benefit of humankind. (Op cit, pg. xxiii)
These definitions have a big shortcoming: they are almost secular in their definition; because these are not only for the benefit of humankind, but it is also part of the servitude or uboodiyah to Allah (SWT). It is before al-shaatibi said: one of the important points is to realize that these things are an important part of worshipping Allah (SWT).
So we should avoid a secular style of definition but should be related to the fact that this is what Allah (SWT) wants from humankind and will bring about good in this world and the hereafter.
Shaykh Jamaal’s definition of maqaasid al sharee’ah (trying to keep all key elements of previous definitions):
The Share’aah laws upon which other laws are founded and that are approved by Allah (SWT) and are related to the well-being of humans in this world and the hereafter.
(definition emailed by Shaykh)
The meanings/goals discerned in the Shareeah laws, upon which those laws are founded, regardless of whether those meanings are specific rulings or general benefits or accumulative attributes, approved and beloved to Allah on behalf His servants and they are all related to overall goal which is the servitude to Allah and the well-being of humans in both worlds (this world and the Hereafter)
A briefer, more restricted definition:
The universal goals for which Allah has prescribed the laws of Islam.
Definition of maslaha
The root word is salaha -- meaning to be complete or good or sound. It is the opposite of Fasaad/Mafsada which means something depraved or corrupt. The word contains the strong aspect of goodness and sound condition. It is something that is beneficial, proper and sound. And it is opposite of something that is harmful.
We will use the word maslaha a lot. One of the key questions is to determine what is the maslaha according to Allah swt and it might be something different than what human beings define as maslaha.
Next time we will begin with the question whether it is true that the laws of Allah swt have some goal or purpose behind it and if it is, then what is the proof for it. (Footnote: Shaikh joked that if the answer is no, then next week will be our final class for this course.)
Email sent by Shaikh Jamaal on March 30 2012
Definition of Maqaasid al Shareeah
The meanings/goals discerned in the Shareeah laws, upon which those laws are founded, regardless of whether those meanings are specific rulings or general benefits or accumulative attributes, approved and beloved to Allah on behalf (edit: of ????) His servants and they are all related to overall goal which is the servitude to Allah and the well-being of humans in both worlds (this world and the Hereafter)
A briefer, more restricted definition:
The universal goals for which Allah has prescribed the laws of Islam.
Translation of Al Shaatibi’s work
You may recall in class that Br. Rayees (may Allah reward him) has informed us of the translation of volume one of al-Shaatibi’s famous book al-Muwaafaqaat fi Usool al-Shareeah. Br. Jalaal (may Allah reward him) has expedited my receiving of the book, maa shaa`Allah.
We will be discussing this book in more detail in the class. The translation looks and even includes Sh Darraaz’s footnotes the Arabic edition.
Unfortunately, there is one major problem with respect to this class. This is the translation of volume one of the four-volume set edited by Darraaz. The problem is that al-Shaatibi does not actual start his discussion of the maqaasid al-Shareeah until the second volume of his work!
The book is available from amazon.com. If you are undecided as to whether you wish to purchase the book, I have provided for you below the table of contents of the work to see if it may be of interest to you. (edit: table of contents not copied to the notes).
2012-04-01 Class Notes
Concept of Illa علّة :
We will introduce another important term that will highlight the topic that we are discussing. It is the word illa. In this context illa means legal cause or ratio legis. When this factor is present, then certain ruling will be invoked.
An example of illa: When you travel, you shorten your prayers.
What is the legal cause or علّة that must exist for you to shorten your prayers?
Travel is the legal cause or illa to exist in order for the law to be invoked. The law here is to shorten your prayers.
What is the wisdom or حكمة behind it? Why are you allowed to shorten your prayers when you travel?
Answers from students regarding Wisdom: To remove hardship; for the sake of ease;
Are there some explicit texts that state that we have to shorten our prayers when we travel?
Yes we do. Surah in the Quran
Do we have any explicit text for the wisdom behind the ruling?
Sheikh did not say no, he said we’d come back to it.
Is it possible that there is a wisdom behind this ruling?
We will visit this question later on as well.
For the sake of argument, let us say that we all agree that the wisdom behind this ruling is the removal of hardship for the sake of ease.
Q: Then based on the above argument can we make the following conclusion?
Therefore when not travelling but facing hardship, I may shorten my prayer.
Students had problems going from the wisdom to the above conclusion. Students used the example of the instruction of the prophet during the battle where he did not ask the sahaba to shorten their prayers. Some wondered, can we generalize the wisdom behind a ruling.
So we may say that generality of the text implies that if not travelling then there is no shortening of prayers. We know of no exception to this ruling from the Quran or Sunnah. We do not want to use the wisdom of one ruling to contradict the general texts of Quran and Sunnah. It is possible that the Wisdom of some ruling is particular to that ruling. We cannot go from one ruling and generalize it to say that this is the goal of the Shariah.
Shaikh then questioned us isnt the shariah meant to bring ease to mankind?
There are other terms that are used such as: Dhaabit ضابط and Qaeedah قاعدة and Maqsad مقسد.
Dhaabit is a principle that is specifically related to a field such as tahaarah. Whereas qaeedah is a more general principle and it applies to all branches of Sharee’ah.
So the wisdom that we are discussing starts as a Dhaabit and then it is raised to Qaa’idah and then finally to Maqsad.
You start with Dhaabit statement and then as you keep on adding more statements, you end up in Maqsad.
But this is a tricky step as we just saw. We try to avoid rulings made under the guise of maqasid shari'a that contradict the clear statements of the quran and sunnah. And this is happening day in and day out, people are making maqaasid which are stepping over the clear rulings of the Quran and Sunnah.
One of ibn Taymiyyah’s response to Hanafis with respect to combining dhuhr and asr prayers was that Hanafi opinion of combining and shortening the prayers increases the hardship (For background: According to Hanafi opinion one has to combine and shorten the prayer at the time of e.g. end of Dhuhr time and beginning of Asr time. Hence the Hanafi opinion really restricts the window of time when one can shorten and combine the prayers during travelling. Other 3 schools do not agree upon this point and they give the whole window of Dhuhr and Asr or whole window of Maghrib and Ishaa for combining and shortening the prayers during travel).
Let us change the example to combining prayers instead of shortening prayers. We have hadith of Ibn Abbas about combining prayers, where he combined Maghrib and Isha when he was giving a lecture and he said that the prophet combined Maghrib and Isha even when it did not rain nor was there any fear of harm.
And shaikh pointed out to the board where we had made a conclusion about the wisdom of shortening prayers and asked us what do you think about it now for this example of combining prayers? Is there a wisdom for combining prayers also for the sake of ease?
Illa is different from maqsad. Illa is not a goal of the shariah. An Illa may not even be desired by the shariah.
for example, travel is not a goal in the shariah and the shariah is neutral to it. be stated as the canbe considered the S
However how to use the wisdom is something that we have to be careful about. ANd this is the goal of this class.
Q: Would the dhaheerihs accept deriving conclusions from the wisdom?
There is indeed a purpose behind the laws of Allah swt
The whole idea of the maqasid of shariah, has behind the idea, that there’s some purpose behind the laws that Allah has revealed. There’s something to their very nature. They are not just something random but has a goal and purpose.
Ibn Al Qayyim’s passage on Maqaasid al Shariah in his book Alam al Muaqaqeen
Ibn Al Qayyim has a very famous passage, “the base and the foundation of the shariah, is wisdom and well being for humans both in this life and the hereafter. It is all justice, it is all mercy, it is all welfare, and it is all wisdom. Any issue that deviates from justice to injustice, mercy to opposite, welfare to harm is not from shariah even if entered shariah through some form of ta’weel. The shariah is Allah’s justice b/w his servant, His mercy amongst his creation, His shade upon this earth. and His wisdom which established the veracity of His messenger in the best and strongest manner. It is the light by which those who see, can see and and it is His guidance by which the guided are guided and it is His cure by which every ailment is cured, it’s His path if one is upon it is rightly guided.”
Most people nowadays, don’t look at the shariah that way. But those scholars who have studied shariah in these details, like ibn Qayyim and Shaatibi.
al-Izz bin Abdissalam also said that the “goal of the law is the well being of humans both in worldly and religious affairs”
These statements are very strong and they are implying that behind the laws that Allah has given us, there’s some goal and purpose and it’s leading us to some beneficial thing and it’s part of the intent of Allah when He revealed this law. To bring benefit to the servants of Allah (swt).
How many of us would disagree with what is said about the goals behind shariah, goals behind the law and they are intended by Allah swt? Would you have difficulty with this idea? Would you be surprised if you find out that there are some groups that had difficulty with this notion?
Discussion of four groups who reject the idea of goals behind shariah
We can talk about four different groups who had difficulties with the idea of goals behind the laws of Allah swt.
Group #1: Ibn Hazm (representative of Dhahiris -- ظاهري)
We put Ibn Hazm in his own group even though he is put together with the Dhahiris (literalists). He goes beyond the school of dhahiris.
They deny any concept of any reasoning or cause behind the laws of Allah swt. Because of that they completely reject the concept of qiyaas (analogy). Ibn Hazm has a big book in which he tries to refute qiyaas. In Qiyaas we start with a ruling for a specific case, and then we understand the illa. Then we have another case that is similar to the ruling that is explicitly stated in text. Now we take the illa and apply to another case that is not explicitly stated in the Quran or Sunnah. This is qiyaas.
The position of Dhahiris is an extreme opinion. Shias also theoretically speaking reject qiyaas, but the later shias have to resort to it. When their imaam was present they did not have to make qiyaas, because the imaam could make the ruling, but now that the imaan is in occultation, they have to resort to qiyaas.
An example would be that you cannot urinate into stagnant water. Ibn Hazm would say that since there is no wisdom behind the ruling, then you could urinate into a bowl and then throw the waste from the bowl into stagnant water.
Group #2: Asharis - أشعري
The Asharis also say that the benefit of the laws are not the real intent of the law. Ibn al Qayyim and Shatibi are saying that they are intended benefits to Shariah. Asharis do not agree and they say that benefits are not intended by Allah (swt). These benefits to Asharis are fortuitous to the laws. The Ashari were created in response to Mutazillah and hence he goes to the other extreme. So many opinions of the Asharis is reaction to the Mutazillah. Their basic argument is that if Allah (swt) was to legislate such laws then it is necessary to achieve those goals and if law does not achieve these goals then there is imperfection in the laws given by Allah (swt).
Many of Shafi’i Scholars in Usul al Fiqh are also Ashari, and if one says that there is no Wisdom behind the laws then they should reject Qiyas as well (however all Shafi’i scholars accept Qiyaas). So by not accepting Wisdom behind the Shariah, then they run into a gap between Shairah and Aqeedah and then they spend long pages in trying to reconcile the Shariah and the Aqeedah.
Group #3: Mutazillah معتزلة
The wisdom behind the laws are intended by Allah (swt).
Group #4: Ahl al Sunnah أهل السنّة
The wisdom behind the laws are intended by Allah (swt). So Ahl as Sunnah and Mutazillah are in agreement on this point.
There is a big difference in saying that these wisdom are intended by Allah (swt) versus saying that the wisdom is just fortuitous to the application of the laws. It relates to the imaan of every individual. Consider that the name of Allah (swt) is Al Hakeem, which occurs in the Quran over 90 times and it comes from the root HKM. Which means He is the One Who is the Ruler and the ramification is that His actions have praiseworthy goals and His actions are intending good always and the most wise of decisions. In 29 places in the Quran it says “Al Azeez al Hakeem”. The pairing of naming in the Quran gives us much more in-depth meaning. It means Exalted in Might and All Wise, i.e. no one can resist His implementation of laws and those laws are based on infinite wisdom. This shows that Shariah is based on Wisdom of Allah (swt) and it is not based on frivolity or fortuitous results of applying them. So these goals are intended by Allah (swt).
One big difference between the Mu’tazillah and Ahl as Sunnah will be discussed next week.
There is a purpose behind the laws of Allah swt. And this purpose is by intention and not some fortuitous accident that it provides benefit to mankind. Shaikh Jamaal proved that if you reject that there is no intention behind these rulings and it is just fortuitous then you are basically denying one of the attributes of Allah swt which is Hakeem.
2012-04-08 Class Notes
Asharis put themselves into a very difficult situation since they deny purpose behind the goals of shariah which means that they are denying Qiyas as well. At least Ibn Hazm is more consistent even though we do not agree with these conclusions, he says that you cannot apply qiyaas to the wisdom behind the ruling. He might make one exception. The Mu’tazilah say that there is reasoning behind the laws. Ahl al Sunnah also agree that there is wisdom behind the rulings of Allah swt.
Maturidis differ on this point with the Asharis (even though on most of the cases differing between the opinions of the Asharis and Maturidis is difficult).
All of the Imams have the thinking pre Mu’tazilah; these imams are all considered “ahl-sunnah” or the real “ahl sunnah”
Vast majority of the Muslim world will attach to the Ashari or Maturidi aqeedah. Shaikh mentioned somebody would say that I am Ashari in Aqeedah, Hanafi in Fiqh and Naqshbandi in my Tariqah etc. (this was a remark on the current condition of the Muslim Ummah).
Difference between the Mu’tazilah and Ahl Us Sunnah positions on goals of Shari’ah
There is a big difference between Mu’tazilah and Ahl al Sunnah. Mu’tazilah say that the wisdom behind Allah’s ruling is obligatory upon Allah swt. In their theology, they have some concepts of what Allah swt can do and cannot do and what He must do. This is their concept of god, their theology. They differ on Ahl al sunnah on this point, who say that it is not obligatory upon allah swt, but it is the result of the mercy and grace of Allah swt. It is his grace and bounty, and nobody can obligate anything upon ALlah swt, and among the things that he has obligated upon himself is to be merciful towards his creation, as he says in Surah Al Anam verse 54 and Surah al Anam verse 12.
Sahih International (6:12)
Say, "To whom belongs whatever is in the heavens and earth?" Say, "To Allah ." He has decreed upon Himself mercy. He will surely assemble you for the Day of Resurrection, about which there is no doubt. Those who will lose themselves [that Day] do not believe.
Sahih International (6:54)
And when those come to you who believe in Our verses, say, "Peace be upon you. Your Lord has decreed upon Himself mercy: that any of you who does wrong out of ignorance and then repents after that and corrects himself - indeed, He is Forgiving and Merciful."
Prophet also said in hadith recorded by Bukhari,
(حديث مرفوع) حَدَّثَنَا مُحَمَّدٌ ، ثنا الْحَسَنُ ، ثنا شَبَابَةُ ، ثنا وَرْقَاءُ ، عَنْ أَبِي الزِّنَادِ ، عَنِ الأَعْرَجِ ، عَنْ أَبِي هُرَيْرَةَ ، عَنِ النَّبِيِّ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ ، قَالَ : لَمَّا قَضَى اللَّهُ الْخَلْقَ كَتَبَ فِي كِتَابٍ فَهُوَ عِنْدَهُ فَوْقَ الْعَرْشِ : " إِنَّ رَحْمَتِي غَلَبَتْ غَضَبِي "
when Allah had finished his creation, he wrote that his mercy overtakes his anger.
And in a hadith qudsi, Allah swt has said, oh my servants I have forbidden wrong doing to myself and to you , so do not wrong one another. Allah swt used the term dhulm in this hadith.
عن أبي ذر الغفاري - رضي الله عنه - عن النبي - صلى الله عليه وسلم - فيما يرويه عن ربه عز وجل أنه قال : ( يا عبادي إني حرمت الظلم على نفسي وجعلته بينكم محرما فلا تظالموا ، يا عبادي ، كلكم ضال إلا من هديته ، فاستهدوني أهدكم ، يا عبادي كلكم جائع إلا من أطعمته ، فاستطعموني أطعمكم ، يا عبادي كلكم عار إلا من كسوته ، فاستكسوني أكسكم ، يا عبادي ، إنكم تخطئون بالليل والنهار ، وأنا أغفر الذنوب جميعا ، فاستغفروني أغفر لكم ، يا عبادي ، إنكم لن تبلغوا ضري فتضروني ، ولن تبلغوا نفعي فتنفعوني ، يا عبادي ، لو أن أولكم وآخركم وإنسكم وجنكم كانوا على أتقى قلب رجل واحد منكم ما زاد ذلك في ملكي شيئا ، يا عبادي لو أن أولكم وآخركم وإنسكم وجنكم كانوا على أفجر قلب رجل واحد ما نقص ذلك من ملكي شيئا ، يا عبادي لو أن أولكم وآخركم وإنسكم وجنكم قاموا في صعيد واحد فسألوني فأعطيت كل إنسان مسألته ما نقص ذلك مما عندي إلا كما ينقص المخيط إذا أدخل البحر ، يا عبادي إنما هي أعمالكم أحصيها لكم ثم أوفيكم إياها ، فمن وجد خيرا فليحمد الله ، ومن وجد غير ذلك فلا يلومن إلا نفسه ) أخرجه مسلم في صحيحه.
Many people have translated dhulm to be oppression in the above hadith. Dhulm actually means to put something in a place that it does not belong; which is more akin to a general idea of wrong doing. It is very general and includes oppression within its definition; however, it is wrong to state that dhulm means oppression. It encompasses much more than oppression.
Throughout the Quran, Allah swt reminds us that he does not commit dhulm and he does not want his servants to commit it either.
وَلَا يَظْلِمُ رَبُّكَ أَحَدًا
Sahih International (18:49)
And your Lord does injustice to no one.
Sahih International (4:40)
Indeed, Allah does not do injustice, [even] as much as an atom's weight; while if there is a good deed, He multiplies it and gives from Himself a great reward.
Ibn Taymiyyah when explaining the hadith qudsi, he says that when Allah swt is denying something from himself, he is showing that he is just and merciful as part of His Excellence. And in order for it to be praiseworthy action, it has to be by choice i.e. He (swt) could have committed dhulm if He so wished. He could have been cruel and harsh upon his nation and nobody could have stopped him from being cruel. So this is a greatest mercy upon his creation.
The imaan ramifications is very clear. It is Allah swt who has made this choice and his laws have good purpose behind it and he has intention in doing so. If you understand this proper view which is clear from Quran and Sunnah, your relationship to Allah swt would become clear and it would increase your love towards Allah swt.
Because if we take the Mu’tazili view, Allah is not worthy of praise for being merciful -- in their perspective, He was obliged to do it.
We don’t really appreciate the beauty and blessing of the Shari’ah -- we don’t see it as a gift -- we see it only as a set of rules. We look at the Shari’ah almost as if it is our opponent. For example the issue of ribawi matters or financial matters, we almost try to work around them instead of taking the shariah at its face value and knowing that it is indeed something good for us.
We have to increase our appreciation of the Shari’ah so part of this seminar, we are going to give some of the verses that show us that this Shari’ah is part of the mercy of Allah (SWT) -- because many times it is something we overlook.
In responding to a question, Mu’tazilah say that Allah swt had no other choice than to intend good for his creation in his rulings, and it ends up being cold and heartless just like the other extreme where good results behind Allah’s rulings are fortuitous. For example, we can see it in Allah’s creation that there may be a person who is intentionally good to you but does not know where the good result lies. Similarly someone knows what is good for you but does not intend to give that good to you. Allah (swt) is above such limitations. The correct and proper understanding is that there is rahmah from Allah swt and that is the reason why there is intentional good behind his ruling. So it is because of his rahmah and not because of pure accident (fortuitous) or this is the only way that Allah swt could have intended these rulings and no other way.
Footnote: The following question and answer is a footnote, a digression from the main topic of discussion.
Q: Do groups announce their school of thought when mentioning their views?]]
A: With respect to the Asharis, they have been recognized as Ahl al Sunnah and hence they don’t have to hide the fact that they are Asharis and announce it.
But Mutazilah case is different, they have always been looked as outside the fold of ahl al Sunnah. This puts the Mutazilah in precarious position. When they were in power, they imprisoned and tortured Imam Ahmad. The Mutazliah died out and the people who are reviving the topic of relationship of aql and naql (intellect and revelation), the call themselves new mutazilah, but in general they dont call themselves mutazilah.
Mutazilah had many views that are dangerous to the Muslims, that is reason why many non-Muslim organizations like the Rand corporation like the Mu’tazili perspective.
The Mutazilah other than Zamakshari, do not call themselves as mutazilah, they refer to themselves as people of tauheed and justice, ahl ut Tauheed wal Adl -- أهل التوحيد والعدل. To understand real tauheed they say that you have to remove all forms of misconceptions and that is the reason why they call themselves, people of tauheed and justice. Zamakshari made hijrah to Mecca and that is the reason why he called himself (Jaarullah) i.e. a neighbor of Allah.
Q: Are these people from kufr?
A: To say these people lie outside of the fold of Islam is a very big statement which we should not make -- to declare them kaafir and outside the fold of Islam, this is not right. IT, for example, quoted Zamakhshari. One of the books that are based on Usool al fiqh called Al-Mu’tamad by Abu Hussain Al-Basri. Similarly in Zamakhshari’s book on Tafseer had many good aspects. Not every scholar who has bid’a are outside the fold of Islam. It is not our jobs to do takfeer. It is not an act of ‘ibaadah to make takfeer. Correcting their mistakes is something we should do; and perhaps if we were in government and they were spreading their ideas, maybe our perspective would be different. We have enough extremists doing takfeer already.
It is an important topic, but when we’re talking about individuals, the application of takfeer is something very serious.
End of footnote.
Let’s go over some of the verses that make it clear that the Shari’ah is good and beneficent.
Verses that support the benefits of the Shari’ah
Allah (SWT) says in Surah Anbiat verse 107: we have not send you, but as rahmah.
And We have not sent you, [O Muhammad], except as a mercy to the worlds.
So by definition, what he has brought must be full of mercy and benefit to the mankind. And true mercy is wisdom????
Allah swt also says in Surah Maida verse 6
مَا يُرِيدُ اللَّهُ لِيَجْعَلَ عَلَيْكُم مِّنْ حَرَجٍ وَلَٰكِن يُرِيدُ لِيُطَهِّرَكُمْ وَلِيُتِمَّ نِعْمَتَهُ عَلَيْكُمْ لَعَلَّكُمْ تَشْكُرُونَ
Sahih International: Allah does not intend to make difficulty for you, but He intends to purify you and complete His favor upon you that you may be grateful.
It does not mean that we do have to face trials and tribulations. But the goal of those trials is not to cause harm or hardship, but it is a way in which we purify ourselves and a way in which the bounty is completed upon us.
Allah swt says in Surah Al Araf verse 157
Those who follow the Messenger, the unlettered prophet, whom they find written in what they have of the Torah and the Gospel, who enjoins upon them what is right and forbids them what is wrong and makes lawful for them the good things and prohibits for them the evil and relieves them of their burden and the shackles which were upon them. So they who have believed in him, honored him, supported him and followed the light which was sent down with him - it is those who will be the successful.
Allah swt describes the prophet as one who allows good and prohibits harmful things. Taiyaaba are pure and wholesome and evil as impure and unwholesome things.
Allah swt describes the shariah as healing for mankind in Surah Yunus verse 57
O mankind, there has to come to you instruction from your Lord and healing for what is in the breasts and guidance and mercy for the believers.
It is mercy for the believers whereas earlier it is described as hudal linnaas..... Is there a contradiction? It is similar to the description of quran as guidance for ... and also as guidance for .... Similarly the mankind are going to receive rahmah but not in the same way as the believers????
Allah swt also says in Surah Shoorah verse 17 ..... balance .....
It is Allah who has sent down the Book in truth and [also] the balance. And what will make you perceive? Perhaps the Hour is near.
Justice is balance.
وَجَاهِدُوا فِي اللَّهِ حَقَّ جِهَادِهِ ۚ هُوَ اجْتَبَاكُمْ وَمَا جَعَلَ عَلَيْكُمْ فِي الدِّينِ مِنْ حَرَجٍ
Allah swt says religion is not meant to cause hardship.
Shariah must be something beloved to us and that is the reason why we need the above reminders, specially in the light of our topic the goals of Shariah.
Allah swt also says in Surah Nahl verse 90
إِنَّ اللَّهَ يَأْمُرُ بِالْعَدْلِ وَالْإِحْسَانِ وَإِيتَاءِ ذِي الْقُرْبَىٰ وَيَنْهَىٰ عَنِ الْفَحْشَاءِ وَالْمُنكَرِ وَالْبَغْيِ ۚ يَعِظُكُمْ لَعَلَّكُمْ تَذَكَّرُونَ
Indeed, Allah orders justice and good conduct and giving to relatives and forbids immorality and bad conduct and oppression. He admonishes you that perhaps you will be reminded.
And then Allah swt reminds us of himself, in Surah Maida verse 50
أَفَحُكْمَ الْجَاهِلِيَّةِ يَبْغُونَ ۚ وَمَنْ أَحْسَنُ مِنَ اللَّهِ حُكْمًا لِّقَوْمٍ يُوقِنُونَ
Then is it the judgement of [the time of] ignorance they desire? But who is better than Allah in judgement for a people who are certain [in faith].
And then describing in what he is calling to, Allah swt says in Surah al Infal verse 24
Surat al Infal, verse 24:
Those who physically alive but spiritually dead, you have to respond to Allah in order to be truly alive.
يَا أَيُّهَا الَّذِينَ آمَنُوا اسْتَجِيبُوا لِلَّهِ وَلِلرَّسُولِ إِذَا دَعَاكُمْ لِمَا يُحْيِيكُمْ ۖ وَاعْلَمُوا أَنَّ اللَّهَ يَحُولُ بَيْنَ الْمَرْءِ وَقَلْبِهِ وَأَنَّهُ إِلَيْهِ تُحْشَرُونَ
O you who have believed, respond to Allah and to the Messenger when he calls you to that which gives you life. And know that Allah intervenes between a man and his heart and that to Him you will be gathered.
And then Allah swt reminds us that he has not created this creation without purpose, in Surah Muminoon verse 115
أَفَحَسِبْتُمْ أَنَّمَا خَلَقْنَاكُمْ عَبَثًا وَأَنَّكُمْ إِلَيْنَا لَا تُرْجَعُونَ
Then did you think that We created you uselessly and that to Us you would not be returned?"
Study of the text’s Arabic usage to understand the goal and purpose behind their rulings
Then when you look at the text closely, you will see that Allah swt is showing us that these laws have purpose and a goal. And if you study the arabic of the verse, there are eighteen different ways in which you can see that there is purpose and goal behind the laws.
Use of preposition or harf lee to show the purpose behind it
For example in Surah al Kahf: verse 7
إِنَّا جَعَلْنَا مَا عَلَى الْأَرْضِ زِينَةً لَّهَا لِنَبْلُوَهُمْ أَيُّهُمْ أَحْسَنُ عَمَلًا
Indeed, We have made that which is on the earth adornment for it that We may test them [as to] which of them is best in deed.
Surah Hashar verse 7
مَّا أَفَاءَ اللَّهُ عَلَىٰ رَسُولِهِ مِنْ أَهْلِ الْقُرَىٰ فَلِلَّهِ وَلِلرَّسُولِ وَلِذِي الْقُرْبَىٰ وَالْيَتَامَىٰ وَالْمَسَاكِينِ وَابْنِ السَّبِيلِ كَيْ لَا يَكُونَ دُولَةً بَيْنَ الْأَغْنِيَاءِ مِنكُمْ وَمَا آتَاكُمُ الرَّسُولُ فَخُذُوهُ وَمَا نَهَاكُمْ عَنْهُ فَانتَهُوا ۚ وَاتَّقُوا اللَّهَ ۖ إِنَّ اللَّهَ شَدِيدُ الْعِقَابِ
And what Allah restored to His Messenger from the people of the towns - it is for Allah and for the Messenger and for [his] near relatives and orphans and the [stranded] traveler - so that it will not be a perpetual distribution among the rich from among you. And whatever the Messenger has given you - take; and what he has forbidden you - refrain from. And fear Allah ; indeed, Allah is severe in penalty.
So Allah is telling us the goal behind it -- so it is not a perpetual distribution amongst the rich. So kay-laa is being used for this purpose.
Another purpose that is indicated is la’alla لعلّ -- for example:
… verse about fasting … so you may attain taqwa. (2:183)
يَا أَيُّهَا الَّذِينَ آمَنُوا كُتِبَ عَلَيْكُمُ الصِّيَامُ كَمَا كُتِبَ عَلَى الَّذِينَ مِن قَبْلِكُمْ لَعَلَّكُمْ تَتَّقُونَ
O you who have believed, decreed upon you is fasting as it was decreed upon those before you that you may become righteous -
The act of fasting should lead us to increase our taqwa.
There are more than 18 different ways that there is a purpose and goals of Allah (SWT). We will be discussing a few examples that relate to a selection of these different ways.
This does not mean we will understand the purpose of every law that has come. We (Ahl-ul-Sunnah) don’t claim that. There may be reasons Allah (SWT) has not explained. Ta’abbud and Tasleem and submitting to Allah even when we don’t understand the wisdom then this is not a complete form of submission. That is also part of the Shar’iah. So even if the verse doesn’t explain it, if the verse is clear and definitive, we accept it and do it. We always submit to Allah (SWT) regardless of whether we understand all of the ramifications.
Example: Why 3 rak’ahs in Maghrib and 4 in Isha? It’s not explained. Someone could say I don’t understand -- they should all be the same. But this person does not understand what it means to serve Allah (SWT).
In the laws related to the dunya, there are reasons why allah (SWT) will explain them -- the benefit, and also to help us generalize. In either case, the Muslim is going to submit to this ruling. Even if we don’t completely comprehend the long-run ramifications, we still have to accept.
Example is Riba: The original scholars would not have understood the full implications of riba. Similarly for homosexuality -- what will be the long-run social implications of this phenomenon? Shariah is not like the “US national debt”, where we leave the worries for the next generation. Shariah as a whole cares for all the mankind in zaman (time) and makan (place).
Q: How is the issue of tahseen wa taqbeeh related to maqasid of shariah?
A: The question is how can human reasoning determine what is good or beneficial to us. Asharis say that you absolutely cannot, the Mutazilah say that you absolutely can, the ahl al sunnah say that it depends if Allah swt has explained to us or not, so they are in between the two extremes.
2012-04-15 Class Notes
Last week one of the points of the lecture was to increase our appreciation towards shariah and the realization of what the shariah is all about, and to understand that the goals of shariah was for the benefit of the mankind.
Shariah provides answers to questions that human beings cannot answer
When people speak about shariah, the media focuses only on hudood and not of the benefits. And since it comes from Allah swt, it provides answers to the questions that human beings cannot answer. For example in the USA the question of capital punishment, is it good, is it bad, is it just? etc. There was a time when US all were in favor of capital punishment, then there was move against it and now it is moving back in direction capital punishment (as compared to European Union where it is NO for quite a while on capital punishment).
What is the ultimate purpose or goal of the Shariah as a whole?
Question from Shaikh: What would you describe as the main or ultimate purpose of the shariah as a whole? Even before we speak about the law, what is the main goal and objective of the shariah?
Responses from the students with maybe some commentary from Shaikh:
1. To bring benefit and remove harm
2. True Justice (i.e. to establish True Justice)
3. Servitude of Allah
4. To worship Allah as best as one can
5. Achieve the pleasure of Allah
6. Success in Akhirah and Dunya
7. Bestow a blessing from Allah
8. Protect the five maqaasid (what are the five maqaasid?)
9. To make Allah’s law supreme
Do we have proofs for all of these? Yes for 3 and 4, the verse from Quran. (Edit: Whenever we mention or attribute something to Allah swt, we should have evidence for it.) Points 5 and 6 can be combined as can 3 and 4.
No one mentioned tauheed, purification of the soul, guiding individuals to the straight path for this life and the hereafter, preparing human for the hereafter. Shatabi also mentioned protecting mankind from hawa or desires as one of the goals of the shariah.
When we talk about ultimate goals of shariah, we have to think about it and not just focus on the laws of this dunya, basically halal and haraam (and we should not do it with a very secular view). We should never loose fact of the big picture, tauheed, preparing for the next life, purification of the soul. Shariah cannot be imagined which will go against Tazkiyah, or it will support Shirk etc...Unfortunately, today many people in the name of Maqasid al Shariah are doing things which are going against Tazkiyah or it is even supporting Shirk. Much of the authors writing on this topic are doing apologetics. Their intention may be good however, what is coming out is doing more harm to Islam than help. The dar ul Hikma earlier in Baghdad also did this against the Greek Logic and they caused more harm than good. The religion of Islam is from Allah (swt) is perfect and hence it is stand alone so it does not need to be compared to other man made ways of thinking and ideologies.
As a tool in Law, Maqasid al Shariah as a legal principle, the important people are:
Shatibi: Shatibi has been described as standing on a very high mountain and looking down on Shariah and this way one gets a better picture what the law is trying to achieve. This kind of looking can be an important tools in Ijtihad, Fatawa especially to new issues which do not have explicit text in Quran and Sunnah related to them.
First book written about Maqasid al Shariah titled “Maqasid al Shariah al Islamia” was in the year.........by Ibn Ashur (student of Muhammad Abdu) in 1946 in Tunisia. Second one is after him Moroccan scholar Al-Fasi in 1963 titled “Maqasid al Shariah............”. Since then there has been plethora of books. Sh. Jamaal has a whole shelf of books just on this topic all published relatively recently.
Reasons why we have more works on Maqasid al Shariah these days:
One reason for this is that Ph.D. and Masters dissertation are getting specialized so it is increasing.
Second reason is assault on Shariah (Intent on trying to destroy the details of the Shareeah) by many groups who want to abandon the details and they want to live with the general spirit of Shariah.
Some people have written on this topic in response to this who are distorting the topic. The important question is if this is part of the Shariah, if this should be our legal methodology, why did it take 14 or 15 centuries before someone has written a book on it. Shouldn’t it have been a part of the Shariah from the beginning?
The concepts were always existing and used way before the books showed up. E.g., in Jurisprudence and Hadith it happened where concepts were used or ahadeeth were known by Scholars to be authentic way before they came down in writing for the general public.
Can we prove that the concepts (of maqaasid) existed?
Yes, since last week’s lecture was establishing from the Quran and Sunnah that there is evidence for the goals of the shariah. For example, Allah swt says in the Quran, that in the law of retribution, there is life for you.
Can the murderer plead and say that his punishment is opposing the goals of the shariah to protect the life? We will discuss this later and answer it in detail.
Quran is very clear about this approach to the Shariah. What about the practice of the Sahaba? Some people say the Companions were more knowledgeable when it came to the maqasid of the shariah and goals of the sunnah. You can find a number of writers who are writing on the maqasid.. they are saying that the Sahaba knew this concept best. - However anyone can make that statement, but you have to give concrete evidence otherwise you are just assuming it and it is like begging the question.
Concrete examples from Sahabah mentioned:
1. Compiling the mushaf during the time of Abu Bakr (ra). How is this a sign that they are looking at it from the maqaasid al shariah?
They did this act in the preservation of the deen, but what they did was something that the prophet did not do and they did it. And the reason they did it was because they understood it was needed for the preservation of the deen. There was no explicit text for their action, but it was based clearly on their understanding, and the shariah clearly requires us to protect the deen.
2. Sahabah agreed upon the following point, if a group conspires and helps murder someone then all of them will face the penalty of qisaas. The penalty is not just on the person who committed the act, but all of them who formed the conspiracy.
Why did they do this? It was for preservation of life, which is one of the goals of the shariah.
3. In the year after the 18th of hijrah, there was a severe drought in and around Madinah. This drought was threatening the wellbeing of the people of Madinah. Umar who was the khalifa, took certain steps, he restricted himself to eating just enough for him to survive, to the extreme, that the people were worried about him. He said, that if he did not come down to the level of raiyah (general masses), he would have not felt their problem and solved the problem.
He wrote to Sham (Syria) and Egypt and asked them to send food to Madinah. This was different then what is done with zakat, where the excess is distributed to the local people who needed it (this is with respect to the food bought or given as zakat or using zakat funds).
And he delayed the collection of zakat. People needed their livestock (animals) to survive to get milk etc. He delayed the collecting of zakat, based on the quran verses that if someone is in dire straits, you should give them respite until things are easy for them.
And he suspended the punishment of amputating the hand of the thief, if his action was based on need and it was not for doing the harm to someone else even though he had enough money and food with him.
Note: The hadd punishment would still be implemented on those who would steal “without a dire need”. But Umar (ra) did not apply the hadd punishment on the one whose intention was not to steal but he was in a way “coerced” because of extreme needs (due to the famine at the time). (Generally if someone is coerced by someone else then he is excused, but here Umar (ra) is using coercion due to external factor)
4. The biggest example of concrete action from the sahabah was from the time of Abu Bakr, how to deal with the people who committed apostasy after the time of the Prophet (pbuh). There were distinct and different groups who performed apostasy. This point need to be kept in mind in the discussion between Abu Bakr (ra) and Umar (ra) they were looking at two different situations simultaneously emerging. It was not surprising that some people committed apostasy, you have to realize that the Prophet (pbuh) was not only their religious leader, he was also their political leader, and they committed apostasy for political power.
One group apostated because they did not accept the reign of Abu Bakr and they showed their apostasy by refusing to pay zakat.
Another group apostated by following false prophets who had emerged after the death of Prophet (pbuh).
Third group were bedouins who were trying to free themselves from political control.
These are three distinct groups of people who apostated in the beginning of the caliphate of Abu Bakr (ra).
This is a “long-term homework” for us and we have to study this incident and it provides excellent example of how the sahabah were aware of the maqaasid of shariah and they implemented it.
There is a one-volume book on Abu Bakr that will have a lot of discussion about this incident (should be available in English) by Al Sallabee. Link: (http://www.amazon.co.uk/The-Biography-Abu-Bakr-Siddeeq/dp/B00362Z98M/ref=sr_1_2?s=books&ie=UTF8&qid=1334535456&sr=1-2)
Q: What principle did Umar (ra) use to not apply the hadd punishment on "certain" thieves? Maslaha?
A: The thief was coerced (by external factor) into doing something due to hunger, this was the reasoning of Umar (ra).
Q: Was it not already understood that Hadd is not to be applied on one who steals for need?
A: Shaikh does not know or recall of any explicit case where this principle was implemented. And while reading about this incident from the time of Umar (ra), he does not recall anybody providing evidence for it from the time of the Prophet (pbuh).
Q: Is the state required to provide for the poor person whose hand has been amputated?
A: Theoretically it could be true. Ibn Taymiyyah makes the statement, .... there is difference between coercion and extreme hardship. Ibn Taymiyaah says that if the person is poor but not to the extreme, then after if we apply the punishment, the state can make arrangements to help him and provide for him.
Q: Establishment of second adhan for Jumuah during the time of ..
A: He would send somebody to the marketplace, so that people would know that it is time of Jumuah. And you can make
Q: Does saariq mean professional thief?
A: No. A professional thief is one who is being paid to steal :-)
Q: Practice of the tarawih prayers
A: What Umar did was simply revive what the prophet did. He was going back to what was originally done by the prophet and it cannot be used as evidence for the maqaasid of shariah.
We will highlight some scholars and show examples from the time of the prophet and maybe during the time of the tabieen. And then we will discuss when did it become part of usool al fiqh. We will discuss the question what did Shatibi stand for.
Footnote: The difference between faqeehi and usooli is that: usooli is dealing with the source of the law and how to derive the law and the fuqaha were the one implementing the law and judging the people. The fuqaha did not talk about the maqaasid since they were so focused on the details. Sh. Jamaal is criticizing this approach of the fuqaha since they might get some detailed implementation wrong if they ignored the maqaasid. To be a good Faqih one has to be a good Usooli in principle, which was not always the case in the history of Muslim Ummah.
Next time we will do a historical review of some of the important scholars related to this topic and we will focus on Shatibi in particular.
2012-04-22 Class Notes
Summary of earlier lectures:
We were discussing, what is the history of this concept?
We found that this concept is rooted in Quran and Sunnah. Ibn al Qayyim once wrote that if the evidence was 100 in number or 200 in number then I would have recorded it here. But in reality the evidence is more than 1000. In the time of Sahaba the concept of maqasid was practiced. Shatibi in the intro to his book muwafaqat, has said that these principles were laid down and practiced by Sahaba.
Maqasid and the Usul al Fiqh:
Now we want to talk about the process by which it was formalized. This topic of MS (Maqasid Shariah) is dealt by scholars of Usool al Fiqh (Islamic legal theory). Qiyas and its uses are found in UfQ (Usul al Fiqh) books. The question of istislah or masalih al mursalah..these are the kind of areas in UfQ that touch upon MS. Many contemporary scholars say MS should be its own filed and not a branch of UfQ. Ibn Ashur, in particular, in the intro he says that the points related to MS are dealt with in books of UfQ but then he says these sections are either unstudied or deemed tedious and … are at the end of books of UfQ. The author says that only the patient students would read them. Basic point of the author is that it never received the amount of attention it deserves over the years and now there is a plethora of books out there.
However in reality is that MS is part of UfQ. Its use is to help us understand the Shariah.
Regarding Tafsir, you can use MS in Tafsir as well. You want to understand how verses should apply these days, but in order to do that you lose the principles of tafsir.. those principles are studied under usool al fiqh. UfQ is more about the methodology of deriving understandings and coming to conclusions.
There is a lot of interaction between MS and UfQ but Sh. Jamaal would prefer MS to be part of UfQ. Ibn Taymiyyah once wrote that maqasid and benefits (maslaha) that lies at the heart of fiqh. If you don’t understand these kind of things than its difficult to understand UfQ.
Its important that fuqaha understand MS since they are the ones givings fatwas. In general the fuqha did not write about MS because they were too focused in details of laws. They have written principles that became part of the study of MS. Examples of principles: “Every actions is part of intentions”, “harm should be removed” (qawaid ul fiqh) these later because part of MS.
Discussion of Handout sent via email:
On the handout Sh. Jamaal lists contributors to MS.
Shafee wrote the first book Al Risala which has the topic of MS discussed in it.
He does use the word “maqasid” (its a common arabic word)
Al Hakeem al Tirmidhi (distinct from Abu Eesa al Tirmidhi) is interesting person who was ahl al hadith and he was also Sufi. His book Nawadir al Usool by al Hakeem al Tirmidhi has unique ahadeeth and those unique ahadeeth are fabricated. He came with the concept of Wali and Khatam al Aulia (in parallel to Prophets (saaw)). He wrote a book or two on Khatam al Wilaya wa ‘illal al Shariah (end of aulia and wisdom of Shariah). Due to this book he was driven out the ….city. He discusses that there are certain goals of Shariah even in ibadaat, e.g. he discusses the goal behind Tayamum. He gives a reasoning, that by rememberance of God the heart softens and by remembering it’s desires it hardens.....so Tayamum helps you remember the purification with water so it is proxy for Wudu in the sense of reminding of purification.
We have to know, that most of the Maqasid is conjecture. In MS many times people call things Maqasid but they are all conjectures. Hence, some of the maqasid that people claim is nothing but conjecture.
One topic we should focus on is : What are the ways by which we can identify Maqasid?
Next historical person on our list is Imam Al Haramain Al Juwaini. He is the fourth one on the handout. Burhan fi Usool al Fiqh is one of his books. He emphasizes Maqaasid a lot, in one of his passages, he says: whoever fails to comprehend the objectives.... has likewise failed to perceive the basis to establish the law. He also talks about Tayamum because it something we can recognize the purpose behind it easily. He is the first one to come up with the idea that with respect to our life in this dunya, there are necessities or needs, there are goals??? and there are embellishments . And he also delineated the five essential necessities of deen, life, property, mind and genealogy/honor/family. He was the first one to lay them out. One of his students is Al Ghazaali.
Saifuddin al Amadi, was known for the taking the waqafite position. He is one of the first ones to use maqaasid to weigh among conflicting opinions. He used maqaasid as a tool to decide which possible opinion should be strong.
Al Izzadun Abdul Salaam was known as one of the founders of this field. His book is called .... and in that book he emphasizes that law has come for the benefit of the human being and he shows that we can derive from it new cases for its applications. His student was Al Qarafi. So far all have been shafiee scholars, except al Qarafi who was Maliki. And also Tirmidhi. He has a four volume book called Al Faroouk, how to identify things are different or why do they differ. For example he shows why we have to see the moon for start of a month (e.g. Ramadan) but we do not have to look at sun for the five daily prayers. He shows what is the wisdom behind it in Shariah. His book is very interesting to read. Sometimes he presents evidence, sometimes it is conjecture.
The next one is Najmuddin al-Toofi and he is an example to us what happens when you go to extremes, he is an example of being an extremist. His thoughts have been revived in this century. He was a Hanbali scholar, although he was accused of being Shia. His basic point is that maslaha takes precedence over everything, which means also the text of the Quran and Hadith, so this is of course a very extreme view. Toofi’s book is not very big hadith scholar, but he makes some very sweeping claims. He denies authenticity of hadith, and he says each of the madhab cannot be trusted, and implies that Quran cannot be trusted if it contradicts maslaha. Ironically (and such ironies are general case with people of extremism), his views on maslaha can be found in the commentary on the forty hadith of Nawawi, under the hadith of “there should be no harm.....”.
[Edit: Again a question from a student about intentions of people who are reviving Toofi. And shaikh gets angry whenever anybody asks this question. You cannot judge some body’s intentions. He might be very misguided, but we cannot say that his intention is wrong. We have to be very careful of this kind of statements.]
One of Ibn al Qayyim students, Al Muqari. In the Maliki fiqh, there is a strong emphasis on public welfare or maslaha, this is a key concept in Maliki fiqh. Al Muqari was known to emphasize Maqasid al Shairah in his Majalis (public lectures). His student was Al-Shaatibi.
Al Muqari started his own Tariqah, when he was not happy with what he saw. His Tariqa went back to Ali (ra) and he made his Tariqa very well balanced and he made his Tariqa (it look like at least) to move the others away from extremism.
Question: Why do Asharis engage in Maqasid al Shariah if they don’t believe that Allah does things for an intended purpose/reason?
Answer: The Asharis are schizophrenic. In Aqeedah they say one thing and in matters of Usool al Fiqh they say something else. They try (al Razi) tries to explain how an aqeedah there is no such as ta’leel (idea that there is a reason or goal behind the law of Shariah; it is related to illa) and how in UfQ there is not purpose or wisdom, but it is not convincing. Scholars later refuted his points.
Question on Intentions vs. Actions.
Example of Syed Ahmed Khan who tried to bring European culture into Muslim lands. He wrote treatise on how we should eat or drink. It should be like the west. When you look at what he did.. its looks like he is doing away with what is Islamic.. but if you look at the lecture he gave (which does include some of his western ideas) this lecture is all about the superiority of Islam (and this lecture was given in London mostly to Muslim audience).
2012-04-29 Class Notes
We want to finish the historical discussion of Maqaasid. One point is to show that it is an authentic concept and it was accepted by our scholars. We went quickly through the scholar’s viewpoints. And the second point was to find out what did the scholars say about this topic and help us protect ourselves from the abuse of this topic.
We know that the sahaba were the best generation and their understanding of Islam was correct. So any new approach to law, or differently than the way of the Prophet (saaw) or sahaba is bida’. For example what Toofi did, he said that maslaha takes precedence over nass (text of Quran, Sunnah), this is an example of this type of bida’.
Al Shaatibi viewpoints on Maqaasid (died 790 H)
His book Al Muwafaqat has been translated in Turkish, Urdu (by Abdurahman Gilani in 1992) and in English (only first volume).
A number of contemporary writers give Shaatibi (d. 790 H) all of the credit for the topic of maqaasid. One of the contemporary scholar says that people have given too much credit for Shaatibi for this topic but we have seen that there was a long list of scholars who came before him who discussed it. Shaatibi compiled this topic in one volume of his book..
Obviously there is a relationship between analogy (Qiyas) and maqaasid al-Shari’ah. Many other scholars who discussed this topic, they put it in under the topic of Qiyaas. One of the key points in qiyaas is to look at the rulings in the Quran and discuss what is the key element for it to be haraam. So you are looking for wisdom or key point behind it, which is maqaasid al shariah.
Muwafaqat did not achieve success among earlier scholars or even among his students
The topics discussed in his book, Muwafaqat are in general topics of usool al fiqh. But the way that he dealt with them and the structure and organization of the book, is completely different than all of the books before him. From the point of view this book become popular and it had a negative effect on the studies of this topic, since limited knowledge was available on this topic in this one book.
When you see the examples of the previous scholars, they were expected to cover certain topics. Very similar to how university prof discuss a topic, they have to cover certain background material. Whereas with Muwafaqat (edit referring to the book written by Shaatibi) you don’t find any commentary on this book by other scholars, you don’t find abridgements of his book (since his death only one student has done an abridgement). Nor has anyone put it into poetic forms (which is called Al-Nazm in Arabic).
His book did not take off until the late 19th and early 20th century. Once people started to pay attention to it, it influenced people like Muhammad Abduh and Ibn Ashoor. The first edition was in 1884 (since then there have been 5 more editions) and later whoever came, just wrote footnotes on the book. Mashoor Hassan Salmaan put out an edition in 1997, you get all the sets of footnotes as well as Mashoor’s footnotes.
Why has Shaatibi become so important?
One of the reasons why there is so much interest in Shaatibi is because a number of scholars have looked at the state of Muslim ummah and they see a need for change. For some scholars like Jamaluddin Qasimi, it is due to straying away from the Quran, it is lack of application of Quran by the Muslims. Especially those in the modernist movement have called for reform and they have found maqaasid al sharee’ah to be one of the tools to modernize Islam. They then say that their approach follows from Shaatibi. Even though his book did not take off, he is a highly respected scholar, and later scholars or movements attach to his book to support their calls for reform.
Examples of Shaatibi’s influence on contemporary scholars and movements
#1: Muhammad Ahmad Al-Jaabiri wrote in Al-Arabi a very famous magazine in the Arab World (sometimes secular). He wrote that Shaatibi should be considered a modernist.
#2: Rashid al Ghanoushi attaches most of his understanding of Maqasid to al Shaatibi. Al-Ghannouchi has a book called “general freedoms in the Islamic state”. In that book he is trying to reject certain hadith in particular (for example the hadith related to a woman leading a state) and he says we need to instead focus on the maqasid al shariah. And he says we need to look at how al Shaatibi approaches maqasid.
Biography of Shaatibi
He was from Andalus. Al Shaatibi was living at a time where there were different kinds of innovations going on. There were different kinds of Sufi practices, e.g. Sh. Muqari started his own Tariqa and he inducted Shaatibi into his Tariqa.
Footnote: Sh feels that in the history of Islam many scholars had to join a tareeqah to have some sort of influence in the public. For example, even in the Muslim Ummah today, one has to be part of some sort of hizb to have influence, else the person will be just lecturing to 4 or 5 individuals.
Shaatibi had to make a decision. He faced a dilemma: Is he going to dedicate himself to the Quran and Sunnah or follow the bid’ah in his environment.
He made a conscious decision to follow the straight path, not to follow a madhab or a tariqah. This is what he wrote about himself:
“When I decided to straighten my path, I found myself a stranger amongst my profession. The stains of the bid’a had affected all. I had two choices -- follow the sunnah, or to follow the bid’a of the time that other Muslims were involved in it. I decided I would rather perish following the Sunnah. Soon blame was heaped upon me and I was accused of heresy. Sometimes I was accused of saying du’a having no purpose because I objected to saying du’a out loud.
“I was accused of being Rafidah and one who hates Sahabah since I did not mention the names of Khulafa Rashida in the Khutbah (since it was not in the Sunnah and it started much after the time of the Sahaba). I was accused of causing revolutions against the rulers because I did not mention their names in the Khutbah. I was accused of creating hardship in the religion because of adhering to duties of the Sunnah, and not for granting what is easier for the people. I was accused of being against the Auliya of Allah since I did not sit with the Sufi saints.
Al-Shaatibi has four important books:
1- Al-Muwafaqaat. It discusses Maqasid al Shariah and topics in Usul al Fiqh. This is the book that Shatibi is very famous for.
2- His collection of fatawa (published in about 250 pages).
3- Kitab Al-ifidaat wa Al-inshadaat: A literary work -- stories etc.
4- A book that is a companion book to Al-Muwaafaqaat (which should have been translated before Muwafaqat) -- it is called Al-I’tsaam as the word is used in the Ayah (وَاعْتَصِمُوا بِحَبْلِ اللَّهِ جَمِيعًا وَلَا تَفَرَّقُوا). It is a beautiful book about following the sunnah of the prophet and avoiding heresies. And he discusses all different types of bidaa, harms of bidaa and how to stay away from them.
Making dhikr after Jumah is the only bidaa that you have, then alhumdullillah, but if you have some other bidaa which is in the idea or the thought then it can be very harmful as its harm will not stay confined to one individual or locality.
Shaatabi’s book al-I’tisaam
Questions put to Shaatibi are about social change, so his book discusses how to handle social changes?
His view is clear: if something is ‘urf and it is a matter of custom, then we change that custom if it is causing hardship to the people. But if it is based on Qur’an and sunnah, then we don’t change. In 14 of them Shatibi accepted social changes on issues where there is no text in Qur’an or Sunnah. In 23 he didn’t accept the changes, because there was a text in the Qur’an or Sunnah. This was in Al-I’tisaam, which he wrote after al-Muwafaqaat and it is a very good book to read. (Edit: This book is not accessible in English.)
Question: About the sufi tareeqah and what were the madhab during his time in Andalus?
Answer: Spain at that time had one dominant Madhab which was Maliki Madhab and one small minority madhab. The first principle Shatibi talks about: “...following the daleel and stop making taqleed”. This was not only confined to Sufi Tariqas but also to the certain practises of the Maliki madhab.
Question: Do Salafi/Ahle Hadith follow maqaasid type of thought and use Shatibi’s book?
Answer: People who are known as Salafis, they understand and recognize the concept of Maqaasid. And they follow the Ibn Taymiyyah and ibn al Qayyim who agree with these points of Shatibi.
Question: Wasn”t Imam Malik who used the concept of Maqaasid before Imam Shafiee?
Answer: Imam Malik did not write about this topic and formalized it, he used it, but did not write about it.
Discussion of Muwafaqat
The original title of the book was conveying the idea of what is the wisdom behind the actions that we are required to do. But due to the dream Shaatibi saw, he called it muwafaqat, which means reconciliation. He wanted to bring together Qaasim and Abu Hanfia. When you understand the principles, you can remove the differences between the various madhab.
He saw the different madhab fighting each other, and wanted to remove the enmity between for example, the Maliki and the Hanafi madhab, and he wanted them to live according to the guidelines of the shariah and to move to higher level of understanding than what the different madhab have.
He tries to speak about the purpose of the law, but also the purpose of the human being. He also says that the law has been established in such a way that people can understand it. We see that Al-Shaatibi was about following the Sunnah and about following the way of the Prophet (SAWS) and Salaf al Salih.
حمادي العبيدي (Hamaadi al Ubaidee) in his الشاطبي ومقاصد الشريعة d ????? (todo: Insert date here)
Hamadi al Udaidi mentions the following characteristics when he writes the book Ash Shatibi wa maqasid ash Sharia which discusses muwafaqat.
1. Following the truth and leaving the taqleed
2. Avoiding extremism in religion (ghuluww)
3. Following the way of the Salaf.
4. Laying down laws is only for Allah (SWT).
5. Must restrict ourselves to what is found in the text.
6. Giving the preference to human reasoning over the shari’ah is a bid’a.
7. Using human reasoning to judge on a matter that the Shari’ah has already provided a ruling for is a way of avoiding Shariah.
Shaikh highly recommends this book.
Modernists writings about Maqaasid are deceiving the Muslim masses
Most of these modernists they are writing for people who do not know what they are talking about. Because what they are saying is clearly wrong. The problem is that the masses don’t understand this. When you research what they write, you can refute it without too much effort.
In many cases the modernists go against what he was all about -- what he consciously decided he is not going to be doing.
Shah Wali ullah Al Dahlawi (d. 1176 H/1762 C.E)
Shah Wali-ullah Al-Dahlawi has a book called Hujatullahi al-Baalighah -- “the conclusive argument from God”. Shaikh is discussing this scholar because of the large contingent of students from Indo Pak. His father, Shah Abdur Rahim was part of both the Naqshbandi and Deobandi Sufi Order. Shah Abdur Rahim was part of the orginal compliers of Fatwa al Amriri. Collection of hanafi fatawas.
He was brought up in a very educated and traditional culture and he learnt the Quran, Bukhari, Mathematics, Astronomy etc....He went to Makkah and spend some time studying there. In his book he is emphasizing in his book the Maslaha al Kuliyyah ( the universal purpose of the cosmic order as a whole) and he discusses the benefit of the Shariah on human life.
He has lots of points in his book which are conjectures and not based on any evidence from the Quran and Sunnah, such as the the secret wisdom behind the appointed time of the salat. He combines philosophy, sufism and many other things. Sh. Jamaal does not find the book very impressive.
The core message is that this message is a miraculous and beautiful message from Allah (swt) and once you see it then there is no other way out but to submit to it. Sh. Jamaal says that overall message is actually very good, however the book needs to be abridged by removing the conjectural parts of the book. The Arabic edition is by Sayyid Sabiq (of Fiqh as Sunnah) and he also wrote an introduction to the book.
The books Shaikh recommended from the list he emailed are: 1, 7, 8, 16, 28 and 33.
Errors in determining maqaasid of Shariah
How do we determine what are the maqaasid of shariah, is the next topic of discussion. We have to see how our scholars approach this topic and they stress two sides of the Maqsad:
1) Al Maqsad al Juzii is a partial or specific goal. For example, the law of retribution.
2) Al Maqsad al Aaam is the general goal of shariah.
We have to ask what are the specific and general goals of shariah. If we identify something as maqsid when in fact it is not a goal, then we have a really big problem. (Edit: Problem of false positives, or identifying goals that are not real goals of the shariah.)
2012-05-06 Class Notes
An important question to answer is: How do we discover if something is a Maqsad of the shariah?
In order to determine the maqaasid, we have to be aware of maqsad al Juzii (partial goal) and the maqsad al aam (general goal).
يَا أَيُّهَا الَّذِينَ آمَنُوا كُتِبَ عَلَيْكُمُ الصِّيَامُ كَمَا كُتِبَ عَلَى الَّذِينَ مِن قَبْلِكُمْ لَعَلَّكُمْ تَتَّقُونَ
O you who have believed, decreed upon you is fasting as it was decreed upon those before you that you may become righteous -
The verse of the Quran which says that fasting has been made mandatory in order to attain taqwa. Can you say that this is maqsad aam (general goal) of this ruling?
One of the biggest problems that we are facing nowadays is the mis-identification of the maqaasid of the shariah. Is equality one of the maqaasid of the shariah? Shaikh is asking this question in order to make his point about the incorrect identification of the goals of the shariah. Have you not heard some claim this to be the goal of shariah?
Shatibi’s methodology for identifying the maqaasid of shariah
Shatibi identifies in his book Al Muwafaqat, the ways of identifying the goals of the law-giver. In that section, he gives five different ways of identifying the goal/intent of the law-giver. We will briefly discuss those, but those are not the important ways of determining the overall goal of the shari’ah and they are not the ways that Shatibi himself determines what are the goals of the Shariah.
#1: Use of Inductive logic or arguments
The main method that Shatibi uses is something known as al-istiqraa -- can be translated as induction. الاستقراء
In deduction is close to decrease and induction is close to increase. That is how you remember the different meaning.
In induction you go from a small set and you then make a conclusion about the general set. For example, if you were visiting a city such as Boulder and happen to meet five nice people, you might conclude that all people from Boulder are nice and friendly. The problem is that induction is not logically valid -- it may or may not be logically true. How do you deal with this?
Amongst the Usooliyeen, there is a difference from the Aristotelian view of induction. But even in the Qur’an, Allah (SWT) points us to the inductive reasoning. In a number of place in the Qur’an.
Allah (SWT) says in many places in the Qur’an to go see the result of the evildoers or sinners; and here Allah (SWT) is inviting us to take part in inductive reasoning: You take a lesson from what was done and you make a conclusion from that lesson.
قُلْ سِيرُوا فِي الْأَرْضِ ثُمَّ انظُرُوا كَيْفَ كَانَ عَاقِبَةُ الْمُكَذِّبِينَ
Sahih International (6:11)
Say, "Travel through the land; then observe how was the end of the deniers."
However the above reasoning is not considered a logical argument, but it is considered a reasonable form of judgment.
The Hanafi school of fiqh is basically derived through Istiqraa, since in essence they tried to derive the reasons of Abu Hanifa, so they will use his conclusions to reach a principle with which to derive the rulings of their school. This is the reason behind so many differences of opinion in the Hanafi school, since each person, who came after Abu Hanfia, read the conclusions in a different way.
Two types of inductive logic - Istiqraa Taam (استقراء تامّ) and Istiqraa Naaqis (استقراء ناقص)
But this is a difficult process, so you end up with two types of istiqra -- istiqraa taam (complete inductive analysis) and istiqraa naaqis (partial inductive analysis).
If you went through the entire population and see if the rule generalizes then this is istiqraa taam. But if you only take sub-sample, and show that it is a generalization, then it is naaqis. The reasoning that you derive as a consequence of Isttirqaa taam is considered qat’ee (definitive).
But what if it is naaqis? Then should the ruling from such a Istiqraa to be qat’ee? As-Shatibi goes through a long discussion and concludes that even naaqis can be definitive.
Explaining his approach: “I relied upon all inclusive inference rather than particular instances....and found out the objectives through which to elucidate the goals of the Quran and Sunnah. It cannot be carried out on a single text, but requires synthesis from multiple sources. ......It requires marshaling of multiple text and then to reach a conclusion upon which all the text agree upon. It is the same process that the community has come to be certain about Haatim’s generosity, or Ali’s courage.” (Footnote: He is almost using the idea of mutawatir: many things put together give a certain conclusion.)
“People do not rely on one specific fact for truth, but a constellation of evidences, including straightforward interpretations of texts, ….? With the result that many people come to the conclusion that the application revolves around specific foundations.
“If you look at the shari’ah from a far distances, these are the things you see about its purpose and intent. What we induce from the law is that it was established to preserve the human welfare. Also through the same study one sees that this welfare is through Daruriyat (ضروريّات), Haajat (حاجات), and Tahseeniyyat (تحسينيّات) (Footnote: We will discuss this shortly). This cannot be proven by a single text or even few number of texts, rather we have to go through extensive evidences for this is too important of a foundation and it has to be proven beyond the shadow of doubt and must be supported by irrefutable evidences.”
When one sees how Shatibi did this, it was virtually entirely through the process of Al-Istiqraa. So one understands the law for particular cases and the reasons given for them and then one goes through many many evidences in trying to understand these reasons are there, i.e. you cannot take just one particular case and say that is the goal of shariah, you have to consider all of the particular cases in order to derive the goal of the shariah.
And when it comes to ritual acts of worship, they are beyond rationalization, such as why we pray 3 in Maghrib instead of 4 rakat, or why we fast in Ramadan opposed to some other month. He said there is no way we can come to a conclusion a a to the reasoning for this. So there is no room for induction in acts of worship. How does he come to this conclusion? By doing istiqraa for it -- he says there is no human way to arrive at these conclusions. And we cannot add any more to it, nor can we decrease it.
In response to a question, Sh. responded that some of the points made by Shatibi are not contingent on the point of Istiqraa naaqis being definitive. His arguments are mostly based on istiqraa taam. (this statment is bit confusing to me ????? some clarification is needed here).
You have to be careful about istiqraa naaqis in order to determine, whether the maqsad is restricted to a specific area.
All of the scholars until the time of Shatibi or so thought that there were maybe 5 or 6 in the number. The maqasid are agreed upon by past scholars to be 5 (or at maximum 6) maqasid of Shariah which one can argue are based on Quran and Sunnah. Today many people are applying it to way to many cases which have no proper base in the Quran and Sunnah.
For example, take the example of Gharar (excessive risk) in the Islamic Finance. Can it be said that as part of goal of Shariah that to remove and prohibit and remove Gharar? In this sense (pay attention to words used here), answer is as follows:
For example there are aspects of Gharar forbidden in Sunnah (e.g. the Mulamasa (where one has to buy a cloth since he/she touched it) or to throw pebbles for choosing item. This type of Gharar is forbidden in Islam. If one looks at it then Gharar is forbidden. However, in the financial transactions, what if Gharar is unavoidable (e.g. in Mudharaba). So one can say it is the goal of Shariah to remove Gharar from mutually onerous transaction/contract (where one gives one piece of wealth for another piece of wealth). Similarly one can say that equity is maqsad of Shariah (equity = proportional to basis of fairness; equality = equal without any principle being invoked). Can one say that Tayseer (making things easier for people) is one of the goals of the Shariah? From classroom discussions many examples were given (like fasting, jihad....) which have hardship but then there are cases where Tayseer (ease) is made for people under certain circumstances. There is an ayah in the Quran in Surah Al Baqarah which does is in the meaning of “...Allah intends ease for you and does not intend hardship for you”
يُرِيدُ اللَّهُ بِكُمُ الْيُسْرَ وَلَا يُرِيدُ بِكُمُ الْعُسْرَ
Allah intends for you ease and does not intend for you hardship.
So here it is important to understand the goals of the Sharaih (law-giver). Shatibi talks about primary and secondary intentions of the law-giver. The …..is given in of itself by Allah (swt). For example;
يَا أَيُّهَا الَّذِينَ آمَنُوا إِذَا نُودِيَ لِلصَّلَاةِ مِن يَوْمِ الْجُمُعَةِ فَاسْعَوْا إِلَىٰ ذِكْرِ اللَّهِ وَذَرُوا الْبَيْعَ ۚ ذَٰلِكُمْ خَيْرٌ لَّكُمْ إِن كُنتُمْ تَعْلَمُونَ
Sahih International: O you who have believed, when [the adhan] is called for the prayer on the day of Jumu'ah [Friday], then proceed to the remembrance of Allah and leave trade. That is better for you, if you only knew. (62:9)
So this cannot be used to say that Shariah is against the business transaction, since here the primary objective of Jummah prayers is being preferred at the time of Jumah for which the business is becoming secondary and it is to be left at the time of Jumah. Question comes up: a business contract or marriage contract at the time of Jumah, what about it? Since there is a reason given in this verse, that some Ulema say that the business contract after the Adhan of Jumah is Batil and some say that it is sinful. However, many Ulema do not say a similar to thing for marriage contract, even though the ayah applies to it as well. So one has to go to Jumah and any contract after the Adhan of Jumah is sinful. However, at the same time one cannot make any general principle about the secondary contract i.e. it will be wrong to say that business or marriage is not allowed in Islam. Such a conclusion will be a huge mistake.
2012-05-13 Class Notes
Footnote: In the Arabic class, it was mentioned that Shatabi’s muwafaqat is not an easy book to read in Arabic.
How do we know and derive the maqaasid of shariah is what we are trying to understand. In almost a majority of the books, the authors follow Shatibi’s steps, and this is not necessary that we have to follow him step by step.
Shatibi mentions five steps, but the fifth step is not necessary. An important point to note is that he only takes into consideration or restricts himself to things that are definitive or qatee (i.e. they are above and beyond any dispute among scholars).
Shatibi’s ways to determine the maqaasid:
#1: Induction (Al Istiqraa)
This requires that you have to look at the text as whole in order to derive the induction from it. The more complete the better. Al Istiqraa tam leads to a definitive conclusion (qatiee). We discussed this last time.
#2: A text which states a maqsid (i.e. explicitly defining the goal).
There are not many texts like this. One of them is “Allah intends for you ease and does not intend for you hardship” [Al-Baqarah 2:185]
يُرِيدُ اللَّهُ بِكُمُ الْيُسْرَ وَلَا يُرِيدُ بِكُمُ الْعُسْرَ
#3: Via the commandments and prohibitions of the shariah
What this means that when Allah (swt) orders something then we know that is what Allah (swt) wants, e.g. Iqamat-as-Salat, Zakat, Jihad etc.
It (commandments and prohibitions) also tells us that whatever the thing Allah (swt) commands is a maslahah (good), since Allah (swt) would not order us to do it if it was not beneficial. Similarly if Allah (SWT) prohibits something then that means it is a mafsadah (an evil thing).
The thing that is commanded/prohibited must be the primary intent (e.g. the verse about Jumu’ah and leaving trade does not mean business is included). We know that business transactions in general are not a mafsadah. But a business at the time of Jumu’ah prayer is a mafsadah.
If Allah (swt) prohibits something such as riba, then we can conclude that ribawi transactions are baatil or faasid. Prohibition implies that a thing is void and wrong. But a secondary prohibition such as not performing business transactions during Friday prayers, but if you conducted such a transaction, is that void? Some scholars say that the transaction is still valid, but you are sinful, since it kept you from Friday prayers. So here we do not have a clear mafsadah, it is a relative mafsadah. Shatibi does not discuss this point, since it is a not above and beyond dispute among scholars.
Say you prayed in a mosque that has bought via a mortgage, does this fact, invalidate your prayer at such a mosque, or if you performed wudu with stolen water, does it invalidate your wudu? We discussed these points in fiqh us sunnah, when we discussed wudu.
Allah swt orders us to do something, then it is maslahah. And when he prohibits something then it is mafsadah. This is an important point to remember. Since Allah (swt) declares something prohibited, then by definition (from the Shareeah point of view) it is mafsadah, even if it contains some benefit. So alcohol is a mafsadah, even if some claim that drinking wine in moderation is good for your health. Similarly for riba, some might find benefit to it. But alcohol and riba are mafsadah because of their prohibitions from Allah swt. Ditto for all prohibitions which are explicitly stated by Allah swt.
#4: Determining the illah (legal causes) of Shareah rulings
If you can determine the illah, it helps you determine the goal of the Shariah rulings. Any time you make qiyaas, you have to determine the illah. So you cannot take a new case and apply it to a ruling without have the illah for the text.
You can derive the illah in many ways, some are definitive and some are not. So ijmaah is one definitive way for determining the illah for the ruling. For example, alcohol is forbidden because it is an intoxicant.
Footnote: There can be more than one illah for something. It is not hard and fast rule to have only one illah.
Different types of maqaasid
After applying the above steps, you end up with many maqaasids of the shariah. And then you can divide them into literal, figurative and mixed goal.
#1: Literal Maqsad (حقيقي)
It is a goal in itself. So Salat is an example of it (i.e. Haqiqi Maqsad). Similarly, the fasting is a goal by itself and it leads to maslaha. So is salah, as mentioned in a verse of the Quran.
#2: Figurative Maqsad (مجازي)
It is a goal because of the benefit derived from it. For example, it is not one of the literal goals of the shariah, to go and amputate people’s hands or flog people. Is the case where shariah asks us to do so, is that a masalahah? It is not directly a maslahah, but it is due to the benefit of society by protecting the wealth of society or life of individuals.
#3: Mixed Goal
They are goals in of itself but also has many benefits of other kinds. For example, fasting is a goal in of itself, and it should also lead to taqwah. Same thing is true for Salat, since it is maqsad in of itself and it also leads to lots of good like keeping away from fahshah and munkar (Ankabut 29:45). The circulation of wealth is an example of this.
Different levels of maqaasid
Not all of the goals are at the same level as pointed by Shatibi. Salah is very important, congregational prayer is very important, Friday prayer is important. But is using miswak for the Friday prayers the same importance as the Friday prayers?
You should ensure that the food you are eating is halaal, you should use your right hand, you should eat what is close to you.
Suppose you have a large plate of biryani (one food type) in front of you, but you did not eat what was in front of you, you reached beyond and ate from it. What can you say about this act of reaching above and beyond to eat from a common plate of food? Does the shariah ask you not to put your hand all over the plate? If this is a maqsad, but what is the level of the ruling? It is something that improves the quality of life, but if it is not there, you could still live by it, but you are missing a beauty that is being brought about by this ruling.
Three major levels or categories of Masalah:
Some scholars break each level or category into further sub-levels or sub-categories, but we will not worry about them.
Category #1 of Masalah: Necessities (ضروريّات)
These are things that life really needs, life will not be in existence or will be harmed in the absence of these.
Category #2 of Masalah: Needs (حاجات)
Life can still go on, or can survive in the absence of these things, but will bring in lot of hardship.
Category #3 of Masalah: Amenities or beautification (تحسينيّات)
Necessities, Needs (حاجات) and Amenities or Beautification are the three major levels of Masalah. Shatibi was not the first one to enumerate them, these were mentioned by other scholars, specially it goes back to Imam al-Haramayn al Juwaiyni.
These three levels come from istiqraa (induction) -- there are also signs from the Shari’ah that there are these three levels. This is not something made up that point to these three different categories.
Category #1 of Masalah: Necessities (ضروريّات)
We have to identify the basic necessities. Scholars have identified five basic necessities according to the shariah. These are the necessities of human existence. Shariah is trying to bring them, strengthen them, preserve them. And the five basic necessities are:
Five basic Necessities of human existence
#1: Religion or Deen دين (Islam)
#2: Life النفس
#3: Human Intellect or reasoning العقل
#4: Wealth المال
#5: Familial relations (i.e. An Nasl -- النسل and closely related to it is the human honor but some scholars separate it)
#6: .... Some scholars added a sixth necessity of Human Honor which is captured by the #5 above.
You can categorize the above five basic necessities into those that are necessary for deen and those that are necessary for dunya. So we have to determine which of the above basic necessities take precedence over the other and what is our proof for this precedence.
All of the above basic necessities work together, but when there is some conflict among them, we have to determine the precedence among them. Shatibi says that the above are divided into deen and dunya, and if there is conflict, which should take precedence? Some minority scholars say that it is dunya that takes precedence by giving the argument that Allah (swt) may forgive. However, majority of the scholars say that preservation of deen takes precedence over the dunya. And the evidence for it is the verse from the Quran, which basically states that If you loose the deen, then you loose happiness in this life and also the hereafter. Few examples from the Quran:
You have to sacrifice your life to preserve the deen as in jihaad.
Sahih International [At-Tawbah 9:24]
Say, [O Muhammad], "If your fathers, your sons, your brothers, your wives, your relatives, wealth which you have obtained, commerce wherein you fear decline, and dwellings with which you are pleased are more beloved to you than Allah and His Messenger and jihad in His cause, then wait until Allah executes His command. And Allah does not guide the defiantly disobedient people."
Surah Baqarah verse 191 which mentions fitnah al akbarahu, it means that it is more harmful than killing and Fitna here means not preserving the deen:
ۚ وَالْفِتْنَةُ أَشَدُّ مِنَ الْقَتْلِ ۚ
وَالْفِتْنَةُ أَكْبَرُ مِنَ الْقَتْلِ
These goals are the same that have been revealed to all of the messengers. So they are consistent with human nature (fitrah) and the goal is consistent from Allah swt.
There is one passage in Quran we see these five necessities highlighted: Surah al Anam verses 151-153
Say, "Come, I will recite what your Lord has prohibited to you. [He commands] that you not associate anything with Him, and to parents, good treatment, and do not kill your children out of poverty; We will provide for you and them. And do not approach immoralities - what is apparent of them and what is concealed. And do not kill the soul which Allah has forbidden [to be killed] except by [legal] right. This has He instructed you that you may use reason."
And do not approach the orphan's property except in a way that is best until he reaches maturity. And give full measure and weight in justice. We do not charge any soul except [with that within] its capacity. And when you testify, be just, even if [it concerns] a near relative. And the covenant of Allah fulfill. This has He instructed you that you may remember.
And, [moreover], this is My path, which is straight, so follow it; and do not follow [other] ways, for you will be separated from His way. This has He instructed you that you may become righteous.
We see these five necessities highlighted in this passage. We can see that all of the five basic necessities are mentioned in the above verses. The fawaasihaat are mentioned in the verse, also include ones that are .....
There is also hadith of the prophet that mentions the seven destructive sins. Shirk, sorcery, killing one that is prohibited except due to right, devouring riba, devouring orphan’s wealth, fleeing from the battlefield, and false implicating chaste women.
The above hadith does not mention all of the five basic necessities. All of the maqaasid are consistent with one another and with the main goal of the deen of Allah swt.
Homework: There is agreement that religion comes first and nafs comes second. What comes next, because there is disagreement as to what comes next. You have to present Shariah evidence for what comes next.
2012-05-20 Class Notes
Scholars have (since the time of Imam al Haramain) by virtue of istiqaraa have determined the five goals of shariah. These are not the only goals, there are many sub-goals, and behind every ruling there is a goal, there is a wisdom. However, there have been identified as 5 basic necessaties of life (called Daruria al-Shareeah).
Five essential necessities of life
1. Deen (religion)
2. Nafs (life)
3. Aql (Mental Capacity)
4. Maal (wealth)
5. Nasb (progeny and familial ties)
We have to understand the priorities among the five necessities, in order to understand how to apply, we have to know the ranking of the necessities. Scholars say that religious goal take precedence over the other four. So we have to determine the ranking among the remaining.
Scholars say that the next goal is Nafs, because life is assumed condition or requirement for the remaining goals. A dead millionaire cannot benefit from his millions, because he is not alive.
Q: What about the case of the dead believer?
A: We will answer that question shortly. But if you consume pork because of preserving your life, you do not loose your religion because of consuming pork. It is not a normal circumstance, but there is no conflict between life and deen in this scenario.
Even when you are in compulsion to make a statement that implies kufr (tuqiya), again you do not make an explicit statement of kufr, but statement ambiguous enough to save your life.
Permanent versus temporary relinquishing of the basic necessities of life
The other three require life, but if you do not have deen, then you are spiritually dead. Life means nothing if you do not have deen. From the shariah perspective, wealth is supposed to benefit life and perpetuate life, so is the case with aql. If someone is compelled to consume alcohol at the threat of one’s life, the most it damages is your aql. If someone threatens your life, there are two important aspects, life takes precedence over aql, but there is another important aspect is missed by students studying this topic. It is not just ranking of goals, but the effect is permanent versus temporary. Aql is lost temporarily by consuming alcohol, but if you take life, that loss is permanent.
Regardless of the ranking, permanent loss should take precedence over the temporary loss. So you have to consider the relative rankings, but the loss whether it is permanent or temporary would override the relative ranking.
Relative rankings of needs and amenities
Q: What if you are threatened by loss of life to make a statement of Kufr?
A: Kufr is in the heart. They can ask you to make a statement of kufr. If you say something like kufr (and you apply the priniciple of tuqya), then it is better. You will be sinful, if you are threatened and don’t drink alcohol in order to save your life. Since this is just doing harm to you, this is permissible. But if somebody threatens you to commit adultery, since your action would harm somebody else, you cannot participate in such an act.
Q: What if somebody threatens your life, if you do not shave your beard?
A: We have the rankings of the five necessities and then we have the concept of permanent v/s temporary loss. And then within the necessities we have needs and amenities. So these needs and amenities are supporting the five necessities. Take the case of uncovering the awra (private parts or portion of the body). What is the ranking of awra? Can a woman uncover the awra when visiting the doctor? These are special cases and we don’t meet them every day, you might be in situation where you might have to visit a doctor every day.
Actions that affect others
And when discussing the necessities, we have to know whether your actions affect somebody else or not. For example if you are threatened to take somebody else’s life. Does it matter if the person’s life is masoom or not?
Classroom discussion about the ranking the other three necessities
Back to the question, between the other three necessities (aql, maal, nasil) which one takes the precedence. Nasl is progeny as well as the familial ties.
Nasl is ranked third according to most scholars
According to most scholars, nasil comes third, since it preserves #2 (i.e. Life) in the first place. Hence for the scholars Nasl comes before aql and maal. Since Nasl includes procreation, it contributes to the growth and preservation of Maal.
Harm to family life is greater than the harm to wealth or aql. That is the reason why the punishment for adultery committed by a married man is greater than the punishment for the stealing person, which is death versus cutting of hand. The punishment for taking life without justification??? is always punished by death.
The illegal sexual intercourse, leads to breaking of family bonds, society, it harms more than husband and wife, it affects their families. Scholars like to talk about intelligent people who are willing to give up their wealth or aql versus giving up nasl.
Some say honor is another necessity, whereas other’s say that honor is part of nasl. Honor killing is taking someones life based on a mere suspicion, so you are violating the second necessity, which is life.
Aql is ranked fourth according to most scholars and Maal is the fifth
According to most scholars, aql is number four in ranking. It helps us distinguish between what is beneficial and what is harmful. If mental capacity goes, then you are threatening the other necessities as well. The wealth is sacrificed for the sake of Aql and Nasl. In Islam, the wealth is not a goal in of itself and wealth is to be only sought as a means to fulfill the above 4 categories (Deen, Nafs, Nasl and Aql). Everyone puts Maal last.
If you take any of these categories, then we can study further how Shareeah protects these categories. For example Deen has 5 further sub-categories:
1) To practice the deen
2) Dawah towards the deen
3) Jihad to raise the banner of the deen or protect and strengthen the deen
4) Obligation of ruling according to the Deen
5) To refute those who go against the deen either from the point of view of bida’a in actions,committing sins, or propogating sins (basically Amr bil Maruf and Nahu anil Munkar is this obligation).
The five daily prayers in how man ways contribute to the preservation of the deen. In every actions of the prayer and the things that are said it brings you closer to Allah and strengthens your imaan. It preserves the deen of the individual as well as the community and with respect to Siyaam “kutiba...” which would include to adding to the preservation of the deen.
From the goal of preservation of the deen, you understand the freedom of speech and expression and some contemporary scholars consider this i.e Freedom of expression as maqasid of shariah.
The idea of Freedom of expression as a goal in itself can bring about a lot of harm, and the civil rights movement is an example.
And based on the above refuting Bida’a is not a bad thing, in fact it is a part of preserving the deen and it cannot be disliked under the banner of Freedom of Expression.
If you have preservation of the deen which also means producing people of taqwa. i.e you will have people who will not violate the other maqasid.
For example if a person has taqwa, then he won’t drink alcohol, or commit zina, he will respect life etc. So it both takes precedence and enables the other Maqasid.
Preservation of the deen in respect to preserving life, in the law of Qisaas there is life or preservation of life.
وَلَكُمْ فِي الْقِصَاصِ حَيَاةٌ يَا أُولِي الْأَلْبَابِ لَعَلَّكُمْ تَتَّقُونَ
Allah swt says in Surah Baqarah verse 179, And there is for you in legal retribution [saving of] life, O you [people] of understanding, that you may become righteous.
The law of life is actually a deterrent to killing. for example in the US where there is life without parole you are out of prison in 15-20 years and a person who has been in prison what prevents him from going back to prison.
Another aspect of preserving life in sharia are very strict laws about the burden of proof. Compare this to many cases that happened in USA where after applying the capital punishment they found that the person was not guilty in the first place. Capital punishment cannot be applied in Islam, until the proofs prove the guilt of the accused beyond doubt.
Laws of necessities, law on suicides and laws on honor killings are also a part of preserving life. Self Defence, Jihad (since it protects the nation and it protects the oppressed).
Preservation of Aql (Intellect)
1. Prohibition of Alcohol and other drugs.
2. Encouragement to seek knowledge …. related to knowledge or seeking knowledge
3. There are two types of things that can destroy Aql - physical harm and non physical harm
Al Mufsidat al Hisyah (Physical harm) -- المفسدات الحسية, is due to alcohol and other drugs, or anything physical. Al Mufsidat al manawiyah (Non-physical harm) -- المفسدات المعنويّة, prohibition of watching haram things e.g sexually inappropriate things as an excuse of Freedom of Art - The Shariah protects you from all of this. The brain is the first thing that is stimulated/harmed in cases such as alcholol/drugs/sex etc. and to protect pure thought and protect you from negative thoughts and this is part of protecting aql.
For example, fifteen years ago in Cincinnati, Ohio an art exhibition was made in the name of freedom of art which was basically just child pornography. There was a lot of uproar in the country. This is an example of Al-Mufsadat al Manawiyah.
2012-05-27 Class Notes
This is our last class for this topic. Shaikh has ten hours of material to cover and not enough time to do so. InshaAllah, we will revisit this topic at the conclusion of the Usool al Fiqh class and it will be 3 to 4 quarter class then. This class ends with this quarter here.
One of the biggest difficulties of this topic revolves around maslaha.
Masalih and Mafasid المصالح و المفاسد
The ultimate goal of the shariah is the achieving of the well being of the human being in this life and the hereafter. The topic of maslaha is very easy to get wrong and go beyond its bounds, also what priority you should give to this topic.
Najmuddin al-Taufi who gave maslaaha precedence over everything including quran and sunnah. This way of thinking is being revived by many people nowadays.
Definition of maslaha المصلحة
It is something good, it comes from the root word ص ل ح sa la ha. The maslaha is actually Zarf of Makkan (place) so it means that the goodness and ubiquity is deeply placed. The opposite is something harmful -- mafsadah مفسدة.
The most genera definition of maqaasid al shari’ah it is trying to bring about the benefits for human.
So the word maslaha was used in the goals of the shariah, we used the word maslaha to mean the benefit of human being.
If you can find something beneficial in something, then you could jump to the conclusion that it is what the shariah intended, since its goal is to bring benefit to the mankind in this life and the hereafter. But the important question to ask is who gets to define the benefit? The most important source of Maslaha is the Shari’ah. If you just took the linguistic meaning of maslaha -- something of benefit or good, you then have to define it from the shari’ah point of view.
Three types of Maslaha
Masalaha can be divided into three main categories
1. Al Maslaha al Mutabara (المصلحة المعتبرة)
This is the accepted maslaha, i.e. it is clearly indicated (explicitly or implicitly) in the Quran and Sunnah. For example, Ubudiyah of Allah (swt) that is clearly good for the human beings. Similar example is fasting. These are things that you can justify clearly from the Qur’an and Sunnah.
2. Al Maslaha Al Mulghaah (المصلحه الملغاة)
This is the rejected Maslaha. People look at it and may think that it is Maslaha but it is not really a Maslaha. For example, making duaa to other than Allah (swt). Some might consider that a Maslaha that the saint can help you in your need but Shariah clearly says no in reality this is not a Maslaha. In totality it is not a Maslaha or it’s harm is far greater than the good that may exist in it. When Islam first comes to a people, this happens a lot that they think something Maslaha but in reality it is not.
Alternatively, another possibility is that there is benefit, but the harm outweighs the benefit. Once the Shari’ah rejects something, it doesn’t mean that there’s no benefit in it. Example is Khamr, since in it is both benefit and harm for the people:
يَسْأَلُونَكَ عَنِ الْخَمْرِ وَالْمَيْسِرِ ۖ قُلْ فِيهِمَا إِثْمٌ كَبِيرٌ وَمَنَافِعُ لِلنَّاسِ وَإِثْمُهُمَا أَكْبَرُ مِن نَّفْعِهِمَا ۗ
They ask you about wine and gambling. Say, "In them is great sin and [yet, some] benefit for people. But their sin is greater than their benefit."
Another example is state lottery, it has some benefits to the community, but that benefit is discarded by the shariah, since the harms of it outweigh the benefits. And this could be a source of confusion for the people, since some might just look at the benefits and say why don’t we follow this approach.
Anything that is directly ordered by the shariah is a maslaha. Among the ulema the first two categories is not a problem, they all agree about it.
3. Al Maslaha al Mursala (المصلحة المرسلة)
This is a trickier category and easiest way to understand it is that this is the Maslaha that the Shariah is silent about i.e. there is nothing specific in Shariah which either accepts or rejects the benefit. Mursalah indicates that something is loose here. There are sub-categories by Imam al-Shatibi:
3a Al Maslaha al Ghareeb (المصلحة الغريب)
It is strange or unusual with respect to accepted Maslaha.
3b Al Maslaha al Malaim (المصلحة الملائم)
It is more consistent with accepted Maslaha.
There is real debate in the fiqhi schools about the maslaha al mursala. Some schools reject it altogether. This view where they limit it to types 1 and 2 is a common view in some of the schools of fiqh. This is the view amongst the Malikis and amongst some of the Shafi’is however the Ulema in others schools are scattered about this form of Maslaha.
Al Shatibi’s conditions for accepting a maslaha
Al-Shatibi was concerned about this because there was a possibility of abuse. He laid down some principles for accepting the masaalih al mursala: Shatibi is talking about Al Malaim here since he rejects the al Ghareeb completely.
1. If anything is claimed to a maslaha, it must be consistent with the teachings of Islamic law such that it does not contradict any recognized principle or any accepted rule. He mentions ten examples in this condition, but we will not discuss them [he said he will come back to them]
2. It must be rational (aqli - عقلي) -- there has to be logical reasons. He added this to make it clear that you cannot introduce anything new to the ibaadat. And you cannot add anything new in which shariah was silent about it, even though it could have conceivably allowed it or disallowed it. For example, celebrating the Prophet’s birthday, since the prophet could have easily celebrated it or ordered people to celebrate it, so you cannot claim maslaha to this practice, since the shariah was silent about it. So this type of supposed maslaha is not accepted.
3. There has to be clear need for what has to be a Maslaha and he argues why are we invoking the Maslaha is because there is some need or necessity to do so to fulfil the 5 major Maqasid of Shariah.
The first condition says that it should not violate the shariah, and now in the third condition, even if you have a need, but if it is not allowed by the shariah or contradicts the shariah, you cannot sanction it. For Maslaha to be acceptable, it has to fulfil all of the above 3 conditions. For example, you cannot sanction lottery schemes claiming benefit, since it violates the prohibition of gambling in the shariah.
Maslaha does not mean benefit on individual basis. An example, somebody lied on his application claiming it was a maslaha, but you cannot claim personal benefit as maslaha.
Shatibi’s examples of maslaha based on his conditions for maslaha
Then Shatibi gives ten examples going back to the time of Sahabah. We will just discuss one or two of them:
Example #1: Craftsmen are responsible for the materials in their possession by virtue of Maslaha al Mursalah for the goal of protection of maal (wealth)
During time of Ali (ra) an issue came up regarding craftsman (e.g. Tailor). The tailor makes clothes, and customer brings the material to the tailor and the cloth is under the control of the tailor. So the cloth still belongs to you and not the tailor. So shariah is quiet about the responsibility of the tailor. So the principle is invoked which makes the tailor responsible for it even though there is not text about it.
Ali (ra) said that there will be great deal of harm if tailor (craftsman) is not held responsible for the material that they receive from their clients. This Maslaha is invoked even though Shairah neither speaks for or against it. Ali (ra) invoked this since it is the protect the property/wealth of the people which is consistent with one of the greater goals of Shariah.
Due to time limitations, shaikh did not discuss the second example from his notes.
Typical mistakes made when invoking the maqaasid al Shariah
The whole topic of maqaasid has been revived and spoken about a lot in recent time. One of the important things that we have to discuss is the mistakes when invoking the maqasid al Shariah
Mistake #1: Improper identification of goals of the Shari’ah
One of the clearest mistake (pointed out by many authors) is to identify something as a maqsas of Shariah while in reality it is not a maqsad at all. Not too long ago socialism and capitalism was very popular. When socialism was a fad in the Muslim world, the people argued that equality is one of the goals of the Shariah. Equality here can mean gender equality, wealth equality, etc. in the socialist model. Shariah does agree with equality in certain sense but not in the other senses.
Shariah mandates that when judging people, you have to treat all of them equally and not give preferential treatment to the rich or the powerful. So, in some areas equality is indeed a goal, but you cannot take it and generalize it for all conditions or cases.
It is therefore important to think of maqaasid as principles that span across all of Islam. So you can not say that equality is a maqsad of the Shari’ah. But you could say that equity is much more broader goal of Shairah than equality. Equality is the goal of the Shariah when equity is part of the equality.
Another concept discussed lately is that a maqsad of the Shari’ah people (al Shaab) should rule themselves, and they claim that it is a maqsad of the shariah. The problem here is that they are arguing for democracy or democratic system. They claim that we have the right to define our own rules.
Many years ago Sh Jaafar Idris was sitting with bin Baaz. And he was discussing it with bin Baz and bin Baz says that “so everyone gets the same vote, regardless of intelligence, knowledge etc.”
Al Hakimiyyah in Islam belongs to Allah (swt) as Quran says:
قُلْ إِنِّي عَلَىٰ بَيِّنَةٍ مِّن رَّبِّي وَكَذَّبْتُم بِهِ ۚ مَا عِندِي مَا تَسْتَعْجِلُونَ بِهِ ۚ إِنِ الْحُكْمُ إِلَّا لِلَّهِ ۖ يَقُصُّ الْحَقَّ ۖ وَهُوَ خَيْرُ الْفَاصِلِينَ
Sahih International (6:57)
Say, "Indeed, I am on clear evidence from my Lord, and you have denied it. I do not have that for which you are impatient. The decision is only for Allah . He relates the truth, and He is the best of deciders."
Sometimes people don’t necessarily do the right thing when they say things like this. When you say that ruling by the people is part of Islam then you should be very careful about clearly communicating your position.
There are things that are laid down in the Shari’ah and any subgoals have to be consistent with those main goals. E.g. if you just look at the Maslaha and ignore the text. E.g. they take a maslaha from the text, and then based on that maslaha they make a ruling.
Example: a few years ago a group said: the purpose of the Jumu’ah prayer is to bring people together. Clearly you can gather people better on Sunday than on Friday. So we should move Jumu’ah to Friday. Problems with this: it’s a matter of worship, and the day is called the Jumu’ah. Also there is specific evidence that the day should be different from Saturday and Sunday.
Obviously this is meant to be a tool of a mujtahid. It is not intended for people who are not deep in their knowledge of the sources of Islam. One of the important and difficult things in maqaasid is to invoke a maqsad in one area which is from another area.
Example is of terrorism. Those involved in terrorism claim that they are doing this to raise the banner of laa ilaaha illa Allah and hence Islam. Other ulema respond to them that one of the maqasid is to protect the laws of those we have no right to kill. In this particular case, all the steps for jihad, laws of jihad, etc. The non-combatants are protected according to the laws of Shariah. So this rule is being broken in trying to make the word of Allah (swt) the highest.
Mistake #2: Choosing some maqasid while ignoring others
Example: Progressive Muslims. Omid Safi -- probably one of the intellectual leaders of the progressive Muslim movement.
“Justice lies at the heart of Islamic social ethics. The Qur’an talks continually about supporting the downtrodden … it is time to translate this into a way of action they can understand … Progressive claim that in modern times all humanity are our neighbours. It is time for Muslims to be responsible for the dignity of all human beings.” In the process they ignore the key maqsad of Islamic practice. It is as if they are raising justice to the status of a maqsad on equal footing with uboodiyyah.