A thoughtful reflection on ‘preservation of the religion’
by: Dr Mohammad Akram Nadwi
Oxford
The maqasid al-shari`ah are intellectual abstractions of general principles from particular, historical rulings in Islamic jurisprudence. The mental operation involved in such abstraction consists of taking an element or aspect of several events or phenomena out of their particular contexts, and giving that element or aspect a name, a word. This word, this named entity, is then talked about and applied as if it had a degree of reality more or less equal to the events or phenomena from which it was derived by abstraction. For example, if you observe white snow or white spit or white cotton or a glazed white tile or a white flower in sunlight, you may come to believe that, despite the observable variation in the colour of snow, spit, cotton, tile, or flower, the similarity is substantial enough for you to posit that something called whiteness exists. But in reality whiteness does not exist or not in the same way as the colour embodied in the particular instances mentioned. Whiteness is simply a verbal or nominal reference-point. As such, it is very useful, even indispensable, for our need to point to, to group together or to differentiate, events and phenomena.
Allah has commanded Muslims in the Qur’an to proclaim the oneness and otherness of God and the humanity and servanthood of His Messenger, to do wudu`, to establish prayer, to pay zakah, to fast Ramadan, to do hajj, to fight against those who make war on Muslims for being Muslims, to recite the Qur’an, to distinguish halal and haram, etc. Islamic jurisprudence has recorded, deliberated and elaborated the rules for how to carry out these commands. One effect of carrying out these commands is to protect and preserve the religion. Doing these things enables Muslims to sustain the habit of remembering their dependence on Allah and remembering that they will return to Him and be judged. Is it legitimate to say that this effect is the purpose of the commands I just listed? I think we should be highly cautious about making such a claim.
First of all, it is not obvious that Muslims are the principal agents in preserving the religion by their practising it. It is more likely, and nearer to the meaning of islam, of surrender, to understand that the religion is preserved by Allah Himself, as a grace from Him, enabling and assisting the Muslims to obey His commands. Saying so is not merely a gesture of piety, or good manners, in how we conceive of divine commands. Rather, it is an essential re-affirmation of the otherness of God, of being seen by Him, not seeing Him, of being interrogated and understood by Him, not presuming to interrogate and understand Him. There is great danger in projecting a human understanding of a divine command as an improved expression of that command because it uses a higher level of generality. Let me illustrate with an example:
A number of well-meaning scholars have affirmed that the purpose of sadaqa and zakah is the alleviation of poverty. It is indeed the case that one of the commanded expenditures from zakah is to help the poor and needy. But it is only one. The well-meaning scholars, having determined that the purpose of zakah is the alleviation or elimination of poverty in society, go on to propose that zakah funds should be deemed a public financial resource and invested in profit-making ventures so that, more wealth being generated, more can be allocated to the needs of the poor. They say this would be a more efficient use of the umma’s resources. But it is not true that the purpose of zakah is to help the poor, even if that is one of its effects. If that were its purpose, the command of zakah/sadaqa could only apply to the rich. That is self-evidently false. What the well-meaning scholars have done is to reduce the religious command to an instrument of economics, the so-called science of allocating scarce resources. As a religious command, sadaqa/zakah helps believers to free themselves from being possessed by their possessions, more generally (the command to pay zakah is frequently linked to salah) to free themselves from their own preoccupations, in favour of pleasing Allah. That is why, even the poorest among us can do sadaqa by approaching others with a smile, or by clearing obstacles from a public highway; we can cleanse or purify our personal powers by regularly dedicating a portion of those powers (of which wealth is just one) to what is pleasing to Allah. The broader assumption of an Islamic economics approach to zakah funds, though for the good purpose of helping the poor, in fact shares the belief that resources are scarce – in reality, it is distribution that is scarce. So, instead of being characterised by compassion, society-as-a-whole comes to be characterised by pity, the pity of the rich for the poor. Now pity may be a prompt, an opening of the door, to compassion, but it is not yet compassion.
My fear is that, in the interests of a sort of philosophical or conceptual efficiency, people have derived from diverse rulings of the shari`ah a group of principles they present as the maqasid (the purposes) of the shari`ah. In so doing they have elevated the authority of a human understanding of divine commands to the same, or nearly the same, level as the divine commands themselves. I am formally a Hanafi, and accordingly uphold the usefulness, indeed the necessity, of qiyas, analogical reasoning, in the development and extension of Islamic law. In situation A, the Messenger ruled such and such; situation B seems to be similar in many respects to situation A, so by analogy we can commend as religiously valid the same ruling as for situation A, or some ruling very similar to it. Now, since it is human understanding that determines the similarity in the two situations, the ruling for situation B does not and cannot have the same authority as the Prophetic ruling from which we derived it. Therefore it is subject to challenge, to alteration, to cancellation even, if the human reasoning that established the analogy is found to be faulty, or if, for situation B, closer or more appropriate material is to be found in one or more other situations, for which we also have Prophetic rulings.
Superficially, it looks as if the thinking that affirms the maqasid al-shari`ah is just an extension of the practice of qiyas; another, perhaps higher level, application of qiyas. But that is precisely my point. The qiyas that has long been a legitimate instrument of Islamic jurisprudence is localised and not generalised; it is particular to particular situations, applied with a certain diffidence and reliance on Allah to make its effects good rather than bad. The secondary ruling, if it is applied is tested in the world, and it then may or may not be accepted as valid, or valid in part but not altogether valid. By contrast, the derivation on which the maqasid are based is not one or a small number of situations for which we have a Prophetic ruling. Rather, the derivation is based on human understanding of ‘Islam as a whole’, or of ‘Islamic Law as a whole’, and historically particular rulings are categorised under the maqasid headings, as if it was the intent of those historically particular rulings to serve the maqasid to which they have been assigned. That is simply untrue. The bulk of Islamic Law did not develop that way.
The very generality of the maqasid means that it is virtually impossible to achieve consensus on their meaning. Since eminent scholars continually make reference to maqasid al-shari`ah, this concept has acquired a sort of institutional prestige and weight, and the intellectual inertia that goes with such weight. It may be easier to sense the dangers in this if, stepping outside the Islamic world, we consider a very similar project in the Western world of the mid to late nineteenth century. Then, it was proposed that the legitimacy of government generally, and of government policies particularly, should be tested and determined by their effectiveness in producing “the greatest happiness of the greatest number”. This sounds good, does it not? But in practice, it is useless. To begin with, the ‘greatest number’ never meant, nor ever could mean, the majority of human beings. In practice, it did not even mean the greatest number of people who were citizens of the state ruled by the government supposedly obeying this principle. Not only were the bulk of human beings living in the state’s overseas colonies not relevant to any calculation, the propertyless citizens of the state also did not count: at that time it was sincerely believed (now people only pretend to believe) that the well-being of the economically powerful classes or nation-states would, necessarily, over time, bring ‘greater happiness’ to ‘the greatest number’. How much time this miracle would need was never specified. Equally important, it was soon discovered that no-one could agree on what constituted ‘happiness’. To be sure, the word referred (in contrast to ‘virtue’, the concern of official religion) to well-being in this world, freedom of choice and action, money to spend, etc. But no-one could agree on, for example, whether and how much and what kind of education contributed to ‘happiness’? In the end, the only practical applicability of this famous principle has been in its negative aspect: that policy is best that does least harm to the least number of people. For example, if building a power station near river A will harm the interests of a certain number of people, and near river B or C a far greater number of people, then the river A site must be preferred. (It is assumed that building the power station cannot be avoided.)
Perhaps a similar future may be predicted for the principles of the maqasid al-shari`ah. If the policy of a state or an economic entity (such as corporation or bank) harms the religion, i.e. the opposite of preserving and protecting it, it can be resisted as unIslamic or as not shari`ah-compliant. Again, I must caution that since the reality of this purpose of the shari`ah is a verbal reality, not a historically grounded one, it is vulnerable to dispute, to the propaganda of opposed interests. Some will claim that, until the Muslims are militarily strong enough to compete successfully with those who mean to ruin Islam, they will never be strong enough to protect their religion; accordingly, they must first become economically strong, even if this entails tolerance of some amounts of haram (i.e., of treating the haram as halal, under the doctrine of necessity). Others will claim that this pragmatism is itself the ruin of the religion. This kind of disputation as to the meanings and intentions behind the categories of interest to the Law will arise for each of the maqasid al-shari`ah.
Generalities are intellectually attractive, emotionally satisfying, because they give us the pleasure that comes from having understood what is behind the surface or under the surface of particular, concrete realities. But general principles, applied as absolutes, can be harmful. It is perhaps always wise to remember that the root of mutlaq is linked to talaq; what is absolute is potentially or actually divorced from reality. I said earlier that the bulk of the rulings of Islamic Law did not develop as an outflowing or embodying of principles such as the maqasid al-shari`ah. That is true. However, there was a strand of rulings which gave expression to the principles, uttered in the form of maxims, which various jurisprudents had derived from their study of validated historical rulings.
One such maxim in the Hanafi tradition is that “the status of woman is covering”. Now, if new rulings are derived from this maxim, rather than from the historical rulings from which it is (unjustly and unwisely) derived, then it is near impossible to allow women even to enter and traverse, let alone be active agents, in public spaces. Since we know that the Messenger of Allah, salla-llahu `alayhi wa-sallam, encouraged women to come to the mosque, even in hours of darkness, since he allowed them to buy and sell in the marketplace, and from other similar situations, we can be reasonably certain that that old Hanafi maxim, however well-intentioned (and I have no doubt that it was well-intentioned), is not something that can be practically useful in all situations, and if applied will lead to injustices.
I think we should strive to be similarly wary of the generalities of maqasid al-shari`ah becoming absolutes in our thinking, of allowing them to frame our legal advice in response to particular, historical realities.
