Introduction to the Maqasid al-Shari`ah
The maqasid al-shari`ah are intellectual abstractions of general principles derived from particular, historical rulings in Islamic jurisprudence. The mental operation involved in such abstraction consists of extracting an element or aspect of several events or phenomena from their specific contexts, and giving that element or aspect a name, a word. This word, this named entity, is then referred to and applied as though it had a degree of reality more or less equivalent 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.
Commands in the Qur’an and Their Effects
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 perform wudu’, to establish prayer, to pay zakah, to fast during Ramadan, to perform 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 fulfilling 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 have just listed? I think we should be extremely cautious about making such a claim.
Who Preserves the Religion?
Firstly, it is not obvious that Muslims are the principal agents in preserving the religion by practising it. It is more likely, and closer to the meaning of islam (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 conceptualise divine commands. Rather, it is an essential reaffirmation 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 a 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:
The Example of Sadaqa and Zakah
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 prescribed uses of zakah is to help the poor and needy. But it is only one. These 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 is generated, enabling more to be allocated to the needs of the poor.
They say this would be a more efficient use of the ummah’s resources. However, 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 these well-meaning scholars have done is to reduce the religious command to a mere 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 (since 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 removing obstacles from a public roadway; 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, albeit for the laudable purpose of helping the poor, in fact shares the belief that resources are scarce—when in reality, it is distribution that is scarce. Thus, rather than being characterised by compassion, society as a whole becomes 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.
The Danger of Elevating Human Understanding
My fear is that, in the interests of a kind of philosophical or conceptual efficiency, people have derived from various rulings of the shariah a set of principles that they present as the maqasid (the purposes) of the shariah. By doing this, 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 declare 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, alteration, or even cancellation if the human reasoning that established the analogy is found to be faulty, or if, for situation B, closer or more appropriate material is found in one or more other situations for which we also have Prophetic rulings.
Qiyas Versus the Generalisation of Maqasid
On the surface, it appears that the thinking that affirms the maqasid al-shari`ah is simply 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, approached with some diffidence and with reliance on Allah to make its effects good rather than bad. The secondary ruling, if it is applied, is tested in the real world, and it may then be deemed valid, or valid in part but not entirely valid.
By contrast, the derivation on which the maqasid are based is not from 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 though the intention of those historically particular rulings was to serve the maqasid to which they have been assigned. That is simply untrue. The bulk of Islamic Law did not develop in that way.
The Problem with Generality and Consensus
The great generality of the maqasid makes it almost impossible to achieve consensus on their meaning. Because eminent scholars repeatedly refer to maqasid al-shari`ah, this concept has acquired a sort of institutional prestige and weight, and the intellectual inertia that accompanies such prestige.
It may be easier to sense the risks 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. At that time, it was proposed that the legitimacy of government overall, and of government policies in particular, should be tested and determined by their effectiveness in producing “the greatest happiness of the greatest number”. This sounds appealing, 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 governed by those supposedly obeying this principle. The bulk of human beings living in that state’s overseas colonies were irrelevant to any calculation; likewise, the propertyless citizens of the state did not count. At that time, it was sincerely believed (today 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’. No one specified how long this miracle would take.
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 worldly well-being, freedom of choice and action, money to spend, etc. But there was no consensus, for example, on whether, or to what degree, or what kind of education contributed to ‘happiness’. Ultimately, the only practical applicability of this famous principle has been in its negative aspect: that policy is best which causes the least harm to the smallest number of people. For instance, if constructing a power station near river A will harm a certain number of people, while near river B or C a far greater number of people would suffer, then river A must be preferred. (It is assumed that building the power station cannot be avoided.)
A similar fate may be predicted for the principles of the maqasid al-shariah. If a state’s policy or an economic entity’s (such as a corporation or bank) policy harms the religion—i.e., the opposite of preserving and protecting it—it can be resisted as un-Islamic or non-shariah-compliant. Yet again, I must stress that since the reality of this purpose of the shariah is a verbal reality rather than a historically grounded one, it is vulnerable to dispute and to the propaganda of opposed interests. Some will claim that, until the Muslims are militarily strong enough to compete successfully with those who intend to destroy Islam, they will never be strong enough to protect their religion; therefore, they must first become economically strong, even if this entails tolerating some amount of haram (i.e. treating the haram as halal, under the doctrine of necessity). Others will assert that this pragmatism is itself the ruin of the religion. Such disputation regarding the meanings and intentions behind the categories of interest to the Law will emerge for each of the maqasid al-shariah.
The Risk of General Principles as Absolutes
Generalities are intellectually appealing and emotionally satisfying because they offer us the pleasure that comes from believing we understand what lies behind or beneath particular, concrete realities. However, general principles, if applied as absolutes, can be harmful. It may always be prudent to remember that the root of mutlaq is connected to talaq (divorce); what is absolute is potentially, or in fact, divorced from reality.
I mentioned earlier that most of the rulings of Islamic Law did not develop from an outflowing or embodiment of principles such as the maqasid al-shari`ah. That is true. Nevertheless, there was a strand of rulings which gave expression to these principles, uttered as maxims, which various jurisprudents had distilled from their study of validated historical rulings.
The Example of a Hanafi Maxim
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 becomes nearly impossible for women even to enter, traverse, or be active agents in public spaces. Since we know that the Messenger of Allah, salla-llahu `alayhi wa-sallam, encouraged women to attend the mosque, even during hours of darkness, and permitted them to buy and sell in the marketplace, amongst other similar instances, we can be reasonably certain that this old Hanafi maxim, however well-intentioned (and I have no doubt that it was well-intentioned), cannot be usefully applied in all circumstances, and if enforced it leads to injustices.
Conclusion
I believe we should be equally wary of allowing the generalities of maqasid al-shari`ah to become absolutes in our thinking, or letting them shape our legal advice in response to particular, historical realities.
