Bismillahi Rahmani Raheem
In its comprehensive character, legal sciences developed among Muslims very early. In fact they were the first in the world to entertain the thought of an abstract science of law, distinct from the codes of the general laws of the country. In the field of law proper, codes have appeared since the beginning of the second century of the Hijrah (800.AD).
In the days of antiquity, International Law was neither international nor law. It formed a part of politics and depended on the discretion and mercy of statesmen. Moreover, its rules applied only to a limited number of States inhabited by peoples of the same race, who followed the same religion and spoke the same language. The Muslims were the first to accord it a place in the legal system, creating both rights and obligations. This may be observed in the rules of international law that formed part of a special chapter in the codes and treatises of the Muslim law ever since the earliest times. In fact the most ancient treatise which we possess is the Majmu’ of Zaid ibn ‘Ali, who died in 120 H/737 C.E, that work also contains the chapter in question. Further, Muslims developed this branch of study as an independent science, and monographs on the subject, under the generic title of Siyar, were found existing even before the middle of the second century of the Hijrah. In his Tawali at-Ta ‘sis, Ibn Hajar relates that the first monograph of the kind hailed from the pen of Abu Hanifah, the contemporary of the above-mentioned Zaid Ibn ‘Ali. The characteristic feature of this international law is, that it makes no discrimination among foreigners. It does not concern inter-Muslim relations, but deals solely with the non-Muslim States of the entire world. Islam in principle forms one single unit and one single organic community.
Another contribution in the legal domain is the comparative Case Law, the appearance of different schools of Muslim law necessitated this kind of study, in order to bring into relief the reasons of their differences as well as the effects of each divergence of principle on a given point of law. The books of Dabusi and Ibn Rushd are classics on the subject. Saimuri wrote even a work of comparative jurisprudence or methodology of law (Usul al-Fiqh).
The written-constitution of the State was also an innovation of the Muslims, and the Prophet Muhammad (saws) himself was its author. When He (saws) established the first Islamic City-State at Madinah, he endowed it with a written constitution that governed the various communities all having different faiths and backgrounds, the document has come down to us preserved over the centuries, its contents could be divided into 52 clauses. It mentions in precise terms the rights and obligations of the head of the State, of constituent communities, and of subjects respectively, in matters of administration, legislation, justice, defense, etc. It dates from the year 622 CE and from this document many later scholars were guided in identifying the Objects (Maqasid) of Islamic Law. (Introduction by Dr. M. Hamidullah)
Law In Medieval Europe
Before we look into the History of Islamic Law we should mention other Law systems to gain a clear contrast between our world and the world back then, likewise the world today will also make more sense.
We should first keep in mind that the Church and Christianity are not the same thing, the Church in reality was just another dynastic monarchy trying to maintain power through fear by keeping their populations less educated than them, even denying them science and advancement. Following the same example they set were the colonial Empires that later would come from Europe, after centuries of such treatment by the church this deprivation became ingrained into the personality of that region, because as it would become evident, all of the empires employed these same methods to other civilizations they would enslave around the world, this is none more evident than in their dismantling of their institutions and replacing them with dysfunctional systems.
America, similarly did the same thing, this was first witnessed in their treatment of the native Americans, the slave labour they would import from Africa, and the cheap labour they would “steal” from china and other parts of the world by lying to them regarding the life they would find when they migrated their, only to be placed in work camps little better than prisons. They still mimic the old empires even to this day, something John (ra) was very explicit about and up until the enlightenment, which was essentially the christian world catching up to the rest of the world, America still had trial by ordeal.
This was all another form assimilation and conquest, and the reason why the third world even exists to begin with, most of those regions at some point in history had an empire more cultured and advanced than what dysfunctional Europe had been prior to the 18th century with no prejudice to science, knowledge or wisdom.
Without going into detail, studying the lives of many popes would reveal they were anything but religious men, the era of the Borgia, the family Dynasty they replaced and the family Dynasties that came after them is a testament to this fact, this is why the church was fought for so long and so many groups split away from it, like the protestants.
Law was harsh in Medieval Europe, those in charge of Law and order believed that people would only learn how to behave if they feared what would happen to them when they broke the law, as apposed to educating them on why being moral benefited all society but their system of morality was in the hands of those who carried little about it, hence even the smallest offense had serious punishment. Under this system each accused person went through an ordeal to prove their innocence, in contrast to today a person is first “presumed innocent until found guilty”, but to them when someone was accused of a crime, even if the accusation was false, they were “guilty until they proved their own innocence” through any one of a number of ridiculous and superstitious tests known as ordeals, this was the mental state of those who ruled christian lands and why the Dark Age of Europe even existed.
The first Ordeal was known as “Trial by Fire”, an accused person held a red hot iron bar and walked three paces, his hand was then bandaged and left for three days. If the wound was getting better after three days you were innocent, if it did not you were guilty, most people were left scared for life.
The second Ordeal was “Trial by Water”, an accused person was tied up and thrown into a body of water. If you floated you were guilty of the crime, if you drowned you were innocent, these tests were as serious as the consequences and it is shocking how far rulers had fallen intellectually, but these are the origins of the West we know today, the same West the bible speaks about, and why they cary out their acts behind closed doors with ridiculous justifications.
The third Ordeal was “Trial by Combat”, this was used for noblemen who had been accused of something, they would fight their accuser and whoever won was right.
Trial by ordeal existed in other forms and a persons innocence was proven by putting them in other dangerous situations such as swallowing poison, pulling an object from boiling oil, and walking on nine red hot ploughs, if you recovered quickly or survived you were innocent.
In 1215, the pope decided that priests, those supposed to be the wise people of a community, must not help with ordeals because they were mostly corrupt, as a result the legal system slightly improved which now asked for witnesses in a case.
The ordeals were slowly replaced over time by what was then termed as juries, this was different from todays system and juries. A judge was appointed to investigate a crime by asking locals regarding the matter, then judgment would be passed, because these witnesses held a persons fate in their hands they were called juries, but essentially they were no more than possible witnesses. But in spite of this supposed improvement people did not want to participate, becouse they feared being railroaded by their neighbors, so after 1275 a law was passed allowing people to be tortured if they refused to go to trial by Jury, the system was only slightly less barbaric than the ordeals and ended up being more corrupt.
Needless to say this to wasn’t an effective system, but Europe began to use it from this point on, despite this for a long time still, trial by Ordeal remained very common through large parts of Europe because that system was replaced very slowly. Trial by ordeal was still used in early America and made famous by it’s witch trials, it lasted almost until the end of the 16th century when eventually the enlightenment changed everything.
Although by the 18th century they essentially had to throw out the church to really achieve anything, eventually after the period of the enlightenment another dark age set upon Europe, an age that was masked by the wonders it produced, the age of secularism, a tool employed to free people from the church but ultimately opened the way for morally bankrupt individuals to impose themselves on the people of that land who were leaving religion in droves to worship the “dragon”.
By the eve of WW1 a different kind of people were now in charge, with no moral voice to enforce any kind of morality, eventually leading to WW2, it is probably fair to say even though one group replaced another things did not become better under secular rule, as it resulted in the most heinous wars the world had ever witnessed destroying world civilizations, right after the church and religion were removed, eventually a third war will occur in this very region that will devastate mankind, foretold by both Christianity and Islam.
Islamic Law: Why The Islamic Golden Age Existed
“Three hundred people were in a boat sailing on the sea. They realized that their safety was at risk, and the lives of the majority could only be saved by throwing 10 people overboard. Would it be morally right to kill 10 people in order to save 290?”
This case was presented by Imam al-Ghazali (d.1111) in his book on the principles of Islamic Jurisprudence (Legal theory) called “al-Mustasfa Min ‘lm al-Usul”, translated as On Legal Theory of Muslim Jurisprudence.
Today America challenges people with a similar question to justify itself, “Would you torture one person to save the lives of many?”, Imam al Ghazali answered this question, posed by the Americans, 1000 years ago. The justification of moral and legal actions in Islam is not based on personal reflection, or personal desire or personal benefits one may derive.
Without the proper civil system in place advancement in other areas of knowledge can not exist, and the islamic world went through a golden age were it excelled other parts of the world in nearly every area of life.
The majority of ulama (scholars) hold that the ahkam (Laws) of the Shari’ah contemplate certain objectives, and when they can be identified for a place or situation, it is our duty to pursue them and make an effort to implement them in order to fulfill the general objectives of the Lawgiver, Allah.
“Generally the Shari`ah is predicated on the benefits of the individual and that of the community, and its laws are designed so as to protect these benefits and facilitate improvement and perfection of the conditions of human life on earth. The Qur’an is expressive of this when it singles out the most important purpose of the Prophethood of Muhammad (peace be on him) in such terms as: “We have not sent you but as a mercy to the world” (21: 107). This can also be seen perhaps in the Qur’an’s characterization of itself in that it is “a healing to the (spiritual) ailment of the hearts, guidance and mercy for the believers” (and mankind) (10: 57)”.
“The two uppermost objectives of compassion (rahmah) and guidance (huda) in the forgoing verses are then substantiated by other provisions, in the Qur’an and the Sunnah, that seek to establish justice, eliminate prejudice, and alleviate hardship. The laws of the Qur’an and the Sunnah also seek to promote cooperation and mutual support within the family and the society at large. Justice itself is a manifestation of God’s mercy as well as an objective of the Shari’ah in its own right. Compassion (rahmah) is manifested in the realization of benefit (maslahah) which the ‘Ulama’ (scholars) have generally considered to be the all-pervasive value and objective of the Shari’ah and is to all intents and purposes synonymous with rahmah” (mercy).
“Educating the individual (tahdhib al-fard) is another important objective of the Shari’ah so much so that it comes, in order of priority, even before justice and maslahah. For these are both socially-oriented values which acquire much of their meaning in the context of social relations, whereas tahdhib al-fard seeks to make every individual a trustworthy agent and carrier of the values of the Shari’ah, and it is through educating the individual that the Shari’ah seeks to realize most of its social objectives. The overall purpose of a great deal of the laws and values of the Shari’ah, especially in the spheres of ‘ibadat and moral teaching, is to train an individual who is mindful of the virtues of taqwa (god consciousness) and becomes an agent of benefit to others” as he realizes his beliefs through social action.
“The Qur’an is expressive, in numerous places and a variety of contexts, of the rationale, purpose and benefit of its laws so much so that its text becomes characteristically goal-oriented. This feature of the Qur’anic language is common to its laws on civil transactions (mu’amalat) as well as devotional matters (ibadat). Thus when the text expounds the rituals of wudu (ablution for prayer) it follows on to declare that “God does not intend to inflict hardship on you. He intends cleanliness for you and to accomplish his favor upon you” (5:6). Then with regard to the prayer itself, it is declared that “truly salah (prayer) obstructs promiscuity and evil” (29:45). With reference to jihad (struggle) the Qur’an similarly proclaims its purpose in such terms that “permission is granted to those who fight because they have been wronged” (22:39). The purpose, in other words, of legalizing jihad is to fight injustice (zulm) and the purpose of salah (prayer) is to attain spiritual purity and human excellence (Ihsan), that are accomplished together with physical cleanliness through ablution, before prayer. With reference to the law of just retaliation (qisas), the text similarly declares that “in qisas there is life for you, o people of understanding” (2:179); and with regard to poor-due (zakah, charity), the Qur’an validates it “so that wealth does not circulate only among the wealthy” (57:7). According to another text, the believers are under duty to lower their gaze in their encounter with members of the opposite sex, “for this will help you to attain greater purity” (24: 30)”.
Some Muslim scholars of jurisprudence, said that Allah revealed such a legislative system or Shari’ah in order to achieve Justice. Other jurists said it is for the purpose of achieving happiness and some others such as Imam al- Ghazali, said it is only for the achievement and the realization of the very benefits of man on earth. “The jurist’s believe that the rules of Shari’ah follow objectives (maqasid) which are in harmony with reason. A rational approach to the discovery and identification of the objectives and intentions of the Lawgiver (Allah) necessitates recourse to human intellect and judgment in the evaluation of the ahkam (laws)”.
Maqaid al-shariah (Objectives of the Shariah) explain the ‘wisdoms behind rulings,’ such as ‘enhancing social cohesion,’ which is one of the wisdoms behind charity, and looking after one’s neighbors, or greeting people with peace (Asalamu Alaikum). The wisdoms behind rulings also include ‘developing consciousness of God,’ which is one of the rationales behind regular prayers (salat), fasting (swam), and supplications (dua), being aware of Allah helps man focus on building society and contributing to it rather than it’s destruction, the result of not having a moral compass.
A community that is secure in it’s identity can be generous in regards to who can freely live within it’s borders, this is why the Muslim Khalifah’s often invited Jews and Christians being persecuted in Europe to live within islamic lands, not only setting up new communities but being allowed to govern them according to their own tenants of faith, this was the result of the work muslims did to be aware of Allah as a society, it shaped how they viewed others.
The Maqasid of the Shariah aim to achieve the greater good by opening, or blocking, certain means that lead to Harm or away from it. Thus, the maqasid for ‘preserving people’s minds and souls’ explain the total and strict Islamic ban on alcohol and intoxicants, and the maqasid for ‘protecting people’s property and honour’ explain the Qur’an’s mention of a ‘death penalty’ as a possible punishment for rape or armed robbery.
For a number of Islamic Scholars, maqasid are an alternative expression for masalih (people’s interests) “Any attempt to implement the law should take into account not only the externalities of the law but also the rationale and the intent behind it. Thus when a man utters the credo of Islam to achieve worldly gain or to attain social prestige, his confession is not valid. The reason is that the true purpose of confession to the faith is the exaltation and worship of Allah, and if this is violated, a formal confession is of no value. Similarly, if a man says a prayer for the sake of display and self-commendation, it is not valid. The real purpose and value of the law is therefore of primary importance, and indeed it is necessary that the mujtahid (legislator) identifies it so as to be able to implement the law in accordance with its purpose”.
Because Islamic Law outlined peoples rights and defined their best interests so clearly it shouldn’t be a surprise that the fathers or Europe’s enlightenment adopted from it, by the 16th century Europe was translating almost any Islamic texts they could find, not simply Law but Medicine, Art, Mathematics, Accounting, Philosophy, History, Sociology, Geography Topography, Astronomy, Mineralogy, Mechanics, Zoology, Chemistry, Physics, etc.
To them it was a stark contrast to the dark times Europe was in but it was Islamic Law which protected peoples rights this clearly that allowed all the other areas of science to develop in an atmosphere of toleration, this began Islam’s golden Age of science and discovery.
Development Of The Maqasid Of Shariah
Because Law was one of the first sciences to be widely discussed and written about in Islam by the 16th century it was also the most developed.
1. Al-Tirmidhi al-Hakeem (d. 296 AH/908 CE) wrote one of the first known volumes dedicated to the topic of maqasid, in which the term ‘maqasid’ was used in the book’s title, al-Salah wa Maqasiduha (Prayers and their Purposes or Objectives). The book is a survey of the wisdoms and spiritual ‘realities’ behind each of the acts of prayer, with an emphasis on the science of Ihsan (Human perfection) as mentioned in the famous Hadith of Jibril. Examples are ‘confirming humbleness’ as the maqasid (Objective) behind glorifying Allah with every move during prayers, ‘achieving consciousness’ as the maqasid (Objective) behind praising God, ‘focusing on one’s prayer’ as the maqasid (Objective) behind facing the direction of the Kabah, and so on.
Imam Al-Tirmidhi also wrote a similar book on pilgrimage, which he entitled, al-Hajj wa Asraruh, Pilgrimage and its Secrets, or inner reality, secrets here should be understood by its scientific connotation as it alludes to the physiology of the human body and the systems Allah created and placed in it, so the secrets or rather science of prayer refer to how prayer effects the physiology of the body and self, similarly with the secrets/science of Hajj.
Modern scientific terminology was only used in our era, the ancient world had its own scientific language we need to translate hence the word secret to an ancient scholar means science in todays terminology because to understand science was to understand the secrets of the universe.
2. Abu Zaid al-Balkhi (d.322 AH/933 CE). Wrote one of the first books on the maqasid of dealings (mu’amalat), al-Ibanah an ilal al-Diyanah (Revealing Purposes in Religious Practices), in which he surveys the various purposes behind Islamic rulings. Al-Balkhi also wrote a book dedicated to maslahah (public interest), which he entitled, Masalih al-Abdan wal-Anfus (Benefits for Bodies and Souls), in which he explained how Islamic practices and rulings contribute to health, physically and mentally.
It was another early work on the Physiology of the human body, specifically the connection between the practices of religion and it’s effects on the Body. Our nature is key to understanding the wisdom behind the Prophet’s and companions words, and these kind of works are at the heart of the Islamic science of Tasawwuf, sufism, which is the science of perfecting the self.
3. Al-Qaffal al-Shashi al-Kabeer (d. 365 AH/975 CE). One of the oldest manuscript in the Egyptian Dar al-Kutub on the topic of al-maqasid is al-Qaffal’s Mahasin al-Sharia (The Beauties of the Law). The work is divided into the familiar chapters of traditional books of fiqh (starting with purification, and then ablution and prayers, etc). He mentions each ruling briefly and elaborates on the purposes and wisdoms behind it.
The manuscript is fairly clear and contains around 400 pages. The last page mentions the date of the book’s completion, which is the 11th of Rabi’ul- Awwal 358 H (7th of February, 969 CE). The coverage of the rulings of fiqh is extensive, addressing individual rulings but without introducing any general theory for the purposes.
The following is a translation of an excerpt from the introduction:
… I decided to write this book to illustrate the beauties of the revealed Law, its magnanimous and moral content, and its compatibility with sound reason. I will include in it answers for those who are asking questions about the true reasons and wisdoms behind its rulings. These questions could only come from one of two persons. The first person attributes the creation of the world to its Creator and believes in the truth of prophethood, since the wisdom behind the Law is attributed to the Wise Almighty King, who prescribes to His servants what is best for them … The second person is trying to argue against prophethood and the concept of the creation of the world, or maybe is in agreement over the creation of the world while in rejection of prophethood. The logical line that this person is trying to follow is to use the invalidity of the Law as proof for the invalidity of the concept of a Law-Giver …
4. Al-Amiri al-Failasuf (d. 381 AH/991 CE) introduced one of the earliest known direct theoretical classification of purposes in his ‘al-I’lam bi-Manaqib al-Islam’ (Awareness of the Traits in Islam). Al-Amiri’s classification was solely based on ‘criminal punishments’ in Islamic law (Hudud).
The fifth Islamic century witnessed the birth of the next phase of Islamic Legal theory. Methods and tools for legal theory that were developed, by the fifth century, such as Qiyas (analogy), Ijtihad, (independent Reasoning), Istihsan (Equality of Islamic Law), become part of the greater whole as Islamic civilization became increasingly complex and it became increasingly difficult to apply them to the greater situation the Ummah found itself in, as the world changed.
These tools helped in the understanding of how to Apply the Qur’an and Sunnah (way of the prophet) to the “overall picture” of the Ummah (muslim nation), this was done by identifying the overall objectives of the Qur’an and Sunnah and then looking at law in an abstract manner. The theory of ‘unrestricted interest’ (al-maslaha al- mursalah) was developed as a method that covers ‘what was not mentioned in the scripts.’ This theory filled a gap in the literal methodologies and, later, developed into the theory of maqasid in Islamic law.
The jurists who made the most significant contributions to the conceptualizations of maqasid, between the fifth and eighth Islamic centuries, are: Abu al-Maali al-Juwaini, Abu Hamid al-Ghazali, al-Izz Ibn Abdul-Salam, Shihabuddin al-Qarafi, and, most significantly, Abu Ishaq Al-Shatibi.
5.Imam Abu al-Maali al-Juwaini (d.478 AH/1085 CE) wrote ‘al-Burhān fi Usul al-Fiqh’ (The Proof in the Fundamentals of Law), which was the first juridical treatise to introduce a theory of ‘levels of necessity’ for life in a way that is similar to today’s familiar theory. He suggested five levels of maqasid, namely, necessities (al Duraat), public needs (al-hajah al-amah), moral behaviour (al-makrumat), recommendations (al-mandubat), and ‘what cannot be attributed to a specific reason.’ He proposed that the purpose of Islamic law is the protection or inviolability (al-ismah) for people’s ‘faith, souls, minds, private parts (purity), and money.’
6.Imam Al-Juwaini’s student, Abu Hamid al-Ghazali (d.505 AH/1111 CE), developed his teacher’s theory further in his book, al-Mustasfa (The Purified Source). He ordered the ‘necessities’ of life that al-Juwaini had suggested in a clear arrangement, as follows: (1) faith, (2) soul, (3) mind, (4) offspring, and (5) wealth. Al-Ghazali also suggested the term of ‘preservation’ (al-Hifz) of these necessities.
Imam al-Ghazali stated that Maqasid (Objectives) and Masalih (peoples interest) did not have independent juridical legitimacy (Hujjiyah) from the Quran and Sunnah, you can’t not derive new Laws from them independent from Islams primary sources, and called them ‘the illusionary interests’ (al-masalih al-mawhumah) because they themselves are derived from the sources (Quran and Sunnah) rather than being implied literally, as other ‘clear’ Islamic rulings are. Al-Ghazali also suggested a ‘fundamental rule,’ based on the order of necessities of life, he suggested, that the higher-order of necessity should have priority over a lower-order necessity, if they are at odds with each other in practical cases.
7.Imam Al-Izz Ibn Abdul-Salam (d.660 AH/1209 CE) wrote two small books about al- maqasid, the ‘wisdoms-behind-rulings’, namely, Maqasid al-Salah (Purposes of Prayers) and Maqasid al-Sawm (Purposes of Fasting). However, his significant contribution to the development of the theory of al-maqasid was his book on (public) interests (masalih), which he called, Qawaid al-Ahkam fi Masalih al-Anam (Basic Rules Concerning People’s Interests). Beside his extensive investigation of the concepts of interest and mischief (harm), Imam al-Izz linked the validity of rulings to their purposes and the wisdoms behind them. For example, he wrote: ‘Every action that misses its purpose is void,’ and, ‘when you study how the purposes of the law brings good and prevents mischief, you realize that it is unlawful to overlook any common good or support any act of mischief in any situation, even if you have no specific evidence from the sources (Qur’an and Sunnah), consensus (Ijmaa), or analogy (Qiyas).’
Since the primary sources did not speak about every situation man could find himself in explicitly they had to be categorized underneath what Allah did mention and from this their specific ruling could be derived, this is because Allah in the Quran said “We have explained in detail in this Quran, for the benefit of Mankind, every kind of similitude: but man is, in most things, contentious.”(18:54), and “Indeed we have set forth for mankind, in this Quran every kind of parable. But if you bring to them any sign or proof, the disbelievers are sure to say: “You follow nothing but flasehood”.(30:58)
8.Imam Shihabuddin al-Qarafi (d.684 AH/1285 CE) contributed to the theory of maqasid, as we know it today, by differentiating between different actions taken by the Prophet based on the ‘intents’ of the Prophet (peace be upon him) himself. He writes in his ‘al-Furuq’ (The Differences):
There is a difference between the Prophetic actions as a conveyer of the divine message, a judge, and a leader … The implication in the law is that what he says or does as a conveyer goes as a general and permanent ruling …
9.Imam Abu Ishaq Al-Shatibi (d. 790 AH/1388 CE). Imam Al-Shatibi used similar terminology to that of Imam al-Juwaini and Imam al-Ghazali. The Imam raised the question: what is the end objective of the Shari’a? Imam Al Shatibi had studied the works of earlier scholars, such as Imam al-Ghazali, who had also touched on this question. He discussed the issue at length and gave the following answer: “The rules of Shari’a, have been designed to produce benefits (masalih) and remove evils (mafasid) and these are certainly their ends and objectives.” And “the masalih are those which promote the preservation and fulfillment of human life, and the realization of all that human nature and rationale demands, until one is happy in every respect.”
He developed a model of Shari’a consisting of three concentric circles. The innermost circle deals with the essential laws in relation to the five basic interests (of life). The second circle covers those laws and practices that are not directly related to these essential laws, but are incorporated into Shari’a due to public convenience. The third, outermost circle consists of laws formed by finer elements of social practices such as modesty, cleanliness, and other cultural norms.
Shari’a adopts these elements because they reflect reasonability and cultural preferences within a society.
Imam al Shatibi divided Shari’a laws into rituals and worship (ibadat) and reasonable customs (adat), He further elaborates on how the adat (Habits, Behavior) determine the good and evil and how Shari’a endorses the results. He explains that benefits (maslaha) do not exist in a pure and absolute form, but are mixed with discomfort, hardship, or other painful aspects (mafsada), because the world is created from a combination of opposites, with hardship comes benefit and ease.
Imam al Shatibi also classified human needs into three categories, the inevitable (daruriyyah), the needed (hajiyyah) and the luxuries or refinements (tahsiniyyah). He elaborated on the principle that individual action cannot be allowed to injure other people’s interest and emphasized the protection and promotion of social interest as objectives of Islamic law.
Imam al-Shatibi, wrote that it is incumbent upon the Mufti (religious leader) to carry people on a way that is balanced and moderate. His basis for this were the numerous Qur’anic verses and Hadith that emphasize moderation and caution regarding one’s expression of faith.
In his famous al-Muwafaqat he states two important reasons for the ease and removal of hardship found in the Shari’ah that lead one towards a balanced religious expression:
- To protect people from hating worship and religion because over burdening rituals will only increase people’s dislike and disdain for faith.
- Enable people to observe the rights of self, family and society. If people are so engrossed in rituals and acts of worship that they neglect the things around them, or are forced to neglect them, then the world will fall into chaos, and a stain will appear in their hearts towards worship.
Rather it is a sunnah (act of the prophet) that the day be split into three six hour portions, the first six hours for work, the second six hours for family and the third six hours worship and what remains for the self and sleep. The muslim work day begins soon after the fajir (morning) prayer and the day is divided from this point on. The difference between this and modern times is the balance it creates in the individual, family and ultimately society. Another difference is that the muslim week begins on Sunday and ends on Saturday, muslims however worked seven days a week, although shorter days, and generally took half a day of on Friday for congressional prayer.
In the long term people where less stressed, happy and could dedicate more time to family, themselves and their pursuits. If no time was given to the self then people had less time to grow and perfect their interests because we are commanded by Rasul Allah (saws) to perfect what ever we choose to do, this is what it means to be muhsinuun, in other words those who practice human perfection (Ihsan), as it is mentioned in the Qur’an.
What distinguished Imam al-Shatibi’s interpretation is that he developed the theories by emphasizing that the maqasid al-shari‘a and masalih could override specific legal rulings. Imam Shatibi illustrates this by saying that nowhere in the Qur’ân is there a specific declaration to the effect that the Shari’ah has been enacted for the benefit of the people. Yet this is a definitive conclusion which is drawn from the collective reading of a variety of textual proclamations. Yet just as there is wisdom behind mentioning something specifically there is also wisdom behind not mentioning something and this is illustrated by the Hadith regarding the sahabah (companions) who used to ask the prophet about the minutest details of the religion until He (saws) advised them that the Jews did such a thing and their messenger answered their questions, but this only increased the burden that was placed on them, because when something is mentioned specifically by Allah and his messenger (saws) it becomes obligatory on the people to act upon it, so there is mercy (Rahma) in silence.
Al-Shatibi’s book became the standard textbook on maqasid al-shariah in Islamic scholarship until the twentieth century, but his proposal to present maqasid as ‘fundamentals of the shariah,’ as the title of his book suggests, was not widely accepted.
This is because of the element of Human Judgment regarding what ultimately benefits or harms man, there is no definitive answer to this upon matters that the Quran and Sunnah are silent upon.
Establishing a just society (focusing on the kulliyyah) are the goals (maqasid) of the Shari‘a, while the juz’iyyah (specific legal rulings) are then the means to those goals. Islamic Law “requires that we should focus on public interests and universal principles such as justice, respect and protection of a person’s beliefs, protection of life, protection of sanity and intellect, preservation of lineage (family), and protection of a person’s property or wealth, among other things to achieve this in society.
Allah says in the Quran “Alif. Lam. Mim. THIS DIVINE WRIT – let there be no doubt about it, it is [meant to be] a guidance for all the God-conscious who believe in [the existence of] that which is beyond the reach of human perception (ghayb, the quantum universe), and are constant in prayer, and spend on others out of whatWe provide for them as sustenance; and who believe in that which has been bestowed from on high upon thee, [O Prophet,] as well as in that which was bestowed before thy time (on earlier prophets), for it is they who in their innermost are certain of the life to come! It is they who follow the guidance [which comes] from their Sustainer; and it is they who shall attain to a happy state! (2:1-5)
The Maqasid Model
The Maqasid of Islamic Law was revealed for one basic universal purpose: to realize the best interests of humans on earth.
Maslaha in the Arabic language literally translates as benefit or interest, it is defined by Imam al-Ghazali as that which secures a benefit (for man) or prevents harm (from him).
Human nature tends naturally to seek happiness, but this cannot be achieved unless people cooperate with each other, but cooperation is impossible unless people strive to live a peaceful life. Peace and security cannot be achieved unless there are rules to protect the rights of all equally. However, rules and legal regulation are useless without a source of authority to enforce them and apply them equally, in Islam this was done through educating people regarding the laws that govern their religion in this way part of the job was done by people wishing to follow their God and guiding others to do the same.
In todays world an increasing number of police are required to keep the society civil, this is the draw back of secularism it’s laws are seen as no more than points on a piece of paper having no moral relevance as they are largely made up by those who govern, while in Islamic society people lived out their knowledge and understanding of religion, and while courts and those who enforced the law clearly existed it was largely a self policed society with people encouraging each other to practice Ihsan (Human perfection) because they collectively understood it’s significance and that this life was a transient one as death comes to all.
In Medieval Europe were man was detached from the original society the Injeel (revealed Bible) was sent to, he could not even fathom a higher form of justice or morality, they lacked it’s cultural understanding along with the tools to be even capable of developing beyond their own traditions and preconceived ideas that trapped them in this dark cycle. It isn’t enough that a revealed book be introduced into a new land, people had to be trained to interpret it according to it’s author’s own understanding otherwise they form their own ideas and beliefs, this was an impossible task considering that the bible’s time period had now passed on and wasn’t preserved.
In contrast by the time of Imam Ghazali’s death in 1111.AD, Islamic Law was well developed and adopted around the muslim world with many academic tools invented to preserve the culture, language and understanding because Muslims had the benefit of hindsight christians did not, literally it was because of what they saw occurred to the christian and jewish texts and culture that spurred the muslims to preserve not just the text but it’s understanding, these tools were then exported to other parts of the world.
Hence at every stage of social advancement in Europe, beginning with the renaissance in Spain which took from the Islamic Spain it conquered, and later the enlightenment and American declaration of Independence, they imported and adopted Islamic knowledge that gave Europe an injection of new ideas and thought which freed them from the cycle they were in, these tools eventually helped them to later develop there own ideas and understanding.
For all the above reasons the Divine wisdom revealed Shari’ah to help man achieve the masalih or benefits of people in the two following ways:
First, by procuring these masalih (or by bringing them about), since people cannot bring about the benefits of mankind equally; they discriminate against each other, they kill each other, they steal from each other, they humiliate others for various reasons such as color, ethnicity, power, social status and the like. In one word they present their interest as central and others are only a means to achieve their own ends. Allah is an absolute justice who legislates to mankind what is beneficial to all.
Second, Islamic Divine Law achieves its goal by preserving or protecting these human universal benefits by setting rules and regulations with sets of prescribed punishments, The Islamic Divine Law then has a two-fold function.
Though Imam al-Ghazali defined Maslaha as that which secures a benefit or prevents harm, however, the benefits mentioned in Islamic Divine Law have been categorized into three kinds by the scholars:
First: accredited benefits (Masalih Mu’tabarah), which are regulated by The Lawgiver in the sense that a textual authority (such as the Qur’an and Sunnah) from the divine law could be found to prove their validity.
Second: nullified (prohibited) benefits (Masalih Mulghat): these are other kinds of benefits and interests that the Shari’ah prohibited because they lead to harm and hardship (Mafsadah), such as stealing or usury.
Third: unregulated benefits (al-Masalih al-Mursalah), since the benefits of people can be as numerous as their public interests, we find that the divine law did not regulate a number of these benefits directly but by similitude. So their validity is not clearly apparent and must be identified using Ijtihad (Legal Reasoning). In the principles of jurisprudence these kinds of benefits are called the unregulated benefits, and it is left for legal scholars or jurists to work on them.
Imam al-Ghazali said masalih or benefits should be harmonious and consistent with the objective (Maqasid) of the Shari’ah, since the basic purpose of legislation (tashri’) is to protect the interest of people against harm.
Objectives or Maqasid of Islamic law themselves are classified in various ways, according to a number of dimensions. The following are some of these dimensions:
- Levels of necessity, which is the traditional classification.
- Scope of the rulings aiming to achieve the Objectives.
- Scope of people included in the Objectives.
- Level of universality of the Objectives.
When the Maqasid are looked at in terms of priority, importance and benefits they were similarly divided by Muslim scholars into three kinds. They are prioritized with the Qur’an and Sunnah at its heart, the masalih then revolve around each other with the Islamic creed (Aqeedah) and the Shariah as the main source of legislation:
- The first priority of the masalih are the Necessities, (Da.ru.riy.yat)
- The second priority of the masalih are the Needs, (Ha.jiy.yat), and
- The third priority of the masalih are the Luxuries, (Tah.seen.niy.yat)
“Necessities are further classified into what ‘preserves one’s faith, soul, wealth, mind, and offspring.’ Some jurists added ‘the preservation of honour’ to the above five widely popular necessities. These necessities were considered essential matters for human life itself. There is also a general agreement that the preservation of these necessities is the ‘objective behind any revealed law,’ not just the Islamic law.”
“Maqasid at the level of Needs are less essential for human life. Examples are marriage, trade, and means of transportation. Islam encourages and regulates these needs. However, the lack of any of these needs is not a matter of life and death, especially on an individual basis”.
“Maqasid at the level of luxuries are ‘beautifying purposes,’ such as using perfume, stylish clothing, and beautiful homes. These are things that Islam encourages, but also asserts how they should take a lower priority in one’s life”. It is significant that the Islamic civilization by the 11th century was debating the place of luxuries in everyday life, while Europe did not even value the place of the personnel gardens until Spain was conquered from the Muslims, they became shocked at the luxurious they found and after forcing muslim artisans to divulge their secrets during the inquisition, this later started the renaissance in Europe.
We have to understand that before these islamic developments, now taken for granted, the world looked vastly different.
“The three levels in the hierarchy are overlapping and interrelated, in addition, each level should serve the level(s) below. Also, the general lack of one item from a certain level moves it to the level above. For example, the decline of trade, during an economic crises, moves ‘trade’ from a ‘need’ into a ‘life necessity,’and so on. That is why some jurists preferred to perceive necessities in terms of ‘overlapping circles,’ rather than a strict hierarchy”.
From this understanding the Ullumah (scholars) have then identified ‘five essential values’ of life that are universal necessities or priorities “on which the lives of people depend, and whose neglect leads to total disruption and chaos.”
These five necessities have been labeled as the “Five Maqasid of Shariah”, and there preservation is essential. Three of which were used in the American Declaration of Independence, they are :
- Religion
- Life
- Intellect
- Procreation
- Property
Imam al Ghazali said that any measure which secures these values also falls within the scope of maslahah (peoples interest), and anything which violates them is mafsadah (evil), and preventing the latter is also maslahah. More technically, maslahahl mursalah (Public Interest) is defined as a consideration which is proper and harmonious (wasf munasib mula’im) with the objectives of the Lawgiver (Allah).
Because these five necessities are derived from Shari’ah as necessary and basic for human existence, therefore, every society should preserve and protect these five necessities; otherwise human life would be harsh, brutal, poor, and miserable, in this world and the hereafter.
The Objectives of Shariah do not simply look after the interest of people in this world but the next as well and are key to identifying what ultimately benefits man in this life.
Needs are matters that remove restrictions and difficulties in applying the five necessities. Allah says in The Qur’an:
“Allah does not want to place you in a difficulty, but He wants to purify you, and to complete His favor to you, that you may be grateful.” (Qur’an, 5:6)
In another chapter Allah says: “Allah intends for you ease, and He does not want to make things difficult for you.” (Qur’an, 2:185)
The divine law grants people concessions (rukhas) in cases of hardship such as sickness, and traveling, but neglecting these Needs will lead to hardships in life, but not chaos and collapse.
Luxuries are intended to render human affairs or conditions more suited to the requirements of the highest standards of moral conduct. They “denote interests whose realization leads to improvement and the attainment of that which is desirable.”
Thus, the observance of cleanliness in personal appearance and in spirituality, the growth of moral virtues, the avoidance of wastefulness in consumption, and moderation in the enforcement of penalties, fall within the scope of Luxuries.
From contemplation on these benefits a systematic set of legal rules and principles was deduced known as Qawaid al Fiqh, the Maxims of Islamic Law, such as:
- Harm must be removed.
- Public harm or loss is averted by the private assumption of loss.
- The greater of two harms is averted by assumption of the lesser.
- Averting harm is to be preferred over procuring of benefits.
- Cases of necessity make permissible what is normally forbidden or restricted.
- Necessity is determined by the specific circumstances.
- Hardship in a situation secures lenience for people.
- It is not permissible to do what will harm one’s self.
The Question Of The Ship and Torture
“Three hundred people were in a boat sailing on the sea. They realized that their safety was at risk, and the lives of the majority could only be saved by throwing 10 people overboard. Would it be morally right to kill 10 people in order to save 290?”
“Would you torture one person to save the lives of many?”
In most cases prisoners of war do not have nuclear launch codes to a dirty bomb or are even in a situation were America is held to ransom, most are simply soldiers with information the American military needs in their wars, so the two cases that of the ship and prisoners of war are relatively similar.
Based on the Maqasid (Objectives) of Shariah Imam al-Ghazali said regarding his example of the abandoned ship that it is morally wrong to kill some people in order to save others.
Why? Imam al-Ghazali gave three reasons against the justification of killing in this case:
1.Universality: the benefit of people, in this case the majority, is not a universal benefit, it is only the interest of a small community who are going to use others as means to their end.
2.Necessity: the benefit of those people on the boat is not necessary to a degree to break another necessity and kill humans.
3.Certainty: we are not certain that killing those people is going to save the rest. What if they killed them and after that they faced another problem at sea, should they kill another 10 people to save the rest? This is morally unjustifiable and becomes out of control.
In Islam the life of every single human is unique and precious; it is one of the five necessities and must be preserved and protected. Allah commanded Muslims in the Qur’an that killing is prohibited, and to kill one soul, in Allah’s judgement, is as if you killed the entire human race and to save one soul is as if you saved the entire human race, so then how can you kill the entire human race to simply save a community, when people account for their actions each life taken will then weigh as the entire human race on that day along with it’s retribution.
Two moral realities can be derived from the example above, consequences, regardless of how they seem, do not justify such immoral acts. And the end result, no matter how immediately beneficial to us, do not justify the means by which we achieve them. Even if gain is achieved it is temporary and the consequences we would face with Allah would be more severe as our actions are unjustifiable.
When Allah created man he said to the Angels he was going to place a Khalifah on earth. Allah’s Khalifah means Allah’s representative and vicegerent, who takes care of affairs on behalf of Allah, this position is entirely in relation to mankind’s sovereignty over other creatures on this planet, and to help us understand what we are responsible for, Allah revealed to man the many books and Religion as a whole.
Allah asks us to be mindful of his creatures and to pay attention to them: “And there is no creature on [or within] the earth or bird that flies with its wings except [that they are] communities like you. We have not neglected in the Register a thing. Then unto their Lord they will be gathered.” (Qur’an, 6:38)
He asks us to be mindful of what we kill, then instructs us to not overstep these limits and destroy entire species: “Eat and drink from the provision of Allah, and do not commit abuse on the earth, spreading corruption.” (Qur’an, 2:60)
He asks us to look after the atmosphere, be mindful of its state and not to destroy it; “And We made the sky a protected ceiling (canopy), but they, from its signs, are turning away.” (Qur’an, 21:32)
He asks us not to waste what has been placed on earth and be excessive in what we take: “But waste not by excess: for Allah loveth not the wasters” (Quran 6:141)
He asks us to look after the balance of nature and this earth: “And He has raised the heaven and set up the balance, [declaring] that you should not contravene with regard to the balance. And observe the measure with justice and do not skimp the balance. And the earth, He placed it for [all] creatures. In it are fruits and date-palms with sheaths, and grain with husk, and fragrant herb (don’t even harm these). So which of your Lord’s favours will you deny?” (55:7-13)
So then what of Human life itself by comparison, people who ask these questions have already lost their moral compass and balance, they’re now simply looking back at humanity and wondering, what was once there ?
Why Isn’t The Islamic World Still Prominent
Historically the Islamic world did experience decline, not simply towards the end of the Ottoman Empires time when the Colonial powers of Europe dismantled it piece by piece. Both Islam and the Bible state that Allah allowed the British Empire to conquer all other nations, when they began to worship the “dragon”. But this initial decline that began in the 12th century was largely due to external forces such as invading armies rather than a critical flaw in it’s systems, a true decline in the classical sense did not begin to occur until the 17th century.
For example the great wall of China had to be built to stop the mongol hordes from devastating China, because of this they later turned their attention in another direction towards Islamic lands eventually devastating the civilization muslims had built.
While china found no lasting solution to the golden horde it was actually from this very horde that devastated many lands, almost reaching Europe, that the last Islamic Khalifah would come. After the horde now having converted to Islam the Ottoman Empire was established in the 13th century, it lasted for more than 600 years and while they excelled at everything dominating the other empires of the world until the 18th, they could not excel at what most scholars understood was the heart of Islam, Ihsan, the practice of Human perfection, this was largely due to the fact Islam was a religion they adopted from a previously militaristic tradition. They hadn’t understood and mastered it’s nuances to the same depths as previous generations of Muslims. In contrast the Islamic Golden Age occurred during the reign of the Abbasid Khalifah who were direct descendants of the prophets uncle Abbas.
Hence the Ottomans major advancements were in the physical sciences rather than advancing mankind’s understanding of the Maqasid of Shariah, what Allah wanted for man and then achieving it, this was the very thing that fostered Islam’s Golden Age before their time.
This reality the Ottomans found themselves in is beautifully summed up by Allah in the following verse:
“As for those who strive hard in Us, We will surely guide them to our paths (of reality and knowledge). And verily, Allah is with those who perfect themselves (al Muhsinun)”. (29:69)
(The main Source for this article: Al-Qawaid al-Fiqhiyyah (Islamic Legal Maxims): Concept, Functions, History, Classifications and Application to Contemporary Medical Issues. Fawzy Shaban Elgariani)