Public Policy in Islam: Exploring Synergies between SiyÉsah SharÑiyyah and MaqÉÎid al-Shari’ah (Part 2)

By Mohammad Hashim Kamali

19 June 2015

MaqÉÎid strike a close note with the rationale, ratio legis, and effective causes (‘ilal) of the Ahkam. Ibn Qayyim al-Jawziyyah who has explored this subject in considerable detail has noted that the number of such references in the Qur’an alone reaches, not just one or two hundred instances as others had earlier estimated, but that in over one thousand places the Qur’an either directly or indirectly and in diverse manners of expression and language identifies the rationale, purpose, benefits and consequences of its rulings. All of these are then used as indicators toward the identification of maqÉÎid.30

Other names that stand out, next to al-ShÉÏibÊ and ÙÉhir ibn ‘AshËr, in the development of maqÉÎid are those of Imam al-Haramayn al-Juwayni (d. 1058CE), and his disciple al-Ghazali. Al-Juwayni was the first to classify the maqÉÎid into the three classes of essential, complimentary, and embellishments (ÌarËriyyÉt, ÍÉjiyyÉt and taÍsÊniyÉt respectively), a classification which has gained general acceptance ever since. Abu Hamid al-Ghazali (d.1111CE) was the first to classify the ÌarËriyyÉt into the five headings of faith, life, intellect, lineage and property.31 Taqi al-Din Ibn Taymiyyah (d.1328) was probably the first to depart from the notion of confining the maqÉÎid to a specific number and added to the existing list of five maqÉÎid such other themes as fulfilment of contracts and trusts, honouring the rights of one’s parents and neighbours, and moral purity etc., themes which he said also featured prominently in the Qur’an and Sunnah. In his renowned MaqÉÎid al- Shar’iah al-Islamiyyah, Ibn ‘Ashur provided a definition, as already noted, for the maqÉÎid and added further to its existing classifications.32 In line with Ibn Taymiyyah’s views, Yusuf al-Qaradawi (b.1926/1345) has further extended the scope of maqÉÎid to include social welfare support (al-takÉful al-ijtimÉ’i), human dignity and freedom, whereas the present writer has also added economic development, R & D in technology and science, as well as peaceful co-existence among nations to the maqÉÎid as they too are crucially important and can find support in the Qur’an and Sunnah.33

It hardly needs elaboration to say that politics and constitution in the Arab world bore the imprints of Western colonial legacy as well as the legacy of historical neglect of the Islamic past, due to the prevalence of despotism, and neglect of Islam’s guidelines on consultation, justice and MaÎlaÍah. This was strongly resonated in the Islamic revivalist movement of the latter part of twentieth century and the call hence that law and politics in the Muslim world must reconnect with Islam’s own normative guidelines and heritage- and the Islamic state ideas. The effort now to develop politics from the viewpoint of Islamic norms, or siyÉsah in light of the maqÉÎid, is in many ways original and still in its early stages of development.

There is little merit in the view some commentators have advanced over the need for a separate discipline in the name of political Maqlad (‘Ilm maq ÉÎid siyÉsÊ). The proponents of this view have held that the existing knowledge of maqÉÎid and its five main varieties that were identified so long ago no longer corresponded to the exigencies of contemporary politics. That the maqÉÎid theory developed by al-Shatibi and others is legalistic and not comprehensive enough to encapsulate the wider ranges of objectives that find support in – the revealed sources. This is a rash conclusion perhaps, as the classification of maqÉÎid into various types as well as contributions by Ibn Taymiyyah, al-Qaradawi and others go a long way to accommodate such a suggestion. Besides, the idea to segmentise the maq ÉÎid in the name of separate disciplines would stand at odds with the unitarian spirit of the maqÉÎid, and may extend the claim to other areas – and not perhaps advisable.34 There should be no objection, on the other hand, to the elaboration of maqÉÎid with reference to particular subject areas such as crimes and penalties, muÑÉmalat and contracts and so forth.

Certain new developments, such as Islamic banking and finance that emerged in the latter part of twentieth century and grew at an exponential pace, were market driven more than knowledge driven. A groundswell of criticism has developed as of late over the authenticity and Shari’ah compliancy of some of the IBF products. The critique has generally been that the industry has followed the Fiqh rules but not the purpose and spirit of those rules – hence a renewed focus on the maqÉÎid to provide the desired sense of direction and assurance over the credibility of IBF.

32Whereas the maqÉÎid were hitherto classified into the general maqÉÎid (al- maqÉÎid al-‘Émmah), and partial maqÉÎid (maqÉÎid juz’iyyah), Ibn ‘Ashur added the intervening category of specific objectives (maqÉÎid khÉÎÎah) and placed under this category the maqÉÎid pertaining to family, maqÉÎid in financial transactions, maqÉÎid also of adjudication and testimony, and Maqlid of punishments (maqÉÎid al-‘uqËbÉt).

When Malaysia’s incumbent Prime Minister, Najib Razak, announced in January 2015 the introduction in Malaysia of the maqÉÎid Shari’ah index of governance, it was giving the maqÉÎid a new profile as guide to government policy. This was yet another new projection of the maqÉÎid, from IBF to the wider arena of governance.35 This may well be marking a new phase in the development of the Islamic state idea, which has been around for some decades, but ran in different directions, and has yet to generate consensus, partly due to politicisation of Islam, radical fundamentalism and violence that ran parallel courses, and evolution of ideas on the theory and practice of Islamic state was met with disruptions.

MaqÉÎid have been classified into several types, depending on the viewpoint and purpose of classification. An overview of the classification of maqÉÎid into the following five categories will help advancing a better understanding of the subject:

a) From the viewpoint of their relative importance, the maqÉÎid have been classified into the three categories of essential maqÉÎid (Ìarūriyyāt), complementary maqÉÎid (ÍÉjiyyāt) and desirabilities (TaÍsÊniyyÉt) as already mentioned. Only the first of these have been specified into the five headings of the protection of religion, life, intellect, family and property. Briefly the ÌarËriyyÉt are essential to the survival and spiritual well-being of the individual and society, so much so that their destruction and collapse would precipitate chaos and demise of normal order in society. The ÍÉjiyyÉt are defined as maqÉÎid or maÎÉliÍ that seek to remove severity and hardship which are, however, not essential to normal life and order. TaÍsÊniyyÉt are in the nature of desirabilities that seek to attain refinement and perfection in customs and conduct of the people at all levels, and they often complement the previous two classes of maqÉÎid.36

b) From the viewpoint of their scope, maqÉÎid have been further classified into the three categories of general purposes (al- maqÉÎid al-‘Émmah), particular purposes (al- maqÉÎid al-khÉÎÎah), and partial purposes (al- maqÉÎid al-juz’iyyah).37

The general purposes are those that extend to the whole of Shariah in all its parts and they are altogether broad and comprehensive. Realisation of benefit (MaÎlaÍah), prevention of harm and corruption (Ìarar, Mafsadah), building the earth (i’mÉr al-arÌ), administration of justice, and removal of hardship (raf’ al-Íaraj) are examples of the general purposes of Shari’ah. They differ from particular purposes in that the latter contemplate specific areas and subjects of the Shari’ah, such as commercial transactions, crimes and punishments, matrimonial law, worship matters, acts of charity and so forth. The two are not totally separate in that the particular maqÉÎid should observe and comply with the broader objectives of Shari’ah and should not go against the general maqÉÎid.38 purposes. However the last category is almost identical with ‘general purposes’- hence we combine the two classifications into one that consist of three varieties.

Partial purposes may be defined as those which signify the Lawgiver’s intention and purpose regarding particular rulings of Shari’ah in any area or topic. This is similar to what is known as the effective cause (‘illah, Íikmah ) of a ruling, which the jurist needs to identify in the construction, for example, of analogy (qiyÉs).39 One of the reasons why the uÎËl al-fiqh jurists have not expatiated on the maqÉÎid is that in their view ‘illah is about the same as the Maqlad of a ruling.40 That said, it is submitted that the ‘illah of a ruling may or may not be the same as its purpose. For the ‘illah of a ruling tends to be grounded in the status quo or existing order, whereas its end-goal and purpose may also be looking to the future and beyond status quo.

c) MaqÉÎid have also been classified into the Lawgiver’s purposes (maqÉÎid al-shÉriÑ) and the human purposes (maqÉÎid al-Mukallaf). To say that human welfare and benefit, or knowledge of religion, are God’s illustrious purposes in ordaining the laws of Shari’ah illustrate the former, whereas seeking employment, or university qualifications may represent the human purpose of seeking knowledge. It is generally recommended that all competent persons should bring, as far as possible, their own purposes into conformity with the maqÉÎid of the Lawgiver.41

d) Another classification of maqÉÎid is its division into primary purposes (al-maqÉÎid al- aÎliyyah) which the Lawgiver, or a human agent, have originally intended, whereas subsidiary purposes (al-maqÉÎid al-tabÑiyyah or far’iyyah) are those which support and complement the primary maqÉÎid. For instance, the primary Shari’ah purpose of marriage is procreation of the human species, which may or may not materialise in a marriage among elderly persons contracted with the purpose mainly of companionship – which is a secondary purpose.42

e) Lastly, the maqÉÎid may be either definitive (qaÏÑÊ) or speculative (ÐannÊ). The former signify purposes which are based in a clear text of the Qur’ān, Hadith, or general consensus (ijmÉÑ), and even induction (istiqrÉ’) according to al-Shatibi and Ibn ‘Ashur, whereas the latter may be based on a speculative text, rationality and ijtihad.43 In the event of a conflict between them, the definitive purposes of Shari’ah take priority over the speculative ones.

SiyÉsah and maqÉÎid may both be described as dynamic and flexible against the background of a rich heritage of the juristic thought of uÎËl al-Fiqh that was, however, textualist in orientation and also bore the influences of syllogism and intricacies of Greek logic. The maqÉÎid discourse is goal-oriented that can bring efficiency to decision making on contemporary issues, beyond the technicalities of the uÎËl al-fiqh doctrines. Valuable as these are, they are exceedingly elaborate and burdened at times minutiae at the expense some times of the broader sense of purpose the Shari’ah is meant to convey.

The precedent of Companions and leading imams is associated with flexibility and dynamism often exhibited in their responses to issues, fatwa and Ijtihad. The onset of indiscriminate imitation (taqlÊd) after the crystallisation of MadhÉhib, however, brought restrictions that constrained the free spirit of enquiry and interpretation. Then also the rift between the

ÑulamÉ’ and political leaders (umarÉ’) that began with the Umayyad ruler Mu’awiyah persisted such that politics and jurisprudence parted company and followed different courses, one dominated by the ÑulamÉ’ and the other by the umarÉ’, with little understanding and interaction between them. The ÑulamÉ’ were isolated from politics and they in turn hardly assigned a role to the umarÉ’ in their formulations of Ijtihad, ijmÉ’, and uÎËl al-fiqh doctrines. The rift continued and the question such as we now pose on how siyÉsah can be guided by the guidelines of maqÉÎid was basically not entertained.

URL of Part One: http://www.newageislam.com/islamic-ideology/mohammad-hashim-kamali/public-policy-in-islam–exploring-synergies-between-siyésah-sharñiyyah-and-maqéîid-al-shari’ah-(part-1)/d/108338

Source: hashimkamali.com/index.php/component/k2/item/182-public-policy-in-islam-exploring-synergies-between-siyasah-shariyyah-and-maqasid-al-shariah

URL: http://www.newageislam.com/islamic-ideology/mohammad-hashim-kamali/public-policy-in-islam–exploring-synergies-between-siyésah-sharñiyyah-and-maqéîid-al-shari’ah-(part-2)/d/108349

– See more at: http://newageislam.com/islamic-ideology/mohammad-hashim-kamali/public-policy-in-islam–exploring-synergies-between-siy%C3%A9sah-shar%C3%B1iyyah-and-maq%C3%A9%C3%AEid-al-shari%E2%80%99ah-(part-2)/d/108349#sthash.AbCS0pAR.dpuf

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