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Misuse of Maqasid al-Shariah (1)

Abu Rahma / September 13, 2017

Explanations of the modernists regarding the Maqaasid al-Shariah (higher objectives


theory): A critical study (1) by Dr. Sultan al-Umayri.

The modernist doctrine is based on what they call unquestionable principles and they propose
that belief in these principles is mandatory for everyone to adopt and anyone who does not
believe in these, then they are severely reprimanded by them.

The most important of these principles is the historical origin principle which means that all
events, actions, and texts have an origin, place, time and rules; these ideas and terminologies are
applicable for all times, however, they are subject to evolution and reuse.

This principle is at the top of the pyramid of the modernist doctrine and is considered the deepest
and most sacred factor of knowledge.

For this reason, the modernist discourse continues to strive to establish a historical view of
dealing with Islamic law and the tradition that exists around it, rather than the absolute view of
religious thought.

The modernist discourse does not hide the fact that it finds it very difficult to establish that view
in the contemporary Arab mind. For this reason, it often resorts to intellectual evasion. Instead of
dealing with the (Islamic) heritage, as if it is something alien and unrelated to them, they try to
look for something that relates to the tradition to build their own historical view upon it. Such an
attempt is considered a big change in their ways and reveals a large part of the crises of defeat
experienced by the Arab modernists.

They have been using Maqasid to look for their modernist discourse within the Shariah and
tradition in order to establish an intellectual history of their approach and its origins, and details
of its provisions.

The reader, when he/she comes across these theories, is interested and aroused with the modern
product which is packaged with extensive usage of the term Maqasid and extensive usage of the
concepts to which the term in this package belongs to. This leads to broad interest in the theory
and receives a great celebration in the intellectual forums, dialogues, and gatherings.

The modernist discourse, after taking the Maqasid theory as reference, starts neglecting the
details of Shariah as well as the duties that the Muslims are required to perform. They conclude
that the provisions of the Shariah are only to achieve the objectives; they serve as the means for
the end; the provisions of the Hudood are only there to deter the perpetrators of sin and to
achieve the purpose of justice and prevent the exploitation of the weak; therefore, in the detailed
provisions of the law, they do not carry any value in and of themselves; what the value they carry
is the achievement of their objectives. Hence, they argue that, if the objectives are achieved
through other means, there is no need for it (i.e. Shariah stipulated laws) and no justification for
its continuation and that this provision is comprehensive and inclusive of all the acts of worship.
The Shariah only came to achieve some objectives in an era, i.e. the Prophet’s (‫ ) ﷺ‬era and the
bottom line is that it is only a means to the end.[1]

To be more disciplined and to be further fair, we mention some of the statements from the
modernists to convey what they actually state:

One of those most interested in Maqasid theory is Abdul Majeed al-Sharafi. He says that Shariah
is in crises in current modernity and that there is no way out of this crises except by disposing off
all of the specifics that do not take into account the change in environment, history, and time and
place. He clarifies that such disposing off could be achieved by a number of ways including the
following:

‫ضي بحرفية النصوص – وال سيما النص القرآني – وإيالء مقاصد الشريعة المكانة المثلى في‬ِ ‫المر‬
َ ‫ضرورة التخلص من التعلق‬
‫س ِن التشريعات الوضعية التي تتالءم وحاجات المجتمع المعاصر‬
َ

There is a need to get rid of the attachment to the disease of the literal text, especially the
Qur’anic text, and to give Maqasid al-Shariah its due place in the enactment of beneficial
legislation that suits the needs of contemporary society.[2]

He calls to:

‫ وإلى اإلقرار بأن العبرة ليست بخصوص السبب وال‬،‫قلب المسلَّمة التي استقرت في الوجدان اإلسالمي من القرن الثاني للهجرة‬
‫بعموم اللفظ معاً؛ بل في ما وراء السبب الخاص واللفظ المستع َمل له يتعين البحث عن الغاية والمقصد‬

Change the heart of the Muslims i.e. to change their way of thinking, about the Shariah, which is
still trapped in second Islamic century, and to recognize that the lesson is not behind the cause
(i.e. reason for revelation) nor of the entire sentence together (i.e. the Nass) but behind the
special purpose; the wording used is for the reader to ponder over for the purpose and extent.

Then he derives the conclusion and says:

‫وفي هذا البحث مجال الختالف التأويل بحسب احتياجات الناس واختالف بيئاتهم وأزمنتهم وثقافتهم‬

In this discussion, there is an opportunity to arrive at different interpretations based on the


people’s needs according to their environments, cultures and eras.[3]

As a result of this, he arrives at the conclusion to abolish the necessity of all the great acts of
worship in Islam: from prayer, fasting, Zakat (obligatory charity) and Hajj (pilgrimage) on the
grounds that the Shariah came to benefit the interests of that era and that its objectives have been
achieved through achieving justice by other means and hence we do not need the Shariah and its
specifications.[4]

Hassan Hanafi makes Maslaha (benefit) as the primary source or purpose of legislation and the
basis behind which the texts of the revelation are tied. He says:
،‫تقوم مصادر التشريع كلها… على مصدر واحد هو المصلحة باعتبارها المصدر األول للتشريع؛ فالكتاب يقوم على المصلحة‬
‫والسنة أيضا ً تقوم على المصلحة‬

The sources of legislation are all based on Maslaha as the primary source of legislation; the
Book (i.e. Qur’an) is based on Maslaha, and the Sunnah is also based on Maslaha.[5]

He also says:

‫ كذلك يؤول النقل لصالح المصلحة في حالة التعارض‬،‫يؤول النقل لصالح العقل في حالة التعارض‬
َّ ‫كما‬

If the aql (intellect) contradicts the naql (i.e. text of Qur’an and Sunnah), then we should explain
(the contradiction) according to the intellect. Likewise is true for the Maslaha; we explain
according to the benefit whether it has been contradicted or not.[6]

He does not distinguish between definitive and other texts; everything is included under
Maslaha.

Al-Jabri criticizes the work of the jurists and describes them as preoccupied with the linguistic
issues of Maqasid al-Shariah, and criticizes the jurists who ruled in accordance with it. He calls
for changing this so that the ruling revolves around the Maslaha and nothing else. For instance,
he forbids usury in some instances and bank investments asserting that it should be ensured that
they are free of exploitation. This is confirmed by his statement:

‫ومعلوم أن منه االستغالل هو الحكمة من تحريم الربا‬

It is known that exploitation is the wisdom behind the prohibition of usury.[7]

As for Nasr Hamid Abu Zaid, he believes that the religious thought suffers from the control of
the ‘idea of sanctity of the religious text’ and that he deals with it as crossing the limits of the
situation in which it is formed, and believes that the solution is to eliminate the authority of the
religious text; replacing the historical view, in dealing with the beliefs and legislations, can be
achieved through reflection of the purposes of dealing with the religious texts, as, in his view,
was done by Umar b. al-Khattab (‫)رضي هللا عنه‬.[8]

The modernist discourse’s praise of the Maqasid theory as the reference point to Islamic
legislation, which can maintain the spirit of Islam in the era of modernity, is through which the
scholars (modern day mujtahideen) can abrogate what has become irrelevant; moreover, they can
get rid of the power of religious texts because they say that they are free in Islamic legislation to
change the features of its map based on what they see as Maslaha.[9]

We do not want the reader of the Noble Qur’an to initiate a judgment on this theory as soon as it
is read; it is not the correct intellectual way of dealing with the modernist call to arbitrate the
theory of Maqasid by either adopting or rejecting it in a rush, or to judge them by it incorrectly.
We turn to this theory by means of analysis and by bringing up a methodology that takes into
account the mental necessities, historical evidence, and cognitive requirements.
If we do so, we clearly discover that it suffers from profound cognitive problems and
methodology that result in a great imbalance in its structure and a cognitive breakdown in its
existence. In order that the reaction or response (to it) is not limited to an isolated case, which is
supported by reality, these issues need to be described.

These problems have taken many forms; some of which are due to the deduction reached, and
some of these are due to the mechanism on which the theory is based, including due to the
mentality that deals with the evidences and examples.

These problems are illustrated by the following matters:

The first matter: The mercurial concept: Despite the importance that has been given to the
Maqasid theory by the modernists, they have not provided the readers a clear meaning of it
which makes it better than the religious text and in a superior and commanding position to the
religious text. They have not given any proofs about this nor provided any guidelines that clarify
its limitations or characteristics and how to use it properly. There should be at least some major
efforts out there clarifying the dimensions of the theory and detailing the reasons why it should
be the reference point of the text.

Let us wonder: did the modernist discourse carry out these great tasks in a way that meets the
methodological tasks?

When we read their writings, we mostly find a repetition of the importance of Maqasid, the
demand for how it should be a judge for the texts and the need for the texts to submit to it.
However, they did not build an integrated system or a base that clarifies everything about the
theory, about its limits and controls, about its principles and one that removes confusion and
ambiguity about its sections and categories, and the real actual criterion. Which Maslaha should
be taken into account and what are its conditions? What are the controls? What are their limits?
Who can do that? How to answer those who oppose the idea? All these questions on the
methodology have no answers in the modernist product.

The benefits demanded by the modernists are mercurial and loose, with no identity, no meaning,
no entity, and no borders. This is what Hassan Hanafi said about the Maqaasid:

‫ وربما العصور واألزمان‬،‫أمور إضافية تختلف باختالف األفراد واألحوال والظروف‬

Additional matters vary according to individuals, conditions, circumstances, and perhaps even
eras and times.[10]

Is it acceptable to reason that something is claimed to be superior to the texts but at the same
time, is neglected and remains without explanation or clarification? Is it acceptable to leave the
legal texts clear in their significance and evidence in their wording consistent in their meanings,
and subject it to a concept that is unclear and lacks specifics?

Had the modernist discourse been committed to the correct methodology, it would have
proceeded to carry out the necessary cognitive tasks, but it has failed to do so.
If we compare the interaction of jurists and fundamentalists (usuliyyeen) with the modernist
ways of dealing with the theory of Maqasid, we find that the jurists absorbed all the functions
required by the Maqasid; they endeavored to explain the nature and concept, and studied the
history and stages, and examined their categories and various forms, and detailed the order and
classification and explained the importance, and established evidences on rational, historical, and
textual basis. They also clarified the benefits and impacts and this took them hundreds of pages.

On the other hand, the modernist discourse has not done any of this, even though the status of
Maqaasid is greater and more important in their approach as opposed to the jurists.

Does this not indicate a significant lapse in their methodology of research, and neglect of
cognitive duties which leads to imbalance in the theory resulting in undisciplined and
inconsistent approach in itself? Isn’t this negligence on the part of modernists indicative of a lack
of respect and lack of appreciation of the awareness of the Arab mind?

It must be emphasized that the problem is not the need to consider the Maslaha or its importance,
nor its relation with the Shariah since this case has been one of the clear necessities; it is one of
the principles of the fuqaha and the usuliyyeen. The actual problem is related to its controls,
identifications, and standards.[11] All these things were sidelined and overlooked in the modern
discourse.

This systematic neglect, which has emerged in the form of the use of modernist discourse with
Maqasid, is reflected in many instances. The ambiguity and reliance on vague and mercurial
terms has become a prominent feature of theirs. Complaints from these issues have even come
from some of the same discourse.[12]

The Muslim mind cannot accept such modernistic loose and vague approach to Maslaha because
it inevitably leads to flaw in Shariah based rulings, it leads to dissolving the limits laid down by
the Shariah for its provisions and also leads to contradiction of what has been agreed upon by the
honorable companions and the entire Islamic nation throughout its history; changing the Shariah
according to such varying Maqasid eventually results in the melting of the identity of Islam itself
leading to diversity of rulings and loss of its features.

It is also necessary to emphasize that the demand for disclosure of the Maslaha and the
clarification of its limits and controls is not only specific to Maslaha or to the modernist
discourse; it is general in all the systematic approaches that are attributed to it in the study of
Shariah. We rely on these texts in a disciplined manner, and whoever asks us to rely on
consensus or analogy, we cannot accept his words until he reveals what he calls to and what are
the limitations he has set.

The second matter: The severe reduction: It is very common in the modernist approach to see
that they have very well narrowed down the concept of the nature that is being claimed as better
than Shariah or the claim that Shariah is subject to it. Pondering over the nature of Maslaha
advocated by the modernist discourse, one finds that the predominant character is the material
nature, i.e. the Maslaha pertaining only to material life such as preservation of wealth and daily
affairs or the Maslaha pertaining to tangible benefits only. These benefits are undoubtedly
intended in the Shariah but they overlook the moral benefits which pertain to spiritual,
psychological, and other aspects while also neglecting the non-apparent benefits related to
human psyche and human societies.

The reason behind the modernist reduction of the theory of Maqasid is that they do not make
specific the religious texts but only care about the generics; if we go back to the approach of the
jurists and the usuliyyeen, we find confirmation of a number of scholars that Shariah is interested
in clarifying the Law Maker’s objectives that are desired to be achieved.

This is also confirmed by the rational mind as well; since the Maqasid are a central issue in
Shariah, it is rationally unlikely that the texts do not contain statements or verses to clarify them.
The Shariah has specified the details of the provisions and this necessarily requires that the text
or reference be submitted to its original and subsidiary purposes. Scholars like al-Shatibi and
others, made sure that the way of knowing the Maqasid is the Shariah itself.

If we return to the legal texts (the Book and Sunnah) to verify the nature of the Maqasid on
which the legal rulings were based, we find that they include both types (material and moral
benefits) in a balanced manner and do not differentiate between them, but express them clearly,
and established both weight and importance in their details.

Among the legitimate examples in which the moral benefits stand out include the statement of
Allah:

َّ ‫َآء َو ْال ُم ْنك َِر َولَ ِذ ْك ُر‬


َّ ‫َّللاِ أَ ْكبَ ُر َو‬
ْ َ ‫َّللاُ يَ ْعلَ ُم َما ت‬ ِ ‫صلَوة َ ت َ ْن َهى َع ِن ْالفَحْ ش‬ ِ ‫ى إِلَيْكَ ِمنَ ْال ِكت َـ‬
َّ ‫ب َوأَقِ ِم ال‬
َّ ‫صلَوة َ إِ َّن ال‬ ُ
َ‫ص َنعُون‬ َ ‫اتْ ُل َما أ ْو ِح‬

Recite, [O Muhammad], what has been revealed to you of the Book and establish prayer. Indeed,
prayer prohibits immorality and wrongdoing, and the remembrance of Allah is greater. And
Allah knows that which you do. [Q.29:45]

This is an indication that the purposes of prayer are related to the moral and abject meanings,
including due to the apparent material meanings.

Another example is the saying of Allah:

‫س ِمي ٌع َع ِلي ٌم‬ َّ ‫س َك ٌن لَّ ُه ْم َو‬


َ ُ‫َّللا‬ َ َ‫صلَ َوتَك‬
َ ‫ص ِل َعلَ ْي ِه ْم إِ َّن‬ َ ُ ‫صدَقَةً ت‬
َ ‫ط ِه ُر ُه ْم َوتُزَ ِكي ِه ْم ِب َها َو‬ َ ‫ُخذْ ِم ْن أ َ ْم َو ِل ِه ْم‬

Take, [O, Muhammad], from their wealth a charity by which you purify them and cause them
increase, and invoke [Allah’s blessings] upon them. Indeed, your invocations are reassurance for
them. And Allah is Hearing and Knowing. [Q.9:103]

This verse indicates that one of the purposes of Zakah is a moral one, which is to cleanse and
purify oneself.

For example, the Prophet (‫ ) ﷺ‬said:


ٍ ‫ َوالَ تَأْتُونَ ِببُ ْهت‬،‫ َوالَ ت َ ْقتُلُوا أ َ ْوالَدَ ُك ْم‬،‫ َوالَ ت َْزنُوا‬،‫ َوالَ تَس ِْرقُوا‬،‫ش ْيئًا‬
‫َان ت َ ْفت َُرونَهُ بَيْنَ أَ ْيدِي ُك ْم‬ َّ ‫ت َ َعالَ ْوا بَا ِيعُونِي َعلَى أ َ ْن الَ ت ُ ْش ِر ُكوا ِب‬
َ ِ‫اَّلل‬
َُ‫ب بِ ِه فِي الد ْنيَا فَ ْه َو له‬ َ ً
َ ِ‫ش ْيئا فعُوق‬ َ
َ َ‫اب ِمن ذلِك‬ ْ َ ‫ص‬ َ ْ
َ ‫ َو َمن أ‬،ِ‫َّللا‬ َ َ َ ُ ْ َ ْ َ
َّ ‫ ف َمن َوفى ِمنك ْم فأجْ ُرهُ َعلى‬، ٍ‫صونِي فِي َم ْع ُروف‬ ُ ‫ َوالَ ت َ ْع‬،‫َوأ َ ْر ُج ِل ُك ْم‬
َّ ‫َّللاُ فَأ َ ْم ُرهُ ِإلَى‬
ُ ‫ َو ِإ ْن شَا َء َعفَا َع ْنه‬،ُ‫ ِإ ْن شَا َء َعاقَبَه‬،ِ‫َّللا‬ َّ ُ‫ست ََره‬َ َ‫ش ْيئًا ف‬
َ َ‫اب ِم ْن ذَلِك‬ َ ‫ص‬ َ َ ‫ َو َم ْن أ‬،ٌ‫ارة‬ َ َّ‫َكف‬

Come along and give me the pledge of allegiance that you will not worship anything besides
Allah, will not steal, will not commit illegal sexual intercourse will not kill your children, will
not utter; slander, invented by yourself, and will not disobey me if I order you to do something
good. Whoever among you will respect and fulfill this pledge, will be rewarded by Allah. And if
one of you commits any of these sins and is punished in this world then that will be his expiation
for it, and if one of you commits any of these sins and Allah screens his sin, then his matter, will
rest with Allah: If He will, He will punish him and if He will,. He will excuse him.[13]

This Hadith speaks of the moral dimension in the purposes of the setting limits, contrary to the
modernist view.

There are repeated intimations in the legal texts regarding wisdom behind the moral benefits, as
stated in the obligation to fast, guidance in the Hajj, the prohibition of alcohol, and the need for
retribution (Qisas) as a duty among others.

And this case makes it mandatory for anyone who wants to deal with Maqasid theory to take into
account all the types of Maqasid to be achieved by Shariah, and they should be aware of the
differences between the original and subsidiary purposes of worship, and when they do not have
sufficient awareness of the differences between the two types, they fall in problems and defects
towards injustice while dealing with balanced Shariah.

We see that al-Shatibi was aware of this fact and dealt with objectives of Shariah skillfully and
said about the prayer:

‫ واالنتصاب على قدم الذلة والصغار بين‬،‫لصالة – مثالً – أصل مشروعيتها الخضوع هلل – سبحانه – بإخالص التوجه إليه‬
ِ ‫صالة َ ت َ ْن َهى َع ِن ْالفَحْ ش‬
‫َاء‬ َّ ‫{إن ال‬ َّ ‫{وأَقِ ِم ال‬
َّ :‫ وقال‬،[14 :‫صالة َ ِل ِذ ْك ِري} ]طه‬ َ :- ‫ قال – تعالى‬.‫ وتذكير النفس بالذكر له‬،‫يديه‬
‫ «إن المصلي يناجي ربه‬:‫ وفي الحديث‬،[45 :‫صنَعُونَ } ]العنكبوت‬ ْ َ‫َّللاُ يَ ْعلَ ُم َما ت‬ َّ ‫َو ْالـ ُمنك َِر َولَ ِذ ْك ُر‬
َّ ‫َّللاِ أ َ ْكبَ ُر َو‬

The Salah – for example – its original reason is the submission to Allah – with sincerity,
humility, and focused attention with a reminder to the soul to mention Him and remember Him.
Allah says (interpretation of the meaning): Indeed, I am Allah. There is no deity except Me, so
worship Me and establish prayer for My remembrance [Q.20:14]. Allah says: Indeed, prayer
prohibits immorality and wrongdoing, and the remembrance of Allah is greater. And Allah
knows that which you do [Q.29:45]. The Hadith says: When you pray you are talking
confidentially to your Lord.

It has the objectives which include forbidding the indecency and vice, as well as a relief from the
present life as in the report (where the Prophet (‫ ) ﷺ‬said): give us comfort by it, O Bilal. Also
found in the Sahih (authentic): My comfort has been provided in Salah and he asked for
livelihood. Allah says: And enjoin prayer upon your family [and people] and be steadfast therein.
I ask you not for provision; I provide for you [Q.20:132]. In the Hadith commentary, this is the
meaning, in addition to fulfillment of needs such as the prayer of Istikhaarah and prayer of need,
and the request to obtain Paradise and escape from the Fire, which are general public benefits,
and the fact that the worshiper is in the protection of Allah as in the Hadith: Whoever prays the
morning prayer is still in the Protection of Allaah and to get higher status. Allah says: And from
[part of] the night, pray with it as additional [worship] for you; it is expected that your Lord will
resurrect you to a praised station [Q.17:79] making the night a sanctified place.[14]

This clearly distinguishes between the original Maqasid and the dependent Maqasid, and creates
balance between the apparent and the non-apparent objectives.

Ibn Taymiyyah had cautioned early about the dangers of prioritizing material benefits to the
detriment to spiritual and moral benefits; he warned of this as if he was predicting the modernist
approach where he says:

‫وكثير من الناس يقصر نظره عن معرفة ما يحبه هللا ورسوله من مصالح القلوب والنفوس ومفاسدها وما ينفعها من حقائق‬
ً َ ُ‫{وال ت ُ ِط ْع َم ْن أ َ ْغفَ ْلنَا قَ ْلبَه‬
}‫عن ِذ ْك ِرنَا َواتَّ َب َع ه ََواهُ َو َكانَ أ َ ْم ُرهُ فُ ُرطا‬ َ :- ‫اإليمان وما يضرها من الغفلة والشهوة كما قال – تعالى‬
َ‫[ {ذَلِكَ َم ْبلَغُ ُهم ِمن‬29 :‫عن َّمن ت ََولَّى َعن ِذ ْك ِرنَا َولَ ْم ي ُِردْ إالَّ ْالـ َحيَاة َ الد ْنيَا} ]النجم‬ َ ‫ض‬ ْ ‫ {فَأَع ِْر‬:- ‫ وقال – تعالى‬،[28 :‫]الكهف‬
.‫[ فتجد كثيرا ً من هؤالء في كثير من األحكام ال يرى من المصالح والمفاسد إال ما عاد لمصلحة المال والبدن‬30 :‫ْال ِع ْل ِم} ]النجم‬
‫وغاية كثير منهم إذا تعدَّى ذلك أن ينظر إلى سياسة النفس وتهذيب األخالق بمبلغهم من العلم‬

‫ إذا تكلموا في المناسبة وأن ترتيب الشارع‬،‫وقوم من الخائضين في أصول الفقه وتعليل األحكام الشرعية باألوصاف المناسبة‬
:(‫لألحكام على األوصاف المناسبة يتضمن تحصيل مصالح العباد ودفع مضارهم ورأوا أن المصلحة نوعان )أخروية ودنيوية‬
‫ وجعلوا الدنيوية ما تضمن حفظ الدماء واألموال والفروج‬،‫جعلوا األخروية ما في سياسة النفس وتهذيب األخالق من الحكم‬
‫ وأعرضوا عما في العبادات الباطنة والظاهرة من أنواع المعارف باهلل – تعالى – ومالئكته وكتبه‬،‫والعقول والدين الظاهر‬
‫ كمحبة هللا وخشيته وإخالص الدين له والتوكل عليه والرجا لرحمته ودعائه وغير ذلك من‬:‫ وأحوال القلوب وأعمالها‬،‫ورسله‬
،‫ وحقوق المماليك والجيران‬،‫ وصلة األرحام‬،‫ وكذلك في ما شرعه الشارع من الوفاء بالعهود‬.‫أنواع المصالح في الدنيا واآلخرة‬
‫ ويتبين‬.‫ وغير ذلك من أنواع ما أمر به ونهى عنه حفظا ً لألحوال السنية وتهذيب األخالق‬،‫وحقوق المسلمين بعضهم على بعض‬
‫ فهكذا من جعل تحريم الخمر والميسر لمجرد أكل المال بالباطل؛‬.‫أن هذا جزء من أجزاء ما جاءت به الشريعة من المصالح‬
‫والنفع الذي كان فيهما بمجرد أخذ المال‬

Many people limit their view of knowledge to what Allah and His Messenger love from the
purity of the heart and the self, and purge them from sins and they do not benefit from the reality
of faith and what harms them from negligence and lust, as He, the Almighty, says: and do not
obey one whose heart I have made heedless of My remembrance and who follows his desire and
whose affair is ever [in] neglect [Q.18:28]. Allah also says: So turn away from whoever turns his
back on My message and desires not except the worldly life. That is their sum of knowledge
[Q.53:29-30]. You would find many of them do not look at the Maslaha and Mafasid except only
when thinking of the financially beneficial or physical aspects. Many of them go beyond that so
much so that they consider self-discipline, and ethics and behavior as the major core of
knowledge.

Those who looked deeply into the fundamentals of jurisprudence (Usul al-fiqh) and the
interpretation of the rulings of the Shariah in appropriate contexts; if they had spoken
appropriately so that the order of the ways of rulings were dependent on the interests of the
people and let go of their disadvantages and saw that the interest is two types (pertaining to
afterlife and pertaining to this world): They made the afterlife as the policy of self and ethics
from the rulings. They made the worldly aspect as inclusive of preservation of blood and wealth
and what pertains to the mind and the apparent from the religion. They presented what is in the
acts of worship whether secretive or visible from the knowledge of Allah, His angels, His Books
(revelation), and His Messengers and the conditions of the heart and its actions: so the love of
Allah and devotion to Him and sincerity in the religion for Him and trust upon Him are the types
of benefits (Masaaleh) in this world and the Hereafter. Likewise, in what He legislated include
adherence to covenants, maintaining blood relations, rights of slaves and neighbors and the rights
of Muslims over each other, and other types of what He ordered and forbade to preserve the
Sunnah based ethics and manners. It turns out that this is one of the parts of the Maqasid al-
Shariah. This is why it is forbidden to consume alcohol and to indulge in gambling to earn
unlawful wealth and the profit they had when they took the wealth.[15]

Ibn Taymiyyah, in this text, emphasizes the need for balance in the observance of Maqasid that
the Shariah came with in order that one does not over-emphasize one to the detriment of the
other.

Once again, if we compare the efforts of the fuqaha and the usuliyyeen with the efforts of the
modernist project in the field of the Maqasid al-Shariah – public, private, material and moral –
we find that the scholars have made great efforts and gone to great extents to search and explore
the Maqasid of Shariah and were able to conclude on the different types of the Maqasid that the
Shariah intends to achieve. We do not deny that their efforts may have errors and, at times,
exaggerations, however, the reader reaches a mature understanding from their presentation in
that it shows the importance of the legitimacy and the need to apply the provisions, its rules and
its Hudood. The reader reaches to a clear and bright picture while in contrast, he sees the
apparent shortcomings in the modern discourse in this case, which results in significant blunders
in their research contrary to history which violates the text itself as well.

Indeed, Allah knows best.

References and footnotes:

[1] Al-Qira’atu al-Jadeedah lil-Nass al-Deeni, Abdul Majeed al-Najjar (pg. 69)

[2] Libnaat, al-Sharafi (pg. 162)

[3] Al-Islam bayn al-Risalata wa al-Tareekh, al-Sharafi (pg. 70)

[4] Al-Islam bayn al-Risalata wa al-Tareekh, al-Sharafi (pg. 59 onwards)

[5] Min al-Nass ila al-Waaqi’, Hassan Hanafi (488 -489/2)

[6] Hasaad al-Zaman (al-ishkalaat), Hassan Hanafi (pg. 76)

[7] Wajhatu nazar, Muhammad al-Jabri (pg. 61), also see binyat al-aql al-arabi (pg. 63)

[8] Mafhoom al-Nass, Nasr Hamid Abu Zaid (pg. 104)


[9] See jam’in muqulatihim: al-almaniyoon wal-Qur’an, Ahmad al-Ta-aan

[10] Min al-nass ila al-waqi’, Hassan Hanafi (487/2)

[11] See: al-Ijtihad, al-Nass al-waqi’ al-Maslaha, Ahmad Raysooni and Muhammad Baarut (pg.
33), and Dawaabit al-Maslaha, al-Buti (pg. 141)

[12] See tafsir al-siyaasi lil-qadaya al-‘aqadiyah, Sultan al-Umayri (pg. 19)

[13] Sahih al-Bukhari 3892

[14] Al-Muwaafaqaat, al-Shatibi (142-143/3)

[15] Majmoo’ al-Fatawa, Ibn Taymiyyah (233-334/32)

Misuse of Maqasid al-Shariah (2)


Abu Rahma / September 13, 2017

Explanations of the modernists regarding the Maqaasid al-Shariah (higher objectives


theory): A critical study (2) by Dr. Sultan al-Umayri.

This episode is an extension of the first episode in which the researcher revealed some
methodological problems in Maqaasid theory in the modernist discourse. In the second one, the
researcher continues to systematically analyze this view and provide further cognitive
examination.

The third matter: Structural selection: When the modernist discourse seeks reliance for their
views on Maqaasid from the texts on which to base their legitimacy, they present some texts
(nass) that seem to indicate the apparent existence of Maslaha in the Shariah such as the saying
of the Prophet (‫) ﷺ‬:

‫قومك حديثوا عهد بكفر لهمدت الكعبة ولبنيتها على قواعد إبراهيم‬
ِ ‫لوال أن‬

If your people had not been polytheists recently (i.e. they were new converts to Islam), I would
have demolished the Ka’bah, and would have brought it to the level of the ground and would
have constructed… it on the basis of the structure built by Ibrahim.[1]

They withdraw the ruling on the entirety of Shariah and conclude that if the benefits (Masaaleh)
conflict with absolute principles of Shariah, then Maslaha takes precedence.

They have taken some statements of scholars (such as al-Tufi and al-Shatibi) as examples of
those who brought the truth as opposed to what the Shariah brought and that they understood the
Shariah better instead of other Islamic scholars.
This approach is incompatible with correct scholarly methodology and it usually leads to
embarrassment. If we look at the logic of the modernist discourse, we find contradictory results.
Based on their methodology, it can be concluded that Shariah does not take into account the
Maslaha and does not pay attention to it and that it binds people just to bind them with no other
purpose; texts (nass) that can be provided to confirm this view are as follows. Allah says:

َ‫ال يُ ْسأ َ ُل َع َّما يَ ْفعَ ُل َو ُه ْم يُ ْسأَلُون‬

He is not questioned about what He does, but they will be questioned. [Q.21:23]

ُ ‫فَعَّا ٌل ِلـ َما ي ُِريد‬

Effecter of what He intends [Q.85:16]

‫ب‬
ِ ‫سا‬ ِ ‫س ِري ُع ْال‬
َ ‫ـح‬ َ ‫ب ِلـ ُح ْك ِم ِه َوه َُو‬
َ ‫َّللاُ يَحْ ُك ُم ال ُم َع ِق‬
َّ ‫َو‬

And Allah decides; there is no adjuster of His decision. And He is swift in account. [Q. 13:41]

This statement is a mistake without a doubt; moreover, the selective logic exercised by the
modernist discourse essentially leads to opening wide a door in front of them that does not close.

The Qur’an itself has warned us of selectivity stating that such an approach is a part of the
morals of oppressors who do not want to reach the truth. Allah says:

‫ي ِفي ْالـ َح َيا ِة الد ْن َيا َو َي ْو َم ْال ِق َيا َم ِة ي َُردونَ إلَى‬


ٌ ‫ض فَ َما َجزَ ا ُء َمن َي ْف َع ُل ذَلِكَ ِمن ُك ْم إالَّ ِخ ْز‬ ِ ‫ض ْال ِكت َا‬
ٍ ‫ب َوت َ ْكفُ ُرونَ ِب َب ْع‬ ِ ‫أَفَتُؤْ ِمنُونَ ِب َب ْع‬
ُ
َ‫َّللاُ بِغَافِ ٍل َع َّما تَ ْع َملون‬
َّ ‫ب َو َما‬ِ ‫ش ِد ْالعَذَا‬َ َ‫أ‬

So do you believe in part of the Scripture and disbelieve in part? Then what is the recompense
for those who do that among you except disgrace in worldly life; and on the Day of Resurrection
they will be sent back to the severest of punishment. And Allah is not unaware of what you do.
[Q.2:85]

True belief, in the legal texts and their evidences, rules and principles, cannot be achieved by
taking some and ignoring others.

The Qur’an also states that it is one of the characteristics of the hypocrites that they do not resort
to the legal texts unless they think that they will find what they want and fulfill their desires only.
Allah says:

‫سو ِل ِه‬ َّ ‫يق ِم ْن ُه ْم ِمن َب ْع ِد ذلِكَ َو َمآ أ ُ ْو َلـ ِئكَ ِب ْال ُمؤْ ِمنِينَ – َو ِإذَا دُعُواْ ِإلَى‬
ُ ‫َّللاِ َو َر‬ ٌ ‫ط ْعنَا ث ُ َّم َيت ََو َّلى فَ ِر‬
َ َ ‫سو ِل َوأ‬
ُ ‫الر‬ َّ ‫َو ِيقُولُونَ آ َمنَّا ِب‬
َّ ‫اَّللِ َو ِب‬
ْ َ ْ ْ ْ َّ
َ‫يق ِم ْن ُه ْم م ْع ِرضُونَ – َوإِن يَ ُك ْن ل ُه ُم ال َحق يَأتُوا إِل ْي ِه ُمذ ِعنِين‬ ٌ ‫ِليَحْ ُك َم بَ ْينَ ُه ْم إِذَا فَ ِر‬

But the hypocrites say, “We have believed in Allah and in the Messenger, and we obey”; then a
party of them turns away after that. And those are not believers. And when they are called to [the
words of] Allah and His Messenger to judge between them, at once a party of them turns aside
[in refusal]. But if the right is theirs, they come to him in prompt obedience. [Q.24:47-49]
A number of scholars of the past and present have warned about the selective picking and
choosing with the texts. Among these is Ibn Hazm who says:

‫ وأحذرك من شعب قوم في هذا المكان إن ناظروا أطبقوا على آية واحدة أو‬،‫فال تأخذ بعض الكالم دون بعض فتفسد المعارف‬
‫ وهذا سقوط جديد وجهل مفرط‬،‫حديث واحد‬

Do not pick some of the words and leave some since this would destroy the entire thing and I
warn you from some people who debate by only taking a part of the words like one verse here
and one Hadith there and leave the others. This is very silly.[2]

The proper scholarly methodology rejects all this; the researcher of truth is supposed to collect
everything related to the case that he wants to study and analyze and take into account all the
evidences contained therein to reach the desired result correctly and clearly.

The fourth matter: The imbalance in alternatives: When the modern discourse discusses the
contradiction between Maslaha and the legal text or that the Shariah does not have a value, it
does not discuss the alleged contradiction that has no problem or imbalance; it only speaks of
alternatives and says that it has to be superior to the ruling in Shariah. This leads to a lot of
questions and contradictions; furthermore, it is not based on correct scholarly methodology and
is neither based on comparisons that take into account all the circumstances surrounding the
matter and the legitimate judgment. They are characterized to be operating from a narrow view
when analyzing reality and humanitarian practices.

A number of scholars have reviewed many examples of the provisions called for by the
modernist discourse to be abolished claiming them to be contrary to Maslaha that the social
condition of the present era requires such as fasting in Ramadan, Zakah, Hijab of women, and
implementation of Hudood. The scholars have sought to demonstrate how all the provisions of
Shariah do not contradict the Maslaha but help in achieving them to the fullest; they have
exposed great imbalances in the alternatives presented by the modernists, and discussed the deep
problems that stand in the way of what they have provided.

If we look at one example, namely, “the Hadd of theft,” we find that the call of the modernist
discourse to replace it with imprisonment, because it is in the best interest (Maslaha), is not
correct. We find great benefits in cutting off the hand of the thief which brings great benefits to
the society that the prison does not achieve. The cutting off of the hand of the thief is disabling a
part of it whereas the imprisonment of the thief for years is more disruptive to the benefits than if
his hand was cut off. Additionally, prison often serves as a place for learning crime and
corruption.[3]

The fifth matter: Contrary to the essence of the religion: Instead of the view of Maqasid
governing the lives of people, they are subordinate to them. Their provisions change according to
the interests of the people and this situation is in stark contrast to the reality of religion and
contradicts its original goal as well. The great truth and premise on which religion is based on is
the organization of human life and the control of its actions. All religions – and their positions –
engage in this goal which is that the person subject to the teachings of religion lives his life in
accordance with the principles; however, the modernist approach the core of the issue in Islam so
that the provisions of Islam are subject to human life, adapting to changing circumstances. If this
process does not cancel the religion, discards its authority, and removes its prestige, then what
does?

Abul Hassan al-Nadwi explains the necessities that result from the modernist call of Maqasid and
reveals the cognitive and religious conclusions resulting from them in a fine literary manner. He
says:

‫ وال يمكن أن توافق أنت على ذلك‬،‫باعتباري مريدا ً وتابعا ً لدين ال يمكنني أبدا ً أن أقبل وضعا ً يستجيب فيه هذا الدين لكل تغير‬
…‫ وال هو باألداة التي ترصد اتجاه هبوب الرياح‬،‫أيضاً؛ ألن الدين ليس مقياس حرارة يقتصر عمله على تسجيل درجة الحرارة‬
‫ وليس بيننا واحد يريد من القرآن أن يتحول إلى‬،‫ال يمكن تعريف الدين بهذه العبارات وال يمكن أن يصير إلى أداة آلية غريبة‬
‫ وإن دينا ً وضعيا ً مزعوما ً ال يمكن أن يتحمل هذا الوضع فكيف بدين منزل؟‬،‫سجل للمخترعات والمكتشفات الغربية‬

‫ ونزعة‬،‫الدين يتقدم مع الحياة يداً بيد وال يواكبها فقط كتابع لها… ووظيفته هو أيضا ً أن يميز بين تغيير سليم وآخر غير سليم‬
‫هدامة وأخرى بنَّاءة‬

As a teacher and a follower of religion, I can never accept a situation in which this religion
responds to every change. Moreover, since religion is not a thermometer confined to temperature
recording, nor is it a tool that monitors the direction of the wind,… it is not possible to define
religion by these terms and religion cannot become a strange mechanism. There is none amongst
us who wants the Qur’an to turn into a record for Western inventions and discoveries. Our
religion is very clear and cannot bear this situation. Religion goes hand-in-hand with life and
does not keep pace with life only as a follower…; its function is also to distinguish between
proper change on one side, and unsound and destructive approach on the other.[4]

While contemplating over the approach of the modernist discourse with the teachings of Islam,
we find that it inevitably lead to the contempt of the Islamic law and its prestige, and ends up
with the lowest level of rhetoric. To say that they change and evolve with the change in Maslaha
and circumstances does not make it an advantage over others while it only removes the
greatness, wisdom, sanctity and respect because any student at any stage can draft a law that goes
with the evolution of times and laws[5] adapting to how it proceeds in line with reality and
requirements of everyday people.

And what are the limits in the modernist approach in interpreting the Maqaasid until the Islamic
Shariah becomes like this scenario? What greatness remains and what uniqueness remains
apparent and what splendor is retained? This is unacceptable to any Muslim who cherishes his
religion and prides himself on his law.

The sixth matter: The modernist discourse deals with Islamic legislation superficially: It does not
take into consideration the complex way in which the Shariah deals with the legislation of these
provisions. It does not stand with the precise details that reveal the philosophy of Islam and the
depths of its measures. It does not take into account the factual considerations of the differences
in detail, diversity and ramifications.

One who reads of the details of the Islamic law and its provisions, and the rules of its rites and
conditions, he finds that the details of its mannerism are explained in detail which are achieved
by the worship of Allah. The prayer has specific characteristics and so does the ablution; Zakah
has specific descriptions and conditions as well and there are specific measures for the
disbelievers. Like many legislations, Shariah insists on adhering to them describing them as the
limits of Allah and His boundaries and warned against evading them or deviating from them. He
ordered to adhere to them in the darkest and most difficult circumstances, as in the maintenance
of prayer on time even in the event of war. He placed heavy blame on those who exceed the
limits and set severe punishments for those who violated it, and asked the Prophet (‫ ) ﷺ‬to give
up some of the limits in favor of a tribe who in turn refused strongly and angrily and said:

‫لو أن فاطمة بنت محمد سرقت لقطعت يدها‬

If Fatima bint Mohammed had stolen, her hand would have been cut off.[6]

The Shariah, with all these instructions, does not hint to the fact that it came in accordance with
these legislations in view of the circumstances of the times but stresses in many texts that its
legislation is binding until the Day of Resurrection.

All these detailed legislations are part of Maqasid which are an integrated fabric and have had a
uniform and progressive legislative system throughout the ages. Al-Shatibi, the architect of
Maqaasid, revealed this integrative reality:

‫ إذا ثبت في الشريعة‬:‫ فال ترفعها آحاد الجزئيات كذلك نقول‬،‫إذا ثبتت قاعدة كلية في الضروريات أو الحاجيات أو التحسينات‬
‫ فال بد من المحافظة عليها بالنسبة إلى ما يقوم به الكلي وذلك الجزئيات؛ فالجزئيات‬،‫قاعدة كلية في هذه الثالثة أو في آحادها‬
‫مقصودة معتبرة في إقامة الكلي أن ال يتخلف الكلي فتتخلف مصلحته المقصودة بالتشريع‬

If a whole rule is established in necessities, needs or improvements, then it is not raised by the
individual parts. We also say: if the rule of law is established in all three of these, or even in one
of these, then it (one part) must be preserved like all the parts. The individual parts that form the
entirety are not less than the entirety; they (individual parts) are not overruled by Maslaha of the
intended legislation.[7]

He warned against the introduction of the Maqaasid faculty without regard to the legislative
elements, as the modernist discourse attempts to do.

‫من الواجب اعتبار تلك الجزئيات بهذه الكليات عند إجراء األدلة الخاصة من الكتاب والسنة واإلجماع والقياس؛ إذ محال أن‬
‫ وكما أن من أخذ بالجزئي‬،‫ فمن أخذ بنص – مثالً – في جزئي معرضا ً عن كليه فقد أخطأ‬،‫تكون الجزئيات مستغنية عن كلياتها‬
‫ كذلك من أخذ بالكلي معرضا ً عن جزئيه‬،‫معرضا ً عن كليه فهو مخطئ‬

These parts should be considered in these fields when looking for special evidences from the
Book and the Sunnah and Ijma and Qiyas. Partial display of the field is incorrect and those who
selectively take from the field are faulty as are those who take one part as the entirety.[8]

It is nonsense that the clarity and details in the Shariah were just to be consistent with the
historical and social context of the Prophet(‫’) ﷺ‬s era; it is also illogical that those laws and
limitations were only for some objectives and if the objectives have been achieved then we don’t
need the Shariah -as the modernists’ Maqasid theory fancies.

It is nonsense that the clarity and details in the Shariah were just to be consistent with the
historical and social context of the Prophet(‫’) ﷺ‬s era and that they change according to the
context as depicted in the modernist discourse. It is illogical that if certain purposes are achieved
without them (Hudood), then there is no need to adhere to them as fancied by the modernist
theory of Maqaasid.

If it is permissible to change the legislation and subordinate it to the interests and to the historical
context, then it is mentally permissible to change the first purpose of the Shariah, i.e. singling
Allah for worship. If there is no mental objection to this, then it is also permissible to violate the
law. All these things are unacceptable to a Muslim who is aware of the truth of his religion.

If it is permissible to change the detailed legislation for the sake of Maqaasid in peoples lives,
then this means that it is permissible to invalidate the law because if it is true that the Shariah
violates the Maqaasid in some of its provisions, then there is no impediment that prevents it from
occurring in all laws and rulings as they are equal in the legal context because anyone can offer
what he sees as Maslaha on any legitimate ruling.

Al-Shatibi pointed to this concept when he pointed out that the provisions of the Shariah are not
nullified by the intellect, and that the text is not subservient to it. He said:

‫ وبيان ذلك أن معنى الشريعة أنها تحد للمكلَّفين حدوداً في‬،‫ وهذا محال باطل‬،‫إنه لو كان كذلك لجاز إبطال الشريعة بالعقل‬
‫ جاز له تعدي جميع الحدود؛ ألن ما ثبت‬،‫ فإن جاز للعقل تعدِي حد واحد‬،‫ وهو جملة ما تضمنته‬،‫ واعتقاداتهم‬،‫ وأقوالهم‬،‫أفعالهم‬
‫ وهذا‬،‫ وإن جاز إبطال واحد جاز إبطال السائر‬،‫ ليس هذا الحد بصحيح‬:‫ وتعدي حد واحد هو معنى إبطاله؛ أي‬،‫للشيء ثبت لمثله‬
‫ال يقول به أحد لظهور ُمحاله‬

If it is permissible to break the law with reason, and this is invalid, and that the meaning is that
the Shariah limits the peoples’ actions, statements, and beliefs included in it, then if the intellect
exceeds one limit, it can violate all limits. If it is permissible for the mind to transgress one
boundary, then it is permissible for it to violate all the boundaries, because what is proven for
something is proven to be similar to it, and the violation of one limit means nullifying it.[9]

Giving the purpose to the text, in the form called for by the modernist discourse, is therefore
impossible to be acceptable to the Muslim because that will lead to the annulment of all the law.

The modernist speech necessarily leads to all these. It discourages the Muslims from taking from
them. It has launched severe campaigns against the fuqaha and usuliyyeen who did not reach the
conclusion (as them); however, it has not provided a convincing answer to these terrible
deductions, and has not even attempted to delve into it, but rather overlooked it as if it does not
exist.

The seventh matter: The reader finds the modernist product at a loss of credibility in the
Maqaasid view: Since the purpose of theft is to steal people’s money, if the corruption in society
increases and burglary rates increase as a result, the penalty will not increase; its shape will
change and ease would be given. Likewise, if the purpose of the punishment of adultery is to
expose the fornicators, and if the corruption in society increases and the rates of the forbidden
relationships increase, the amount of the punishment will increase but not change its form or
bring ease. If the purpose of prayer is spiritual, it means that if people become more attached to
materialism and spiritual decline is high, the amount of worship should increase rather than be
diminished. If the purpose of Zakah is to achieve justice and divide wealth, encourage the rich
increase the Zakah.

We have not seen any of the proposers of the modernist approach of Maqaasid theory to increase
the punishments because the community situation requires it; we have not seen any of them
calling for more worship, prayer, and fasts because the people suffer from spiritual drought in
this age; on the contrary – we can only see a demand to reduce them and an urge to get rid of
these discomforts.

All this confirms that modernist discourse is not serious in adopting the theory of Maqaasid; it is
only for recruitment and investment.

The eighth matter: Falling into systematic contradiction: It is known to scholars of logic (mantiq)
and correct religious methodology: It is not sufficient to make statements and be convinced by
simply claiming its authenticity. It is necessary to establish the correct evidences and to address
the contradictory statements which raise serious questions and prevent its adoption even with its
authenticity. The modernist discourse is established on principles that contradict the view that
Shariah has purposes that must be considered, taken, and settled with. Here is one of the clearest
examples of contradiction that some modernist discourse does not fail to repeat day and night
that the texts of the law do not have a fixed or consistent meaning and that there is no meaning
inherent in it and that they do not lead to a specific meaning. If this was so, then how do some of
them say that the Shariah has objectives that need to be considered? How do some of them say
that it includes benefits and Maqasid with rules and systems? Is this not a systematic
contradiction that is mind boggling?

These things reveal to the reader the extent of the methodological imbalance the modernist
discourse has regarding the Maqaasid theory. They simply try to provide some sort of rationale
and methodological justification to eventually conclude that the Maqasid theory is based on high
level scientific basics and foundations but to judge according to them, however, is extremely
false and self-contradictory.

Indeed, Allah knows best.

References and footnotes:

[1] Sahih al-Muslim, 3308

[2] Al-Taqreeb li Hadd al-Mantiq, Ibn Hazm (281)

[3] Al-Ijtihad, al-Nass al-Waaqi’ al-Maslaha, Ahmad al-Raysooni (38-49)


[4] Al-Islam fi ‘Aalam mutaghayyir, Abul Hassan al-Nadwi (57)

[5] See Dawabit al-Maslaha, al-Buti (pg. 30)

[6] Al-Bukhari (3475)

[7] Al-Muwaafaqaat, al-Shatibi (96/2)

[8] Al-Muwaafaqaat, al-Shatibi (174/2)

[9] Al-Muwaafaqaat, al-Shatibi (131/1)