March saw the introduction of Malaysia’s Syariah Index at a Jakim (Islamic Development Department)-sponsored convention in Putrajaya, with the participation of more than 130 experts and researchers from local universities. Malaysia may well be the first to embark on a programme to integrate maqasid into government policy.
This article provides an overview of the syariah blueprint on the importance of maqasid, how they are known and identified.
The principal purposes of syariah are outlined under five main headings: protection of life, preservation of religion, upholding the integrity of the human intellect, protecting the family and protection of lawfully-owned property.
What this means for Malaysia is that the various branches of government will uphold and promote these values within their respective capacities. The maqasid (plural for maqsad) identify the higher purposes of the law, which are meant to be secured through the implementation of that law.
Thus, it is implied that the rules of syariah are not meant for their own sake, but to secure and realise certain objectives.
When the letter of the law is applied in a way that does not secure its intended purpose, the justice and benefit it is meant to secure, or when it leads, on the contrary, to harm and prejudice, the law is most likely reduced to a purposeless exercise.
The laws of syariah are generally meant to secure people’s welfare and justice. But, the detailed rules, commands and prohibitions of syariah also have their specific purposes, which are often identified in the text of the law itself, or by recourse to interpretation and ijtihad (independent reasoning).
One often hears of a clever lawyer bent on working his way through the law at the expense of twisting it to suit his purpose, regardless of what the law might have intended to secure.
This is why the syariah penalises what is called in the fiqh jargon, as al-Mufti al-Majin (a trickster or fraudulent mufti), who does just that, either to please his client or follow his self-seeking interests.
This is a violation of syariah, which is in principle a divine law, and twisting it in such a way is reprehensible. The renowned Andalusian scholar, Ibrahim al-Shatibi (d.1388 CE), who wrote extensively on the maqasid, stressed that a clear understanding of maqasid equips one with the ability to identify instances of distortion and abuse, adding that anyone who manipulates the syariah by isolating its letter from its intent and purpose, is guilty of violating the purpose of the lawgiver.
Knowledge of the maqasid, thus, helps keep the letter of the law and its spirit in harmony with one another.
To illustrate more specifically how the letter of the law can sometimes move in a different direction from its proper intention and purpose, one may look at some of the syariah contracts: the proper purpose/maqsad of sale, for instance, is transfer of ownership of the object of sale from seller to buyer in exchange for a price; the maqsad of lease, is transfer of the usufruct of its object; the maqsad of marriage is procreation of the human species, and that of giving a gift is donation (tabarru’) and show of goodwill — just as another maqsad of giving a gift is transfer of ownership to another party without a consideration.
If any of these contracts are manipulated such that they fail to secure their valid syariah purposes, a distortion is likely to have occurred. When a sale is used to disguise usury (riba), and when marriage is used for hedonistic indulgences and a quick divorce to follow, the purposes of syariah have been distorted in each case.
This is because marriage is a life-long contract with the purpose of procreation of human species, friendship and support, which must not be violated.
How are maqasid known and identified? Maqasid are identified in the clear text of the Quran or hadith, or else by the general consensus (ijma’) of scholars, failing which they may be identified by recourse to ijtihad.
The language of the Quran, or hadith, may either be explicit on a certain purpose, or it may be implicit and require a degree of scrutiny.
For instance, when the text refers to the benefit, rationale, or consequences of its rulings, the judge and jurist are given a certain insight into the purpose/maqsad of that law, which they should strive to secure in their decisions.
Ibn Qayyim al-Jawziyyah (d.1350 CE) has noted that the number of such references in the Quran alone reaches not just one or two hundred, as some commentators had earlier estimated, but in over 1,000 places.
The Quran has, in diverse manners of expression, identified the reasons, benefits and consequences of adherence to its ordinances, or harm that may accrue from their defiance.
All of these are then used as indicators toward identification of the maqasid. For instance, when the Quran characterises itself as “guidance and mercy” to the believers (10:57), and where mercy and rahmah also signify the most favourite of the 99 Excellent Names of God (as in al-Rahman and al-Rahim) — compassion and kindness becomes a cardinal objective of Islam.
Anyone who uses Islam as a instrument of brutality and oppression is guilty of distortion and abuse. Al-Shatibi has also added inductive reasoning (al-istiqra’) as a reliable method by which to identify the maqasid of syariah.
This means that the researcher looks at the data of the Quran and hadith generally. The text may have made numerous references to a certain purpose without explicitly declaring it as such.
When all such references are read together, their collective meaning emerges and leaves little doubt on the identification of that purpose.
The five maqasid mentioned above were also identified by this method — as they are nowhere so listed in the text. The methodology that is so developed aims at the integrity of maqasid and prevention of unfounded claims in their name.
A mere claim, therefore, that such and such promotes the family, or that it protects the religion and so on would need to be verified before it is made the basis of action or a government policy initiative. Mohammad Hashim Kamali The NST Columnist 13 MAY 2016 @ 11:01 AM