مقاصد الشريعةMaqasid Ash-Shari’ah

Objectives of Islamic Law (Goal/OIL)

Dr. Kamaru Salam YusofLecturer, FBMS, Unissa

Negara Brunei Darussalam

TOPIC 6:HISTORY & STAGES G/OIL

Maqasid Ash-Shari’ahObjectives of Islamic Law

History & stages G/OIL•f

rom Quran & Sunnah

1st

•branch of Usul Fiqh

2nd

•in Fiqh Compilations

3rd

•chapter & topic in UF

4th

•independent books

5th

Stage 1: Quran & Sunnah

1. This is considered the first stage of the science of Maqāsid ash-Sharī’ah because revelation referred to some of the Maqāsid, meanings and wisdom for which a ruling was legislated (Eg?)

2. Many of the Prophetic ḥadīths also speak about Maqāsid, wisdom and objectives of legal rulings (eg?)

Stage 1: Quran & Sunnah (example)

ر� • ال�ع�س� ب�ك�م� ي�ر�يد� و�ال� ر� ال�ي�س� ب�ك�م� الل%ه� 2:185 - ي�ر�يد�ج' • ر� ح� م�ن� ع�ل�ي�ك�م� ع�ل� ل�ي�ج� الل%ه� ي�ر�يد� ا 5:6 – م�تنفروا • وال وبشروا تعسروا وال B - يسرواا • ب�ه� م� �ك5يه ت�ز� و� ه�م� ر� ت�ط�ه5 ة: د�ق� ص� م� �ال�ه و� م�

أ� م�ن� ذ� 9:103 – خ�• �ن�ك�ر ال�م� و� �اء ش� ح� ال�ف� �ع�ن ت�ن�ه�ى ة� ال� الص% 29:45 – إ�ن%فإنه • فليتزوج الباءة استطاع من الشباب معشر يا

فعليه يستطع لم ومن للفرج وأحصن للبصر أغضوجاء له فإنه بخ - بالصوم

رواه - • معسرين تبعثوا ولم ميسرين بعثتم فإنماالبخاري

Stage 2: OIL-Branch Usul Fiqh

• In the branch of Usūl al-Fiqh, Imām al-Shāfi’ī was the first to explore Maqāsid ash-Sharī’ah in his book Ar-Risālah.– In Qiyas– In masalih mursalah• OIL – science of interest

The Relationship between the Maqasid & Usūl al-Fiqh

1. A relationship between the science of Maqāsid ash-Sharī’ah and Usūl al-Fiqh is drawn in his chapter on Qiyās (analogical reasoning). This is because analogical reasoning towards deriving new rulings requires examining the ‘illah of an original ruling, or the effective cause of the law (ratio decidendi) which the subject of judgment depends. That is, it requires looking into the original intent of the law.

Analogical reasoning towards deriving new rulings requires examining the ‘illah of an original ruling. it requires looking into the original intent of the law.

The Relationship

2. The relationship between the two is also explored in the chapter on "Masālih mursalah" (unrestricted benefits) because the science of Maqāsid ash-Sharī’ah, in fact, is a science of the interests of Sharī`ah and its regulations.

Stage 3: in Fiqh’s Book

References to the Science of Maqāsid ash-Sharī’ah in Fiqh compilations.• The Science of Maqāsid ash-Sharī’ah is

the essence of Fiqh. It is a science that is concerned with the meaning and wisdom behind specific rulings of the Sharī`ah. It is also concerned with the differences between the various rulings of Sharī`ah.

Stage 4: chapter & topic in UF

1. At this stage, independent chapters and topics were dedicated in books of Usūl al-Fiqh to the science of Maqāsid al-Sharī’ah.

2. Some of the first Jurists whose works dealt with Maqāsid ash-Sharī’ah, ad-Ḍaruriyyāt al-khams (the five fundamental rights) and other topics that fall within the rubric of this science are.– Imām al-Haramayn al-Juwainī (491 A.H.) in al-Burhān fī Usūl al-Fiqh– Imām Al-Ghazālī (505 A.H.) in al-Muṣṭasfā min ‘ilm al-usūl– Imām Fakhr ad-Dīn Ar-Rāzī (606 A.H.) in al-Mahsūl and Mabāhith al-

Mashriqiyya – Al-‘Āmidī (631 A.H.) in Al-Ihkām fī Usūl Al-Ahkām

Stage 5: independent books

Dedicating independent treatises to the science of Maqāsid ash-Sharī’ah 1. Al-`Izz ibn `Abd As-Salām (660 A.H.) in Qawā'id al-

ahkām fī masālih al-anām. 2. Al-Qarāfī (684 A.H) in al-Furuq - dealing with

differences in legal rulings3. Ash-Shātibī (790 A.H.) - in al-Muwāfaqāt fī Usūl-

ash-Sharī`ah.4. At-Tāhir ibn `Āshūr, (1393 A.H.), in Maqāsid ash-

Sharī’ah al-Islāmiyyah.

Maqasid in modern days

• Open the gate of ijtihad (tbe)• Needs for the ijtihad (tbe)• Add the maqasid:– Stages in maqasid– Modern maqasids vs traditional maqasids– Example of the modern maqasids

PRESENTATIONS

1. Imam al-Syatibi and his life – his academic career2. Ibnu Taymiyah – his life and his academic career3. Ibnu Qayyim – his life and his academic career4. Contribution of Imam al-Syatibi in Science of Maqasid al-

Syariah5. Contribution of Ibnu Taimiyah in Science of Maqasid al-

Syariah6. Contribution of Ibnu Qayyim in Science of Maqasid al-

Syariah7. Contributions of modern Muslim Scholars in Maqasid al-

Syariah.

TOPIC 7

IJTIHAD

Maqasid Ash-Shari’ahObjectives of Islamic Law

meaning & definition

meaning

• Jahada

meaning

• literally means striving, or self-exertion in any activity which entails a measure of hardship.

• Juridically, ijtihad mainly consists not of physical, but of intellectual exertion on the part of the jurist.

definition

“..total expenditure of effort made by a jurist in order to infer (يستدل), with a degree of probability, the

rules of Shari'ah from their detailed evidence in the sources..”

Excludes..

1. Ijtihad essentially consists of an inference (istinbat) that amounts to a probability (zann), thereby excluding the extraction of a ruling from a clear text.

2. It also excludes the discovery of a hukm by asking a learned person or by consulting the relevant literature without the exercise of one's own opinion and judgment

definition

total expenditure of effort made by a jurist in order to infer (يستدل), with a

degree of probability, the rules of Shari'ah from their detailed evidence

in the sources

ruling from a clear text

asking a learned person

Subject of ijtihad

• Ijtihad is concerned with the practical rules of Shari'ah which usually regulate the conduct of those to whom they apply (i.e. the mukallaf)

• Ijtihad may not be exercised in regard to such issues as the createdness of the universe, the existence of a Creator, the sending of prophets, and so forth (aqidah).

• Similarly, one may not exercise ijtihad on matters such as the obligatory status of the pillars of the faith, or the prohibition of murder, theft, and adultery ( من علم ما

بالضرورة (الدين

Subject of ijtihad

Yes• Taklifi• zanni

No• Aqidahمن • علم ما

الدين

The Hukm of Ijtihad

• The ulama are in agreement that ijtihad is the collective obligation (fard kafa'i) of all qualified jurists in the event where:– an issue arises but no urgency is encountered over

its ruling. – The duty remains unfulfilled until it is performed

by at least one mujtahid.

The Hukm of Ijtihad (2)- wajib ‘ayn-

• But ijtihad becomes a personal obligation (wajib or fard `ayn) of the qualified mujtahidin urgent cases, that is, when there is fear that the cause of justice or truth may be lost if ijtihad is not immediately attempted.

• With regard to the mujtahid himself, ijtihad is a wajib 'ayni: he must practice ijtihad in order to find the ruling for an issue that affects him personally. Imitation (taqlid) is forbidden to a mujtahid who is capable of deducing the hukm directly from the sources.

The Hukm of Ijtihad (3)-mandub-

• Furthermore, ijtihad is recommended (mandub) in all cases where:– no particular issue has been referred to the

mujtahid, or – when it is attempted in the absence of an issue by

way of theoretical construction at the initiative of the jurist himself.

Hukm Ijtihad

Hukm Ijtihad

Kifai

MandubAyni

The Proof (Hujjiyyah) of Ijtihad

The Proof (Hujjiyyah) of Ijtihad

Ijtihad is validated by • the Qur'an, • the Sunnah, • concensus and

• the dictates of reason (`aql).

Proof 1 - Quran

1. al-Tawbah (9:122): 'Let a contingent from each division of them devote themselves to the study of religion [li-yatafaqqahu fi'l-din] and warn their people.

2. al-Ankabut (29:69): 'And those who strive [wa'l-ladhina jahadu] in Our cause, We will certainly guide them in Our paths.' – It is interesting that in this ayah the word subulana ('Our

paths') occurs in the plural form, which might suggest that there are numerous paths toward the truth.

Proof 2 - ahadith

• The Hadith of Mu`adh b. Jabal, provides a clear authority for ijtihad.(AD)

• When a judge exercises ijtihad and gives a right judgment, he will have two rewards, but if he errs in his judgment, he will still have earned one reward.(AD)

• When God favours one of His servants, He enables him to acquire knowledge (tafaqquh) in religion (B)

Proof 3 -consensus

• The Companions practiced ijtihad, and their consensus is claimed in support of it.

Proof 4 -rational

• The rational argument in support of ijtihad is to be sought in the fact that while the nusus of Shari'ah are limited, new experiences in the life of the community continue to give rise to new problems.

• It is therefore imperative for the learned members of the community to attempt to find solutions to such problems through ijtihad.

Conditions (Shurut) of Ijtihad

History of shurut

• The earliest complete account of the qualifications of a mujtahidis given in Abu' Husayn al-Basri's (d. 436/1044) al-Mu'tamad fi Usul al-Fiqh.

• The broad outline of al-Basri's exposition was later accepted, with minor changes, by:– al-Shirazi (d. 467/1083), – al-Ghazali (d. 505/111 ) and – al-Amidi (d. 632/1234).

Brief shurut

1. The mujtahid must be a Muslim2. A competent person of sound mind who has

attained a level of intellectual competence which enables him to form an independent judgment

3. Performs a religious duty4. Be knowledgeable in the various disciplines

of religious learning

Detail shurut

1Knowledge of Arabic to the extent that enables

the scholar to enjoy a correct understanding of the Qur'an and the Sunnah.

2Must be knowledgeable in the Qur'an, the

Makki and the Madinese contents of the Qur'an, the occasions of its revelation (asbab

al-nuzul) and the incidences of abrogation therein (nasakh wa mansukh).

3Must possess an adequate knowledge of the

Sunnah, especially that part of it which relates to the subject of his ijtihad.

4Must know the substance of the furu’ works and

the points on which there is an ijma'.

5Knowledge of qiyas.

6Know the objectives (maqasid) of the Shari'ah,

which consist of the masalih (considerations of public interest).

7Must know the general maxims of fiqh.

8Must be an upright (`adil) person who refrains

from committing sins and whose judgement the people can trust.

syurut

Syurut

Arabic

Quran

Sunnah

Ijma’

Qiyas

Maqasid

Maxim

‘Adil

Procedure of Ijtihad

Procedure of Ijtihad

1. In practicing ijtihad, the jurist must first of all look at the nusus of the Qur'an and the Hadith, which must be given priority over all other evidences. Should there be nususs on the matter, then he may resort to the manifest text (zahir) of the Qur'an and Hadith and interpret it while applying the rules pertaining to the general (`amm) and specific (khass), the absolute and the qualified, and so forth, as the case may be.

2. Should there be no manifest text on the subject in the Qur'an and the verbal Sunnah, the mujtahid may resort to the actual (fi'li) and tacitly approved (taqriri) Sunnah.

3. Failing this, he must find out if there is a ruling of ijma` or qiyas available on the problem in the works of the renowned jurists.

4. In the absence of any guidance in these works, he may attempt an original ijtihad along the lines of qiyas.

5. In the absence of a textual basis on which an analogy could be founded, the mujtahid may resort to any of the recognised methods of ijtihad such as istihsan, maslahah mursalah, istishab, etc…

procedure Nususs

Fi’li & taqrir sunnah

Ijma

Qiyas

Recognised methods

أو • نصا: فيه وجد فإن تعالى، الله كتاب نصوص في أوال: ينظر . بمقتضاه الحادثة في وحكم به، تمسك ظاهرا:،

أو • خبرا: فيها وجد فإن السنة، في نظر ذلك، فيه يجد لم فإنبها، أخذ تقريرية، أو عملية سنة

القياس، • في ثم العلماء، إجماع في ينظر ثم• . اإلسالمي التشريع لروح الموافق الرأي في ثم

    إما االجتهاد طريقة تتحدد وهكذا- ، الواقعة على انطبقت إذا النصوص ظواهر من باألخذ

بالقياس، - أي النص معقول من الحكم بأخذ أواألدلة - من المستنبطة العامة القواعد على الوقائع بتنزيل أو

المرسلة والمصالح كاالستحسان والسنة القرآن في المتفرقةإلخ . الذرائع وسد والعرف

TOPIC 9HISTORY & STAGES IJTIHAD

Maqasid Ash-Shari’ahObjectives of Islamic Law

The Ijtihad of the Prophet

• The ulama are generally in agreement that the Prophet practiced ijtihad in temporal and military affairs, but they have differed as to whether his rulings in shar'I matters could properly fall under the rubric of ijtihad.

• According to the Ash'aris, the Mu'tazilah, Ibn Hazm al-Zahiri and some Hanbali and Shafi'i ulema, the Qur'an provides clear evidence that every speech of the Prophet partakes in wahy. A specific reference is thus made to sura al-Najm (53:3) which provides `He says nothing of his own desire, it is nothing other than revelation [wahy] sent down to him.'

• The majority of ulema have, however, held that the Prophet in fact practiced ijtihad just as he was allowed to do so.

• This, it is said, is borne out by the numerous ayat of the Qur'an where the Prophet is invited, along with the rest of the believers, to meditate on the Qur'an and to study and think about the created world. As for the ayah in sura al-Najm quoted above, the majority of ulema have held that the reference here is to the Qur'an itself, and not to every word that the Prophet uttered. That this is so is borne out by the use of the pronoun `it' (huwa) in this ayah, which refers to the Qur'an itself. The majority view adds that the occasion for the revelation (sha'n al-nuzul) of this ayah supports this interpretation.

The Ijtihad of the Companions(in prophet’s time)

• The next point to be raised in this connection is whether ijtihad was lawful for the Companions during the lifetime of the Prophet. Once again the majority of ulema have held that it was, regardless as to whether it took place in the presence of the Prophet or in his absence. The ulema have, however, differed over the details. Ibn Hazm held that such an ijtihadis valid in matters other than the halal and haram, whereas al-Amidi and Ibn al-Hajib have observed that it is only speculative and does not establish a definitive ruling. There are still others who have held that ijtihad was lawful for the Companions only if it took place in the presence of the Prophet, with his permission, or if the Prophet had approved of it in some way. Those who invalidate ijtihad for the Companions during the lifetime of the Prophet maintain that the Companions had access to the Prophet in order to obtain the necessary authority, which would be decisive and final. If one is able to obtain a decisive ruling on a juridical matter, ijtihad which is merely a speculative exercise is unlawful.

Examples Of Ijtihad In Islamic History

• The Qur’an says one-fifth of the spoils of war must go to the Prophet for distribution. It is very clear the rest is theirs. The Prophet confirmed it. But during the time of Umar, when Iraq and Syria were conquered, he refused to allow the Muslim soldiers their right to the booty saying that to do so would deprive the Islamic State of essential resources to maintain the new territories. It caused great arguments. All this is well documented!

Nor is this a solitary example – there are many examples! In fact whole books have been written about Umar’s ijtihad alone!

Another example is when Qur’an says a share of state funds is to be given to “Those whose hearts are to be won over!” (al-mu’alafati qulubihim). Again the prophet did this throughout his life. But Umar decided to stop paying it on the grounds it was paid at a time when Muslims were weak and in need of support of such people. But now that was no longer the case, payment could be discontinued.

Another example is when Umar suspended the Qur’anic order to cut off the thief’s hand, during a time of famine, using his ijtihad to argue that according to another verse of the Qur’an one cannot be punished for what one does under duress.

• During the third/ninth and fourth/tenth centuries mujtahids, whether independent or affiliated with legal schools, have expressed highly original views on law.

• Ibn Surayj (d. 306/918), Tabari (d. 310/922), Ibn Khuzayma (d. 311/923), and Ibn Mundhir (d. 316/928) are perfect examples of the independent type.50 In the admission of the eighth/fourteenth-century lawyer Subki, these four mujtahids, though originally Shafi'is, have diverged from the rulings of Shafi'i,51 and as is known, Tabari went further to establish his own school of law.52 The scanty literature from the fourth/tenth century is insufficient to determine precisely what had occurred during this period, but it can be inferred from later sources that the scholars' activity, however creative, had to be contained in a certain school's doctrine, and in essence all teachings had to be attributed to one eponym or another. Like Abu Yusuf (d. 182/798), Shaybani (d. 189/804), and Muzani (d. 264/877), creative scholars of the fourth/tenth century attributed their own doctrines to a great master. By so doing, they could avoid attacks that were the automatic reaction against fissiparous tendencies and could certainly earn immediate recognition once their opinions were put under the aegis of a great jurist such as Shafi'i. The Hanbali experience is a perfect example of this trend. As previously mentioned, Ibn Hanbal established no legal system. Nevertheless, by the end of the fourth/tenth century an elaborate Hanbali doctrine could be discerned. It is therefore evident that the positive law of the Hanbali school was constructed after the death of Ibn Hanbal by later great men like Khallal, Kharaqi, and others who attributed their doctrines to him. Yet, although joining a law school and attributing new ideas to older authorities became the prevailing norm, a number of scholars openly disagreed with the established doctrines of the schools.

Brief history

• During the first two and a half centuries of Islam, there was never any attempt at denying a scholar the right to find his own solutions to legal problems.

• It was only at a later period that the question of who was qualified to practice ijtihad was raised.

• From about the middle of the third/ninth century, the idea began to gain currency that only the great scholars of the past had enjoyed the right to practice ijtihad. This was the beginning of what came to be known as the `closure of the gate of ijtihad'.

Classification and Restrictions

In their drive to impose restrictions on ijtihad, the ulama of usul of the fifth/eleventh century and the subsequent period classified ijtihad into several categories. Initially it was divided into two types:

1. firstly, ijtihad which aims at deducing the law from the evidence in the sources, often referred to as 'independent ijtihad'; and

2. secondly, ijtihad which is concerned mainly with the elaboration and implementation of the law within the confines of a particular school, known as `limited ijtihad'.

Seven scale of mujtahid-muqallid

1. Full Mujtahid(mujtahid fi'l-shar'). This rank is assigned to chose who fulfilled all the requirements of ijtihad. They deduced the ahkam from the evidence in the sources, and in so doing were not restricted by the rules of a particular madhhab.

2. Mujtahids within the School. These are jurists who expounded the law within the confines of a particular school while adhering to the principles laid down by their Imams.

3. Mujtahids on Particular Issues. These are jurists who were competent to elucidate and apply the law in particular cases which were not settled by the jurists of the first and second ranks.

4. Ashab al-takhrij, who did not deduce the ahkam but were well conversant in the doctrine and were able to indicate which view was preferable in cases of ambiguity, or regarding suitability to prevailing conditions.

5. The ashab al-tarjih are those who were competent to make comparisons and distinguish the correct (sahih) and the preferred (rajih, arjah) and the agreed upon (mufta biha) views from the weak ones.

6. The so-called ashab al-tashih: those who could distinguish between the manifest (zahir al-riwayah) and the rare and obscure (al-nawadir) views of the schools of their following.

7. And finally the muqallidun, or the `imitators', who lack the abilities of the above and comprise all who do not fall in any of the preceding classes.

Ijtihad in modern days

• Authors throughout the Muslim world have begun to criticise taqlid and advocate the continued validity of ijtihadas a divinely prescribed legal principle. A number of most prominent ulema, including Shah Wali Allah, Muhammad b. Isma'il al-San'ani, Muhammad bin `Ali al-Shawkani and Ibn 'Ali al-Sanusi led the call for the revival of ijtihad.

• The nineteenth century Salafiyyah movement in Egypt advocated the renovation of Islam in the light of modern conditions and the total rejection of taqlid.

Tutorial 719 march 2013

Tutorial 7 (19 march)

• Discussion based on book by Dr Jaser Auda– Between maqasid & masolih– Dimensions of maqasid– Between traditional & contemporary scholars– The incident of Bani Quraizah (incident, group, rationale &

implications)– Khalifah Omar ra practiced maqasid in his judgments.– Incident jog around the kakbah– Applying zakat in the modern days.– Interpretation of the prophetic maqasid (intents)– FAQ – the answers based on maqasid.

Tutorial 7 (19 march)

Tutorial 6

Tutorial 7 (classification)

Classification of OIL (new)

PRESENTATION BY STUDENTS(OIL – 21 jan 2013)

• 3 student per group 7 groups (choose your group)• Presentation in combined tutorial (2 tutorials- weeks)• Every group – 10 minutes presentation• Not less than 10 slides – not more than 20• Photocopy every powerpoint and distribute to all

students in 3 pages/paper.• Topics? Write your name/group start on Tuesday

afternoon (22 Jan) on paper (stick on lecturer’s door – LG.4)

topics

1. Imam al-Syatibi and his life – his academic career2. Ibnu Taymiyah – his life and his academic career3. Ibnu Qayyim – his life and his academic career4. Contribution of Imam al-Syatibi in Science of Maqasid al-

Syariah5. Contribution of Ibnu Taimiyah in Science of Maqasid al-

Syariah6. Contribution of Ibnu Qayyim in Science of Maqasid al-

Syariah7. Contributions of modern Muslim Scholars in Maqasid al-

Syariah.