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UNIVERSAL GUIDELINES* Islamic Law (Shari’ah) criteria for measuring actions* Maqasid al-Shari’ah* Qawaid al-Fiqhiah

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UNIVERSAL GUIDELINES

Islamic Law (Shari’ah) criteria for measuring actions

Maqasid al-Shari’ah (Objective of Shari’ah)

Qawaid al-Fiqhiah (Methods of Jurisprudence)

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MAQASID AL SHARI’AH

Maqasid al Shari’ah means the objectives of Shari’ah, which is related to the study of the laws and rules governing civil transactions (mu’amalat) and manners (adab) (Ashur, XXIV)

Shari’ah specifies and identifies the various levels of benefit (masalih) and harm (mafasid) and the criteria for assessing them

The rules of Islamic Shari’ah are based on inner reasons (hikam) and causes (asbab) that devolve upon the universal goodness and benefit of both society and individuals (Ashur, p.3)

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TWO KINDS OF MAQASID AL SHARI’AH

Real ideas (ma’ani haqiqiyyah) – those notions which are true in themselves so that sound minds can perceive their conformity or incompatibility with what is good (maslahah)

Universal conventional ideas (ma’ani ‘urfiyyah ‘ammah) consists of those time-tested notions that are familiar to the general public and acceptable to them

Both kinds must fulfill the properties of Certainty (thubut) Evidence (zuhr) Consistency (indibat) Regularity (ittirad)

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MASLAHAH

Seeking of benefit and the repelling of harm (jalb al manfa’ah wa daf al madarrah) as directed by Allah (Ashur, p.196)

Maslahah = Manfa’ah (benefit or utility; literally not similar to maximum happiness utilitarianism)

Shari’ah driven benefits – seeking of benefit and the repelling of harm

Non Shari’ah – maximum human happiness

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Al Ghazali’s definition of Maslahah

“What we meant by maslahah, however, is the preservation of the ends of the shar.” (Nyazee, p.196)

Maslahah is not the same as human goals and the principle of utility based on human reason. (Nyazee, p.196)

Maslahah is the securing of goals or values that Allah has determined for the shari’ah. (Nyazee, p.197)

The goals determined for the shari’ah by Allah may or may not coincide with values determined by human reasons. . (Nyazee, p.197)

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CLASSIFICATION OF MASLAHAH

1. Maslahah acknowledged or rejected by the shari’ah

2. Maslahah that based on the purposes of Islamic law and their types: Darurat (necessities), Hajat (needs), and Tahsinat (complementary goals)

3. Maslahah that based on definitive interests (qat’ie) and probable (zanni) interests

4. Maslahah that based on public interests (maslahah ammah) and private interests (maslahah khassah)

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PURPOSES OF ISLAMIC LAW

The classification is created according to their inner strength and through a process of induction (istiqra’ (Nyzee, p.200)

Three types: Darurat (necessities), Hajat (needs), and Tahsinat (complementary goals) (Nyazee, p.199)

Darurat (necessities; necessary interests) – if not giving protection, it would cause disorder & chaos in society; prized social interests: preservation & protection (hifz ‘ala)1. Religion (al din)2. Life (al nafs)3. Progeny (al nasl)4. Intellect (al ‘aql)5. Wealth (al mal)

Hajat (supporting needs); to smooth operation & implementation; to facilitate transactions

Tahsinat (complementary interests) additional rules that lead to moral and spiritual progress of the individual and society

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Classification II: Maslahah

Maslahah is much wider than the principle or source of Islamic law maslahah mursalah

The large doctrine requries the use of rational sources to discover the law, each law must be checked against the purpose of Islamic law (maqasid al shariah) (Nyazee, p.201)

If there is some compatibility (munasabah) between the derived law and the purposes (of shariah), then the law is valid, otherwise it may be rejected

The large doctrine covers qiyas, instihsan, and maslahah mursalah (Nyazee, p.202)

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Al Ghazali: Purposes of Islamic Law (Maqasid al Shariah)

Dini (hereafter) – tahsil or ibqa’ Dunyawi (this world) – tahsil or ibqa’

Tahsil – securing the interest, benefit (manfa’ah) Ibqa’ – preservation of the interest; repelling of harm (madarrah).

How to connect purposes of Islamic law with the Al-Ghazali perspectives:

Dunyawi (this world) + Dini (hereafter) = Five elements under Darurat (protection of religion, life, progeny/family, intellectual, and wealth

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Priorities of Maqasid al Shariah

Maqasid are considered definitive (qat’ie); through process of induction [particulars to general] (istiqra’) rather than through deduction [general to particulars].

Outside the ultimate values [qat’ie] recognized as the purposes of law, we reach the area of weaker attributes (ashbah, probable values). Probable values are distant value (wasf ba’id), which is distant in comparison with the darurat (each is a near value, wasf qarib)

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The Structure of Maqasid

The primary purpose of the Shari’ah is to secure the interest of man, pertains to the Hereafter

Purposes of the Hereafter (Dini) and purposes restricted to this World (Dunyawi)

Al Ghazali – superiority in the interest of the religion (Din) e.g. Jihad, exchange life in the interest of the religion

Four elements combined to link with the Din: life, family, intellect, and wealth Din

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Primary and Secondary Purposes

Maqasid has 3 levels – 1st - Darurat, 2nd - hajat, tahsinat

Abolished the lower two levels, primary purposes can stand by themselves

Each of the primary purposes (maqasid), may be divided into public and private purposes

The public purposes seek to preserve the interests of the community as whole; the private purposes protect the right of individuals

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Public vs Private Interests

Maslahah ‘Ammah (public interests)Maslahah Khassah (private interests; individual benefits) Public interests – beneficial and useful for the whole or

most of the society/community and does not concern individuals only in so far as they are members of the whole, e.g. safeguarding of everything of economic value (mutamawwilat) from destruction of flood or fire; collective obligations (Furud al Kifayah) e.g. defence of Muslim lands against aggressors

Private interests – benefits of the individuals, not the general public – goodness of the individuals’ acts as a means to the goodness and wellbeing of the whole society e.g. the protection of the private property of mentally incompetent people (safih) from squandering by placing them under interdiction (hajr) during the period of their incompetence.

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Maslahah vs Mafsadah

Maslahah (beneficial); Mafsadah (harmful) How to determine actions are beneficial or

harmful; Measurement: pure benefit and utility (naf khallis) vs absolute harm (durr khallis)

Al Shatibi: masalih vs mafasid what is predominant (ma ghalab)

Priorities within maqasid: 1st Din, 2nd Life, 3rd Family, 4th Intellect, 5th Wealth

1. The stronger interest shall prevail

2. The public interest is prior to the private

3. The definitive interest prevails over the probably

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FIVE CRITERIA TO DETERMINE MASLAHAH OR MAFSADAH

1. The benefit or harm must be definite and regular e.g. breathing of fresh air is definite benefit entailing no harm for others; setting fire to certain crops simply destroy, thus absolute harm

2. The harm or benefit must be so prevalent and evident, e.g. rescuing a drowning person is a maslahah, despite the harm one might suffer

3. Action must be of a type that cannot be replaced with something else e.g. consume intoxicants create serious harm

4. One of the two aspects of benefit and harm, through equivalent to its opposite, must be corroborated by something of its genus (type) that makes it outweigh the other aspect

5. One of the two aspects of benefit and harm must be definite and certain.

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Basic Principles (Qawaid al Fiqhiah)

Actions are judged according to intentions Harm or injury must not be allowed to exist or persist What is harmful cannot be used to combat another

harm The need to stop a particular act, which may on its own

be lawful, in order to prevent general hardship or injury Adopting the lesser of two evils to avoid the more

serious of the two Meeting vital needs allows what is normally forbidden Hardship gives rise to relaxation of laws