Modernity and the General Philosophy of Islamic law

By SLM Rifai

This book explores the inherent connections between the social and legal changes in Islamic law.  Dramatic social changes are taking place in the digital world around us. All these social changes demand legal changes in Islamic law as well. Many Muslim academics and legal experts have demanded that legal changes must be made in Islamic law in line with the general philosophy of Islamic law. This book examines the contributions of the classical and modern Muslim scholars to the subject matter of the general philosophy of Islamic law ( Maqasid-al-Shariah). 

• Language: English
• Publisher: SLM Rifai
• Release date: Jan 13, 2021
• ISBN: 9781912821259

Book preview

I dedicate this book

To late al-Hajj Naleem JP and my parents.

Acknowledgements

First and foremost, I thank Almighty Allah. Without His grace, I wouldn’t have written this book. There are many people that I should thank for enabling me to write this book. I would like to thank all my teachers at Jamiah Naleemiah for their guidance. More importantly, I thank Dr M.A.M Shukri, director, Jamiah Naleemiah, A.C. Agar Muhammad, its deputy director and Ustaz Mansoor for their encouragement. Moreover, I would like to thank my late parents who dedicated their time and money to educate me. My wife, children and friends too have been encouraging me to write this book. I’m also thankful to al-Furqān foundation in London for lending me some books to do this research. Finally, I would like to thank express printer for publishing my work.

The table of contents:  pages

Acknowledgements        3    

The table of contents      4

Preface:            5

Chapter 1: what is general philosophy of Islamic law.     8

Chapter 2: Why do we need the general philosophy of Islamic law today?    17

a) The general philosophy of Islamic law and its relevance to modernity    21

b) Maqāsid and the nature of social changes      29

c) Maqāsid and the deficiencies in the conventional legal theories.      45

d) Maqāsid and Laws of priorities           54

e) Maqāsid and (Ma’ấlâth al-Af’ấl) the consequences of human actions            60

Chapter3: Themes of maqāsid in modern Islamic scholarship          64

Chapter4: Reformists and the general philosophy of Islamic law:  74          Chapter:5 Application of Maqāsid in modern time.          108

a) Maqāsid and the human right in the Muslim world      116

b) Maqāsid and the western social values.       121

c) Maqāsid and the Human Development.     125  

d) Maqāsid and the Muslim extremism     137

e) Maqāsid and the politics of the Muslim world.      143

f) Maqāsid and the Islamic civilization     149

g) Maqāsid and the Common law (Magna Carta)      161

Chapter   6: Public interest and its modern implication.         169

Chapter:7: Muslim world and the development of institutions:        186

Chapter 8: Application of Law and the Muslim community today:     202

Conclusion:    212

Appendix   220  

Bibliography:    224   

Preface:

Why am I writing this book on the legal philosophy of Islamic law?  Much has been written on Maqāsid al-Shari’ah. Several Islamic scholars have produced books on this topic from different perspectives and yet, why do we need one more book on the same subject? It is not my objective here to repeat what has already been written rather I would like to put forward some new ideas. This book primarily addresses three salient questions. What is general philosophy of Islamic law? Why do we need Maqāsid al-Shari’ah? How do we apply the doctrines of Maqāsid in the modern world? The literal application of some aspects of the text of the Holy Qur’an and prophetic traditions is not always viable. Neither classical Islamic thought nor the literal legal schools provide ready-made answers for the problems of modern time. This does not mean we must abandon teaching of Islam as secularists claim. This does not mean we should ignore intellectual legacies of 1400 hundred years of Islamic history. There is nothing wrong in the divine text of the Qur’an and yet, human understanding to the divine text differs from century to century, place to place and person to person. For the last 14 centuries, different Muslim communities have been reading the corpus of Islamic law within their own social contexts. There is no uniformity in human understanding of divine text. The divine texts are prone to different human interpretation. The corpus of Islamic rules we have today are the collections of 1400 hundred years of legal interpretation. We should have not only thorough knowledge of Islamic sciences, but also a thorough knowledge of the Maqāsid to choose some appropriate legal opinions from the 1400 hundred years of Islamic legacy.  It has been argued that the civilizational development of the Muslim world should be re-constructed on the foundation of Maqāsid once again.

The chaotic socio-economic, religious and political conditions of Muslim world today are nothing but a clear reflection of the crisis of the Muslim mind. Lack of creativity, stagnation of thought, and backwardness of the Muslim world support this claim. Politically, the Muslim world is lagging far behind in democratic values. Religiously, the Muslim world is polarised into many ideological groups. All this illustrates the acute nature of crisis of the Muslim mind.  Some blame the Muslim history for this crisis. Some others blame the religious thought of the Muslim community. From late Rahman, to the contemporary scholar Ramadan, hundreds of modern Islamic scholars demand a radical reformation of the Muslim mind. In a recent study, H. Askari and his colleagues have initiated the Islamicity program to assess economic and human development of Muslim countries and to venture some strategic plans to develop the Muslim countries in line with Islamic teaching. He argued that Since ww2, the political, economic and social progress of Muslim countries has been inadequate for building thriving communities. The state of Muslim countries, poverty alongside opulence, inequality of opportunities in education and general advancement, economic and social malaise, pervasive injustice, political oppression and, above all, ineffective institutions-has created resentment, anger, and hopelessness. In turn, these realities have contributed to the growing East-West divide and the rising menace of worldwide terrorism with the United States engulfed in an endless war the world over since 9/11. Short-term initiatives, which have included western support for oppressive Muslim rulers and a variety of covert and military options, have, if anything made conditions worse and likely to make a turnaround ever more difficult over the long run. (H. Askari, 2017. P.1). What is the way out from these pathetic conditions? Muslim academics have proposed many strategic plans to come out of mess. Some argue that the Muslim reformation should be done through political revolutions, some others argue it should be done through education development, some others contend it should be done through economic development and yet, another group of Muslim intellectuals argues that it should be done through religious reform. al-Farooqi and his associates, with their Islamization of knowledge model, al-Yamani, and his associates, with their reformation of Islamic legal theory model, Ramadan and his associates, with their Islamic ethical legislation model,A.Raisūni and his associates, with their Islamic legal philosophical study model, M. al-Shanqithi and his associates, with their political reformation model, Sultan and his associates, with their reconstruction of Islamic knowledge model, H. Askari and his associates, with their human development model, I. al-Buleihy and his associates, with their liberalization of Islamic thought model, M. Arkoun and his associates, with their secularization of Islamic thought model, all  have attempted to create some strategic plans sincerely  to free the Muslim community from the grip of the stagnation. Muslim scholars have a profound knowledge in the  traditional Islamic sciences and yet, their knowledge about modern world, its economy, geopolitics, new world order, science and technology is very much shallow. A large percentage of Muslim scholars have failed to appreciate rapid modern changes that take place in the age of globalization. They have failed to identify the huge socio-economic and political phenomenon that takes. They find solutions for the problems of Muslim communities in historical precedents of the past Muslim intellectual heritage without appreciating all these changes.

This book evaluates the contention of H. Askari who argues that many Non-Muslim countries are more Islamic in application of Islamic teaching on human welfare than many so-called Islamic countries. The western world is outstanding in many developmental indices namely in education, economy, health, science, technology, space science social justice, human rights and in many other fields.  The general philosophy of Islamic law was created to promote the human interest and development. Islamic teaching has been a driving force of Muslim development in early Islamic history and yet, the Muslim community does not get much needed impetus from these instrumental driving of Islamic sources. They no longer function as developmental inspirations for the Muslim community. Many Muslim scholars argue that the general philosophy of Islamic law can be an instrumental guide for the development of the Muslim world. They argue that developmental policy strategies of the Muslim world should be in line with Maqāsid. This book explores the core values of the general philosophy of Islamic law with that of some the social values of the modern western world.

I find three projects have more practical credentials. Mahboob ul-Haq, the architect of Human development report highlighted that the welfare of people should be the focus of socio-economic development. This is exactly what the classical Muslim jurists proposed through the theories of Maqāsid. Yet, Muslim social scientists have failed to develop the ideas of late Mahbub-ul-Haq in line with the general philosophy of Islamic law. Recently, H. Askari has proposed the idea of Islamicity index to evaluate socio-economic and human development of the Muslim world in line with Maqāsid.  He argues that to change the Muslim world from these pathetic conditions, Muslims would have to better understand Qur’anic teachings and strive to establish effective institutions based on the Qur’an and the Hadiths, to replace the pronouncements of corrupt rulers, co-opted clerics and terrorists in Muslim countries....The condition of Muslim countries is path dependent and has been the result of centuries, or at least many decades, of missed opportunities, and unhelpful policies and practices. The institutional scaffolding that is recommended in Islam.... requires a much higher degree of morality and justice (Askari. 2017.P1). H. Askari says that We believe that Islamicity indices provide the compass and the basis for establishing effective institutions, restoring hope, achieving sustainable development and for strengthening global order. These indices are based on the teaching of the Qur’an and the life and practice of the Prophet Muhammad (Ibid, p1). T. Ramadan has initiated the centre for the study of Islamic legislation and Ethics (CILE) in Doha. The mission of this centre is to evaluate modern human development from Islamic ethical perspectives, so that Islamic values could be protected from harmful human innovation and manipulation. The terms such as Maqāsid al-Shari’ah and Maqāsid are identical with general philosophy of Islamic law and legal philosophy of Islamic law in this book.

CHAPTER:1   1: what is general philosophy of Islamic law: Definition of Maqāsid al-Sharī‘ah:

The subject matter of the Islamic legal philosophy of law (Maqāsid al-Shari’ah) has been more vigorously discussed today than ever before. In recent times, a genre of literature on the legal philosophy of Islamic law has dramatically increased.  Islamic conferences, talks and seminars are frequently held in many parts of the Muslim world on the theme of Maqāsid. Unlike traditional methods of learning Islamic law in the past, present Muslim students of Islamic law have begun to read Islamic law, focusing on the subject matter of Maqāsid. Traditionally, (Maqāsid) is regarded as a part of Islamic legal studies. Primarily, it was developed to understand the rationale of Islamic law. Initially, this aspect of Islamic legal study has been a branch of (Usul al-fiqh). However, today, the study of general philosophy of Islamic law has grown dramatically. It has become a fully-fledged branch of Islamic science. Islamic centres and Islamic universities have begun to teach Maqāsid as one of their core subjects.  But, most of the writing on Maqāsid has been theoretical and historical. Most works on the Islamic legal  philosophy are repetitive and are copied from one generation to another generation. Traditionally, it is assumed that Islamic legal philosophy is a subject that deals purely with some aspects of Islamic laws: namely the laws of Islamic rituals, Islamic forms of worships, Islamic punishment laws, Islamic laws of marriage and divorce, Islamic laws of inheritance and endorsement, or Islamic laws of business transactions. Yet, today an attempt has been made to relate Islamic legal philosophy to all aspects of life in the Muslim community.  What is (Maqāsid): the legal philosophy of Islamic law? What are the definitions of Maqāsid? What is the epistemological foundation of the Islamic legal philosophy? what is the historical origin of Maqāsid? Where did this idea of Maqāsid come from? How do we trace it?  What is its scope of Maqāsid? How do we understand it? This book traces the genesis, origin and the development of maqāsid from its linguistic, theoretical and historical perspectives. Basically, this book defines the broader idea of the general philosophy of Islamic law and traces its historical roots in the primary sources of Islamic law.  Most Islamic legal scholars unanimously agree that Islamic law has some higher objectives and yet, some of them differ on how to define them and how to identify them. Traditionally, Islamic terminologies have been defined literally and technically. Many Islamic scholars have argued that the construction of Maqāsid: (Legal philosophy of Islam law) has two components: The first one is Maqāsid and the second one is -Sharī‘ah:  both are Arabic terms which have some deep theoretical and technical meanings. They argue that this construction has far reaching meanings: It means that there is no Islamic law without some rationale, and wisdom. They are the foundation of Islamic law and without them the Islamic law would not have any meaning.   

Some jurists compare the spirit of the law with that of a human body. The human body functions if only life is in the body. Likewise, the general philosophy of Islamic law is the spirit of Islamic law and its dynamic mechanism. There is an inherent connection between Islamic law and its higher objectives. No legal philosophy can be derived from any other sources except from Islamic sources. Divine wisdom is the foundation of Islamic law (Zubeida, 1996, p.39). Yet, human reason has a greater role in understanding Islamic law but, it must work within the boundaries of the divine text. The logical conclusion of this argument is that the Muslim jurists cannot go beyond the divine instructions in constituting new laws. Whatever new laws are introduced; these new rules should be in line with the general philosophy of Islamic law. This means that any alien philosophy that clashes with any teaching of Islam cannot be part of Maqāsid. This excludes all man-made philosophies beyond the scope of Islamic legal philosophy. Thus, Islamic legal philosophy has been determined by two factors. It should always go along with the evidence of the primary sources of Islamic law. Secondly, it should go along with pure human intellect. The human intellect that has been contaminated with alien anti-Islamic doctrines cannot define what the objectives of Islamic law are. Muslim jurists have no right to introduce alien ideologies into the subject matter of the general philosophy of Islamic law in the name of modernity. All what they argue is that the Islamic legal philosophy is constructed from divine guidance. Muslim jurists with certain academic qualifications in Islamic sciences could interpret the Islamic law. Yet, they need some extra qualifications in modern sciences to relate Islamic law onto modern conditions.

The literal meaning of this term:

Literally, the term Maqāsid al-Shari’ah has been translated as objectives of Islamic law and yet, this term has been technically used as legal doctrines in Islamic legal studies. This term has been used in a wider meaning with new implications. It has been named as general philosophy of Islamic law.   The general philosophy of Islamic law has evolved as an independent branch of Islamic legal studies. Etymologically, the term maqāsid is derived from the term Qasada: It means to aim at or to go straight. Literarily, the term maqāsid means straightness of path.  Qur’an says that. God points out the right path (16:9). Literally it means to intend to go in a right direction without any deviation. This means that one who follows the middle path and not veering into either side of the path. (A.N. Baza,2014. P. 28).

The technical meaning of the maqāsid:

Technically it means the aims, purposes, goals, objectives and intentions of Islamic law: It has been defined as the general philosophy of Islamic law. The term maqāsid al-Sharī‘ah has been defined as a legal philosophy in Islamic law or science of knowing the wisdom and rationale of Islamic law that God instituted for His believers through his last prophet. (Zubeida P.39). It has been defined as an Islamic science that explores the divine wisdom and the objectives of Islamic law. Moreover, this science aims at promoting the welfare of people both worldly and eschatological (Zubeida P.45). Although classical scholars discussed the theme of maqāsid in their legal works, none of them defined the theme of maqāsid in a technical sense in any precise manner until some modern time. Nevertheless, Raisūni argues that the initial appearance of the term maqāsid in a technical sense was in the works of Imām Abū Abd Allah Ibn ‘Ali al-Tirmithy (245.H). He was the first to employ the term al-maqāsid and ‘illah in a strictly technical sense. In fact, some of his treatises on the wisdom of worship (‘ibādāt) were based on the theme of maqāsid.

Thus, it can be said that the process of analysing the purpose and benefits of the rules of the Sharī‘ah systematically stems from this scholar’s works, although the precedent for this concept was incorporated in the texts and opinions of his pioneers. Nevertheless, al-Tirmithy did not provide a definition for the general philosophy of law in a technical sense. (Raisūni., 1997 p. 40-41). The general philosophy of Islamic law is a branch of Islamic science that has been devised to understand the divine wisdom of Islamic law. Moreover, it is  an Islamic strategic legal methodology that aims at promoting the public interest. Even al-Shātibī, the architect of the doctrine of maqāsid did not define the theme of maqāsid in any precise technical sense. This was perhaps because the subject matter of maqāsid was clear that it did not demand any definition as such. Therefore, the reader of his work must be someone who has already acquired some basic knowledge in Islamic law and Arabic language.  Otherwise, it would be difficult to understand his legal thought. Furthermore, he demands from his reader open-mindedness and not to be confined to any legal school of thought. These are two conditions that al-Shātibī imposes on those who wish to embark on studying his legal philosophy (al-Shātibī vol.1,p.61).This means to fully comprehend the broader concepts of the general philosophy of Islamic law, the students should have some prerequisites.  Unless these conditions are met, his ideas of maqāsid are not fully comprehensible. For the first time, in the legal history of Islamic law, Ibn ‘Āshur, Allal Fāsi and Raisūni define the doctrine of maqāsid in a technical sense. Yet, legal studies in the general philosophy of Islamic law are still growing. However, the works of these scholars give us some fundamental ideas about the origins of the general philosophy of Islamic law.  Ibn ‘Ashur defines al-maqāsid al-Sharī‘ah as a science that aims at knowing the purposes of Islamic law. Allal Fāsi defines it in two ways, he defines it in a general term. It is to know the overall general objectives and divine wisdom behind each divine law. Yet, he offers a cohesive definition by defining the mission of man in this world as a divine agent. "Knowing the general philosophy of Islamic legislation is an art. Some primary aims of the general philosophy of Islamic law according to A. Fāsi are 

a)  Enriching human civilization on earth,

b)  Maintaining a cohesive community interaction and social order

c)  Establishing justice on earth,

d)  Giving guidance and direction to the political leaders

e)  Mastering the arts of good governance,

f)  Enhancing human skills and human resources (A. Fāsi. 1981, p3).

What does he mean by the preservation of social order? The Muslim community needs to reform its social structure, update its living standards and meet people’s basic needs. The Muslim community should maintain law and order to prosper. Moreover, it needs to take all measures to enrich human civilization on earth. A. Fāsi proposes some radical changes in our reading of the general philosophy of Islamic law. For him Islam is not merely religion rather it is a way of life that encourages the Muslim community to create a strong human civilization. On the other hand, Ibn ‘Āshur divides the general philosophy of Islamic law into general and specific objectives (Ibn ‘Āshur1988, p.17).

I. Al-maqāsid al-‘āmmah: The broader objectives of Islamic law: These general objectives of the divine laws are enshrined in a broader spectrum of divine legislation. They are not limited to any specific aspects of the divine law.  The overall objectives of Islamic legislation according to Ibn ‘Āshur include the promotion the public interest of individuals and societies, maintaining law and order in society, establishing justice, protecting freedom, promoting equality, and enhancing the social developments. (Ibn ‘Āshur. 1998. p.17).The Holy Qur’an and the prophetic traditions outline some broader social values such as Oneness of God, sincerity, justice, freedom, equality, love, compassion, universal brotherhood of humanity, and some other social values. These are universal principles that have been incorporated in general philosophy of Islamic law.

II- Al- maqāsidal-khāssa: The specific purpose of Islamic law:The specific type of maqāsid include those purposes of law that refer to particular areas of Sharī‘ah. Those laws are related to family affairs such as the laws of marriage, the laws of divorce, the laws of inheritance, the laws of Will writing, the laws of business transactions, and punishments. Identifying the specific laws in relation to all these branches of the substantive law is called as knowing the specific purpose of the Islamic law.

III- Al-maqāsid al-juziyyah: The objective of law in relation to a particular issue:Identifying the wisdom and rationale behind each command and prohibition of divine ruling is defined as al-maqāsid al-juziyyah. Each divine command and prohibition are enshrined with some divine wisdom. Knowing those aspects of divine wisdom is called as maqāsid in particular divine command. These aspects of maqāsid are mostly recognized by Islamic jurists with their deep insight into positive law. To know this kind of divine rationale one needs to have a sound knowledge in Islamic science and Arabic linguistic conventions. Because the primary sources of Islam are in the Arabic language. one should know the linguistic conventions of Arabic to subtract rulings from divine texts. These are the three types of definitions proffered to the doctrine of maqāsid. Yet, the scope of the general philosophy of law seems to be open ended. No one has yet limited the scope of the general philosophy of Islamic law, but its scope is closely linked to the divine texts, prophetic traditions, legal maxims, legal theories and legal precedents.  The religious value and validity of any human actions, behaviour or intention can be gauged in the light of the general philosophy of Islamic law.

Ibn Taymiyah defines the general philosophy of Islamic law from another theological perspective. For him, maqāsid law defines the purpose of the human life. It defines it from a pure spiritual and religious perspective. God created man and this universe. It is God facilitated man with all facilities on this earth to live, so man should submit his will to God alone, Not for his own desire, not for money nor for anyone else. Ibn Taymiyah argues that the full submission to the divine will is the primary purpose for which man is created, so, he should live as God asked him to live. So, maqāsid deals with some fundamental questions of the human life. Philosophers have been debating for centuries about the fundamental questions of life. The questions such as who am I? Where do I come from? What is my life mission? Where do I go after death? Indeed, the general philosophy of Islamic law deals with these questions too. For instance, if we ask any non-practicing Muslim what your ambition in your life is? one might say my life ambition is to get a good job with a big salary? or to enjoy life as much as possible. Or something to do with this worldly life Yet, if we ask the same question to  a practicing Muslim he would say, my life mission is to please God, to be successful both worldly and eschatological life, to be a beneficial person for all and to do good deeds as much as possible with  the expectation that God will reward me in my next life. Human life is not merely to eat, drink and die rather it has a profound spiritual, eternal, and everlasting meaning. The wider scope of the general philosophy of Islamic law is not merely concerned about the material development of the Muslim community, rather its programs are aimed at guiding the humanity for its salvation both this and the eschatological life. Islam encourages man to be successful in his material life, but it is not at the expense of his salvation in his next life. Islam is a moderate religion in that it meets the physical, spiritual and material needs of human beings. The general philosophy of Islamic law directs Muslim individuals and communities to follow the path of moderation in their material, and spiritual life. They should not give priority to material life over spiritual life, or to spiritual life over material life. That is why a total renunciation of worldly life is prohibited in Islam. At the same time, an excessive love of materialism is condemned in Islam. Islam never encourages people to renounce this world to gain salvation in their eschatological life. Auda defines the concept of the Maqāsid differently in that he says the general philosophy of Islamic law is related to some fundamental logical questions. It deals with questions of why? It is a natural inquisition to ask why we have traffic rules or why do we have a code of conduct in our working environment? Or why do we have a certain protocol in our schools, colleges and universities? The rules and regulations are set for good reasons. These rules and regulations are set for a purpose. That is to protect people from danger. Behind every rule of Allah there is a rationale. Some of this rationale is comprehensible and some others are not. Auda argues that the overall general philosophy of Islamic commands and prohibitions are comprehensible. The subject of Maqāsid  is know why Allah prescribed rules and regulations for human life. Auda contends that it is a branch of Islamic knowledge that answers all the challenging questions of why on various levels. We should apply this question mark of why to Islamic divine rules to know the wisdom behind them. For instance, why did Allah make praying five times a day compulsory? why did Allah make paying 2.5% of profit a compulsory duty upon every rich Muslim person? why did Allah make a hajj pilgrimage a compulsory duty for rich Muslims once in their lifetime. Similarly, knowing the rationale of divine commands and prohibitions are part and parcel of Islamic legal philosophy. (Auda. 2016, P5.)

There is some inner meaning for the prayer