A STUDY OF EVOLUTION OF MAQÂSHID AS-SYARI’AHAS A LEGAL THEORY

Abdul Hameed Badmas YusufDept. of Religions, Faculty of Arts, University of Ilorin, Ilorin, Nigeria

Email: ab.yusuf@unilorin.edu.ng, abdulhameed1403@gmail.com

Abstrak: Studi Evaluatif terhadap Maqâshid as-Syarîah sebagai Teori Hukum. Artikel ini memberikan akun sejarahtentang teori maqashid as-syari’ah dengan tujuan untuk menunjukkan bagaimana teori tersebut berkembang.Akun sejarah ini sangat signifikan untuk mengapresiasi ijtihad orang-orang hebat generasi pertama, yakni parasahabat yang telah mewujudkan dan menenamkan ide maqashid as-syari’ah. Di sampig itu, muncul juga kontribusiyang disumbangkan oleh para ulama seperti al-Qaffâl, al-’Âmir, al-Juwaini, dan al-Ghazali yang mengembangkanteori tersebut yang kemudian disusul oleh as-Syatibi, Ibn Ashur, dll yang menstandarisasinya menjadi sebuah teoriyang dipenuhi dengan prospek penelitian lapangan yang mandiri. Penelitian ini menyimpulkan bahwa pemahamanyang tepat tentang teori maqashid as-syari’ah tersebut sangat penting diterapkan terhadap konsep dan penerapanhukum Islam secara tepat. Fakta bahwa teori ini sangat dinamis dan mampu beradaptasi membuatnya mampuberevolusi dan berkembang. Oleh karena itu, tak terelakkan lagi bahwa teori maqashid as-syari’ah itu mampuberadaptasi dan merupakan hukum Islam yang relevan sepanjang waktu dan di semua tempat. Sebagian besarmetode yang digunakan dalam penelitian ini adalah sejarah.

Kata kunci: maqâshid as-syarîah; teori hukum Islam.

Abstract: A Study of Evolution of Maqâshid as-Syarîah (objectives of Islamic Law) as Legal Theory. This paper gives ahistorical account of the theory of maqashid as-syari’ah with a view to showing how it actually evolved. This historicalaccount is especially significant in order to appraise the efforts of those great individuals of the first generation (theCompanions), who embodied and lived the idea of maqashid as-syarî’ah. Also, it shall shed light on the contributionsmade by pioneer scholars (al-Qaffâl, al-’Âmir, al-Juwaynî, al-Ghazâlî) who developed the theory, and the later ones(Shâthibî, Ibn Ashur, etc.) who standardized it to become a full-fledged theory with prospects of becoming anindependent field of study. The study concludes that proper understanding of the theory is crucial for the correctconception and application of Islamic law. The fact that the theory is characterized with dynamism and adaptabilitymake it ever evolving and expanding. Thus it is an inevitable tool for ensuring the adaptability and relevance of Islamiclaw at all times and in all places. Expectedly, the method used in this research is largely historical.

Keywords: maqâshid as-syarîah; Islamic legal theory

Introduction

Maqasid as-syari’ah is an important Islamiclegal theory which deals with the very objectivesbehind Lawgiver’s various commands andprohibitions. It presupposes that realizationof human benefits is the ultimate and overallobjective which the Lawgiver seeks to achieve.Diverse as they may be, human benefits arecategorized into three categories, namelynecessity, need, and embellishment. The firstcategory is given proper attention by jurists andauthors across ages. This is because it category

entails five fundamental human benefits andinterests (i.e. religion, life, intellect, progeny,and property) for the protection of which theLawgiver has stipulated certain stiff penalties.The theory is an indispensable tool for properunderstanding and application of Islamic law.Therefore, this paper studies the theory fromhistorical perspectives. The idea is to dig deepinto its origin and development with a view to seehow it was conceived by the pioneer exponentsand standardized by the later jurists to be a full-fledged legal theory assuming a unique statusas far as Islamic law is concerned.

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Origin and Development of Maqâshid As-Syarîah

A comprehensive history of maqâshid as-syari’ah can be traced to the first period of Islamwhen the message bearer (SAW) was alive. Legalinjunctions contained in the Prophetic Traditionswere fundamentally premised on the conceptof taysîr (facilitating or making things easy),which is a necessary manifestation of maqasidas-syari’ah. This concept was well understood andinternalized by the Companions of the Prophet(SAW), because of the fact that they lived atthe time of revelation. Apart from witnessingsubstantial parts of revelation, their enquiries, inmost cases, constituted reasons behind revelation;at times revelations would come down to theProphet (SAW) in response to one or two issuesconsequent upon actions, inactions, reactionsand interactions of the Companions amongthemselves. Their proximity to the messagebearer both home and away, and during theperiods of peace and of war was very crucial totheir full awareness of the fact that the entirecorpus of the syarî’ah is purpose-oriented and thatit is ultimately designed to ensure human benefit.In addition to this, they were well versed inArabic language by instinct, which is the languageof revelation. Added to the above factors is ahost of personal attributes such as high levelof intelligence, sincerity, honesty, and strongcommitment to the cause of Islam which they allpossessed.1 In view of this, there is every reasonto assume that all legal verdicts and judgmentsmade by the companions were in line with thefundamental principles of maqâshid as-syarî’ahthe means of which yusr (ease) and mashlahah(human benefits) are achieved.

Instances are in abundance to show thatthe companions were practically curious tounderstand the objective of every ruling of thesyarî’ah. One telling instance has to do with theepisode of afternoon prayer (’ashr) vis-à-vis BanûQuraizhah. The messenger of Allah dispatcheda group of companions to the province of BanûQuraizhah and asked them not to observe the

1 Yusuf Alim, al-Maqâshid al-’Âmmah li al-Syarî’ah al-Islâmiyyah, (Herndon: International Institute of Islamic Thought,1415/1994, 2ndedn.,), p. 119.

afternoon prayer except when they have reachedtheir destination. But, the time for ’ashr prayerwas due while they were on the way. This madethe companions to be split into two divisions; thefirst one adhered to the literal meaning of theorder given by the Prophet (SAW) and decidednot to pray until when they have reached theirdestination, while the second division held thecontrary opinion. The latter group had reasonedthat since every prayer has its specific period,the period for ’ashr prayer would have beenover should they decide to delay it till after theyreached their destination. They believed that theProphet (SAW) could not have wished that prayerbe delayed beyond its allotted time. As such, theyunderstood that the underlying reason behindhis order was to encourage them to hasten sothat they could reach the destination beforethe allotted time of ’ashr prayer and observe itthere. Interestingly, when the story was narratedto him, the Prophet (SAW) approved of bothpositions as being correct each.2

From this episode it is clear that the secondgroup based their decision on the underlyingmeaning of the prophetic order because oftheir general knowledge that nothing is moreimportant than observing ritual prayers promptly.This consideration of underlying meaning of theprophetic order underscores the concept of ’illah(ratio decidendi) which is intimately connectedwith the theory of maqâshid as-syarî’ah.

Moreover, the second caliph, ’Umar wasespecially notable when it comes to basingverdicts on the underlying goal of syarî’ah. Hisfatâwâ (i.e. legal verdicts) and policies weredeeply informed by consideration of the spiritof maqâshid as-syarî’ah with the purpose ofadvancing genuine human interest and welfare.One significant feature of his administration asthe second caliph was his wide consultationwith the leading companions on any major issue.This quality made it easy for him to introduce

2 This hadith was narrated by both Bukhârî and Muslim:Mohammad al-Bukhârî, al-Shahîh, ed. Mustafa al-Bagha (Beirut:DâribnKathîr, 1986), vol. 1, p. 321; Abû al-Hussain Muslim Ibnal-Hajjâj, Shahîh Muslim, ed. Mohammad Fouad Abdul-Baqi(Beirut: DârIhyâ al-Turâth al-’Arabî, n.d), vol. 3, p. 1391; Auda,Maqasid as-syari’ah as Philosophy of Islamic Law, p. 9.

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Abdul Hameed Badmas Yusuf: A Study of Evolution of Maqâshid as-Syari’ah

people-oriented policies during his remarkableadministration. His decisions on conquered lands,spoils of war, hadd (capital punishment), marriageof non-Muslim, distribution of Zakâh to newconverts in order to endear Islam to their hearts,etc. are major highlights of his regime.3

It may be observed that Umar’s decisionson the above issues and many others werepremised on two significant principles namelymashlahah i.e welfare of the community, and saddal-darî’ah i.e. blocking the means to what mightlead to unpalatable consequences. Following inthe footstep of the companions, the successors(tâbi’ûn) were also mindful of the spirit ofthe Syari’ah in giving legal verdicts. This waspossible for them because they directly trainedand graduated from the two famous schoolsof law at that time, namely, the school of Hijâz(Madînah) and that of ’Irâq. The former, otherwiseknown as madrasah al-hadîth or madrasah al-Madînah [school of Tradition or Madînah school],had prominent companions like Zayd Ibn Thâbitand ’Abdullah Ibn’Umar as authorities of Hadith,while the latter which is also known as madrasah

Thus the companions and their successorsembodied the spirit of maqâshid as-syari’ah andreflected same in their various legal verdicts.Though, it should be made clear that during thoseperiods, terms related to the theory were yetto be developed or defined in technical sense.This nevertheless became possible only betweenthe third through the sixth centuries of hijrahcalendar. Notable scholars in these periods whosewritings were connected with the theory includeal-Tirmidhî al-Hâkim, Abû Zayd al-Balkhî (d. 322/933), Abûbakar al-Qaffâl al-Shâshî (d. 350), IbnBâbawayh al-Qummî (d. 381/991), Al-’Âmirî al-Faylasûf (d. 381 /991), Abû al-Ma’âlî al-Juwaynî(d. 478 /1085), and Abû Hâmid al-Ghazâlî (d.505 / 1111).

Al-Raysuni6 has regarded al-Hakîm al-Tirmidhîas one of the foremost scholars to employ theterm maqâshid in his three works entitled: ’Ilal al-’Ubûdiyyah, Sharh al-Shalâh and al-Hajjwa Asrâruhu.Inspired by his philosophical and mysticalorientations, al-Tirmidhî explained underliningpurposes of worship using experiential andfigurative approaches.7

ahl al-Ra’y [school of rationality], was headedby ’Abdullah Ibn Mas’ûd, another influentialcompanion.4 Both schools produced a largenumber of authoritative scholars whose fatâwâon different human endeavors were premisedon the spirit of maqâshid as-syari’ah. There aremany examples from each school to buttressthis claim5.

3 Muhammad Baltaji, Manhaj ’Umar ibn al-Khaththâb fî al-Tashrî’, (Cairo: Dâr al-Salâm, 3rdedn., 1427/ 2006), pp. 114-115. TheCaliph ’Umar’s policy was generally based on the realizationof general interests of the community. A case in point is hisdecision not to distribute conquered lands in Egypt and Iraq.And he justified this by referring to Q.59:7. He was particularlyconcerned about the incoming generation of the Ummah, whowould be deprived of landed properties and other materialbenefits if the conqueredlands were eventually distributedamong the army. See also Yusuf al-Qaradawi Madkhal li dirâsahal-Sharî’ah al-Islâmiyyah, (Beirut: Al-Risalah Publishing House,2ndedn, 1417 /1997), p. 59.

4 Muahmmad Zhâfir Kabbârah ’Abdul Fattâh, al-Tashrî’al-Islâmî: ash’atuhu wa Târîkhuhu wa Mashâdiruhu, (Beirut:Maktabah al-Rushd, 1stedn., 1424 /2003), pp. 117-120.

5 Firstly, in Islamic law of evidence, attainment of ageof puberty is a requirement for a testimony to be accepted.However, according to scholars from the Hijâzi School oflaw testimony made by an under-aged, while they are still atthe scene of incident, with respect to injury case would be

considered, in order to ensure the realization of maqâshid al-Sharî’ah which is safeguard and protection of soul, one of thefive necessary universals of the sharî’ah. Secondly, scholars ofIrâqi school of law were unanimous on the fact that capitalpunishment should not be carried out on a Muslim army whilethe battle was on. This was to avoid a prospect of decamping bythe person so punished and his sympathizers, a situation thatcould disorganize the Muslim army. It has been related from’Alqamah, a prominent Irâqi scholar, that during a battle at theRoman land, in which another prominent scholar, Hudhayfahalso participated, a man drank wine, and when he was aboutto be punished the latter stopped them from doing that forfear of losing the battle. In this case, the overriding interest(mashlahah) of the Muslim army was given a priority. Mostlikely, carrying out of the punishment in this situation mightmake them lose some physical and psychological strength tocontinue the battle and the opponents would capitalize onsuch lapses to defeat them. See al-Khalifah, al-Hasan Babiker,Falsafah Maqâshid al-tashrî’ fî al-Fiqh al-Islâmî, (Cairo: MaktabatWahbah, 1421 AH/ 2000 AD), pp. 32-34.

6 Al-Raysuni, Imâm al-Shâthibî’s Theory of the HigherObjectives, pp. 5-7.

7 For instance, he gave an analytical explanation of theobjectives of prayer thus “By the remembrance of God theheart is refreshed and softened, whereas by rememberingone’s passions and appetites it grows hard and dry. Theheart may be likened to a tree which derives its moistureand suppleness from water: If it is too preoccupied with itsappetites to remember God, it will appear as if it has beendeprived of water. As a consequence, its roots dry up and itsbranches wither. If it is not watered, it will be beset by the

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Abûbakr al-Qaffâl al-Shâshî (d. 356) of theShâf’î school of law is another pioneer scholarwho devoted his book Mahâsin al-Syarî’ah toexplaining virtues and purposes of the syarî’ah.This book is considered as the oldest manuscripton the theory of maqâshid as-syari’ah.8 Accordingto al-Raysuni, the significance of the work hasbeen acknowledged by later scholars especiallyIbn al-Qayyim.9 Though, this work does notprovide epistemological and methodologicalframework for Islamic jurisprudence viz-a-viz ushûlal-fiqh. Its merit only lies in the explanation ofthe wisdom and purposes underlying specificrules of Islamic law in different areas, namelyritual, matrimonial, penal, and financial.10

Another pioneer scholar who has made agenuine contribution to the theory of maqâshid isAbû al-Hasan al-’Âmirî (d.381). A philosopher, hisview on maqâshid was holistic and comprehensive.He discussed wisdom and virtues of worships inIslam in the sixth chapter of his book, namely,al-i’lâm bi manâqib al-Islâm which could be betterclassified as a reference book in the field ofcomparative study of religions. The main objectiveof highlighting such wisdom and virtues wasto show Islam’s unique position in relation toother religions.11

One of the major contributions of al-’Âmirî

summer heat and its branches will become dry and brittle; ifyou draw one of its branches toward you, it will fail to bendand, instead, break off. Such a tree is good for nothing but tobe cut down and used to fuel fire. In the like manner, the heartwill grow dry and brittle if it lacks the remembrance of God:It will be afflicted by the heat of the soul and pleasures of theappetites, as a result of which one’s bodily members will be toobrittle to bend to God’s will and will cease obeying Him. If youbend them they will break, and will be good for nothing butto become tinder for the Great Fire. See Al-Hakîm al-Tirmidhî,al-ShalâhwaMaqâshiduha, ed. Husni Nasr Zaydan, (Cairo: Dâr al-Kitâb al-’Arabî bi Mishr, n.d.), pp.9-10 as quoted in al-Raysuni,Imâm al-Shâthibî’s Theory of the Higher Objectives, pp. 5-6.

8 It is said to be available in Dâr al-Kutub publishing housein Egypt. See Auda, Maqasid al-Shariah as Philosophy of law, p. 14.

9 Al-Raysuni, Imâm al-Shâthibî’s Theory of the HigherObjectives, p. 8.

10 Mohamad El-Tahir El-Mesawi, “From al-Shâthibî’s LegalHermeneutics to Thematic Exegesis”, Intellectual Discourse.vol.20, no. 2, (2012): p. 192.

11 Ahmad Al-Raysuni, “al-Bahth fî Maqâshid al-Sharî’ah:

to the theory of maqâshid is in his classificationof maqâshid into five categories, a taxonomythat was later refined and developed by al-Juwaynî and al-Ghazâlî.12 In addition, he wasalso unprecedented in linking the prescribedpunishments to the five necessary objectivesconsidering them as mazjarah (i.e. protectiveand deterrent measures). It is through thesemeasures that the syari’ah aims to protectindividuals against violations and abuse withrespect to their life for which retaliation (qishâsh)has been sanctioned; their property in which caseamputation and crucifixion has been provided;their privacy against which lashing and stoninghave been prescribed; their dignity against whichlashing with tafsîq (to regard someone immoral,ungodly for committing illicit act) has been putin place; and their faith in which case executionis sanctioned.13

The above categorization by al-’Âmirî, it mustbe noted, was devoid of protection of intellect.In its place dignity was considered as one offive indispensable things that the syari’ah seeksto protect. As shall be seen later, protectionof intellect was added by al-Juwaynî whooutstandingly participated in the improvementprocess of al-’Amirî’s five-fold classification ofmaqâshid as-syari’ah. Also, the term mazjarahwhich was used by al-’Âmirî to indicate theprotection of those five things was replaced withthe term ’ishmah by al-Juwaynî, before the latterterm was later supplanted by hifz by al-Ghazâlî.

Nonetheless, with the exception of al-’Âmirî,the importance of the pioneer works of maqasidas-syari’ah should be appreciated not as materialsthat are concerned with epistemological andmethodological expositions of the theory. They donot constitute indispensable works that must beconsulted for better understanding of the theoryof maqâshid as-syari’ah in terms of definition,classification and methods of identification of thetheory. Rather, their contributions should be seenas an antecedent necessary for eventual evolutionand development of the theory of maqâshid inthe hands of later scholars. So, the purpose of

Nash’atuh wa tathawwuruh wa mustaqbaluhu”, A paperpresented at the seminar on Maqâshid al-Sharî’ah, organizedby al-Furqan Islamic Heritage Foundation in London, between1-5, March, 2005, p. 9.

12 Details on the taxonomy shall be discussed soon whenhighlighting the contributions of both scholars.

13 Ahmad Al-Raysuni, “al-BahthfîMaqâshid..., pp. 9-10.

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Abdul Hameed Badmas Yusuf: A Study of Evolution of Maqâshid as-Syari’ah

highlighting these pioneer works is just to showand appreciate the fact that Muslim scholars inthe past were ever conscious of inner meaningsand underlining purposes of different aspects ofworship and indeed the ultimate objective of thesyari’ah. To this extent, these pioneer scholarsespecially, al-Shâshî and al-Âmirî could thus beconsidered as the trailblazers of maqâshid as-syari’ah.14

However, the theory of maqâshid as-syari’ahas is presently known actually started manifestingin the hands of Imâm al-Juwaynî. This famousteacher of al-Ghazâlî occupied a lofty positionin the process of development of the theory.To be sure, he can be rightly regarded as thearchitect of the three categories of maqâshidas-syari’ah, namely dharûriyyah, hâjiyyah andtahsînîyyah.15 The wide adoption and acceptanceof this categorization by subsequent importantscholars i.e. his disciple, al-Ghazâlî, al-Râzî, al-Âmidî, al-Qarâf î, al-Shâthibî, and IbnAshur inthe modern period, speaks volume about hiseminent position regarding the development ofthe theory. His awareness and conviction that theentire corpus of the syari’ah is purpose-orientedinformed his explanation of the rationale behindthe soil ablution i.e. tayammum. In addition tothis, his refutation of the school of al-Ka’bî forthe latter rejection of the legal category of Mubah(permissible) is equally instructive, when heremarked in his book: al-Burhân that:16

Whosoever is unaware that there areobjectives behind commands and prohibitions(of the syari’ah) such person is not cognizantof the syari’ah.17

Specifically, the invention of the threecategories of maqshâid as-syari’ah took placewhile al-Juwaynî was differentiating between thelegal rulings that are premised on clear underlyingbases (’illah) and those that are not so based. This

14 El-Mesawi. “From al-Shâthibî’s Legal Hermeneutics toThematic Exegesis”, p. 192.

15 Mohammad HashimKamali, Principles of Islamic

juristic exercise eventually led him to arriving atfive-fold division which were later pruned to threecategories (dharûriyyah, hâjiyyah and tahsînîyyah).These five divisions are: one, those legal basesthat have to do with ‘the essentials’, namely lawof retribution that has been sanctioned in orderto protect innocent soul against unjust execution;two, those which concern human needs withlesser importance than the first division, e.g.transactions among individuals; three, thosewhich fall between ‘the essentials’ and ‘theneeds’, e.g. ritual purity; four, those which areclosely related to the third division, albeit withless importance, e.g. recommended actions; five,those whose objectives are not intelligible. Thislast division according to al-Juwaynî is neitherpractical nor thinkable. Because virtually allIslamic legal rulings, including those pertainingto acts of worship, are intelligible and capturedin the grand objective, which is realization ofbenefit and repulsion of harm.18

It should be interesting to note how thesefive categories were later reduced to threefamous categories. Having itemized the fivecategories, Imâm al-Juwaynî did suggest thatthe third and fourth divisions should be mergedtogether to form the third category, namelytahsîniyah. Perhaps, this is due to the fact thatthe definitions given as regards both divisions arenot so different. Not only this, the fifth divisioncould as well be subsumed under any of thethree divisions (i.e. dharûriyyah, hâjiyyah andtahsînîyyah) because it was later sub-divided intowhat can be rationalized and what cannot be, inwhich case, it eventually belongs to one of thethree categories mentioned above.19

Another major contribution of al-Juwaynî tothe theory is his allusion to what are regarded asthe five major necessary universals in Islamic Lawwhich come under the category of dharûriyyah.These include: religion, human life, the faculty ofreason, progeny, and property. In this connectionhe stated thus:

Jurisprudence, (Kuala Lumpur: Ilmiah Publishers, 2000), p. 401.16 Isma’il al-Hasani, Nazhriyyat al-Maqâshid’ inda al-

Imâm Muhammad al-Tahir ibn ‘Ashur, (Herndon: InternationalInstitute of Islamic Thought, 1stedn., 1415/1995), p. 41; al-Raysuni, “al-Bahth fî Maqâshid al-Sharî’ah” p. 13.

17 Al-Juwaynî, al-Burhân..., vol. 1, p. 295.

18 Al-Juwaynî, al-Burhân..., vol.2, pp. 923-947; al-Hasani,Nazhriyyat al-Maqâshid’ inda al-Imâm Muhammad al-Thâhir bin’Âshûr, pp. 42-43; al-Raysuni, Nazariyyat al-Maqâshid’ inda al-Imâm al-Shâthibî, p. 14.

19 Al-Raysuni, “al-BahthfîMaqâshid al-Sharî’ah” ..., p. 13.

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Islamic Law is comprised of that which iscommanded, that which is prohibited and thatwhich is permitted. That which is commandedincludes, for the most part, acts of worship.As for those acts which are prohibited, theLaw has laid down deterrents for the mostserious of them. Generally speaking, humanlife is preserved through the law of retribution,chastity is preserved through the punishmentslaid down [for related transgressions], andpeople’s possessions are protected from thievesby cutting off [their hands]20

As a matter of fact, al-Juwaynî’s contributionto the development of the theory of maqâshidas-syari’ah goes beyond the above inventionsof the three categories of maqâshid as-syari’ahand the five necessary universals which comeunder the first category, i.e. dharûriyyah. Hisconcrete contribution is personified by hisillustrious disciple, al-Ghazâlî, who continuedwhere his teacher stopped and developed hisearlier ideas. Yet, al-Ghazâlî is far from beinga mere imitator or a passive interpreter ofhis teacher’s ideas on the theory. In fact, hisoutstanding contribution to the theory has earnedhim fame and distinction over and above thatof his teacher who admittedly had exerted ahuge influence on him.21 As observed by Nyazee,al-Ghazâlî’s effort in this regard “was to knit, inhis organized and systematic manner, most ofal-Juwaynî’s ideas into a comprehensive theory.He also changed and refined the terminology usedby al-Juwaynî. A theory that appeared ordinaryin al-Juwaynî’s work suddenly became alive inal-Ghazâlî’s hand”.22

Accordingly, in his works, namely, shifâ’and al-mustashfâ, al-Ghazâlî discussed veryextensively the concepts of mashlahah (publicinterest) and ta’lîl (ratiocination) which are thetwo indispensable conceptual foundations of thetheory of maqâshid as-syari’ah. His acceptance ofthe concept of mashlahah as a source or proof,is however conditional though. To him, for theconcept to be valid, it must be seen to actually

20 Al-Juwaynî, al-Burhân..., vol. 2, p. 1151; al-Raysuni, p. 16.21 See Ibid. al-Raysuni, p. 12; al-Na’îm& Sharif, Maqâshid al-

Sharî’ah al-Islâmiyyah, p. 48.22 Nyazee, Theories of Islamic Law …, p. 196.

promote human good.23

Furthermore, al-Ghazâlî was so convinced ofthe primacy of the necessary universals earlierpropounded by his teacher that he boldly assertedthat the promotion of those five things [religion,life, intellect, progeny and property] is sacrosanctin all known belief systems and laws. This clear-cut declaration has been widely regarded bymany writers as one of the new improvementson the theory of maqâshid as-syari’ah that havebeen made by al-Ghazâlî. Even though, it mustbe pointed out, there was an earlier hint on thisclaim by al-’Âmirî while trying to enumerate thefive-fold classification of maqâshid as-syari’ah:

As for preventive and deterrent measures,their orbit in the six religions also should notexceed these five things.24

After the periods of al-Juwaynî and al-Ghazâlîand before that of al-Shâthibî there appears tobe no significant contribution to the theory ofmaqâshid. It is believed that most of the scholarswho wrote on the theory afterwards contentedthemselves with repeating, elaborating andexpatiating on what both scholars had said of thetheory.25 Yet, there are few scholars that proveexceptional. For instance, al-Âmidî (d. 631) wasnoted for his vehement defense of limitation ofdharûriyyah to those five things, namely religion,life, intellect, progeny and property. As a matterof fact, he argued that proper awareness andunderstanding of realities of life would leadto knowledge and even support the fact thathuman welfare can only be realized throughthe protection of religion, life, intellect, progenyand property. In the words of Bernard Weiss,al-Âmidî’s argument seemed to be that ‘whenwe examine the world as constituted by Godempirically and inductively we discover at the endof our investigation that these five necessitiesand these alone are fundamental to everythingelse’.26 Based on this line of reasoning, beside

23 Kamali, Principles of Islamic Jurisprudence…, p. 401.24 See al-Raysuni, “al-Bahthfîmaqâshid al-Sharî’ah”..., p. 20.25 al-Raysuni, “al-Bahthfîmaqâshid al-Sharî’ah”..., p. 20.26 Bernard Weiss, “The Intention of the Law (Maqâshid al-

Sharî’a) In Amidi’s Jurisprudence”, Conference Proceeding of theinternational conference with the theme: “Maqâshid al-Sharî’ahand Its Realization in Contemporary Societies”, organized byDepartment. of Fiqh and Ushûl al-Fiqh in Collaboration with

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those five universal values, other human concernsare ultimately lesser in importance.

Apart from his defense of limiting thenecessary universals of the syari’ah to fivethings, al-Âmidî also has been credited with thenotion of prioritizing those universal values inthe event of possible conflict. According to him,the first category i.e. dharûriyyât should takeprecedence over the second i.e. hâjiyyât and thethird i.e. tahsîniyyât respectively, while the formersupersedes the latter. Perhaps for the first time,al-Âmidî adduced reasons why the preservation ofprogeny and human life should be given priorityover the preservation of intellect. He believedthat for intellect to exist and function properly,it necessarily depends on the preservation ofprogeny and human life. What more, al-Âmidîstrongly opposed the tendency to give priorityto human life at the expense of religion.27

Among other scholars whose contributions tothe theory of maqâshid as-syari’ah are somewhatsignificant is al-Qarâf î (d. 685 AH). He was saidto have purportedly added ’irdh i.e. dignity, asthe sixth necessary universal that the syari’ahaims to protect and preserve.28 Though, thisaddition provokes controversy among scholars.Some scholars29 have accepted and supportedthis addition of ’irdh mainly because like otheruniversal values, punitive punishment has beenstipulated for violation of dignity. But others30

have rejected it on the basis that there is nocorrelation whatsoever between the prescriptionof punishment and that which is a syari’ahnecessary universal. They further argued thatdignity is less important than religion, life,intellect, progeny, and property. Unlike these fivenecessary universals, violation of dignity cannot

International Institute of Muslim Unity, International IslamicUniversity Malaysia, 14-16, Rajab, 1427/ 8-10, August 2006, Vol. 3(English & Malay Papers), p. 128.

27 Al-Hasani, Nazariyyat al-maqâshid’inda al-Imâm Muham-mad al-Tahir IbnAshur, p. 50; al-Raysuni, Imam al-Shatibi’s Theoryof the Higher Objectives, pp. 22-23.

lead to a total annihilation and destruction ofhuman existence. Perchance dignity, it is argued,could be put under hâjiyyât, the second categoryafter dharûriyyât, and not under the first category,i.e. dharûriyyah.

With the exception of Ibn Taymiyyah (d.728AH), the contribution of other scholars like hisdisciple, Ibn al-Qayyim (d.751 AH) among others,is no more than brilliant articulation of earlierideas as regards the centrality of maqâshid as-syari’ah in Islamic legal thought. They sought toprovide sophisticated arguments and evidences insupport of the fact that, the syari’ahis purpose-oriented and that the Lawgiver does not merelycommand or forbid but for a wise reason. Andthat the main objective behind every rule of thesyari’ah is to realize human benefit both in thisworld and the next. But as earlier alluded to, IbnTaymiyyah caught the attention of scholars ofthe theory with his firm opposition to the ideaof limiting the objectives of the syari’ah to aparticular number. His peculiar understanding ofthe theory coupled with his rejection of the ideaof limiting the necessary universals to five madehim come up with a long list of new objectivesof the syari’ah. Most of these new objectiveshave to do with inner dimensions of worshipas well as some ethico-social human aspects.31

Moreover, the eighth century of hijrahcalendar witnessed a landmark development in thetheory of maqâshid as-syari’ah. Popularly knownas al-Shâthibî, Abû Ishâq (d.790 AH) “stands asthe foremost scholar who has given this idea it’smost comprehensive and elaborate theoreticaland methodological formulation”.32 With his veryimportant work which he titled, al-Muwâfaqât,al-Shâthibî’s contribution to the development ofthe theory of maqâshidas-syari’ah in particularand the field of ushûl al-fiqh in general, is bothrevolutionary and innovative. This is because hespearheaded a radical departure from dominantblind imitation and narrow discussion of the field

28 Al-Qarâfî, SharhTanqîh al-Fushûlfîikhtishâr al-Mahshûl,(Cairo: Dâr al-Fikr, 1stedn., 1393 /1973), p. 391.

29 Like Qaradawi, see Al-Qaradawi, Dirâsah fî maqâshidal-sharî’ah., p. 28; al-Qaradawi, Madkhal li Dirâsah al-Sharî’ah al-Islâmiyyah, pp. 55-56.

30 Like IbnAshur, IbnAshur, Maqâshid al-Sharî’ah al-Islâmiyyah…, p. 306.

31 IbnTaymiyyah, Majmu’Fatâwâ, vol. 32, p. 234; Badawi,Maqâshid al-Sharî’ah’ inda Ibn Taymiyyah, p. 251; al-Raysuni, al-Kulliyyât al-Asâsiyyah, pp. 85-86; al-Na’im& Sharif, Maqâshid al-Sharî’ah al-Islâmiyyah, pp. 49-50.

32 El-Mesawi, “Maqâshid al-Sharî’ah And human Socio-Ethical Order”…, p. 32.

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of ushûl al-fiqh to a more creative and broaderdiscussion. In his views, adequate understandingof maqâshid, alongside Arabic language, is anindispensable requirement for proper and correctijtihâd. By implication, this is a fundamentalimprovement on the status and role of thetheory of maqâshid as-syari’ah, in the processof derivation of legal rules from the sources ofthe syari’ah. Before al-Shâthibî, the theory ofmaqâshidas-syari’ah was not given proper rolein the process of ijtihâd. Hence, his outstandingcontribution to the remarkable development ofthe theory has come to be widely acknowledgedby scholars and students of Islamic legal theory.It is therefore not an exaggeration to say thatal-Shâthibî is to the theory of maqâshid as-syari’ahwhat al-Shâfi’î is to the science of ushûl al-fiqh.33

Nonetheless, al-Shâthibî’s developmentalefforts as regards the theory did not evolve froma vacuum. His ideas were rather based on basicpropositions earlier advanced by past scholarslike al-Ghazâlî and his teacher, al-Juwaynî. To him,and like those before him, the existential purposeof the syari’ah is encapsulated in the protectionand promotion of the three legal categories,namely dharûriyyât, hâjiyyât and tahsîniyyât.34

He also adopted the famous five necessaryuniversals, namely protection of religion, life,intellect, progeny, and property. And just like al-Ghazâlî, he openly declared that those universalvalues are indispensable in all divinely revealedreligions and laws. In addition, his indebtednessto those before him is noticeable in his copiousreference to the works of al-Ghazâlî to supporthis arguments.35 With this in mind, we cannot butwonder and ask: what then makes al-Shâthibî’scontribution to the theory maqâshid as-syari’ahunique and widely celebrated? Why then is heoften referred to as the reformer or at times asthe originator and champion of the theory ofmaqâshid as-syari’ah, when it is well establishedthat he was indebted to earlier scholars?

33 Al-Hasani, Nazariyyat al-Maqâshid ’inda al-ImâmMuhammad al-Tahir IbnAshur, pp. 65-66.

34 Wael B. Hallaq, A History of Islamic Legal Theories, (Newyork: Cambridge University Press, 1997), p. 168.

35 See al-Raysuni, Imam al-Shatibi’s Theory of the HigherObjectives, pp. 291-293.

In his introductory note to al-muwâfaqât,Abdullah Draz, the famous editor of the book,gave an insight into new things in the workof al-Shâthibî. As earlier observed, al-Shâthibîemphasized the fact that understanding of thesyari’ah should be premised on two things namely,knowledge of Arabic language and acquaintancewith the aims and objectives of the syari’ah.The entire literatures on ushûl al-fiqh, beforehim, were exclusively devoted to the former,while the latter part was apparently neglected,despite its great importance. Hence al-Shâthibîtook it upon himself the task of filling this greatvacuum with his al-muwâfaqât.36

In addition, it should be added that, as amonumental work in the field of ushûl al-fiqh,Shâthibî’s muwâfaqât has enjoyed a considerableappreciation of those concerned about the theoryof maqâshid; few names may be mentioned ofnotable scholars like Andalusian scholar al-Haf îdIbn Marzûq (842 AD/1438 AH), Ahmad Bâbâ (1036AD/1626 AH), Muhammad Makhluf (d. 1941 AD),Shaykh’Abdullah Draz (d. 1958), and Abu Zuhrah(d. 1974). The last of these eminent scholarsmade the following statement about the book:

Abû Ishaq Ibrâhîm b. Mûsâ al-Shâthibî (d. 780AH), a Mâlikî jurist, carried all the burden andfulfilled this heavy task, or almost did it, in hisbook al-muwâfaqât. He explained the objectivesof Islamic law clearly, and linked them with therules expounded by the theorists. He discussedthe sources of law in the light of these objectivesand ends. Thus, he broke the new grounds injurisprudence and that is the road that must befollowed from now on.37

Though despite its apparent importance, thebook was not spared from some form of neglectfor a considerable period of time. According toAbdullah Draz, the book suffered such kind ofneglect probably due to two reasons. Firstly, as atthe time when al-Shâthibî wrote the book in theeighth century, many books on the field of ushûlal-fiqh had been in vogue with wide acceptanceamong scholars. During this time, there was

36 Al-Shâthibî, al-Muwâfaqât, vol. 1 ...., pp. 5-6.37 MuhammadAbu Zahra, Al-Shâfi’î, (Cairo: Dâr al-Fikr al-

’Arabî, 1978), p. 273; Masud, Shâthibî’s Philosophy of IslamicLaw, p. 109.

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Abdul Hameed Badmas Yusuf: A Study of Evolution of Maqâshid as-Syari’ah

a dominant mentality that the field had beenexhaustively studied, so much that any new workcould best be considered as subordinate to andultimately less important than the existing ones.For this reason, Draz assumed that the bookwas not deemed worthy of reading, becausenothing new was anticipated in the field ofushûl al-fiqh. Secondly, the neglect might not beunconnected with high level of Shâthibî’s styleof writing. His expression was so sophisticatedand advanced that the proper understanding ofthe book requires mastery of several branchesof knowledge, namely the Prophetic Tradition,science of exegesis, theology, as well as theclassical style of writing employed by foremostscholars, and that of sûfî scholars.38

However, the book was to gain a wideracceptance and appreciation in the modernperiod. Modern reformers like Muhammad’Abduhdiscovered its potentiality as a work loadedwith reform ideas. This was why he advised hisdisciples to study and edit the book in order toensure its wider readership among scholars andstudents of the syari’ah. ’Abdullah Draz was oneamong those of his disciples who took up thechallenge of studying and editing the book.39

Consequent upon the above factor, manyworks on maqâshid generally and al-Shâthibîparticularly have been produced. Ibn Ashurwhose contribution shall be considered shortlyis probably the most innovative and creativeof all modern writers who have written on thetheory maqâshid as-syari’ah. In the same vein,for his detailed work on al-Shâthibî, al-Raysuni isanother outstanding modern writer on the theory.In this work, al-Raysuni summarized al-Shâthibî’snovel contributions to the theory as follows:

Firstly, unlike his predecessors, al-Shâthibîtreated the theory of maqâshid as-syari’ahindependently; this occupies the largest sectionin his book; al-muwâfaqât. With this, the theorybecame a visible, recognizable entity; no longercould it be disregarded, undermined or belittled.

Secondly, for the first time in the study of

discussed human objectives as the second sideof the coin of the whole theory. This integrativeapproach to the theory is considered crucialto the understanding and realization of divineobjectives, mainly because it is through theagency of human being that those objectivesare expected to be realized via his actions,transactions and behaviors.

Thirdly, while all previous scholars didunanimously agree on the genuineness of thetheory, there was little or no concern on theirpart as to how those objectives can be unraveled.It was al-Shâthibî who first explored this areaand came forth with methods of identifying theobjectives of the syari’ah.

Fourthly, in any field of study, comprehensiverules and principles are required as a foundationupon which such a field may be firmly basedand by which it can be regulated. So, particularsand theories thereof become properly arranged.This is why al-Shâthibî endeavored to lay downsome general principles with a view to regulatingvarious theories and particulars germane to thetheory of maqâshid as-syari’ah.40

Highlight on Shâthibî’s unique contributionsto maqâshid as-syari’ah will be incomplete withouttalking about the inductive method (al-manhajal-istiqrâî) which he employed in a systematicand unique manner as a methodological tool toground his new ideas on the theory of maqâshidas-syari’ah. This inductive method presupposes“an exhaustive thematic survey and analysis ofthe syari’ah sources in order to establish universalprinciples or simply syari’ah universals”.41 For “theepistemic foundations of his theory turn out to beanchored not in any multiply transmitted reportof Quranic verse, but rather in comprehensiveinductive surveys of all relevant evidence, be ittextual or otherwise. Because “When a large orsufficient number of pieces of evidence convergeto confirm an idea, notion, or principle, theknowledge of that idea or principle becomesengendered in the mind with certainty becausethe confluence of the evidence has the effect

maqâshid as-syari’ah, al-Shâthibî considered and40 Al-Raysuni, Imam al-Shâthibî’s Theory of the Higher

Objectives …, pp. 311-323.38 Al-Shâthibî, al-Muwâfaqât..., vol. 1, pp. 11-12.39 Al-Shâthibî, al-Muwâfaqât..., vol. 1, pp. 11-12.

41 El-Mesawi, “From al-Shâthibî’s Legal Hermeneutics toThematic Exegesis”, p. 196.

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of a virtually complete, if not perfect, inductivecorroboration”.42

In principle, “the particular (juz’î) rules of thesyari’ah are governed by universal laws (qawânînkulliyyah). These laws could be known by acomprehensive survey of the syari’ah discourse. Byresorting to the procedure of complete induction(istiqrâ’kullî), one can move from the particular rulesto the universal laws of the syari’ah”.43 “To put itdifferently, a group of verses in the Qur’ân may allhave, in common, one theme which happens tobe subsidiary to the main meaning in each verse.The inductive corroboration of one verse by theothers lends the common theme more credenceand authority which could reach the degree ofcertitude”.44

While it is true that scholars in the past hadused the inductive method, it is beyond doubt thatal-Shâthibî succeeded in using the method in a veryunique manner as he used it to derive the generalprinciples of the syari’ah as well as its objectives.45

In addition to this, al-Shâthibî integrated bothinductive and deductive reasoning making botha unified methodology.46 Though, the conceptof thematic induction (al-istiqrâ’ al-ma’nawî) asemployed by al-Shâthibî is an extension of al-tawâtur al-ma’nawî, a principle peculiar to thescience of the Hadîth. However, he did not restrictthe application of the principle to the Propheticreports; instead, he employed it to derive a set ofprinciples of universal validity from the authenticsources of the syari’ah. To this extent, he wentbeyond his predecessors in developing a legaltheory of induction.47 Accordingly, it is on the basis

42 Hallaq, A History of Islamic Legal Theories, pp. 165-166.43 Louay Safi, The Foundation of Knowledge: A Comparative

Study in Islamic and Western Methods of Inquiry, (PetalingJaya: International Islamic University Malaysia & InternationalInstitute of Islamic Thought, 1996), p. 91.

44 Wael. B. Hallaq,“The Primacy of the Qur’ân in Shâthibî’sLegal Theory” in Islamic Studies Presented to Charles J. Adams,edited byW.B. Hallaq and D.P. Little, (Leiden, 1991), p. 83.

of inductive corroboration that al-Shâthibî wasable to establish the validity of the five universals(religion, life, intellect, progeny, and property).For, these values “are advocated by the syari’ahin no uncertain terms, terms that are individuallyprobable, but in their multitude, they corroborateand affirm the validity of these principles beyondany doubt”.48

While the inductive method was used in anarrow way before al-Shâthibî, he seemed to haveused it in a comprehensive manner. For him, it soappears, the inductive method whether perfect(istiqrâ’tâmm) or imperfect (istiqrâ’nâqish), shouldultimately yield conclusiveness and certainty. Thisline of argument runs contrary to the position ofmany logicians and philosophers like Aristotle whohad upheld that the imperfect inductive methodshould not enjoy certainty like the perfect one.49

Though al-Shâthibî had claimed that his legalpresuppositions, namely that the human benefits(dharûriyyah, hâjiyyah, and tahsîniyyah), havebeen established through the means of perfectinduction method. In the same vein, he claimedthat the five universal values are known to bepreserved in every nation. But this claim hasbeen discredited on a number of logical grounds.First, al-Shâthibî himself had been quoted to haveimplicitly affirmed that his presuppositions shallbe based on the imperfect induction. This is inview of the fact that “the process of causationdoes exist in a limitless number of rules in bothQur’ân and Sunnah”.50 What this implies is thatit is impossible to survey all legal dispositions toarrive at a clear-cut universal. Soualhi has arguedthat al-Shâthibî’s induction in grounding theaforementioned legal presuppositions is imperfectmainly because his claim that the five values areprotected in every religion is contestable. Hecontended that this generalization must havebeen based on sound historical facts which al-Shâthibî could not have claimed to possess.51

45 Al-Fasi, Maqâshid al-Sharî’ah al-Islâmiyyah wa Makârimuhâ,p. 51; Yunus Soualhi, “al-Istiqrâ’ fî Manâhij al-Nazhar al-Islâm:Numûzaj al-Muwâfaqât li al-Imâm al-Shâthibî” Islâmiyyah al-Ma’rifah, vol. 1, no. 4, (1416/1996): p. 80.

46 Soulahi, al-Istiqrâ’fîManhij al-Nazar al-Islâmî..., pp. 91-92.47 Wael. B. Hallaq, “On Inductive Corroboration, Probability

and Certainty in Sunnî Legal Though”, in Islamic Law andJurisprudence, edited by N.L. Heer, (Seattle and London,1990),p.30.

48 Wael. B. Hallaq, “On Inductive Corroboration…, pp.25-26.49 Al-Shâthibî, al-Muwâfaqât, vol.1, p.36; Soualhi, “al-

Istiqrâ’ fî Manâhij al-Nazhar al-Islâm”, p.60 and W.L., Resse:Dictionary of Philosophy and Religion (New Jersey: HumanitiesPress, 1983), p.25 cited in Soualhi, p.60.

50 Al-Shâthibî, al-Muwâfaqât ...., vol. 2, p. 7.51 Yunus, Soualhi, “Al-Imam al-Shâthibî’s Induction: From

Mere Conjectures to Methodic Status”, (M.A. dissertation,

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Abdul Hameed Badmas Yusuf: A Study of Evolution of Maqâshid as-Syari’ah

Similarly, Djeghim observed that the limitation ofall mashâlih (benefits) to the three categories isquite impossible based on the perfect inductivemethod. However, this could only be possiblewith the imperfect method.52 This shows that al-Shâthibî’s conception of the method of inductionmakes little or no difference between the perfectand imperfect types. To him, both should leadto certain and conclusive legal presuppositions.

Furthermore, to al-Shatibi, the wholesystem of inductive method is actually basedon the relation between kulliyyah (universal) andjuz’iyyah (particular). A universal principle is madeof limitless number of particulars. Al-Shâthibîasserted that both kulliyyah and juz’iyyah shouldwork together in a harmonious way. According tohim, “it is extremely impossible for the juz’iyyahto be independent from their kulliyyah. Forinstance, whoever takes a nashsh (text) in acertain juz’i without taking into consideration itskullî, he is definitely wrong. Similarly, whoeverconsiders the kullî without considering its juz’i,he is wrong”.53 Though each particular that formsa given universal is probable at individual level,the universal principle thus formed assumes aconclusive and certain status. It is irrelevant ifone particular contradicts the universal principle,because this contradiction is not sufficient as toform another contradictory universal. Thus thecontravening particulars shall be disregarded.54

Such is the remarkable contribution to thetheory of Maqasid by Imam al-Shatibi. Interestingly,his ideas have inspired scholars in the moderntime, one of whom is Ibn Ashur (d.1973). Asearlier noted, for many centuries al-Shâthibî’snovel contributions to the theory of maqasidwent almost totally unnoticed until moderntimes. In other words, no major works wereproduced that made any significant additionsto the ideas and methodology he formulatedregarding the conceptualization and study of thetheory. Only towards the middle of the twentieth

International Islamic University Malaysia, 1994), pp. 55-58;Soualhi, “al-Istiqrâ’fîManâhij al-Nazar al-Islâmî”, p. 77.

52 Djeghim, Thuruq al-Kashf..., p. 268.53 Soualhi, “Al-Imam al-Shâthibi’s Induction”..., p. 85.54 Soualhi, “al-Istiqrâ’fîManhij al-Nazar al-Islâmî”, p. 79;

Soualhi, “al-Imâm al-Shâthibi’s Induction”, p. 86.

century did Ibn Ashur take up the matter in hisseminal work Maqâshid as-syari’ah al-Islâmiyyah.IbnAshur’s approach and efforts in this regardcould be likened to those of al-Shâthibî himselfin the sense that both avoided blind imitationof their predecessors. This independent attitudeexplains why their thoughts and ideas on thetheory appear distinct and original. “Realizing theimportance of the idea of maqâshid, al-Shâthibî(d.1388) labored to reconstruct the whole of ushûlal-fiqh around the maqâshid, thus making them theunifying theme of the issues and topics usuallydealt with almost independently of one anotherby ushûl works. With him the maqâshid becamethe axis of ushûl al-fiqh. IbnAshur, on the otherhand, sought to reformulate the maqâshid not onlyas a doctrine in Islamic jurisprudence and centraltheme in ushûl al-fiqh, but as an independentdiscipline”.55

Ibn Ashur made it clear abi initio that whilehe benefited from the work of al-Shâthibî, hewas not out to simply repeat or abridge thelatter’s view. Rather, his concern was to highlightthe syari’ah’s intents regarding the laws andrules governing civil transactions (mu’âmalât)and refined manners (âdâb) to which Islam haspaid great attention in specifying and identifyingthe various levels of benefit (mashlahah) andharm (mafsadah) and the criteria for assessingthem. This feature according to him shows Islamiclaw’s superiority over all positive laws and socialpolicies, with regard to the preservation of theuniverse and reform of society.56 By implication,Ibn Ashur’s major goal was to develop thetheory of maqâshid as-syari’ah into a disciplineindependent of ushûl al-fiqh.

It is however pertinent to note that IbnAshur sought to explore the theory with a viewto making it an epistemic framework that would

55 Mohamed El-Tahir El-Mesawi, “Maqâshid al-Shârî’ah: AnUshûlî Doctrine or Independent Discipline A Study of Ibn’Âshûr’sProject”, Proceedings of the International Conference on“Maqâshid al-Sharî’ah And Its Realization In ContemporarySocieties”, organized by Department. of Fiqh and Ushûl al-Fiqhin Collaboration with International Institute of Muslim Unity,International Islamic University Malaysia, 14-16, Rajab, 1427/ 8-10,August 2006, vol. 3, (English & Malay Papers), p .68.

56 Ibn Ashur, Maqâshid al-Sharî’ah al-Islâmiyyah, pp.174-175; Ibn Ashur, Treatise on Maqâshid al-Sharî’ah, p.xxiv.

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enable scholars to attain certainty and consensuson matters of juristic difference.57 For him, this wasnecessary in view of insufficiency of ushûl al-fiqhand its lacking of definitive proofs. According toIbn Ashur, the mere presence of disputed issuesamong different scholars as regards legal rulesis enough to disprove some classical scholars’assertion that the field of ushûl al-fiqh entirelyembodies definitive proofs.58 Obviously, the mainreason for this conflict of opinions is a historicalone, namely the fact that jurisprudence wasdeveloped three centuries before ushûl al-fiqh.Ibn Ashur observed that except for al-Shâthibî,no scholar ever took it upon himself to articulateand expound the objectives of the syari’ah in afocused and systematic manner. According tohim, even al-Shâthibî’s book is not immune fromunnecessary digression and mixture.59

Importantly, Ibn Ashur’s ideas on maqâshidwere profoundly predicated on the concept offithrah i.e. human nature or innate dispositionin every human being which, in its original form,always inclines towards total submission to God,the Creator. According to this concept, man isby nature a believer in the Creator and to thatextent Islam and its law is in tandem with fithrah.The Islamic law through its various injunctions istherefore meant to restore human nature back toits pristine and undiluted state of purity, therebyriding man of corrupting elements which tendto defile his pure nature. In Ibn Ashur’s view,this concept of fithrah is intimately connectedwith a primordial covenant between the Creatorand man, in which the latter attested to andaffirmed the supremacy of the former as Lordworthy of worship and obedience. This implies atrust which humankind among all creatures, hadaccepted to bear responsibly.60 According to thisviewpoint, restoration of human pristine natureis of higher objective of the shari’ah.

There is no gainsaying that, Ibn Ashur wasa pioneer among modern Muslim scholars inthe systematic study of maqâshid as-syari’ah as

57 IbnAshur, Maqâshid al-Sharî’ah al-Islâmiyyah …, p. 165.58 IbnAshur, Maqâshid al-Sharî’ah al-Islâmiyyah …p. 169-170.

a distinct subject and not merely as a subsidiaryof ushûl al-fiqh. His contribution in this respecthas been widely appreciated and studied by alarge number of students and scholars. Apartfrom the independence of the theory which heaudaciously proposed, the major highlights ofhis contribution to the theory may be outlinedas follows:-

First, to the traditional division of the theoryinto general and specific, Ibn Ashur added thethird type which primarily has to do with the mostspecific branches of fiqh, namely mu’âmalât e.g.marriage, financial transactions, and punishment.Second, before IbnAshur, the theory of maqâshidwas restricted to the legalistic aspects of Islam.But he sought to broaden its scope by regardingthe theory as a gateway to understanding thehuman nature and by extension, understandingthe social order. Third, Ibn Ashur did tacitlyapprove the classical enumeration of maqâshidinto five and utterly rejected the purported sixthone i.e.’irdh (honor). Nevertheless, he added twonew maqâshid, namely freedom and equity, butwithout specifying their specific category amongdharûrî, hâjî or tahsînî.

Those are some of Ibn Ahsur’s majorcontributions to the theory of maqasid as-syari’ah.However, his Moroccan contemporary, Allal al-Fasi also deserves some note for his contributionto the theory of maqâshid. In his work Maqâshidas-syari’ah al-Islâmiyyah wa Makârimuhâ, heemphasized the importance of the theory as amanifestation of the syari’ah validity and viabilityamong other laws. According to him, he wrotethis book because of the stagnant study ofmaqâshid at that particular time. His objectivetherefore was to correct the way some scholarsused to explain every aspect of jurisprudence inthe name of maqâshid.61

In addition, there are two other relevantbooks by two contemporary scholars. Theirauthors were primarily concerned with theexplanation of wisdoms behind every ruling ofthe syari’ah. The first one is entitled Hikmat al-Tashrî’ wa Falsafatuhu (Wisdom and Philosophy of

59 IbnAshur, Maqâshid al-Sharî’ah al-Islâmiyyah …p. 172.60 El-Mesawi, “Maqâshid al-Shârî’ah: An Ushûlî Doctrine or

Independent Discipline”. pp. 69-72.

61 Al-Fasi, Maqâshid al-Sharî’ah al-Islâmiyyah wamakârimuhâ, p. 5.

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Abdul Hameed Badmas Yusuf: A Study of Evolution of Maqâshid as-Syari’ah

Legislation)62 by Ali Ahmad al-Jurjawi, a prominentAzhar scholar. In the preface, the author claimedthat he wrote his book due to dearth of materialsconcerned with the specific rulings of thesyari’ah based on their peculiar wisdoms. Hethen itemized four issues which he consideredfundamental in all heavenly legislations; theseinclude (i) cognition of Allah and His Essence,(ii) method of His worship, glorification, andgratitude, (iii) command what is good and orderagainst what is bad, and cultivation of goodvirtues, (iv) legislating in order to punish theoffender and make him aware of his limit in alltransactions.63

Written by Hamid bin Muhammad al-’Abbadi,the second book is entitled: Min hikam as-syari’ahwa Asrârihâ (The Syari’ah Wisdom and Secrets).Although no date of publication is provided, theauthor in his preface to the second edition ofthe book, mentioned that the first edition waspublished in 1387/ 1968, and that when its copieswere exhausted, the second edition was publishedin the year 1393 AH.64 By and large, both authorssought to give detailed accounts of the wisdomsbehind each ruling of the syari’ah. Underlyingsecrets behind every ruling of Shalâh, Shawm,Zakah, and Hajj, and other rituals were explained byboth scholars. However, the first book i.e. Hikmatal-Tashrî’ wa Falsafatuhu is more elaborate thanthe second one. This is because aside coveringthose aspects of worship mentioned earlier theauthor also highlighted wisdoms behind rulingsof marriage, divorce, good manner among otherissues relating to human transactions, technicallyknown as mu’âmalât.

It must be noted, however, that aspectscovered by both scholars fall under al-maqâshidal-juz’iyyyah. This aspect was discussed by IbnAshur in the third part of his book while dealingwith purposes of the syari’ah in the realm ofmu’âmalât.65 However, the two books mentionedearlier appear to be more detailed than Ibn

62 Ali Ahmad al-Jurjawi, Hikmat al-Tashrî’waFalsafatuhu,ed. Khalid al-Attar, (Beirut: Dâr al-Fikr, 1418 / 1997).

63 Ali Ahmad al-Jurjawi, Hikmat al-Tashrî’waFalsafatuhu ...,pp. 3-5.

Hamid Mohammad Al-‘Abbadi, Min Hikam al-Sharî’ah waAsrârihâ, (Beirut: al-Maktabah al-’ashriyyah, n.d).

65 IbnAshur, Maqâshid al-Sharî’ah al-Islâmiyyah ..., pp. 421-518.

Ashur’s in terms of examples provided andexplanations given.

ConclusionThe preceding paragraphs have discussed

the historical evolution of the theory of maqâshidas-syari’ah right from the time of the companionswho lived its spirit, down to the period of laterscholars who systematized the theory to becomewhat it is today. The conception of the theorywas never an overnight incident; rather it is anoutcome of exhaustive intellectual discussionsand expositions of certain concepts which couldbe regarded as foundations of the theory. Froma mere juristic principle subsumed under thescience of usul al-fiqh, the theory of maqasidas-syari’ah has assumed an indispensable statusthrough the efforts of al-Shatibi and Ibn Ashur inthe eighth and twentieth centuries, respectively.The theory of maqasid as-syari’ah engendersfundamental principles of Islamic law which canserve as authentic bases for proper application ofrules of the divine law. It should be observed thatthe application of various principles of maqasidas-syari’ah are largely applicable more in therealm of mu’amalat that in the realm of ibadah.

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