ISLAMIC MEDICAL EDUCATION RESOURCES02 9912-PURPOSES OF THE LAW, (MAQASID AL SHARIAT)

Lecture for 3rd year students at the Kulliyah of Medicine, International Islamic University, Kuantan on Saturday 4th December 1999

OUTLINE 1.0 INTRODUCTION A. Historical background B. Overview of the concept of maqasid C. Classification of maqasid D. Hujjiyat al maqasid E. Maqasid and contemporary challenges 2.0 THE 5 PURPOSES or NECCESSITIES A. Protection Of Religion, Hifdh Al Din B. Protection Of Life, Hifdh Al Nafs C. Protection Of Progeny, Hifdh Al Nasl D. Protection Of The Mind, Hifdh Al Aql E. Protection Of Wealth, Hifdh Al Mal 1.0 INTRODUCTION A. HISTORICAL BACKGROUND The 5-6th centuries were a period of new developments in the law. This was a time when the work on the fixed part of the law was completed. It was also a time of much intellectual activity in the ummat as the fall-out from the intellectual impact of Greek ideas continued. Any further developments in the law required opening up new the flexible part of the law which necessitated discussion of the purposes of the law. It was at this time that al Ghazali and his teacher al Juwayni introduced the ideas that underlie the concept of maqasid al shariat. Pioneers in the development of the theory of Purposes of the Law, maqasid al sharia, were al Juwayni, Ghazzali d. 505 AH, Ibn Taymiyyah d. 728H, Ibn al Qayyim al jawziyyat d. 751H, al Shatibi (d 790 AH). Ibn al Qayyim studied from Ibn Taymiyah who in turn studied from al Juwayni. Ghazzali's new theory of the purposes of the law was in the flexible part of the law. It opened up new challenges. His work was extended by Ibn Taymiyat and Ibn al Qayim. The field of the purposes of the law witnessed little development until revived by Imaam Abu Ishaq al Shatibi in the 8th century AH. The Andalusian Maliki scholar al Shatibi elaborated Ghazzali's theory. Our subsequent discussion of the purposes of the law is from al Shatibi's book al muwafaqaat fi usuul al shariat

B. OVERVIEW OF THE CONCEPT OF MAQASID Al Ashatibi drew attention to the importance of an over-all instead of a partial approach. He argued that the aim of ijtihad was to discover the purpose of the lawgiver, al shariu, in order to reach a legal ruling, hukm shari. The law was revealed to fulfil specific underlying purposes that will ensure success, falah, in this world and the hereafter. The supreme purpose of the law is to free the human from the grip of his own whims and fancies so that he may be a servant of Allah by choice just as he is without choice, al maqsad al sharei min wadai al shariat ikhraaj al mukallaf min daa'iyat hawaahu hatta yakuuna abdan li laahi ikhtiyaaran kama huwa abdan li laahi idhtiraaran. The law was specifically promulgated for the interests or benefit, masaalih, of the people. The law is on the side of the people and not against them. The law makes human life easier and not more difficult. The law is therefore flexible to help the people. People who make religion difficult, mutashaddidiin fi al ddiin, are misunderstanding the law. Humans using their reasoning can not reach the masalih of the duniyat; they need the law to give them guidance. The masalih and the mafasid can not be determined by human whims and fancies. On earth there is no absolute benefit, maslahat, or harm/evil, mafsadat. Every human action involves both. The purpose of the law is therefore to choose the best equilibrium. The original position is that benefits are permitted,halal, and harms, madhaar, are forbidden, haram. The law alone defines what is a benefit and what is a harm; human intellect and desires or whims are unreliable in this exercise. Human judgement is limited in purely earthly benefits. In both valid and non-valid actions, the basis for legal rulings, hukm, is the maslahat. The law-giver issues injunctions on the basis of which of the two predominates, benefit or harm. If benefit and evil are contradictory, we look for a middle of the way position, al tasaawi, or determining which should predominate, tarjiih. In the hereafter, both good and bad are absolute and are invariant under different circumstances. The maqasid are permanent, kulliyaat abadiyyat. This is the basis of consistency. They are derived from the nassby induction and are therefore definitive, qatai. Use of the maqasid ensures that the law is protected from being lost, dhia, or being changed, tabdiil. The maqasid are one indivisible whole, kulliyat la tankharim. Exceptions, branches, or parts, juziyaat, that are not understandable to the human should not detract us from the wholistic, kulliyat, understanding the purposes of the law. Imaam al Shatibi however emphasized that the parts, juziyaat, must be preserved if the whole, kulliyaat,are to be maintained. It is a mistake to consider the specifics only while ignoring the overall kulliyat. C. CLASSIFICATION OF MAQASID Two general categories of maqasid al sharia were recognised: the Purposes of the Allah the lawgiver, maqasid al shariu, and the Purposes of the human, maqasid al mukallaf. In an ideal situation the purposes of the law-giver conform to the purposes of the human. Humans do not

always know what is in their best interest because of personal whims, hiwa al nafs. The good may appear bad and vice versa. Humans may see immediate benefit while ignoring long-term harm. The Purposes of the Lawgiver are divided into 2 types: primary and secondary. The primary purposes of the lawgiver, maqasid al sharia ibtidaaan, are the most important and are a basis for the secondary purposes. The secondary purposes can be described in three types: the purpose of law as understanding, maqasid al shariat li al ifhaam; law as injuctions and obligations, maqasid al shariat li al takliif; and the law as implementation, maqasid al shariat li al imtithaal. This classification shows that the law is not only commands but also has secondary rules that help understand and execute the commands of the primary rules. The primary purposes are at 3 levels of priority: necessities, dharuraat, needs, haajiyaat, and improvements,tahsinaat, and each of the 3 has complements, mukammilaat. Each of these three can be divided into private and public purposes. Each of them can also be described in three categories: right of Allah, haqq al llaah; rights of the human, haqq an 'abd; rights of the community, and rights of the state, haqq al sultan. Notice that wants are not mentioned at all in this scheme because they are based on hiwa al nafs. D. HUJJIYAT al MAQASID Source: The purposes of the law are developed from the texts, nass, by a process of induction, istiqra, and not deduction. They are therefore definitive, qatai, sources of law. E. MAQASID and CONTEMPORARY CHALLENGES The 1st to 14th centuries witnessed relatively little change in the ummat in the physical sense. However in the 15thcentury, technological changes have created new and complex problems that require a bird's eye view for solution. It is the maqasid that can provide this bird's eye view and thus lead to appropriate solutions. 2.0 THE 5 PURPOSES or NECCESSITIES A. PROTECTION OF RELIGION, HIFDH AL DIN Ibadat: faith, iman; the 2 testaments, shahadatain; prayer, salat; fasting, siyaam; pilgrimage, hajj, jihad. It is the most important because it involves both duniyat and akhirat. Aadaat: Activities of daily living, aadaat, like food, drink, sleep indirectly contribute to the preservation of diin by making sure humans are in good physical health to undertake activities of physical ibadat. The most importantibadat in this context is jihad which ensures that freedom of religion is protected. Munakahaat: marriage ensures religion by protection from illegal sexual intercourse. The family transmits and teaches 'aqidat as well as Islamic culture Mu'amalaat: Exchange of goods and services enables mutual reliance in the society and enables all members to get the essentials of life in an easier way than if they had to get everything for

themselves. Thus mu'amalat are necessary for life and health without which ibadat is not possible. Jinayaat: Laws against apostasy protect religion. Laws that forbid spread of evil ideas and practices also protect the religion. B. PROTECTION OF LIFE, HIFDH AL NAFS Ibadat: Jihad is a type of ibadat may be necessary to stop oppression that destroys life or harms good health. Ibadat like salat leads to inner tranquility, sakiinat, which is necessary for establishment and maintenance of a peaceful society. Aadaat: Maintenance of life includes eating, drinking, dress, shelter, medical treatment, and physical exercise. etc. Munakahaat: The reproductive function, a necessity for continuation of human life by making sure that children succeed their parents, is best served in a legal marriage. The law regulating marriage and family life contributes to the biological survival of the human race. Children grow well and are healthy physically and mentally if they are in a family. Mu'amalaat: Essential goods and services like food, medical care, shelter are served by business transactions in which people exchange goods and services. Without these essentials life and health would be jeopardized. Jinayaat: Many laws were promulgated to protect life and promote health. The laws on quarantines during epidemics, the isolation of persons with contagious disease, the laws of revenge, qisas, for homicide, laws on physician liability for professional errors and negligence, the punishment for taking alcohol and other intoxicants. C. PROTECTION OF PROGENY, HIFDH AL NASL Ibadat: Family life according to the law ensures issue of progeny and protection of children to grow into adults who will reproduce and continue the human race. Aadaat: Good nutrition of young girls ensures that they grow into healthy potential mothers who will bear healthy babies and are at low obstetric risk. Good nutrition in pregnancy ensures optimal intra-uterine fetal growth and development and easier delivery with minimal intra-natal and post-natal complications. All these measures taken together ensure healthy offspring. Munakahaat: Maintenance of progeny includes the regulations about marriage, family life, and child upbringing. This purpose has several interpretations. It is wrong to use it to refer to protection of the race because race in Islam is forbidden. It can be referred to protection of honor, 'irdh. The best interpretation is protection of paternity and preservation of the family. The rules of marriage, divorce, nafaqat, and child upbringing fall under this purpose. Themahr given to the wife on marriage ensures economic independence for her in case of dissolution of the marriage. Mu'amalaat: The laws of inheritance ensure proper transfer of property rights from the parents

to their young children so that they have the means to sustain them to grow into adulthood. Jinayaat: The laws about paternity ensure that biological fathers have the legal and financial responsibility for physical care of their children until they grow up. The laws against illegal sexual relations like zina and liwat ensure that people marry and have children. It is the experience of all human civilizations that the birth rate falls in situations of wide-spread sexual immorality.

D. PROTECTION OF THE MIND, HIFDH AL AQL Ibadat: Ibadat leads to psychological calmness, tama'aninat nafsiyat, that is essential for mental health Aadaat: Maintenance of the mind includes avoiding doing or consuming what affects the intellect like alcohol, drugs, and all addictive habits. Poor nutrition leads to neuropathies that affect intellectual function. Munakahaat: Psychological calmness and stability of the family is necessary for mental health of the spouses and the children. Scientific research has shown that children who grow in dysfunctional families have many psychological problems as adults. Mu'amalaat: Poor economic conditions and disturbance of normal transactions lead to poverty and need. These contribute a lot to psychological imbalances. Jinayaat: The law provides heavy penalties for false accusations of adultery because of the psychological distress caused to all members of the family. E. PROTECTION OF WEALTH, HIFDH AL MAL Ibadat: zakat cleans wealth and protects it Aadaat: The law discourages wasteful eating and drinking which lead to poverty Munakahaat: Mahr ensures financial independence of the woman and gives her security. The obligation of nafaqat protects the family from poverty and material want. Mu'amalaat: The regulations about property, trade, and inheritance are for the preservation of property rights Jinayaat: The punishment for stealing protects property rights