"MAQID AL-SHAR'AH": THE OBJECTIVES OF ISLAMIC LAW

Author(s): MOHAMMAD HASHIM KAMALI

Reviewed work(s):
Source: Islamic Studies, Vol. 38, No. 2 (Summer 1999), pp. 193-208
Published by: Islamic Research Institute, International Islamic University, Islamabad
Stable URL: http://www.jstor.org/stable/20837037 .
Accessed: 13/02/2012 01:57
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .
http://www.jstor.org/page/info/about/policies/terms.jsp
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of
content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms
of scholarship. For more information about JSTOR, please contact [email protected].

Islamic Research Institute, International Islamic University, Islamabad is collaborating with JSTOR to
digitize, preserve and extend access to Islamic Studies.

http://www.jstor.org

IslamicStudies 38:2 (1999)

MAQASID AL-SHARl'AH: THE OBJECTIVES OF

ISLAMIC LAW
MOHAMMAD
HASHIMKAMALf

INTRODUCTION
This essay is presented in five sections beginning with a general
characterisation

of themaqasid

al-Shari'ah

and its origins

in theQur'an.

The next sectionaddresses theclassificationof themaqasid and a certain

order of prioritythat is integratedinto the structureof themaqasid.
Section threeis devoted tohistoricaldevelopmentsand thecontributions
of some of the leading 'ulamd\ especially thatofAbu Ishaq Ibrahimal
Shatibl, to the theoryof themaqasid. Section four looks into the
differentialapproaches the 'ulamd'have takentoward the identification
of themaqasid. The last sectionhighlightstherelevanceof themaqasid
to ijtihddand theways inwhich themaqasid can enhance the scope and
calibre of ijtihad.

TEXTUALORIGINS
Maqasid

al-Shari'ah,or

the goals

and objectives

law,

is an

so as to protect

these

of Islamic

and yet somewhatneglected themeof theSharVah.

evidentlyimportant
the
ispredicatedon thebenefitsof the individualand
Shari'ah
Generally
that of the community,

and its laws are designed

and perfectionof the conditionsof

benefitsand facilitateimprovement
human lifeon earth.The Qur'an is expressiveof thiswhen it singlesout
themost important
purpose of theProphethoodofMuhammad (peace be
on hiln) in such termsas: "We have not sentyou but a mercy to the
world" (21: 107). This can also be seen perhaps in the Qur'an's

Mohammad Hashim Kamali, Professor, Kulliyyah of Laws,

Islamic University ofMalaysia, Gombak, Malaysia.

International

194

mohammad

hashim KAMAu/Maqasid

al-SharVah:

The Objectives

of Islamic

Law

characterisationof itselfin thatit is "a healing to the (spiritual)ailment

of the hearts, guidance and mercy for the believers" (and mankind)
(10: 57).
The twouppermostobjectivesof compassion (rahmah)and guidance
(hudd) in theforegoingverses are thensubstantiated
by otherprovisions
in theQur'an and theSunnah thatseek to establish justice, eliminate
prejudice, and alleviatehardship.The lawsof theQur'an and theSunnah
also seek to promote cooperationandmutual supportwithin the family
and the societyat large. Justiceitselfis a manifestationofGod's mercy
as well as an objective of theSharVah in its own right.Compassion
(rahmah) ismanifested in therealisationof benefit(maslahah)which the
'ulamd'

have

generally

considered

to be

the all-prevasive

value

and

objective of theSharVah and is to all intentsand purposes synonymous

with rahmah.

Educating the individual (tahdhib al-fard) is another important

objective of theSharVah somuch so thatitcomes, inorder of priority,
even before justice and maslahah. For theseare both socially-oriented
values which acquire much of theirmeaning in the contextof social
relations,whereas tahdhibal-fard seeks tomake every individual a
agent and carrierof thevalues of the SharVah, and it is
trustworthy
througheducating the individualthattheSharVah seeks to realisemost
of its social objectives. The overall purpose of a greatdeal of the laws
and values of theSharVah, especially in thespheresof 6ibdddt
andmoral
teaching, is to train an individual who ismindful
and becomes an agent of benefit to others.1

of the virtues of taqwd

in numerous places and a variety of

is expressive,
Qur'an
of
the
contexts,
rationale, purpose and benefit of its laws so much so that
text
This feature of the
becomes
its
characteristically
goal-oriented.
The

Qur'anic

language

is

common

to

its

laws

on

civil

transactions

(mu'dmaldt)as well as devotionalmatters ('ibdddt).Thus when the text

expounds the rituals of wudu' (ablution for prayer) it follows on to
declare that "God does not intendto inflicthardshipon you. He intends
cleanliness foryou and to accomplishhis favourupon you" (5: 6). Then
with regard to theprayer itself,it is declared that "trulysaldh obstructs
promiscuityand evil" (29: 45). With referenceto jihad theQur'an
similarlyproclaims itspurpose in such termthat "permissionis granted
to thosewho fightbecause theyhave been wronged" (22: 39). The
purpose, in otherwords, of legalisingjihad is to fightinjustice(zulm)
and thepurpose of saldh is to attainsprititualpurityand excellence that
is accomplished togetherwith physical cleanliness throughablution
before prayer.With referenceto the law of just retaliation(qisds), the

195

IslamicStudies 38:2 (1999)

text similarlydeclares that "in qisds there is lifefor you, o people of

understanding"(2: 179); andwith regardtopoor-due (zakah), theQur'an
it "so that wealth

validates

does not circulate

the wealthy"

only among

(57:7). According to anothertext,thebelievers are under duty to lower

theirgaze in theirencounterwithmembers of theopposite sex, "forthis
will help you to attaingreaterpurity" (24: 30).
One can addmany more examples of the lawwhich show how the
Qur'an and theSunnah are expressive of theirgoal justification,cause
and

benefit

in the affirmative

sense,

as

just

one

finds

numerous

referencesto evil conduct and crimewhich is reprimandedand made

punishable, in the negative sense, in order to prevent injustice,
corruption

and prejudice.

In the area of commerce

and mu'dmaldt,

the

Qur'an forbidsexploitation,usury, boarding and gamblingwhich are

harmfuland jeopardise theobjective of fairdealing in themarket-place.
The underlyingthemeinvirtuallyall of thebroad spectrumof theahkdm
is realisationof benefit (maslahah)which is regardedas the summa of
themaqdsid. For justice is also a maslahah and so is tahdhibal-fard.
The masdlih (pi. of maslahah), thus become another name for the
and the 'ulamd' have used

maqdsid

the two terms almost

interchange

ably.

CLASSIFICATIONOF BENEFITS
The

'ulamd' have classified

the entire range of masdlih-cum~maqdsid

into

threecategories ina descendingorderof importance,

beginningwith the
essentialmasdlih,ordariiriyydt,
followedby thecomplementary
benefits,
or hdjiyydt,and then the embellishmentstahsiniyydt.The essential
interests are enumerated

at five, namely faith, life, lineage, intellect and

are, by definition, essential to normal order in society

property. These

as well as to thesurvivaland spiritualwell-being of individuals,somuch

so thattheirdestructionand collapse will precipitatechaos and collapse

of normal
these

order

values

advancement.

in society. The SharVah

measures
validates

and

Jihad has thus been validated

to protect and promote

and
their preservation
in order to protect religion,

seeks

for

and so is just retaliation(qisas) which is designed to protect life.The

SharVah

promote

punitive measures
Theft, adultery and wine-drinking

takes affirmative

these values.

and also

to protect and
are punishable

offencesas theypose a threatto theprotectionof privateproperty,the

well-being of the family, and the integrityof human intellect
respectively.

In an affirmative sense again, but at a different level, the

SharVah encourageswork and tradingactivity in order to enable the

individual

to earn a living, and it takes elaborate measures

to ensure

the

196

hashim kamali^Maqasid

mohammad

smooth flow of commercial

al-SharTah:

transactions

The Objectives

in themarket-place.

of Islamic

The

Law

family

laws of theSharVah are likewisean embodimentlargelyof guidelines

andmeasures thatseek tomake the familya safe refugefor all of its
members. The SharVah also encourages pursuit of knowledge and
education to ensure the intellectualwell-being of the people and the
advancementof arts and civilisation. The essentialmasalih, in other
words, constitutean all-encompassingthemeof theSharVah as all of its
laws are in one way or another related to the protection of these benefits.
These benefits are an embodiment, in the meantime, of the primary and

overridingobjectives of theSharVah.
The

second

complementary

as hajiyyat,
or
the interests, known
are
an
as
not
interests,
independent category
they also
class

of

seek toprotectand promote theessential interests,albeit in a secondary

capacity. These are defined as benefitswhich seek to remove severity
and hardship thatdo not pose a threatto thevery survivalof normal
order.A greatdeal of theconcessions (rukhas)such as theshorteningof
saldh, and opening of the fastfor the sick and the traveller,which the
SharVah has granted,are aimed at preventinghardship,but theyare not
essential since people can livewithout themif theyhad to. In almost all
areas of obligatory

'ibadat

the SharVah

has granted such concessions.

Similarly, in thearea of criminal law, thehadithwhich proclaims that

"prescribedpenalties are suspended in all cases of doubt"2 protects a
secondary interestin that it regulatesthemanner inwhich punishments
essential

to protect
These punishments are in turn designed
interests through judicial action. In the sphere of mu'dmaldt,

SharVah

validated

are enforced.

certain contracts,

such as the sale of saiam,

the
the

and also

thatof lease and hire (ijarah) because of thepeople's need for them
notwithstanding

a certain anomaly

that is attendant in both. In the sphere

of familylaw, once again theSharVah permitsdivorce in situationsof

necessity

by way,

that is, of a concession,

which

is aimed,

in the final

analysis, at ensuringthewell-being of thefamilyand defendingitagainst

intolerable conflict.

A maslahah of the second class is elevated to the rank of the

essentialmaslahah when itconcerns thepublic at large.To illustratethis,
thevalidityof ijarahmay be of secondary importanceto an individual
but it is an essential interestfor the societyat large. Similarly, certain
concessions thatare granted in the sphereof 'ibadatmay be secondary
to the survival of an individualbut it becomes a matter of primary
In the event of a conflict arising
interest for the community as a whole.
the various classes of interest, the lesser of these may be
between

When thereis a plurality

sacrificed inorder to protecta higher interest.

197

IslamicStudies 38:2 (1999)

of conflictinginterestsand none appears to be clearlypreferable, then

preventionof evil takespriorityover the realisationof benefit.3This is

because

the SharVah

ismore

emphatic on the prevention

of evil, as can

be seen in thehadithwhere theProphet (peace be on him) has reportedly

said: "When I order you to do something,do it to the extentof your
ability, but when I forbid you from something, then avoid it
(altogether)".4

are in thenature
The thirdclass ofmasdlih, known as tahslniyydt,
and perfectionin the
of desirabilitiesas theyseek to attain refinement
customsand conductof .peopleat all levelsof achievement.The SharVah
thusencouragescleanlinessof body and attireforpurposes of prayerand
recommends,

for instance,

the wearing

of perfume when

attending

the

congregational Friday prayer; contrariwise, it 'discourages the

consumption of raw garlic on that occasion. The SharVah also
encourages charityto those inneed beyond the levelof obligatorytaxes,
and in Hbdddt,it recommendssupererogatory
prayers,and so forth.In
customary matters

the SharVah

and relations among people,

encourages

gentleness (rifq),pleasant speech andmanner (husn al-khulq) and fair

dealing (ihsdn).The judge and thehead of stateare similarlycounselled
not to be too eager

in the enforcement of penalties,

such a course being

considered a desirable one to take. The purpose of all this is the

attainment of beauty and perfection

in all areas of human conduct.

This lastcategoryof interestsis perhaps of special importanceas it

is pervasive

and

relates

to all other masdlih.

One

can perform

the

ways, with orwithoutproper

obligatorysaldh, forexample, indifferent
concentrationand giving each of itsparts theirdue attention,or perform
it in a hasty and thoughtless manner,

and the difference between

them is

thatthefirstis espousedwith theattainmentof both theessentialand the

desirable, and the second can at best be discharged as a duty. One can
extend this analysis to almost every area of human conduct and the

of almost all of theahkdmof theSharVah. It shouldbe

implementation

obvious,

then, that the classification

of masdlih

need not be confined

to

theahkdmof theSharVah or to religiousmatters alone as it is basically

a rational construct that applies

to customary,

social, political,

economic

and culturalaffairsand so forth.To build thefirsthospital in a town is

may
likelyto be necessary and essential,but to build a second and third
be only complementaryand desirable. And thento equip each one with
the latest and most efficienthealth care facilitiesmay fall under the
depending,
categoryeitherof thesecond or the thirdclasses of interests,
of course, on the general conditions of each locality. From this analysis,
under one
it also appears that classifying a certain interest and maslahah

198

mohammad

hashim kamAulMaqasid

al-Shari'ah:

The Objectives

of Islamic

Law

or theotherof thesecategories is likelytobe relativeand involvevalue

judgmentthatcontemplatetheattendantcircumstancesof each case.

HISTORY INBRIEF
As a themeof theSharVah in itsown right,themaqdsid did not receive
much attentionin the early stages of thedevelopmentof Islamic legal
thoughtand, as such, theyrepresentrathera lateraddition to thejuristic
legacyof themadhdhib. Even to thisdaymany a reputabletextbookon
Usul al-Fiqh does not mention maqdsid al-SharVah in their usual
coverage of familiartopics.This is partlydue perhaps to thenatureof
the subject,which is largelyconcernedwith thephilosophyof the law,
of itstext.
itsoutlook and objective, ratherthanthespecificformulations
as
a
are
the
theme
distinctive
of
Shari'ah
the
Although
maqdsid
obviously relevantto ijtihdd,theyhave not been treatedas such in the
conventionalexpositionsof the theoryof ijtihdd.
Islamic legal thought is, broadly speaking, preoccupied with
concerns over conformityto the letterof thedivine text,and the legal
theoryof Usul al-Fiqh has advanced thatpurpose to a largeextent.This
literalist orientation of the juristic thoughtwas generally more
?
?
pronounced in theapproachof thetendency thetraditionist theAhl
al-Hadlth

than that of

the Rationalists

the Ahl

al-Ra'y.

The

literaliststhus tendedto view theSharVah as a set of rules, commands

and prohibitions

thatwere addressed

to the competent

individual mukallaf

and all that the latterwas expected to conform to itsdirectives.The

precedentof the leadingCompanions indicated,on theotherhand, that
theysaw theSharVah both as a set of rules and a value systeminwhich
the specific ruleswere seen as tangiblemanifestationsof theoverriding
values. The textualisttraditionof thefirst threecenturiesdid not take
much

interest inmaqdsid

al-SharVah

and itwas

not until the time of al

GhazalT (d. 505/1111) and thenal-Shatibi (d. 790/1388) thatsignificant

developments

were made

in the formulation of the theory of maqdsid.

The basic outlook thatwas advocatedby the theoryof themaqdsid

was not denied by the leadingschools, yet themaqdsid remainedon the
fringesof themainstream juristic thoughtthatwas manifested in the
various themesand doctrinesofUsul al-Fiqh. Except fortheZahirls who
and
maintained thatthemaqdsid are onlyknownwhen theyare identified
declared by the clear text, themajority of 'ulamd' did not confine the
text alone. For they perceived and understood
the
to be rational, goal-oriented and its rules generally founded on
identifiable causes. A mere conformity to rules that went against the
purpose and outlook of the SharVah was, therefore, generally considered

maqdsid
SharVah

to the clear

199

IslamicStudies 38:2 (1999)

unacceptable.A totallydifferentapproach to themaqdsid was takenby

theBatiniyyahwho held, contraryto theZahirls, thatthe essence and
objective of thenususwere always tobe found,not in theexplicitwords
of the text,but in itshiddenmeaning (i.e. bdtiri),hence theirname, the
Batiniyyah.5Therewere also differencesof orientationamong the leading
madhdhib toward themaqdsid: somewere more open to it thanothers,
but elaboration into the goals and objectives of the SharVah was
generallynot encouraged.This ratherunspoken attitudecontrastedwith
the fact that theQur'an itselfexhibits considerable awareness of the
underlyingpurposes and objectives of its laws and often expounds the
causes and rationaleon which theyare founded.The general reticence
of the 'ulamd' in respectof the identification
of themaqdsid might have
partlybeen due to the elementsof projection and prognosticationthat
such an exercise

was

likely to involve. Who

can

tell, for sure,

for

example, thatthisor thatis thepurpose and overridingobjective of the

Lawgiver, withoutengaging ina degree of speculation,unless of course,
the textitselfdeclared itso. But thento confinethescope of themaqdsid
only to theclear declarationof the textswas also not enough, as I shall
presently elaborate.

Itwas notuntil theearly fourthcenturythattheterm 'maqdsid'was

used in the juristicwritings of Abu 'Abd Allah al-Tirmidhlal-Haklm
(d. 320/932) and recurrentreferencesto it appeared in theworks of
Imamal-Haramaynal-Juwaynl(d. 478/1085) who was probably thefirst
to classify themaqdsid al-Shari'ah intothe threecategoriesof essential,
which
hdjiyydt,tahslniyydt)
complementaryand desirable (daruriyydt,
has gained general acceptance ever since. JuwaynT'sideas were then
developed furtherby his pupil, Abu Hamld al-GhazalTwho wrote at
lengthon public interest(maslahah) and ratiocination (ta'Ul) in his
works,

Shifd' al-Ghalil

and al-Mustasfd.

GhazalT was

generally

critical

ofmaslahah as a proofbut validated it if itpromotedthemaqdsid of the

SharVah. As for themaqdsid themselves,GhazalT wrote categorically
that theSharVah pursued five objectives, namely those of faith, life,
intellect, lineage and property which were
absolute priority.6

to be protected as a matter of

A number of prominentwriters continued to contribute to the

maqdsid, not all of them consistentlyperhaps, yet importantto the
developmentof ideas. Sayf al-DIn al-Amidl (d. 631/1233) identifiedthe
maqdsid as criteriaof preferenceal-tarjlh among conflictinganalogies
and elaborated on an internalorder of priorities among the various
classes of maqdsid. AmidI also confined the essentialmaqdsid to only
five. The MalikI jurist,Shihab al-Din al-Qarafi (d. 684/1285) added a

200

Mohammad

hashim KMAMjIMdQdsid

al-SharVah:

The Objectives

of

Islamic

Law

sixth to theexisting list,namely theprotectionof honour (al-'ird) and

thiswas endorsed by Taj al-DTn 'Abd al-Wahhab ibn al-Subki (d.
771/1370) and laterbyMuhammad ibn 'AITal-Shawkanl (d. 1250/1834).
The listof five essentialvalues was evidentlybased on a readingof the
relevantparts of theQur'an and theSunnah on theprescribedpenalties
{hudud). The value thateach of thesepenalties sought to vindicate and
defend was

consequently

identified as an essential

value.

The

latest

addition (i.e. al-'ird) was initiallythoughtto have been covered under

lineage (al-nasl, also al-nasab), but theproponentsof thisadditionrelied
on thefact thattheSharVah had enacteda separatehadd punishmentfor
slanderousaccusation (al-qadhf),which justifiedtheaddition.7'Izz al-DIn
'Abd al-Salam

Ahkdm, was

renowned work, Qawa'id

al
(d. 660/1262)
own
a
on
in his
characterisation
work
'maqdsid al-ahkam'
al-Sulami's

and addressed the various aspects of the maqdsid especially in

relationshipto 'illah (effectivecause) and maslahah (public interest)in
greaterdetail. Thus he wrote at theoutsetof his work that "thegreatest
of all theobjectives of theQur'an is to facilitatebenefits(masdlih) and
themeans that secure them and that the realisation of benefit also
includedthepreventionof evil".8 SulamI added thatall theobligationsof
were predicated on securingbenefits for the
the SharVah (cd-takdlif)
world
and
in
thenext. For God Most High isHimself inno
this
people
nor
He
inneed of theobedience of His servants.He
is
need of benefit
is above all this and cannot be harmed by the disobedience of

of the righteous. The

transgressors, nor benefit from the obedience
the
from
in
other
SharVah
words, concerned,
is,
beginning to the end,
creatures.
with the benefits of God's

TaqI al-DTn ibnTaymiyyah (d. 728/1328) was probably thefirst

scholar to depart fromthenotion of confiningthemaqdsid to a specific
number and added, to theexisting listof themaqdsid, such thingsas
fulfilment of contracts, preservation

of the ties of kinship, honouring

the

rightsof one's neighbour, in so far as the affairsof thisworld are

concerned,

and the love of God,

sincerity,

trustworthiness,

and moral

purity, in relationshipto thehereafter.9IbnTaymiyyah thusrevised the

scope of themaqdsid froma designatedand specified list intoan open
ended list of values, and his approach is now generally accepted by
contemporary

commentators,

including Ahmad

al-Raysuni,

Yusuf

al

QaradawT and others.10QaradawT has furtherextended the list of the

maqdsid to include social welfare and support (al-takaful), freedom,
human dignityand human fraternity,
among thehigher objectives and
maqdsid of theSharVah.11These are undoubtedlyupheld by both the

201

Islamic Studies 38:2 (1999)

detailed and the general weight of evidence in theQur'an and the

Sunnah.

I propose toadd economicdevelopmentand strengthening

ofR & D
in technology and science to the structureof maqasid as they are
crucially importantin determiningthe standingof the ummah in the
world community.Itwould appear fromthisanalysis thatthemaqasid
enhancementwhich will depend, to
al-SharVah remainopen to further
some extent, on the priorities of every age.

IDENTIFICATIONOF MAQASID
As already indicatedthe 'ulama' have differedin theirapproach to the
identificationof themaqasid. The first approach to be noted is the
of themaqasid to
textualistapproach,which confines the identification
theclear text,commandsand prohibitions,which are thecarriersof the
maqasid. The maqasid, according to this view, have no separate
existence outside this framework.Provided thata command is explicit
and normative it conveys theobjectivemaqsud of theLawgiver in the
affirmativesense. Prohibitions are indicativeof themaqasid in the
negative sense in that the purpose of a prohibitive injunction is to
suppress and avert the evil thatthe text in question has contemplated.
This is generally accepted, but thereare certain tendencieswithin this
While theZahirls tendto confinethemaqasid to the
general framework.
obvious text,themajority of juriststakes intoconsiderationboth the text
The chiefexponent
and theunderlying 'illah and rationaleof the text.12
of theneed to observe
of themaqasid, ShatibI, has spoken affirmatively
and respecttheexplicit injunctions,but thenhe added thatadherence to
theobvious text should not be so rigid as to alienate the rationaleand
purpose of the textfrom itswords and sentences.Rigidity of thiskind,
ShatibI added, was itselfcontrary to the objective (maqsud) of the
Lawgiver, just as would be thecase with regard to neglecting theclear
text itself.When

the text, whether

a command

or a prohibition,

is read

in conjunctionwith itsobjective and rationale, this is a firmapproach,

one which bears greaterharmonywith the intentionof theLawgiver.13
ShatibI elaboratedthatthemaqasid thatare known froma comprehensive
readingof the textare of two types,primary (asliyyah) and secondary
which the
(tab'iyyah).The formerare theessentialmaqasid or daruriyyat
of
must
and
observe
protect regardless personal predilections,
mukallaf
?
?
whereas thesupplementary
hajiyyat are thosewhich leave
maqasid
themukallafwith some flexibilityand choice.
A comprehensivereadingof the textual injunctionsof theSharVah
has given rise to such questions

as to whether

the means

to a wdjib

or

202

mohammad

hashim KAMAU/Maqas/d

al-SharT'ah\

The Objectives

of Islamic

Law

hardm should also be seen as a part of theobjective that is pursued by

whether themeans toa command, inotherwords, is also
thatinjunction;
an integralpart of thatcommand.Another question raised is whether
avoiding theopposite of a command is integralto thegoal and objective
that is soughtby thatcommand. The general response given to these
aspectsof commandsand prohibitions
questions is thatthesupplementary
are an integralpart of theirobjectives, althoughdisagreementshave
emerged over details. There is a general agreement that the opposite of
a command amounts to a prohibition in the event where that opposite can

Most of the injunctionsof theSharVah are easily

be clearly identified.
understood,and theirobjectives as well as theiropposites can be known
and ascertainedfrom the readingof theclear text. It is thusnoted that

whatever

might

be necessary

for the carrying out of a command

or a

wdjib is also a part of thatwdjib. ShatibThas similarlyconcluded that

whatever is complementaryto themaqdsid and in the service thereofis
also a part of themaqdsid. The question thenarises regardingthesilence
of theLawgiver in respectof a certainconduct in situationsespecially
where a general readingof therelevantevidence sheds lighton thevalue
of thatconduct.The questionmay be put as follows:We know thatthe
maqdsid are known fromclear injunctions,but can theyalso be known
froma general readingof thenusus byway of induction?
This iswhere
an
ShatibThas given original response,and this iswhatwe takeup next.
Induction(istiqra') toShatibTis one of themost important
methods
of identifying
themaqdsid of theSharVah. Theremay be various textual
referencesto a subject,none ofwhichmay be in thenatureof a decisive
injunction.Yet theircollectiveweight is such that it leaves littledoubt
as to themeaning that is obtained from them. A decisive conclusion may,
in other words, be arrived at from a plurality of speculative expressions.

ShatibT illustratesthisby saying thatnowhere in theQur'an is therea

specificdeclaration to theeffectthattheSharVah has been enacted for
thebenefitof thepeople. Yet this is a definitiveconclusionwhich is

drawn from the collective

reading of a variety of textual proclamations.14

ShatibTthenadds thatthebenefits(masalih) are tobe understood in their

broadest sensewhich is inclusiveof all benefitspertainingto thisworld
and thehereafter,thoseof the individualand thecommunity,
material,
moral and spiritual,and thosewhich pertain to thepresentas well as the
interests of the future generations. This broad meaning
includes prevention and elimination of harm. These

of benefits also

benefits

cannot

always be verified and ascertained by human reason alone without

and guidance of divine revelation.15

the aid

203

Islamic Studies 38:2 (1999)

The typicalclassificationof themaqdsid intothethreecategoriesof

essential, complementaryand desirable, and the conclusion that the
has

Lawgiver

intended

to protect

these are based,

once

again,

on

inductionas there is no specific declaration on them in the textual

sources.On a similarnote, therulingof theSharVah thatthevalidityof
an act of devotion ('ibddah) cannotbe establishedbymeans of ijtihddis
an inductiveconclusionwhich isdrawn fromthedetailed evidence on the
subject, as there is no specific injuction in the sources to thateffect.

These

conclusions

are, in themeantime,

of great overall

importance;

they

are not open to doubt, nor is theircredibilitya matter of speculative

reasoning.16It is also the same inductivemethod which has led the
'ulamd' to theconclusion thattheprotectionof the fivevalues of faith,
life, intellect,property and lineage is of primary importanceto the
SharVah ? therebeing no textual ruling to specify any category or
number of values

in that order.

ShatibI's inductivemethod is not confined to the identification

of
to
and
values
but
also
extends
commands
and
objectives
prohibitions,
which may eitherbe obtained from the clear text,or froma collective
reading of a number of textual proclamations

thatmay occur

in a variety

of contexts.17ShatibI thengoes a step furtherto say thatthe inductive

conclusions and positions thatare so establishedare thegeneralpremises
and overridingobjectives of theSharVah and thushave a higherorder
of importancethanspecificrules. It thusbecomes evident thatinduction
is theprincipalmethod of reasoningand proof towhich ShatibI resorted
inhis theoryof themaqdsid and it is also in thisregardthathe hasmade
an original contributionto this theme.
ShatibT's approach

to induction is reminiscent of the knowledge

that

is acquired of thepersonalityand characterof an individualthatisbased

on sustained association with that individual and observation of his
conduct over a period of time.This kind of knowledge is broad and
holistic, as it is enrichedwith insight,and likely to be more reliable
when compared to the knowledge thatmight be based only on the
observation
individual

of specific,
concerned.

isolated

incidents

in the daily

activities

of the

MAQASID AND IJTIHAD

Having expounded his theoryof themaqdsid, ShatibI accentuated the
knowledge of themaqdsid as a prerequisiteof attainmentto the rankof
a mujtahid. Those who neglect acquiringmastery of themaqdsid do so
to theirown peril as itwould make them liable to error in ijtihdd.
Included

among

these were

the proponents

of pernicious

innovation

(ahl

204

mohammad

hashim Km

Maqasid

al-Shan'ah:

The Objectives

of Islamic

Law

al'bid'ah) who only looked at theapparent textof theQur'an without

ponderingover itsobjective andmeaning. These innovators(an allusion
to theKharijites) held on to the intricatesegmentsof theQur'an (al
mutashabihaf) and premised theirconclusions on them.They took a
fragmentedand atomisticapproach to the readingof theQur'an which
failed to tie up the relevantparts of the texts together.The leading
'ulamd' have, on the other hand, viewed

the SharVah

as a unity inwhich

thedetailed rules should be read in the lightof theirbroader premises

work
and objectives.18Tahir ibn 'Ashur,theauthorof anotherlandmark

on themaqasid,

Maqasid

al-Shari'ah

al-Isldmiyyah,

has also confirmed

thatknowledge of themaqasid is indispensibleto ijtihdd in all of its

Some 'ulama' who confinedthe scope of theirijtihdd
manifestations.19
have found itpossible, Ibn 'Ashuradded,
only to literal interpretations
toproject a personal opinion intothewords of thetextand fell intoerror
as theywere out of linewith the general spirit and purpose of the
surroundingevidence.20This may be illustratedby reference to the
views of the 'ulamd'onwhether thezakdhon commoditiessuch
different
as wheat and datesmust be given in kind or could italso be given in
theirmonetary equivalent.The Hanafis have validated giving of zakdh
inmonetary equivalentbut al-Shafi'i (d. 204/820) has held otherwise.
The HanafT view is foundedon theanalysis thatthepurpose of zakdh is
to satisfytheneed of thepoor and thiscan also be achieved by paying
themonetary equivalentof a commodity.IbnQayyim al-Jawziyyahhas
likewiseobserved regarding(sadaqat al-fitr)thatthereare ahddithon the
subject which

refer sometimes

to dates and at other times to raisins or

foodgrainsas thesewere the staple food ofMadTnah and itsenvironsat

the time.The commonpurpose inall of thesewas to satisfytheneed of
the poor rather than to confine

its payment

in a particular

commodity.21

To give anotherexample,Malik (d. 179/795)was asked about a person

who paid his zakdh ahead of time, that is, prior to theexpiry of one
year,whetherhe was liable topay itagain at theend of theyear.Malik
replied thathe was and drew an analogywith the ritualprayer (saldh).
If someone performshis prayerbefore itsdue time,hemust perform it
again in itsproper time. SubsequentMalik! jurists, includingIbn al
'Arabl (d. 543/1148) and IbnRushd (d. 520/1126), have reversed this
position and stated thatearlypaymentof zakdhwas permissible.There
was, theyadded, a differencebetweensaldh and zakdh in thattheformer
was

time-bound

to specific

times, but no such time had been

stipulated

for thepaymentof zakdh.Hence zakdhmay be paid earlier especially if

it is prepaid by only a fewweeks or even longer.22

205

Islamic Studies 38:2 (1999)

Abu Hanlfah (d. 150/767)has oftenbeen criticisedby theAhl al~

Hadith forhaving departedon occasions fromthewording of ahadith to
an alternative

ruling. But on closer

examination

it becomes

clear

that

Abu Hanlfah has done so onlywhen he reacheda differentconclusionby

readinga particularhadith in conjunctionwith other relevantevidence
in theQur'an and theSunnah.
Itwill also be noted thaton occasions mujtahids and judges have
issued decisions in disputedmatters,which were foundupon further
scrutiny to be in disharmonywith the goals and objectives of the
Instances of this nature are also encountered with reference to

Shari'ah.

contractssince a contractmay duly have been signed andmade binding

on theparties and only then itwas found to be unfair to one of the
parties

due

to

some

unexpected

change

of

In

circumstance.

that

eventualitythe judge and mujtahid can hardly ignore the subsequent

changes and insiston theobligatorinessof the said contracton purely
formal grounds. For a contract is no longer the governing law of
contractingparties (sharVatal-'aqidayri) if itproves tobe an instrument
of injustice.Such a contractmust be set aside and justice,which is the
goal and maqsud of the Lawgiver, must be given priority over
considerations

of conformity

to an untenable

contract.23 Without

going

intodetails, instancesof conflictbetween theoverridingobjectives of the

SharVah and a particularrulingthereofcan also arisewith referenceto
therulingsof analogy (qiyds).A rigidadherence toqiyds incertaincases
may

lead

to unsatisfactory

results, hence

a recourse may

be had

to

istihsan inorder to obtain an alternativerulingthat is inharmonywith

theobjectives of theShari'ah.24
Another featureof themaqdsid which is importantto ijtihddis the
attentiona mujtahidmust pay to theend resultand consequence of his
ruling.For afatwd or ijtihddwould be deficientif itfails to contemplate
its own consequences

(ma'dldt). We

note in the Sunnah

of the Prophet

(peace be on him) instanceswhere the Prophet paid attentionto the

consequence
There were

of his

cases,

ruling often in preference to other considerations.

for instance, where the Prophet (peace be on him)

knew about the subversive activitiesof thehypocritesbut he did not

pursue themfor reasons, as he statedhimself, that 'T fearpeople might
The Prophet (peace be
Muhammad kills his ownCompanions" .25
say that
on him) also avoided to change the locationof theKa'bah to itsoriginal
foundationswhere thepatriarchProphet, Ibrahim,had laid them.The
pre-IslamicArabs ofMakkah had evidentlychanged that location,and
when 'A'ishah suggestedto theProphet (peace be on him) thathe could
perhaps restore theKa'bah to its original position, he responded: "I

206

mohammad

hashim kamali/Maqasid

The Objectives

a/Sharf'ah:

of Islamic

Law

would have done so ifI didn't fear thatthismay induceour people into
disbelief".26Inboth of thesecases, theProphet (peace be on him) did not
takewhat would be thoughtto be thenormal course, that is, to kill the
hypocrites,and to restoretheKa'bah to itsoriginal foundationsbecause
of the adverse

consequences

that were

feared as a result of so doing.

The normal course in the contextof crimes and penalties is, of

whenever thecause and occasion for it
course, to apply thepunishment
is present. There may be cases,

however, where

pardoning

the offender

appears a preferablecourse to take,and it is for thejudge andmujtahid

topay attentionto them,and thenreflecttheminhis judgment.ShatibI
has in this connectiondrawn a subtle distinctionbetween the normal
'illah thatinvokesa particularruling ina given case andwhat he terms
as verificationof theparticular 'illah (tahqiq al-mandtal-khdss) in the
issuance of judgment and ijtihdd. The scholar (mujtahid)may be
investigatingthenormal 'illah and identifyit in thecase, forexample,
of a poor personwho qualifies tobe a recipientof zakah, and also with
referencesto theuprightnessof a witness, but such an enquirymay take
a differentcoursewhen it is relatedto a particular individualas towhat
might seem appropriateor inappropriateto be applied in thatparticular
case. The mujtahid needs, therefore,to be learnednot only of the law
and specific evidence butmust also have acumen and insightto render
judgmentthatis enlightenedby both theoverall consequencesand special
circumstances

of each case.27

CONCLUSION
The Maqasid are undoubtedlyrooted in the textual injunctionsof the
Qur'an and theSunnah, but theylookmainly at thegeneral philosophy
and objectives of these injunctionsoftenbeyond the specialitiesof the
text. The

focus is not so much

on the words

and sentences of the text as

on thegoal and purpose thatis advocated and upheld. By comparison to

the legal theoryof thesources, theUsiil al-Fiqh, themaqasid al-Shan'ah
are not burdenedwithmethodological technicalityand literalistreading
of the text.As such themaqasid integratesa degree of versatilityand
comprehensioninto the readingof theSharVah that is, inmany ways,
unique and rises above thevicissitudesof timeand circumstance.At a
timewhen some of the importantdoctrines of Usiil al-Fiqh such as
general consensus (ijmdc),analogical reasoning(qiyds) and even ijtihdd
seem tobe burdenedwith difficultconditions,conditionsthat
might stand
inameasure of disharmonywith theprevailingsocio-politicalclimateof
the present-day Muslim
countries, themaqasid have become the focus of
attention as it tends to provide a ready and convenient access to the

Islamic Studies 38:2 (1999)

207

Shari'ah. It is naturallymeaningful to understandthebroad outlines of

theobjectives of theShari'ah in thefirstplace beforeone triestomove
on to the specifics.An adequate knowledge of themaqdsid thusequips
the studentof the SharVah with insightand provides him with a
theoreticalframeworkinwhich theattempttoacquiredetailedknowledge
of its various

doctrines

can become more

interesting and meaningful.

'Cf.Wahbah
(Beirut: Mu'assasat

al-Zuhayfi, Nazariyyat al-Darurah al-Shar'iyyah, 4th edn.

al-RisMah, 1405/1985), 50.
2See Jamal al-Din 'Abd Allah ibn Yusuf al-Zayla'I, Nasb al-Rdyah li

Ahadlth al-Hidayah (Surat: al-Majlis al-'Ilmi, 1938), 3: 333, Kitab al-Hudud.

3Cf. YUsuf al-QaradawT, al-Madkhal liDirdsat al-Shan'ah al-Isldmiyyah
(Cairo: Maktabah Wahbah, 1411/1990), 70-71.
4A1-Nasa1, Sunan, Mandsik, Wujub al-Hajj.
5Cf. Ahmad al-Raysunl, Nazariyyat al-Maqdsid
'ind al-Imdm al-Shatibi
Morocco:
Matba'at
(Rabat,
al-Najah al-Jadidah, 1411/1991), 149.
6AbuHamid Muhammad al-Ghazall, al-Mustasfd min 7/m al-Usul (Cairo:
al-Maktabali al-Tijariyyah, 1356/1937), 1: 287.

7QaradawI, Madkhal, 73.

8<Izz al-Din 'Abd al-Salam al-Sulami, Qawd'id al-Ahkdm ft Masdlih al
Andm, ed., Taha 'Abd al-Ra'uf Sa'd (Cairo: al-Matba'ah al-Husayniyyah, 1351
ah), 1:8.

ibn Taymiyyah, Majmu'

Fatdwd Shaykh al-Isldm Ibn
4Abd
al-Rahman
ibnQasim (Beirut: Mu'assasat
al-Risalah,
Taymiyyah, comp.,
1398 ah), 32: 134.
^aql

al-DIn

10RaysunI,Nazariyyat
uQaradawI, Madkhal,
,2Abu Ishaq Ibrahim
Shaykh 'Abd Allah Diraz
2: 393.

al-Maqdsid,
75.

44.

al-Shatibi, al-Muwdfaqdt ft Usul al-SharVah, ed.,

(Cairo: al-Maktabah al-Tijariyyah al-Kubra, n.d.),

"Ibid., 3: 394.
'an
"Ibid., 2:6; see also Ibn Qayyim al-Jawziyyah, Vldm al-MuwaqqVln
Rabb al-'Alamin, ed., Muhammad Munlr al-Dimashqi (Cairo: Idarat al-Tiba'ah
al-Muriiriyyah, n.d.), vol. 1; Qaradawi, Madkhal, 58.
,5Shatibi,Muwdfaqdt, 1: 243; Qaradawi, Madkhal, 64-65.
l6ShatbI,Muwdfaqdt, 2: 49-51; idem, al-Vtisdm (Makkah al-Mukarramah:
al-Maktabah al-Tijariyyah, n.d.), 2: 131-35.
,7ShatibI,Muwdfaqdt, 3: 148.

nIbid., 4: 179.
,9Muhammad Tahir ibn' Ashur, Maqdsid
Matba'at
'
al-Istiqamah, 1966), 15-16.
20Ibid., 27.
2,IbnQayyim, Flam,

al-SharVah al-lsldmiyyah (Tunis:

3: 12; RaysunI, Nazariyyat al-Maqdsid,

336.

208

Mohammad

hashim KMAAu/Maqdsicf

a/Shan'ah:

The Objectives

of Islamic

Law

22Cf.RaysunI, Nazariyyah, 338-39.

23Cf. Wahbah
al-Zuhayll, al-Fiqh al-Islami wa Adillatuh, 3rd edn.
Dar
al-Fikr, 1409/1989), 4: 32. See for detailed illustrationsof this
(Damascus:
of
Hashim Kamali,
Istihsdn, Mohammad
type
Principles
of Islamic
The
Islamic
Texts
ff.
225
Society, 1991),
Jurisprudence (Cambridge:
24See for details the chapter on Istihsan, Ibid.
25A1-Bukharl, Sahih, Kitab

al-Manaqib,

Jahiliyyah.
26Malik ibn Anas, aUMuwatta\
Ka'bah; RaysunI, Nazariyyah, 354.
27ShatibI,Muwafaqdt,

4: 97.

Bab Ma

Kitab al-Hajj,

Yunhd min Da'wa

Bab Ma

Ja' ft Bind' al