Misuse of Maqasid al-Shariah (2)

Explanations of the modernists regarding the Maqaasid al-Shariah (higher objectives theory): A critical study (2) by Dr. Sultan al-Umayri.

This episode is an extension of the first episode in which the researcher revealed some methodological problems in Maqaasid theory in the modernist discourse. In the second one, the researcher continues to systematically analyze this view and provide further cognitive examination.

The third matter: Structural selection: When the modernist discourse seeks reliance for their views on Maqaasid from the texts on which to base their legitimacy, they present some texts (nass) that seem to indicate the apparent existence of Maslaha in the Shariah such as the saying of the Prophet (ﷺ):

لولا أن قومكِ حديثوا عهد بكفر لهمدت الكعبة ولبنيتها على قواعد إبراهيم

If your people had not been polytheists recently (i.e. they were new converts to Islam), I would have demolished the Ka’bah, and would have brought it to the level of the ground and would have constructed… it on the basis of the structure built by Ibrahim.[1]

They withdraw the ruling on the entirety of Shariah and conclude that if the benefits (Masaaleh) conflict with absolute principles of Shariah, then Maslaha takes precedence.

They have taken some statements of scholars (such as al-Tufi and al-Shatibi) as examples of those who brought the truth as opposed to what the Shariah brought and that they understood the Shariah better instead of other Islamic scholars.

This approach is incompatible with correct scholarly methodology and it usually leads to embarrassment. If we look at the logic of the modernist discourse, we find contradictory results. Based on their methodology, it can be concluded that Shariah does not take into account the Maslaha and does not pay attention to it and that it binds people just to bind them with no other purpose; texts (nass) that can be provided to confirm this view are as follows. Allah says:

لا يُسْأَلُ عَمَّا يَفْعَلُ وَهُمْ يُسْأَلُونَ

He is not questioned about what He does, but they will be questioned. [Q.21:23]

فَعَّالٌ لِّـمَا يُرِيدُ

Effecter of what He intends [Q.85:16]

وَاللَّهُ يَحْكُمُ لا مُعَقِّبَ لِـحُكْمِهِ وَهُوَ سَرِيعُ الْـحِسَابِ

And Allah decides; there is no adjuster of His decision. And He is swift in account. [Q. 13:41]

This statement is a mistake without a doubt; moreover, the selective logic exercised by the modernist discourse essentially leads to opening wide a door in front of them that does not close.

The Qur’an itself has warned us of selectivity stating that such an approach is a part of the morals of oppressors who do not want to reach the truth. Allah says:

أَفَتُؤْمِنُونَ بِبَعْضِ الْكِتَابِ وَتَكْفُرُونَ بِبَعْضٍ فَمَا جَزَاءُ مَن يَفْعَلُ ذَلِكَ مِنكُمْ إلاَّ خِزْيٌ فِي الْـحَيَاةِ الدُّنْيَا وَيَوْمَ الْقِيَامَةِ يُرَدُّونَ إلَى أَشَدِّ الْعَذَابِ وَمَا اللَّهُ بِغَافِلٍ عَمَّا تَعْمَلُونَ

So do you believe in part of the Scripture and disbelieve in part? Then what is the recompense for those who do that among you except disgrace in worldly life; and on the Day of Resurrection they will be sent back to the severest of punishment. And Allah is not unaware of what you do. [Q.2:85]

True belief, in the legal texts and their evidences, rules and principles, cannot be achieved by taking some and ignoring others.

The Qur’an also states that it is one of the characteristics of the hypocrites that they do not resort to the legal texts unless they think that they will find what they want and fulfill their desires only. Allah says:

وَيِقُولُونَ آمَنَّا بِاللَّهِ وَبِالرَّسُولِ وَأَطَعْنَا ثُمَّ يَتَوَلَّى فَرِيقٌ مِّنْهُمْ مِّن بَعْدِ ذلِكَ وَمَآ أُوْلَـئِكَ بِالْمُؤْمِنِينَ – وَإِذَا دُعُواْ إِلَى اللَّهِ وَرَسُولِهِ لِيَحْكُمَ بَيْنَهُمْ إِذَا فَرِيقٌ مِّنْهُمْ مُّعْرِضُونَ – وَإِن يَكُنْ لَّهُمُ الْحَقُّ يَأْتُواْ إِلَيْهِ مُذْعِنِينَ

But the hypocrites say, “We have believed in Allah and in the Messenger, and we obey”; then a party of them turns away after that. And those are not believers. And when they are called to [the words of] Allah and His Messenger to judge between them, at once a party of them turns aside [in refusal]. But if the right is theirs, they come to him in prompt obedience. [Q.24:47-49]

A number of scholars of the past and present have warned about the selective picking and choosing with the texts. Among these is Ibn Hazm who says:

فلا تأخذ بعض الكلام دون بعض فتفسد المعارف، وأحذرك من شعب قوم في هذا المكان إن ناظروا أطبقوا على آية واحدة أو حديث واحد، وهذا سقوط جديد وجهل مفرط

Do not pick some of the words and leave some since this would destroy the entire thing and I warn you from some people who debate by only taking a part of the words like one verse here and one Hadith there and leave the others. This is very silly.[2]

The proper scholarly methodology rejects all this; the researcher of truth is supposed to collect everything related to the case that he wants to study and analyze and take into account all the evidences contained therein to reach the desired result correctly and clearly.

The fourth matter: The imbalance in alternatives: When the modern discourse discusses the contradiction between Maslaha and the legal text or that the Shariah does not have a value, it does not discuss the alleged contradiction that has no problem or imbalance; it only speaks of alternatives and says that it has to be superior to the ruling in Shariah. This leads to a lot of questions and contradictions; furthermore, it is not based on correct scholarly methodology and is neither based on comparisons that take into account all the circumstances surrounding the matter and the legitimate judgment. They are characterized to be operating from a narrow view when analyzing reality and humanitarian practices.

A number of scholars have reviewed many examples of the provisions called for by the modernist discourse to be abolished claiming them to be contrary to Maslaha that the social condition of the present era requires such as fasting in Ramadan, Zakah, Hijab of women, and implementation of Hudood. The scholars have sought to demonstrate how all the provisions of Shariah do not contradict the Maslaha but help in achieving them to the fullest; they have exposed great imbalances in the alternatives presented by the modernists, and discussed the deep problems that stand in the way of what they have provided.

If we look at one example, namely, “the Hadd of theft,” we find that the call of the modernist discourse to replace it with imprisonment, because it is in the best interest (Maslaha), is not correct. We find great benefits in cutting off the hand of the thief which brings great benefits to the society that the prison does not achieve. The cutting off of the hand of the thief is disabling a part of it whereas the imprisonment of the thief for years is more disruptive to the benefits than if his hand was cut off. Additionally, prison often serves as a place for learning crime and corruption.[3]

The fifth matter: Contrary to the essence of the religion: Instead of the view of Maqasid governing the lives of people, they are subordinate to them. Their provisions change according to the interests of the people and this situation is in stark contrast to the reality of religion and contradicts its original goal as well. The great truth and premise on which religion is based on is the organization of human life and the control of its actions. All religions – and their positions – engage in this goal which is that the person subject to the teachings of religion lives his life in accordance with the principles; however, the modernist approach the core of the issue in Islam so that the provisions of Islam are subject to human life, adapting to changing circumstances. If this process does not cancel the religion, discards its authority, and removes its prestige, then what does?

Abul Hassan al-Nadwi explains the necessities that result from the modernist call of Maqasid and reveals the cognitive and religious conclusions resulting from them in a fine literary manner. He says:

باعتباري مريداً وتابعاً لدين لا يمكنني أبداً أن أقبل وضعاً يستجيب فيه هذا الدين لكل تغيُّر، ولا يمكن أن توافق أنت على ذلك أيضاً؛ لأن الدين ليس مقياس حرارة يقتصر عمله على تسجيل درجة الحرارة، ولا هو بالأداة التي ترصد اتجاه هبوب الرياح… لا يمكن تعريف الدين بهذه العبارات ولا يمكن أن يصير إلى أداة آلية غريبة، وليس بيننا واحد يريد من القرآن أن يتحول إلى سجل للمخترعات والمكتشفات الغربية، وإن ديناً وضعياً مزعوماً لا يمكن أن يتحمل هذا الوضع فكيف بدين منزل؟

الدين يتقدم مع الحياة يداً بيد ولا يواكبها فقط كتابع لها… ووظيفته هو أيضاً أن يميز بين تغيير سليم وآخر غير سليم، ونزعة هدامة وأخرى بنَّاءة

As a teacher and a follower of religion, I can never accept a situation in which this religion responds to every change. Moreover, since religion is not a thermometer confined to temperature recording, nor is it a tool that monitors the direction of the wind,… it is not possible to define religion by these terms and religion cannot become a strange mechanism. There is none amongst us who wants the Qur’an to turn into a record for Western inventions and discoveries. Our religion is very clear and cannot bear this situation. Religion goes hand-in-hand with life and does not keep pace with life only as a follower…; its function is also to distinguish between proper change on one side, and unsound and destructive approach on the other.[4]

While contemplating over the approach of the modernist discourse with the teachings of Islam, we find that it inevitably lead to the contempt of the Islamic law and its prestige, and ends up with the lowest level of rhetoric. To say that they change and evolve with the change in Maslaha and circumstances does not make it an advantage over others while it only removes the greatness, wisdom, sanctity and respect because any student at any stage can draft a law that goes with the evolution of times and laws[5] adapting to how it proceeds in line with reality and requirements of everyday people.

And what are the limits in the modernist approach in interpreting the Maqaasid until the Islamic Shariah becomes like this scenario? What greatness remains and what uniqueness remains apparent and what splendor is retained? This is unacceptable to any Muslim who cherishes his religion and prides himself on his law.

The sixth matter: The modernist discourse deals with Islamic legislation superficially: It does not take into consideration the complex way in which the Shariah deals with the legislation of these provisions. It does not stand with the precise details that reveal the philosophy of Islam and the depths of its measures. It does not take into account the factual considerations of the differences in detail, diversity and ramifications.

One who reads of the details of the Islamic law and its provisions, and the rules of its rites and conditions, he finds that the details of its mannerism are explained in detail which are achieved by the worship of Allah. The prayer has specific characteristics and so does the ablution; Zakah has specific descriptions and conditions as well and there are specific measures for the disbelievers. Like many legislations, Shariah insists on adhering to them describing them as the limits of Allah and His boundaries and warned against evading them or deviating from them. He ordered to adhere to them in the darkest and most difficult circumstances, as in the maintenance of prayer on time even in the event of war. He placed heavy blame on those who exceed the limits and set severe punishments for those who violated it, and asked the Prophet (ﷺ) to give up some of the limits in favor of a tribe who in turn refused strongly and angrily and said:

لو أن فاطمة بنت محمد سرقت لقطعت يدها

If Fatima bint Mohammed had stolen, her hand would have been cut off.[6]

The Shariah, with all these instructions, does not hint to the fact that it came in accordance with these legislations in view of the circumstances of the times but stresses in many texts that its legislation is binding until the Day of Resurrection.

All these detailed legislations are part of Maqasid which are an integrated fabric and have had a uniform and progressive legislative system throughout the ages. Al-Shatibi, the architect of Maqaasid, revealed this integrative reality:

إذا ثبتت قاعدة كلية في الضروريات أو الحاجيات أو التحسينات، فلا ترفعها آحاد الجزئيات كذلك نقول: إذا ثبت في الشريعة قاعدة كلية في هذه الثلاثة أو في آحادها، فلا بد من المحافظة عليها بالنسبة إلى ما يقوم به الكلي وذلك الجزئيات؛ فالجزئيات مقصودة معتبرة في إقامة الكلي أن لا يتخلف الكلي فتتخلف مصلحته المقصودة بالتشريع

If a whole rule is established in necessities, needs or improvements, then it is not raised by the individual parts. We also say: if the rule of law is established in all three of these, or even in one of these, then it (one part) must be preserved like all the parts. The individual parts that form the entirety are not less than the entirety; they (individual parts) are not overruled by Maslaha of the intended legislation.[7]

He warned against the introduction of the Maqaasid faculty without regard to the legislative elements, as the modernist discourse attempts to do.

من الواجب اعتبار تلك الجزئيات بهذه الكليات عند إجراء الأدلة الخاصة من الكتاب والسنة والإجماع والقياس؛ إذ محال أن تكون الجزئيات مستغنية عن كلياتها، فمن أخذ بنص – مثلاً – في جزئي معرضاً عن كليه فقد أخطأ، وكما أن من أخذ بالجزئي معرضاً عن كليه فهو مخطئ، كذلك من أخذ بالكلي معرضاً عن جزئيه

These parts should be considered in these fields when looking for special evidences from the Book and the Sunnah and Ijma and Qiyas. Partial display of the field is incorrect and those who selectively take from the field are faulty as are those who take one part as the entirety.[8]

It is nonsense that the clarity and details in the Shariah were just to be consistent with the historical and social context of the Prophet(ﷺ)’s era; it is also illogical that those laws and limitations were only for some objectives and if the objectives have been achieved then we don’t need the Shariah -as the modernists’ Maqasid theory fancies.

It is nonsense that the clarity and details in the Shariah were just to be consistent with the historical and social context of the Prophet(ﷺ)’s era and that they change according to the context as depicted in the modernist discourse. It is illogical that if certain purposes are achieved without them (Hudood), then there is no need to adhere to them as fancied by the modernist theory of Maqaasid.

If it is permissible to change the legislation and subordinate it to the interests and to the historical context, then it is mentally permissible to change the first purpose of the Shariah, i.e. singling Allah for worship. If there is no mental objection to this, then it is also permissible to violate the law. All these things are unacceptable to a Muslim who is aware of the truth of his religion.

If it is permissible to change the detailed legislation for the sake of Maqaasid in peoples lives, then this means that it is permissible to invalidate the law because if it is true that the Shariah violates the Maqaasid in some of its provisions, then there is no impediment that prevents it from occurring in all laws and rulings as they are equal in the legal context because anyone can offer what he sees as Maslaha on any legitimate ruling.

Al-Shatibi pointed to this concept when he pointed out that the provisions of the Shariah are not nullified by the intellect, and that the text is not subservient to it. He said:

إنه لو كان كذلك لجاز إبطال الشريعة بالعقل، وهذا محال باطل، وبيان ذلك أن معنى الشريعة أنها تحدُّ للمكلَّفين حدوداً في أفعالهم، وأقوالهم، واعتقاداتهم، وهو جملة ما تضمنته، فإن جاز للعقل تعدِّي حد واحد، جاز له تعدي جميع الحدود؛ لأن ما ثبت للشيء ثبت لمثله، وتعدي حد واحد هو معنى إبطاله؛ أي: ليس هذا الحد بصحيح، وإن جاز إبطال واحد جاز إبطال السائر، وهذا لا يقول به أحد لظهور مُحاله

If it is permissible to break the law with reason, and this is invalid, and that the meaning is that the Shariah limits the peoples’ actions, statements, and beliefs included in it, then if the intellect exceeds one limit, it can violate all limits. If it is permissible for the mind to transgress one boundary, then it is permissible for it to violate all the boundaries, because what is proven for something is proven to be similar to it, and the violation of one limit means nullifying it.[9]

Giving the purpose to the text, in the form called for by the modernist discourse, is therefore impossible to be acceptable to the Muslim because that will lead to the annulment of all the law.

The modernist speech necessarily leads to all these. It discourages the Muslims from taking from them. It has launched severe campaigns against the fuqaha and usuliyyeen who did not reach the conclusion (as them); however, it has not provided a convincing answer to these terrible deductions, and has not even attempted to delve into it, but rather overlooked it as if it does not exist.

The seventh matter: The reader finds the modernist product at a loss of credibility in the Maqaasid view: Since the purpose of theft is to steal people’s money, if the corruption in society increases and burglary rates increase as a result, the penalty will not increase; its shape will change and ease would be given. Likewise, if the purpose of the punishment of adultery is to expose the fornicators, and if the corruption in society increases and the rates of the forbidden relationships increase, the amount of the punishment will increase but not change its form or bring ease. If the purpose of prayer is spiritual, it means that if people become more attached to materialism and spiritual decline is high, the amount of worship should increase rather than be diminished. If the purpose of Zakah is to achieve justice and divide wealth, encourage the rich increase the Zakah.

We have not seen any of the proposers of the modernist approach of Maqaasid theory to increase the punishments because the community situation requires it; we have not seen any of them calling for more worship, prayer, and fasts because the people suffer from spiritual drought in this age; on the contrary – we can only see a demand to reduce them and an urge to get rid of these discomforts.

All this confirms that modernist discourse is not serious in adopting the theory of Maqaasid; it is only for recruitment and investment.

The eighth matter: Falling into systematic contradiction: It is known to scholars of logic (mantiq) and correct religious methodology: It is not sufficient to make statements and be convinced by simply claiming its authenticity. It is necessary to establish the correct evidences and to address the contradictory statements which raise serious questions and prevent its adoption even with its authenticity. The modernist discourse is established on principles that contradict the view that Shariah has purposes that must be considered, taken, and settled with. Here is one of the clearest examples of contradiction that some modernist discourse does not fail to repeat day and night that the texts of the law do not have a fixed or consistent meaning and that there is no meaning inherent in it and that they do not lead to a specific meaning. If this was so, then how do some of them say that the Shariah has objectives that need to be considered? How do some of them say that it includes benefits and Maqasid with rules and systems? Is this not a systematic contradiction that is mind boggling?

These things reveal to the reader the extent of the methodological imbalance the modernist discourse has regarding the Maqaasid theory. They simply try to provide some sort of rationale and methodological justification to eventually conclude that the Maqasid theory is based on high level scientific basics and foundations but to judge according to them, however, is extremely false and self-contradictory.

Indeed, Allah knows best.

References and footnotes:

[1] Sahih al-Muslim, 3308

[2] Al-Taqreeb li Hadd al-Mantiq, Ibn Hazm (281)

[3] Al-Ijtihad, al-Nass al-Waaqi’ al-Maslaha, Ahmad al-Raysooni (38-49)

[4] Al-Islam fi ‘Aalam mutaghayyir, Abul Hassan al-Nadwi (57)

[5] See Dawabit al-Maslaha, al-Buti (pg. 30)

[6] Al-Bukhari (3475)

[7] Al-Muwaafaqaat, al-Shatibi (96/2)

[8] Al-Muwaafaqaat, al-Shatibi (174/2)

[9] Al-Muwaafaqaat, al-Shatibi (131/1)

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