Defining the purposes of the law and their role in law finding in the pre-modern period

Since at least the fifth/11th century, works on legal theory closely associate the purpose of the law with attaining people’s well-being (maslaha), though there is little evidence that maslaha and its procedural equivalent istislah were understood at the time as technical terms repre­senting an identifiable and stable legal procedure.

In al-Ghazali’s legal theory, recourse to the purposes of the law serves as a means for re­solving cases that are not expressly decided in the scriptural sources of the law and fall outside the deductive procedure of legal analogy (qiyas). Being in consonance with God’s intention in revealing His law to humankind, a ruling that brings about maslaha for the five protected elements partakes in the divine purpose and, hence, enjoys religious legitimacy. Contrary to cases arrived in analogy to scriptural injunctions, the resulting ruling derives its validity not from a particular proof-text of the authoritative sources of the law but rather is inductively derived on account of innumerable pieces of evidence that as a whole support the jurist’s finding.

1.1 Employing the purposes of the law in analogy

After al-Ghazali defined maslaha as a valid measure of the purpose of God’s law, it soon became entrenched in legal discourse, irrespective of whether a scholar accepted the use of maslaha in law finding or not. Henceforward, the maqasid al-Shari‘ah were intimately tied to the concept of maslaha, oftentimes one seen as an expression of the other. Credit goes to Fakhr al-Din al-Razi (d. 606/1210) for providing the logical underpinnings of using maslaha as ratio legis to determine new rulings. He postulated that it is known with high probability (ghalabat al-zann) that God revealed His law for the maslaha of His creation. The underlying reason or wisdom (hikma) of the law is to bring about maslaha and avert mafsada. Further­more, al-Razi maintained that all instances of real maslahas, i.e. those that are intended by the Lawgiver, have been revealed and, thus, are knowable even if only with probable knowledge.

1.2 Employing the purposes of the law in legal precepts fqawa'id)

While al-Razi envisioned notions of maslaha to be applied only within the realm of legal analogy, other jurisprudents used a different approach to incorporate the purposes of the law and maslaha into law finding, namely through the area of legal precepts (qawa ‘id). Legal precepts or maxims are snappy statements that are abstracted from the corpus of legal rulings summarizing the legal principles that guide the decision-making process. They facilitate teaching, memorizing and practicing law. Jurists formulated such precepts since at least the third/ninth century, though, with the maturing of Islamic law and its institutions, works dedicated to precepts greatly proliferate starting in the sixth/12th century.⁶

In addition to composing multi-volume works expounding which legal principles govern which type of legal cases, such as al-Subki’s (d. 771/1369) or Ibn Nujaym’s (d. 970/1563) respectively entitled Kitab al-Ashbah wa-l-Naza'ir (Book of Resemblances and Similitudes), the inductive reasoning process also turned jurists’ attention to the most important maxims in law finding, and thus to the objectives of the divine law.

The Maliki jurist al-Qarafi (d. 684/1285) drew upon this maxim as arbiter in case of conflicting legal indicants. He interpreted concepts like granting license (rukhsa) and blocking means to illegal ends (sadd al-dhara 'i ‘) in light of the purposes of the law. License to transgress a divine ruling, according to al-Qarafi, is granted when following it would lead to more harm than maslaha. For example, should a person be faced with the dilemma of either starving or eating carrion, the maslaha of adhering to the divine prohibition of eating carrion (mayta) is outweighed by the maslaha of saving one’s life. Arguing that the purpose of the law is to attain maslaha, al-Qarafi also expanded the interpretation of the concept of sadd al-dhara'i'. In addition to justifying the prohibition of legal means for illegal ends, he applied it also to allow the use of illegal means when they result in at­taining a prevalent maslaha. For instance, al-Qarafi permitted paying ransom for Muslim prisoners of war, despite the common rule that benefiting the enemy is prohibited, due to the greater maslaha entailed in freeing the Muslim captives.⁸ Within the framework of legal precepts, maslaha and the purposes of the law are considered primarily when conflicting rulings and/or competing principles of law finding apply to one case. Then, attaining the Lawgiver’s objective receives priority over opposing, though legally legiti­mate, considerations.

Despite entering the realm of legal precepts, a common feature of pre-modern interpre­tations of the maqasid al-Shari'ah is jurists’ focus on individual legal cases. The Lawgiver’s intentions are primarily discussed with reference to particular cases as opposed to applying them consistently to all areas of law or expounding a particular section of law in light of the divine intent to attain the believers’ maslaha.

The most comprehensive articulation of how maslaha and the maqdsid al-Shari 'ah guide the law-finding process comes from the Andalusian Maliki scholar al-Shatibi. Al-Shatibi proposed a hierarchy of legal evidence based on their epistemic value — the more general and universal statements are known with a higher degree of probability (or with certainty) than statements that are specific and particular. Emphasizing the early part of the Qur'an, al-Shatibi argues that the Meccan suras contain the general message of Islam in which the universal sources of the law are laid down, with the Medinan suras as well as the Sunnah constituting the particulars of the law that elucidate, specify, qualify or complement the Meccan revelation. Building on al-Ghazali’s definitions and categories, he understood at­taining maslaha and averting mafsada at the level of necessities, needs and matters of improve­ments as the universal sources of the law, and therefore certain and immutable.

As mentioned, neither al-Tufi’s nor al-Shatibi’s interpretations of the purposes of the law and their holistic integration into all aspects of law finding receive attention by other jurisprudents until the early 20th century. Up to the modern period, maqasid al-Shari‘ah were predominantly understood and employed in analogy via maslaha mursala as ratio legis, in legal precepts or when weighing (tarjih) the validity of conflicting rulings in accordance with the divine legal intent. Although one finds modifications and refinements to the definitions and categories formulated by al-Ghazali, jurisprudents generally accepted that maslaha and the maqasid al-Shari ''ah are not independent sources of law, and that maslaha is defined as preserving the five essential elements of religion, life, intellect, offspring and property on the level of necessity (darura), need (haja) and improvement (tahsin) — even if jurists differ on the rank order of these elements and some substitute offspring with hon­our ( ird).

The purposes of the law to attain maslaha and avert mafsada were, and still remain, important tools for jurists to expand the legal edifice and accommodate legal change in Islam. They were often used to arrive at unprecedented rulings and at the same time to justify them — an analytical conflation of means and ends that Muslim jurisprudents rarely acknowledge. The extent to which legal change can be achieved depends primarily on how the purposes of the law are defined as well as how they are employed in the law-finding procedures. Defining the maqasid al-Shari 'ah as preserving the five necessities and applying maslaha as ratio legis for legal cases not directly addressed in the textual sources enables jurists to incorporate such cases into the fold of the divine law. At the same time, it prevents the established legal edifice and its hermeneutics from being overturned and the substance of the law altered in any major way. Integrating the purposes of the law into legal precepts to order large sections of law or to justify the application of legal principles puts the focus on the outcome achieved by implementing God’s revealed law. It allows for greater flexibility in addressing changing environments than employing maslaha in analogical reasoning, yet opens the door for overriding legal rulings derived from the textual sources of the law in the name of the divine purpose of the same and thereby highlights tensions between the letter and the spirit of the law.

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