Interpreting the purposes of the law in the modern period

The onset of modernity initiated far-reaching changes in all sectors of society and trans­formed significantly the way Islamic law was produced and applied in society. Increasing re­liance on codified law and legal statutes, accompanied by the rise of the nation-state with its exclusive claim on the sphere of law, as well as the expansion of the educational sector beyond the 'ulama’ and the traditionally taught sciences, gave rise to calls for re-thinking Islamic law.

Islam, and enhance the responsiveness of Islamic law to contemporary conditions. Fighting against secular legislation, Rashid Rida advocated to make maslaha the basis of legislation, which he hoped would establish truth and justice in society.¹¹

While early reformers like al-Qasimi and Rashid Rida championed al-Tufi’s interpreta­tion of the maqasid al-Shari'a, which simplified procedures of law finding without overturn­ing the hermeneutics of legal interpretation, other jurisprudents harshly criticized al-Tufi’s articulation as utilitarianism akin to the theories of Bentham and Mills and accused it of changing divine rulings arbitrarily for seemingly rational benefit.¹² The increasing margin­alization of Shari 'ah in the legal systems of the newly emerging nation-states in the first half of the 20th century led jurisprudents to pursue other avenues to strengthen Islamic law in society.

Turning away from the ‘traditional’ way of law finding, dominated by analogical reason­ing and recourse to legal precepts, jurists’ search for suitable methods to address the current legal needs focuses on the maqasid al-Shari 'ah and maslaha as guiding standards in representing an Islamic alternative to Western-inspired or imported laws. While the first decades of the 20th century still saw only modest discussions about the intentions of the law, with Rashid Rida’s efforts in al-Manar and his own work Yusr al-Islam spearheading the discourse, after the 1940s numerous works on the subject matter appeared.¹³ Among the most influential articulations remain those of Muhammad al-Tahir ibn Ashur’s (1879—1973), who specifically applied the objectives of the law to the modern period. Also important for the dissemination of interpretations of maslaha were 'Abd al-Wahhab Khallaf (d. 1956), Muhammad Sa'id Ra­madan al-Buti (d. 2013) and Allal al-Fasi (1910—1974).¹⁴

More recently, a new wave of publications built upon these authors’ works, commented on their thought and advanced the discussion. Notably, Arabic no longer represents the pre­dominant language of the discourse on the maqasid al-Shari'a, and significant contributions come from scholars who received educational credentials outside the traditional curriculum of the ' ulama’ — reflecting the globalization and democratization of access to knowledge. Among prominent participants in the maqasid al-Shari 'ah discourse one finds a wide variety of scholars, ranging from Yusuf al-Qaradawi, Isma'il al-Hasani, Ahmad al-Khamlishi, Jasser Auda, Jamal al-Din Atiyya to Adis Duderija, to name but a few.¹⁵

Although most scholars today base their interpretation on concepts and definitions of pre-modern jurists, in particular al-Ghazali and al-Shatibi, they depart from them by adapt­ing maslaha and the maqasid al-Shari 'ah to their own environment.

2.1 Expanding the definition of the maqasid al-Shari'ah

Since the second half of the 20th century, expositions on the purposes of the law exhibit a vocal critique of al-Ghazali’s definition and categories of the maqasid al-Shari 'ah and maslaha. Although al-Ghazali had faced criticism for his position that the purpose of the law is to preserve the five necessities, it was primarily directed at the number or selection of the necessities — frequently citing honour ('ird) instead of or in addition to progeny (nasl).

In contrast, many contemporary authors criticize al-Ghazali’s definition of the purposes of the law as too narrow and too focused on the individual believer to capture the divine legal intent.

Revisiting the definitions and number of necessities, today’s scholars broaden the inter­pretation of the five necessities and expand the elements that the law intends to protect. For example, Ibn 'Ashur argues that the purpose of preserving the intellect (hifz al- 'aql) goes be­yond prohibiting the consumption of alcohol and includes more generally preventing harm to the mind, such as from opium, hashish and heroin. Others, like al-Buti and 'Atiyya, in­clude under the protection of the intellect also state censorship of the media.²⁰ Yet, reference to safeguarding the necessities are also used for establishing positive rights. Al-Qaradawi, for example, states that the textual sources provide many more positive instances that en­courage the protection of the intellect than only the negative prohibition against drinking wine; as evidence he refers to the frequent encouragements in the Qur’an and Hadith to seek knowledge (talab al- 'ilm).²¹ This interpretation is taken one step further by 'Atiyya to argue for mandatory education and development of a scientific mindset.²² Al-Khamlishi maintains that the Qur’anic punishment for theft (Q. 5:38) does not merely aim at protecting a per­son’s property but at preserving public safety, people’s security and peace of mind.²³ He also advances another line of criticism of al-Ghazali’s interpretation of the purposes of the law by objecting to counting the protection of property (mdl) among the purposes of the law, contending instead that the Qur’anic verses that deal with property nowhere command the preservation of property (al-muhafaza 'ala al-mal).

Rejecting a narrow definition of the purposes of the law, scholars focus on values that ex­press an individual’s relationship to society. Ibn 'Ashur argues that by defining the maqasid in terms of the individual, one excludes important divine objectives, such as equality (musdwa) and freedom (hurriyya), which belong as much to the fundamental purposes (maqdsid asliyya) of the Shari 'ah as do the preservation of the five necessities. That the definition of maqdsid al- Shari ah needs to be expanded is echoed by al-Qaradawi. He maintains that just as relevant, or even more so, among the purposes of the divine law are the preservation of freedom (hurriyya), equality (musdwa), fraternity (ikha ’), solidarity (takaful) and human rights (huqUq al-insdn).²⁵

Since the second half of the 20th century, Muslim scholars increasingly turn away from maslaha as a procedural tool for resolving cases. They interpret the essential necessities in light of today’s relationships between the individual and society, and interpret the implementation of the maqadsid al-Shari ah within the context and experience of the modern nation-state.

Thus, one finds the divine purposes of the law translated into entitlements and rights of the individual citizen. For instance, Isma'il al-Hasani proposes that contemporary society is in great need of including among the essential necessities (daruriyyat) also the right to freedom of expression, to political association, and to elect and remove rulers as well as the right to employment, food, housing, clothing and medical treatment.²⁶ In a similar fashion, al- Khamlishi counts among the higher purposes (al-maqasid al- 'ulya) of the law individual free­dom as well as social, economic and political rights. These rights find expression for example in the ability to participate in running public affairs (al-musahama fi tasyir shuun al-umma), which al-Khamlishi justifies by reference to Qur’an 42:38 ‘who (conduct) their affairs by mutual consultation’.²⁷ For al-Khamlishi, the expanded definition of the purposes of the law is part of his project to re-define the role of independent reasoning (ijtihad) for Islamic law and to overcome what he sees as legal stagnation (jumud ).²⁸

2.2 System-approach to the maqasid al-Shari ah

Among more recent publications on maslaha and the purposes of the law one finds works that may be called ‘system-approach’.

In the realm of the family, 'Atiyya understands the essential purpose as ordering the relations between the sexes through marriage, polygamy and divorce; preserving the spe­cies through regulating procreation; establishing harmony, affection and compassion among couples; and ordering the family institutionally and financially. These latter two objectives 'Atiyya interprets in terms of the financial rights and obligations laid out in Islamic personal status and inheritance law.³² At the level of the ummah, 'Atiyya views the purposes of the law to reflect its distinction from non-Muslim communities. Hence, the law’s objectives address conceptions of the caliphate (khilafa), leadership (imama), consultation (shura), jihad, establishing justice through the judiciary and solidarity.³³ When discussing the fourth realm of the purposes of the law, 'Atiyya posits that the universal legal rulings of the divine law are intended to be embraced by all people based on reason and logic. These universal principles include mutual understanding and cooperation; realizing the vice-regency of humans on earth by, for instance, environmental protection, fighting crime, and agricultural, industrial and service-related development; achieving world peace based on justice; protecting human rights; and disseminating the Islamic message. Implementing such universal principles is the goal of Muslim foreign policy and international relations.³⁴

As evident, jurisprudents of the modern period interpret the purposes of the law differ­ently than their predecessors. They move away from reducing God’s intentions by revealing His law to preserving the five necessities of human existence, as defined by al-Ghazali and commonly accepted among jurists for centuries. The discourse moves away from under­standing maslaha and the maqasid al-Shari'ah in terms of the individual within the context of empire towards today’s relationships between the individual and global society within the context of nation-states. Instead of focusing on maslaha as a procedural tool for resolving cases unaddressed in the textual sources of Islamic law, scholars expand the scope of the ma­qasid al-Shari 'ah. Hence, they interpret the purposes of the law in light of collective values, including among them justice, equality, freedom, human rights, political participation and equal opportunities, which often are deemed inalienable, God-given rights. These universal objectives of the law are not tied to individual statements in the authoritative texts but derive their validity from an inductive reading of the whole of the revealed message.

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