By Mohammad Hashim Kamali
19 June 2015
III. A Maqasid -Based Approach to Shari’ah-Oriented Policy
To ascertain healthy interaction and exchange between siyÉsah and maqÉÎid would naturally mean that siyÉsah should be guided by the guidelines of the maqÉÎid. To facilitate this, one would need to identify the major themes of maqÉÎid, the order of priorities between them, and how they can guide decision making in siyÉsah. How is one to juxtapose the wider bulk also of fiqh, its value pointers, such as in the scale of five values (al-aÍkÉm al-Khamsah), and fiqh rules that relate to a great variety of other themes and subjects with the guidelines of the Maqasid?
The maqÉÎid are purposive and provide general guidelines which can help consolidate the extensive data of other disciplines, especially of Islamic law and jurisprudence (fiqh, uÎËl al- fiqh), tafsÊr, siyÉsah etc., and read them from different angles that convey a sharper sense of direction and purpose. MaqÉÎid consist primarily of epistemological guidelines rather than thematic and substantive details, metrics and yardsticks on particular subjects. In the sphere of Islamic banking and finance, for instance, the maqÉÎid are more useful for policy makers and strategists at leadership levels rather than product designers and project operators. The maqÉÎid resemble the uÎËl al-fiqh in that both consist of value categories and methodological guidelines applied to certain subjects in order to extract certain results. This would be the fiqh rules, in the case of uÎËl al-fiqh, and prioritisation of the higher goals and purposes of Shari’ah in public policy, in the case of siyÉsah.
It would be hard to imagine the maqÉÎid operating in a vacuum, or operating on their own, without their being a subject matter to which they can apply. For instance, when it is said that justice, trustworthiness (amÉnah), or protection of life and family are the maqÉÎid of Shari’ah, these are not self-evident in respect of detail. A great deal of details on each of these is available in the fiqh manuals. These would most likely need to be consulted, side by side with the substantive rules of justice, amÉnah, family laws etc., in the Qur’an and hadith. One may find that the Fiqh rules have not always been constructed in line with the higher purposes of Shari’ah as are expounded in the Qur’an and hadith, and so one sets out to provide a fresh purpose-oriented reading of justice, observance of trusts (amÉnÉt), and of the detailed rules that protect and promote life and family. One would still be concerned, in other words, with the detailed rules of Shari’ah and Fiqh for one to develop a new reading.
One may have a similar case for siyÉsah, as we have before us in the present article, that politics and government have not been on the whole observant of the priorities and value points of the maqÉÎid, and there are many supportive arguments to justify that this is indeed the case. Then one sets out to identify which aspects of siyÉsah, if any, is wanting of adjustment in the light of maqÉÎid, and finally come up with a different reading of that aspect of siyÉsah.
This has been the point I believe behind al-Qaradawi’s attempt, developed in his book entitled al-SiyÉsah al-Shar’aiyah fi Öaw’ NuÎËÎ al-Shari’ah wa MaqÉÎiduhÉ (siyÉsah Shar’aiyah in light of the injunctions of Shariah and its higher purposes) to put the data of Shari’ah/Fiqh in a certain order and categories, as I elaborate below, such as the jurisprudence of priorities (Fiqh of awlawiyyÉt), jurisprudence of measurement and balance (fiqh of muwÉzanÉt), and the jurisprudence of change (Fiqh of taghyÊr), and in this way provide a holistic reading of the purposes and themes of maqÉÎid, siyÉsah and fiqh together - a maqÉÎid–oriented reading, in other words, of siyÉsah and fiqh. This would entail an attempt, in turn, to put the fiqh details in a certain order of priority, balance and moderating it in parts, and change it, if need be, in other parts in line with the maqÉÎid, so that the data of fiqh can be utilised for policy making in light of the guidelines of maqÉÎid.
IV. Maqasid, SiyÉsah and Fiqh
Al-Qaradawi’s attempt to provide an interactive reading of the three subjects, fiqh, siyÉsah and maqÉÎid is prompted, to some extent, by the differences of perspective and approach between them. The rules of Fiqh, and those of the applied state law (Qanoon), are not primarily concerned with what initiative one take, or what law or policy should one introduce – this will be of interest to siyÉsah and maqÉÎid, of course, but not necessarily to Fiqh.
Fiqh is primarily concerned with the practical rules of conduct addressed to the competent person (Mukallaf), rules in other words, that already exist and should be implemented. In certain areas of Fiqh, such as in criminal law and family law, the fiqh rules come into play mainly when an act is committed or a contract is concluded.
This is characteristic of all positive law, which is also largely shared by the fiqh rules, and is on the whole in line with the requirements of the principle of legality that no act is a crime unless there is an existing law to say so in advance. This is where fiqh differs with siyÉsah and maqÉÎid, neither of which would be constrained by such prerequisites. SiyÉsah and maqÉÎid determine what laws and policies should there be to achieve certain purposes. The maqÉÎid set and articulate those purposes and siyÉsah designs laws and policies to implement them in the best ways possible. MaqÉÎid is where theology, philosophy and legal theory meet and interact; it sets vision and determines the course Fiqh and siyÉsah should take.44
There is a natural interface between siyÉsah Shar’aiyah and maqÉÎid in regards to a set of fundamental objectives that the Qur’an has identified. One of these is the principle of the vicegerency of man in the earth (Istikhlaf fi’l Ard, al-A’raf, 7:129), which is focused in turn, on building the earth and its resources (Hud, 11:61) and establishing a just socio-political order therein. That interface also obtains in regards to human dignity, ‘Adl, amÉnah, and MaÎlaÍah, which feature prominently in the Qur’an and are of concern to both to siyÉsah and maqÉÎid. These are all typically broad and comprehensive and receive detailed coverage in other Islamic disciplines, including tafsÊr, ÍadÊth and Fiqh. The maqÉÎid can help identify the priorities of relevance to siyÉsah. One who is knowledgeable of the maqÉÎid would be able to identify, in tafsÊr and Hadith, for instance, reports and interpretations that may be weak and erroneous, and in regards to Ijtihad also the strength and weakness of the evidence on which it may be founded - or indeed the need, as the case may be, to depart from that Ijtihad due to subsequent change of conditions and new developments in knowledge.45 Al-Qaradawi’s more detailed responses to these questions and the role of the maqÉÎid in regards to them is given in his exposition of fiqh al-awlawiyyÉt, or jurisprudence of priorities. This is another way of saying, for instance, that the maqÉÎid should naturally prioritise and pay closer attention to the wÉjib, and the ÍarÉm, before attending to that which may be mandËb or makrËh and so forth.
Both the maqÉÎid and siyÉsah are concerned, as already noted, with the maÎÉliÍ and mafÉsid. The policy maker must be careful neither to exaggerate nor underestimate the scope and size of the MaÎlaÍah and Mafsadah in real situations, but to take correct positioning in regards to them and the various combinations in which they occur again in light of the maqÉÎid. This is the subject of Fiqh of muwÉzanÉt, or jurisprudence of measurements and balance. I begin with an exposition of the fiqh of priorities.
V. Jurisprudence of Priorities (Fiqh al-AwlawiyyÉt)
A maqÉÎid-oriented siyÉsah is bound to be concerned with priorities in the sense of placing every situation and its relevant guidelines in their due order of priority on the wider scales of Shariah values. What is of greater importance and command priority must naturally come first, which may, in turn, relegate to a lower order of priority some of the subsidiary rules and guidelines of Shariah. This would be as per normal expectation. Yet the persistent legacy of imitation (taqlÊd) and hard-line fundamentalism have brought about distortions whereby Muslims began to give priority to minor matters and relegate and neglect matters of greater importance.
One is readily reminded in this connection of the prominence that radical and hard-line conservatives attached to what people wore and ate the length of one’s beard and the detailed expressions of concern over women’s clothing and appearance. These became the focus of attention at the expense often of larger issues of much greater importance, such as good governance, social justice, economic development, combating poverty and corruption in the Muslim lands. Such attention to minutiae did not fail to convey the wrong impression as if all Islam cared about was clothes and food, matters that had little to do with the priorities of Islam, of our time and age, and the higher objectives of Shari’ah.
The jurisprudence of priorities is closely associated in turn with fiqh of muwÉzanÉt (explained below) as careful measurement and comparative assessment also lead to ascertaining priorities for purposes of decision making. Al-Qaradawi mentions in this connection that when he first used the expression fiqh al-awlawiyyÉt, some people disapprovingly commented that all of the decisive rules of Shari’ah are awlawiyyÉt, and that a holistic approach was what the Shari’ah demanded. Are we going to accept some of the Shari’ah as priority and relegate the rest to lower ranks? Qaradawi acceded in principle to say that we do not have the choice to pick and choose between the decisive injunctions of Shari’ah in the sphere, for instance, of ÍalÉl and ÍarÉm, but to accept the whole of Shari’ah, adding however, that this was not what fiqh al-awlawiyyÉt had meant. As for ascertaining and prioritising certain aspects of the Shariah, this is what the Shari’ah itself has done with regard to its own rulings and aÍkÉm: the obligatory (wÉjib, Fard) is not of the same rank as the recommendable (mandËb), nor is the prohibited (ÍarÉm) the same as that which is reprehensible (makrËh). 46
Furthermore, it is established by the testimony of the Qur’an that belief (‘Aqeedah) takes priority over action (‘Amal) , but since the belief itself necessitates prior knowledge of the subject matter of that belief, then knowledge precedes belief/ÑaqÊdah, and becomes a priority of the first order. There is an inherent interdependence between knowledge and faith in Islam, which is clearly upheld in the Qur’an, including for instance, in the following verse: “Those who are endowed with knowledge may know that the (Qur’an) is the Truth from thy Lord and may believe it so, hence their hearts surrender and become open to it.”(Al-Hajj, 22:54)
The ÑulamÉ’ have further maintained that the intellect (‘Aql) is the foundation of received knowledge (Naql), so much so that without the instrumentality of ‘Aql, the articles of faith could not have a reliable base or audience. This also explains why the faith of a total imitator (Muqallid) who does not comprehend what he imitates is doubtful and unreliable.47 A certain order of priorities would also flow from this: priority of understanding over memorisation, priority of Ijtihad over taqlÊd, and priority of the definitive over the speculative rulings of Shari’ah. A certain order of priority is also ascertained at almost every level of the maqÉÎid themselves. The essential (ÌarËriyyÉt) thus take priority over the complementary (ÍÉjjiyyÉt) and the embellishments (taÍsÊniyyÉt). This is also the case with regard to the five essentials themselves wherein priority is given to the protection of religion, then of life, then ‘aql, then lineage and finally property.48
The definitive maqÉÎid (qaÏ’iyyah) also take priority over those which are based on interpretation and probability (i.e Ðanniyyah), and the primary maqÉÎid (maqÉÎid aÎliyyah) take priority over those which are subsidiary (far’iyyah), just as the Lawgiver’s maqÉÎid (maqÉÎid al-Shri’) take priority over those of the individual (maqÉÎid al-Mukallaf) and so forth. This order of priorities, as also many others, may not be absolute and not always clear-cut as the value points therein may overlap and become, at least partially, an extension of one another, especially in real life situations. Yet constructing a certain order of priorities is useful for purposes of resolving possible conflicts arising between them, and the allocation also of available resources for their implementation by the state authorities and policy makers.
It is not advisable, for instance, for the state officials in charge of trade and commerce, to invest in, or even allow, the production and import of embellishments, such jewellery and cosmetics, while there is a persistent shortfall of the ÌarËriyyÉt, such as essential foodstuffs and medicine in the market. It is similarly not allowed to allocate resources to production of luxury food varieties and fruits, while the people cannot find enough staples such as wheat and rice in the marketplace.49
Shariah’s order of priority is also well-known with regard to the priority of Farz ‘Ayn (personal obligation) over Fard Kifayah (collective obligation), and that of the obligatory over the supererogatory (Farz over Nawafil) - and in the negative order, of the prevention of harm over the procurement of benefit.50 In a similar vein, prevention of infidelity (Kufr) takes priority over prevention of major sins (al-Kabir), and prevention of minor transgressions (al-Sagh’ir) takes priority over prevention of doubtful matters (al-shubuhÉt) and so forth.51 All of these priorities provide indicators for understanding of what the Shari’ah values most and what it does not - and indicators also for siyÉsah decision makers and those in charge of allocation of resources to take them into account for purposes of implementation.
To illustrate the priority of Farz ‘Ayn over Fard Kifayah, it is reported that when a man came to the Prophet, pbuh, and informed him of his intention to join the jihad, he was asked a question: “is either of your parents alive?” to which the man replied that both of them were.
The Prophet then told him: “go back and serve them - that is your jihad.”52 This is because jihad is a collective obligation, which is, in principle, fulfilled if only some members of the community performed it, whereas being good to one’s parents (birr al-Walidayn) is Farz ‘Ayn addressed to everyone without exception, and takes priority over jihad.