By Mohammad Hashim Kamali
19 June 2015
Siyasah Shar’aiyah is the nearest equivalent of public policy, with one difference perhaps, which is that the Islamic notion of public policy is closely tied to the Shariah and more specifically to the goals and purposes, or Maqasid of Shariah. This paper begins with an introductory note on the contemporary understanding of public policy in its Western context, and then provides an overview of the two main areas of our concern: Siyasah and Maqasid. The rest of this paper engages in identifying the synergies between the two disciplines, and in this regard looks more specifically at al-Qaradawi’s work on how Siyasah Shar’aiyah can be guided by the guidelines of Maqasid al-Shari’ah.
Public policy is the principled guide to action taken by the administrative and executive branches of the state with regard to a class of issues in a manner consistent with the constitution, law and institutional customs. Strong public policy should solve problems efficiently, serve justice, support governmental institutions and policies, and encourage active citizenship.1
Public policy requires diverse input and feedback from numerous individuals and interest groups, such as politicians, domain experts and industry representatives. Mass communications and technological changes have caused the public policy system to become more complex and interconnected.2 Today public policy making is increasingly goal-oriented, aiming for measurable results and goals, focussing on decisions that must be taken often without delay. Traditionally, the academic field of public policy focused on domestic policy, but the wave of economic globalisation since the closing decades of 20th centuries created a need for public policy to engage in issues beyond national borders, such as climate change, terrorism, nuclear proliferation, and economic development.3
The foregoing characterisation of public policy, which is taken from Western sources, comes close to that of siyÉsah SharÑiyyah (henceforth as siyÉsah) in the Islamic context, albeit that national laws and constitutions are substituted, in the Islamic sources, by references to Shari’ah. Yet it would be reasonable now to add conformity to the constitution and laws of the state as valid point of reference to our contemporary understanding of siyÉsah.
It also appears that public policy signifies a programme or a platform rather than individual and unrelated decisions. Government leaders may take a policy initiative to introduce a certain law, and also the manner in which that law is implemented. Yet policy and law are primarily two different yet inter-related concepts both of which involve efficient management of public affairs.
SiyÉsah and maqÉÎid are both Shari’ah-oriented subjects and derive their substance from the Shari’ah so much so that there is neither siyÉsah nor maqÉÎid independently of the Shari’ah itself. Yet both siyÉsah and maqÉÎid provide different understandings of the Shari’ah in their respective capacities, each seeking to articulate and develop a new dimension of the shari’ah. Both also represent belated developments that materialised well after the crystallisation of the major schools of Islamic jurisprudence, even though both derive their substance from the data of the Qur’an and hadith. One was significantly developed by Ibn Taymiyyah (d. 728/1328) and the other by al-Shatibi (d. 790/1388), although many other scholars had made contributions to them even before these scholars came on the scene. The two scholars named are, however, distinguished for articulating their respective themes into separate and distinctive chapters of Shari’ah through consolidation of the disparate streams of ideas and contributions other scholars had already made. Yet the progress of ideas remained intermittent in both fields even after Ibn Taymiyyah and al-Shatibi’s landmark contributions. It is still doubtful whether either of the two disciplines under review have reached the status of some of the more mature branches of Islamic scholarship, such as fiqh, uÎËl al-fiqh, tafsÊr and Hadith.
There is a revival of interest in both the maqÉÎid and siyÉsah as of late and both have witnessed a spate of scholarly contributions especially in the latter part of twentieth century and ever since. That said, both siyÉsah and maqÉÎid are prone to a degree of arbitrariness, though for different reasons. SiyÉsah has often fallen prey to the vagaries of power politics and despotism throughout the longer stretch of Islamic history, and the maqÉÎid is in want of a stronger methodological grounding that can be used to curb subjectivity and value judgment in its applications. Unlike the uÎËl al-fiqh which is rich on methodology, the maqÉÎid had for a long time remained on the fringes of the legal theory of uÎËl al-fiqh and did not enjoy the same degree of support from the ÑulamÉ’ due to the philosophical underpinnings of maqÉÎid. A reliable methodology for maqÉÎid can also help provide credible guidelines for siyÉsah. It may be added that the revival of scholarly interest in the maqÉÎid in recent decades has also seen progress on its methodological themes.
It would burden this presentation to provide full details on siyÉsah and maqÉÎid, as both have grown into extensive branches of shari’ah. The present writer has also treated both of these subjects in his previous publications.4. Hence the attempt in the following pages to offer a coverage of only the basic contours of the two subjects before us. The balance of the article then focuses on identifying points of convergence between the two themes, and specifying ways in which the guidelines of maqÉÎid can be gainfully utilised in the applications of siyÉsah. This article also explores, in its latter part, the question as to how the two themes before us relate respectively to fiqh and uÎËl al-fiqh, and refers in this connection to some of the writings of Shaykh Yusuf al-Qaradawi on the subject.
I. Shari’ah-Oriented Policy (SiyÉsah SharÑiyyah)
The ÑulamÉ’ have used siyÉsah for different purposes. Literally, it means Shari’ah-oriented policy, or government in accordance with the Shari’ah. This is the widest meaning of siyÉsah in that it is free of the technicality that has developed around this expression in the works of Muslim scholars. SiyÉsah SharÑiyyah thus applies to all government policies, be it in areas where the Shari’ah provides explicit guidance or otherwise.
But in its technical applications, siyÉsah SharÑiyyah implies decisions and policy measures taken by the imam and the ÑulË al Amr on matters for which no specific ruling could be found in the Shari’ah. In this sense, siyÉsah SharÑiyyah, as KhallÉf observed, is tantamount to acting on MaÎlaÍah, or public interest, which the Lawgiver has neither upheld nor overruled.5 SiyÉsah in other words, denotes administration of public affairs in an Islamic polity with the aim of realising the interests of, and preventing harm to, the community in harmony with the general principles of the Shari’ah“even if it disagrees with the particular rulings of the mujtahidËn” 6
According to the key Hanbali scholar, Ibn Qayyim al-Jawziyyah (d.1350 CE), siyÉsah SharÑiyyah does not necessarily mean conforming to the explicit rules of Shari’ah: “any measure which brings the people closest to beneficence (ÎalÉÍ) and furthest away from corruption (fasÉd) partakes in just siyÉsah even if it has not been approved by the Prophet, pbuh, nor regulated by Divine revelation. Anyone who says that there is no siyÉsah SharÑiyyah where the Shari’ah itself is silent is wrong and has misunderstood the Companions.”7
Civilisational Renewal, Occasional Paper 20, London: The International Institute of Islamic Thought, and Kuala Lumpur: the International Institute of Advanced Islamic Studies (IAIS) Malaysia, 2012. Idem. Shari’ah law: An Introduction, Oxford: One world Publications, 2008. Chapter 6 (pp. 68-99) of this book bears the title “Goals and Purposes (maqÉÎid) of Shari’ah: History and Methodology,” and Chapter 11 is entitled “Beyond the Shari’ah: An Analysis of Shari’ah-Oriented Policy (al SiyÉsah SharÑiyyah), 225-246.
SiyÉsah is characterised by its essential harmony with the higher objectives of Shari’ah, at the risk sometimes of abandoning its letter. An illustration of this is the decision of the second caliph, ‘Umar ibn al-Khattab, concerning the Mu’allafat al-qulËb, persons of influence whose friendship and cooperation were regarded beneficial for Islam. The Qur’an (al-Tawbah 9:60) had assigned a share for them in Zakat revenues, which Caliph ‘Umar discontinued, because, in ‘Umar’s widely quoted statement, “Allah has exalted Islam and it is no longer in need of their favour” ‘Umar thus departed from the letter of the Qur’an to an alternative ruling as the original purpose for which the Qur’anic ruling was made no longer obtained, and “his ruling is considered to be in harmony with the spirit of the Qur’an.”8 The original ruling was thus suspended due to the subsequent change of circumstances, but the Qur’anic text remains intact; it is still a part of Qur’an, and its ruling may also be revived again whenever further change circumstances may so require.9
SiyÉsah is also used in the sense of implying flexibility (tawsiÑah) and discretion for rulers and judges in their decisions. When a decision is said to have been taken as part of the siyÉsah of a ruler or judge, it is tantamount to saying that it was a discretionary decision, provided, of course, it did not contravene the shari’ah.10
Qur’anic authority for siyÉsah is found in a number verses, especially those enjoining the believers to the promotion of good and the prevention of evil.11 The good and evil are nowhere listed in the Qur’an or Sunnah, but they can be known through a general investigation of these sources. Al-ShÉÏibÊ has also noted that rights and wrongs cannot be known in detail in advance without referring to particular acts and their surrounding circumstances. Hence, the government leaders must have discretionary powers to uphold and protect the higher purposes of shariah.12 The Qur’anic command that requires obedience to the ÑulË al amr in sura al-Nisa’ (4:58) also provides the necessary authority for siyÉsah. It thus becomes the duty of every Muslim to comply with the dictates of siyÉsah that promote the ideals of justice and maÎlaÍah.13
SiyÉsah, in its widest sense, has five purposes: protection of life, religion, mind, lineage, and property. The ÑulamÉ’ are unanimous that protection of these values constitutes the ultimate objectives of the Shari’ah, and siyÉsah is an instrument by which to achieve them. 14
Ibn Qayyim divides siyÉsah into two types: unjust siyÉsah (siyÉsah ÐÉlimah), which the Shari’ah forbids, and just siyÉsah (siyÉsah ÑÉdilah), which seeks to serve the cause of justice. Since justice is the principal goal of siyÉsah, it is an integral part of the Shari’ah and always in harmony with it. “We merely call it siyÉsah because of the linguistic usage, but it is nothing other than the justice ordained by God and His Messenger”15 God Almighty sent messengers and scriptures to mankind in order to establish justice among people. When there are signs that indicate the path to justice, it is in accord with the Law of God to aim toward it.16 Hence, “any path that leads to justice and fairness is an integral part of the religion and never contrary to it.”17
SiyÉsah is changeable in accordance with the change of circumstances. Indeed siyÉsah is an instrument with which to accommodate the needs of social change with the Shari’ah. SiyÉsah also enables the government to administer its domestic and foreign affairs by enacting laws and regulations that guarantee security and justice to the citizens, materialise their interests, and pave the way for their prosperity.18
In the area of taxation, just siyÉsah requires fairness in the levying of taxes and consideration to the ability of the taxpayer. The non- Muslim citizens must also be fairly treated and must not be burdened with oppressive taxes that subject them to poverty and degradation.19 No policy can properly be called siyÉsah SharÑiyyah unless it observes the limits of moderation, which errs neither toward severity nor to laxity, for both lead to injustice and the loss of rights.20
The requirements of a just siyÉsah, with regard to the selection and appointment of officials, as Ibn Taymiyyah explains, have been laid down in the Qur’an (al NisÉ’, 4: 58) as follows: “Surely Allah commands you to make over the trusts (an-tu’addË al-amÉnÉt) to those to whom they due, and when you judge between people, you judge with justice.” Ibn Taymiyyah’s widely-acclaimed book, al-SiyÉsah al-SharÑiyah fi IÎlÉÍ al RÉÑÊ wa al- RaÑiyyah, as he says it on the very first page, is a commentary on this verse. “Selection of officials’ is the occasion of revelation of this verse. It is a trust fulfilled only when selection is based on ability and competence. Ibn Taymiyyah adds that tu’addË al amÉnÉt in this verse has been interpreted by the following Hadith: “When a person is entrusted with authority over the affairs of the believers, and he, in turn, delegates this authority to another while he could find a more competent person for the task, he has betrayed Allah and His Messenger.”21 Then he quotes ÑUmar b al Khattab also to have said: “Whoever delegates a public office to another for the sake of friendship or personal favour indeed betrays Allah and His Messenger and the believers”
The fact that the Qur’an refers to amÉnÉt in the plural indicates that all forms of trust - be it the responsibility of public office, abiding by one’s promises and contracts, responsibility to give a sincere counsel, and one’s duties towards others - all fall within the purview of amÉnÉt.22
Elsewhere, the Quran singles out two qualities, namely, strength and loyalty, to be the most desirable qualities in the selection of employees: “Surely the best of those you can employ is the one who is strong and loyal (amÊn)” (al-QaÎaÎ: 26). Strength in every wilÉyah (delegation of power) is to be sought in the best of its relevant qualities. The strength of an army commander, for instance, refers to his knowledge of military affairs, and that of a judge to his knowledge of Shari’ah. Loyalty, in turn, refers to three qualities: fear of Allah, refusal to neglect His commands for a small price, and lack of fear of men. This is the purport of the verse: “So fear not people and fear Me and take not a small price for My messages.” (al- MÉ’idah, 5:44).23
Another important aspect of amÉnÉt Ibn Taymiyyah has expounded at length is concerned with the just distribution of wealth in the community. The citizens must not expect from the government more than what they deserve, nor must they withhold any payment to which the government may be entitled. The ruling authorities must, in turn, deliver the wealth of the community to those of its deserving members, not according to their whims, nor in the manner of owners and proprietors, but in their capacity as trustees and delegates (umanÉ’ wa nuwwÉb).24
Furthermore, in matters of fatwa and judgment, siyÉsah must aim at “opening the doors of mercy and beneficence to the people, and select from the diversity of schools and interpretations advanced by the ÑulamÉ’ that which is beneficial to relieve people from severity and hardship.25
To conclude this section, the availability of some discretionary powers to the rulers is accepted in principle in all theories of government. Yet the rule of law and constitutionalism in modern states give rise to questions over developing adequate checks and balances over the exercise of discretionary power. The need for such controls is particularly emphasised in the field of criminal law where the citizen is exposed to the coercive power of the state.
With the unprecedented advance of education and learning in modern times, it is also obvious that specialisation and technical know-how have become essential to good management. The development of a judicious siyÉsah must, therefore, to a large extent, depend on the availability of better and more refined methods. In a similar vein, as a result of the introduction of formal constitutions and codes of laws by most of the present day Islamic countries, and their attempts to define and regulate the powers of the various organs of state, the scope of siyÉsah has been regulated to a large extent. However, siyÉsah can still play a useful role, which is to encourage initiative in the direction of MaÎlaÍah, to prevent rigidity in the application of the law, as well as enable the government to formulate responses to unprecedented situations. The need for such flexibility is often felt when the legal text does not cover a particular case or situation, or when it does so cover it, siyÉsah can still play a role in moderating an overly strict and literal application of the legal text that fails to serve the ideals of justice and public interest.
Lawgiver has contemplated in respect of all or most of the Shari’ah ordinances.” On a broader note, Ibn ‘Ashur also wrote that the general purpose of Shari’ah(Maqlad al-tashrÊ’ al-ÑÉm) is “preservation of the order and prosperity of the Ummah through educating and reforming the mental and behavioural self of the individual and taking care of the world around him and what has been placed under his custody and control.”26
I shall not engage into the details of Ibn ‘Ashur’s definition here but briefly to say that he also specified four conditions a general Maqlad must qualify for it to be valid. These are: to be firm, evident, general, and exclusive (thÉbit, ÐÉhir, ‘Émm, and Ïard respectively).27 Al- ShÉÏibÊ’s own contribution to the methodology of maqÉÎid included inductive reasoning (al- istiqrÉ’) as a method by which the maqÉÎid can be identified through a general reading of the Qur’an and hadith.28
Briefly, maqÉÎid are identified in the clear text (naÎÎ) or by general consensus (ijmÉ’), failing which they may be identified by recourse to Ijtihad. Al-Shatibi suggested that istiqrÉ’, being a form of Ijtihad, is a reliable method by which to identify the maqÉÎid, whereas Ibn ‘Ashur also added, in line with the writings of ‘Izz al-DÊn ‘Abd al-Salam al-Sulami (d.1262/660) and others, that human intellect(‘aql) and unrestricted reasoning (istidlÉl) could also identify the maqÉÎid. Most of these methods can actually be subsumed under ijtihad.29