Islamic Law Reforms Through Maqasid-ul-Sharia
By
Grace Mubashir, New Age Islam
12 April
2022
Maqasid-ul-Sharia,
(objectives of Shariah) is an emerging trend in Islamic legal epistemology. The
Islamic Fiqh (jurisprudence), lost its vitality towards the end of fifteenth
century as original thoughts were frowned upon and instead dogmatic imitation
(Taqleed) was pursued by Muslim scholars.
The new social realities of national states and decolonization of Muslim
lands have accelerated new approaches to Fiqh, in order to timely reform
Islamic law. New interpretations of Islamic legal cannons premised upon
Maqasid-ul-Sharia.
Maqasid
al-Shari’ah may be stated simply as the higher objectives of the rules of the
Shari’ah, the observance of which, facilitate the normal functioning of society
by enhancing the public good (Maslaha),
this implies avoiding actions likely to harm individuals and society. The
intent, objective and purpose are simply to achieve social and economic justice
as well as enhancing the welfare of the community. According to Ibn Ashur,
maqasid al-Shariah (objectives of Shariah) is a term that refers to the
preservation of order, achievement of benefit and prevention of harm or
corruption, establishment of equality among people, causing the law to be
revered, obeyed and effective as well as enabling the Ummah to become powerful,
respected and confident.
Protection
of Six fundamental rights is at the core of Maqasid-ul-Sharia, viz. life,
property, intellect religion and progeny. This modern interpretation is an
expanded version of Istihsan (juristic discretion), one of the pillars of Usul-ul-Fiqh
(Principles of Islamic jurisprudence). Classical scholars like Imam Ghazali,
Shatibi, Juvaini and Shah Waliullah Dehlavi have mentioned this liberal tool of
religious interpretation while dealing with ecclesiastical issues.
Maqasid-Ul-Sharia
In Classical Religious Cannons
Various
Hadeeth from six canonical Hadeeth scriptures point to the Maqasid-ul-Sharia. Hazrat
Umar had extensively modified religious rulings on various issues based upon
Maqasid-ul-Sharia. In his Hujjathullahil Baligha, Shah Waliullah explains this
tenet thus: ‘Islam gives much leeway for fluidity and elasticity of laws
according to local, cultural, social conditions’.
Quran and
Hadeeth emphasize human intellectual
faculty to solve legal issues. The diversity of opinions in Islamic legal
schools should be read in this context. The scholars of Usul-ul-Fiqh have
pointed out to the crucial salience of spatial and temporal contexts while
framing Islamic laws. The prominence given to Urf (local customs) highlights
this point.
In a
nutshell, except a few laws categorically mentioned in Quran and Hadeeth,
Maqasid-ul-Sharia could be invoked to explore it more. Diverse opinions of
legal scholars on single issues are attributed to the application of
Maqasid-ul-Sharia while dealing with legal problems. For example, the
divergence of opinion about the nature of witness to a contract in Islamic law
is because of the fact that scholars considered local customs and conditions
whole pronouncing fatwa.
The changes
and modification brought by Hazarat Umar is a befitting example to prove the
legal sanction of Maqasid-ul-Sharia in Islamic legal traditions. He applied
Ijtihad (independent reasoning) to formulate laws for issues at hand.
Some
examples for Maqasid-ul-Sharia from the legal rulings of Hazrat Umar:
1. Compulsory
acquisitions of war booty during his reign which was not the standard practice
during the Prophet's time.
2. Banning naval
battle considering its commensurate risks
3. Changes in the
system of Zakat distribution to new converts when people began accepting faith
to get Zakat
4. Temporarily
suspended chopping of hand of the thieves during the times of drought
Minority
Fiqh And New Interpretations
The
majority of Islamic laws were codified and institutionalized under the
political conditions where Muslims basked in political hegemony. But the
migration of Muslims to Europe or the loosing of political patronage in
countries like India justified rethinking of Islamic laws to suit the swift
churnings in the society. Fiqh al-Aqalliyyat (the jurisprudence of Muslim
minorities) is a legal doctrine introduced in the 1990s by Taha Jabir Al-Alwani
and Yusuf Al-Qaradawi which asserts that Muslim minorities, especially those
residing in the West, deserve a special new legal discipline to address their
unique religious needs that differ from those of Muslims residing in Islamic
countries. Developed as a means of assisting Muslim minorities in the West, it
deals with problems Muslims face in countries where they are minorities and
focuses more on devising exceptional rulings pertaining to their unique
circumstances.
So the
classical opinions of barring Muslim living in countries with majority
non-Muslim population and enjoining to migrate from such places are rejected by
new approach to political understanding of Islam. Maqasid-ul-Sharia is a vital
tool in evolving minority fiqh as it accommodates changing realities of
political developments. The futile clinging to old classical laws is fraught
with challenges and militates against the canonical exhortations in this
regard.
Rethinking
Of Fiqh In The Indian Context Based On Maqasid-Ul-Sharia
India has
rich copious traditions of original additions to Fiqh knowledge; but it lost,
as a general decadence set in among the faithful and gradually Islam became
educationally morbid and culturally dogmatic. Revival of Islamic law based on
Maqasid-ul-Sharia is too important in the contemporary Indian context that no
sane scholar can object to this. New trends of Islamic epistemology could be
used to reinvigorate the soul of Islam.
Issues like
electoral politics, women participation, upward social mobility and new
economic realities are to be reframed on the solid basis of Maqasid-ul-Sharia.
Islam is never a barren land of imitation but fertile space for suitable
evolution. Various pressing issues of Muslim community in India could be
amicably solved by using the liberal tools of Maqasid-ul-Sharia.
---
An
occasional New Age Islam columnist, Grace Mubashir is a journalism student at
Indian Institute of Mass Communication, Delhi
URL: https://www.newageislam.com/islamic-sharia-laws/islamic-law-reforms-maqasid-sharia/d/126780