بسم الله الرحمن الرحيم
Understanding Maqasid al Shariah and Uṣūl al-fiqh – أصول الفقه
ALSO KNOWN AS QAWAID AL FIQHIYYAH – WITH 5 GREAT EXAMPLES
WHAT IS MAQASID AL-SHARI’AH? – MAQASID AL FIQHIYYAH – LEGAL MAXIMS
Al-Maqasid – (plural of maqsad) – refers to the aims, higher intents, objectives, purposes, and goals, principles of Shari’ah. These have been classified into two broad categories.
- Promotion of the common good and benefit (maslaha)
- Avoidance and protection from harm (mafsada) – dar’ al-mafasid
According to Imam al-Qarafi, “A purpose (maqasid) is not valid unless it leads to the fulfilment of some good (maslaha) or avoidance of some mischief (mafsadah)”.
In other words, the maqasid of Shari’ah are the fulfillment of maslaha and the avoidance of mafsada. Shari Legal Maxims.
Objectives of Maqasid Al-Sharia’h
The objectives (maqasid) are classified in different ways by various scholars for various purposes. The traditional classification has been to divide the maqasid according to 3 “levels of necessity”:
- Absolute necessities (daruriyyat)
- Needs (hajiyyat)
- Luxuries (tahsiniyyat)
Daruriyyah (Necessity), These are the objectives which are must and basic for the establishment of welfare in this world and the world hereafter in the sense that if they are ignored then the coherence and order cannot be established and fasad (chaos and disorder) will prevail in this world and there will be obvious loss in the world hereafter.
Daruriyyah (Necessity): relates to five things: Protection of Faith (Deen), Protection of Life (Nafs), Protection of Posterity (Nasl), Protection of Property (Maal), Protection of Reason/Mind (‘Aql)
Hajiyyat (Requirement): All such provisions of Shari’ah which aim at facilitating life, removing hardship, etc, are said to fulfill the hajiyyah (requirements). For example, permission of hunting and use of halal goods for food, lodging, and conveyance.
Tahsiniyyat (Embellishment): Shari’ah beautifies life and puts comforts into it. There are several provisions of Shari’ah which are meant to ensure better utilization, beautification and simplification of daruriyyah and hajiyyah. Eg, permission to use beautiful, comfortable things; to eat delicious food; to have cold drinks and so on.
The Meaning of Fiqh
The term Uṣūl al-fiqh is composed of two terms:
- Uṣūl (pl. of asl) – Root (something from which another thing originates)
- Fiqh – The knowledge of the sharia legal rules, pertaining to conduct and/or practical revealed rulings, that have been derived or extracted from their specific or detailed evidences.
Uṣūl al-fiqh is a genitive construction with two Arabic terms, uṣūl and fiqh. Uṣūl means roots or basis. Fiqh linguistically refers to knowledge, deep understanding or comprehension. In the context of Islamic law, it refers to traditional Islamic jurisprudence. Accordingly the study of usul al-fiqh is a study of the principles, the evidences, i.e. a study of the rule, the sources of the rule, and the method of extracting the rule from these sources.
Abu Hanifah and Imam Shafie defined Fiqh as: “A person’s knowledge of his rights and duties.”
Al-Shawkani: “It is the knowledge of principles by means of which one has an access to the derivation of the commands of the shariah relating to the conduct of man on the basis of its detailed evidences.”
Primarily Uṣūl al-fiqh deals with the sources or roots of Islamic law.
As Uṣūl al-fiqh deals with the primary sources of Islamic law, the Quran and the Sunnah, Thus, Usul discusses the characteristics of the Quran and Sunnah, and the methods of deduction of law from the Quran and the Sunnah.
Benefit of Study of Uṣūl al-fiqh – أصول الفقه
The benefits of the study of Uṣūl al-fiqh are many. From a study of Usul, we come to know the methods of interpretations of the Quran and Sunnah, all the secondary sources of Islamic law, the views on Usul of major scholars of the past and present, the rules of Qiyas and other methods of Ijtihad, the history of development of Islamic law and legal theory.
The 5 Governing Principles – Agreed Upon
Al-qawa’id al-fiqhiyyah al asliyyah
(The 5 Fiqh Principles – The Normative Maxims – That which govern the fundamental rulings)
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“Al-umuru bi-maqasidiha” – “Actions are judged by the intentions”
This maxim is about ‘claim and practice’, where Muslims are required to demonstrate consistency in faith and practice, and in words and deeds. It embodies the relationship between intention and deed; claims and acts.
It is about how legality and illegality is determined through intention and deed.
Example: A man makes an earning for (a) the satisfaction of his selfish urges; (b) personal consumption and demonstration effects; or (c) complying with the divine command to earn for the sake of survival and spending on noble causes. The act of earning may be the same, but the intention behind the act itself determines its standing and the reward or not, behind it.
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“Ad-dararu yuzal” – “Harm must be eliminated”
- “ ….the maxim….is the validation of the option of defect in Islamic law, which is designed to protect the buyer against harm.”
This maxim is treated as a ‘pillar’ of Islamic law – established laws of option, inhibition, return of defective merchandise, preemption, requital, Hudud (punishment), compensation and indemnity, etc….
The following are prerequisites to the application of the maxim:
- “Let the ancient rest on its age”.
- “A wrong is a wrong even though it be ancient”.
- “Unlawful things are to be prevented irrespective of benefit”.
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“Al-yaqinu la yazulu bish-shakk” – “Certainty is not lost due to doubt”
In other words : “Innocent until proven guilty”
Supplemented by various other maxims to give clearer scope and meaning Although mainly used in relation to principally criminal matters, in general this maxim really means that one cannot be deemed liable until proven, Any guilt attributed to any person must be treated as doubtful until proof is given to lift the doubt and create certainty.
- “Certainty can, in other words, only be overruled by certainty, not by doubt.”
Example: A firm which declares a certain amount of income during the year – this must be accepted by the income tax authorities in the absence of contradicting evidence.
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“Al-’addatu muhakkamatun” – “Custom are the basis for judgement”
Based on a statement made by the Companion, Abdullah ibn Mas’ud radiAllahu anhu, “…what the Muslims deem to be good is good in the eyes of Allah”
Certain instances may not be accounted/prescribed for in texts –the courts are authorised accordingly to rule on matters based on customary practices. These customary rules may be allowable provided that they are not in conflict with the Shariah, that they are current and used predominantly by people.
Example: In a certain town, it may be customary for the seller to include a local gift to the buyer as a way of thanking the buyer for his/her custom* i.e purchase (*not the same meaning as ‘custom’ above).
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“Al-mashaqqatu tujlab at taysir” – “Hardship begets facility”
This is a rule of relaxation in terms of difficulty or hardship; but it must not be assumed that this rule can so easily be invoked as there are conditions that must be fulfilled.
For instance: It may be permissible for a Muslim to eat pork when in an emaciated state, provided that pork is the ONLY viable source of sustenance left only enough may be consumed to ensure survival
There are various forms of relaxation, for example: Suqut(relaxation); decrease (tangis); Advancing (taqdim); Postponement (ta’khir); and Permission (tarkhis)
Conclusion
As Muslims, we should remain curious to understand others better, humble in self- estimation, sincere and prayerful in the search for guidance and truth to please Allah, and committed to putting truth into action.
At the end of the day, the Ummah as a whole should not allow small differences of opinion to threaten the greater maqasid brotherhood and unity. These are clear obligations (Fard /Wajib) based on the Qur’an and Sunnah. Difference of opinion is not equivalent to disunity; and unity does not mean uniformity.
Valid Differences in Fiqhi Opinions, still mean one body, one ummah, one people.
Note: The Maqasid used as examples and the ruings that become deduced due to them are only done by those who are classified as Mujtahids.
And Allah is the Source of All Success, Strength and Knowledge.
والله تعالى أعلم
وصلى اللهم وسلم وبارك على نبينا محمد وعلى آله وصحبه والتابعين
أخوك أبو ناصر
Zinaid Abu Naser 