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Objectives of Shariʿah (Maqāṣid)

By:
Muhammad Khalid Masud
Source:
The Encyclopedia of Islamic Bioethics What is This? A comprehensive reference work covering the major issues in Islamic bioethics, including medicine, clinical practice, genetics, theology, and Islamic law.

Objectives of Shariʿah (Maqāṣid)

Background

The term “Objectives of Shariʿah” is usually attributed to the Andalusian Mālikī jurist Abū Isḥāq al-Shāṭibī (d. 1388). The concept of “objectives” is part of the quest for a normative basis of Islamic law which can be traced to several Islamic normative traditions and their perspectives on both law and ethics. A general overview of this quest is immensely helpful in understanding the doctrine and its relevance to medicine and bioethics.

Islamic Normative Traditions

Despite their diverse approaches, almost all Islamic normative traditions conceived of the idea of a “norm” as a “path,” “way,” or “journey” toward a destination and objective. For instance, ḥadīth tradition used terms like Sunnah and al-muwaṭṭā (trodden path) and riḥla fī ṭalab al- ʿilm (journey to seek knowledge). The Islamic legal tradition used terms Shariʿah and madhhab, suggesting a path leading to a waterhole, but also a way to interpret laws. The jurists called their approach fiqh (understanding the Divine will). Mystical (ṣūfī) terms such as ṭarīqah (path) and sulūk or sayr (travel) signify the way to truth (ḥaqīqah) and cognition (maʿrifah). Other frequently used terms like Sunnah, adab, ijmāʿ, maʿrūf, ʿādah, ḥukm, amr, and aṣl in Islamic literature also refer to agreed norms, standards and established practices.

Islamic normative traditions are divided on the question whether the source of normativity is religion or ethics, scriptures or human reason and experience. Obedience was obligatory in the perception of each group but the question was what made it obligatory: revelation or reason? Regarding legal obligation, some perceive it in religious terms and believe that its source is divine command, others define it as the command of the sovereign, be it a king or state. In either case the source is external to the subject who must obey without further questioning. Ethical obligation, on the other hand, is reflexive; sources are external as well as internal, but obedience is motivated by human reason and volition. Muslim philosophers like Ibn Sīnā (980–1037) and Ibn Ṭufayl (1105–1185) illustrated this perception with the story of an isolated human child growing up among animals in a jungle. Later, as an adult, the child finds that his sense of good and evil was no different from other humans. Muʿtazilī theologians (8th–10th-century Iraq) agreed with the philosophers, and found no contradiction between human reason and scriptures; both regarded ʿadl (justice) as vital. A group of Muslim theologians that followed Abū al Ḥasan al-Ashʿarī (874–936) and broke away from the Muʿtazilīs disagreed, arguing that human reason was incapable of discovering on its own what is normative; normativity is known only through revelation (sharʿ or Shariʿah). Ashʿarī theology represented the religious ethos, especially the ḥadīth groups in that period. This theology came to shape Muslim epistemology and posed problems, especially for the jurists who considered customs and local social practices as valid norms along with scriptures. Consequently, as discussed in the next section, legal theory developed largely as a theory of sources (uṣūl al-fiqh).

Ethical normative traditions such as akhlāq (Islamic ethics), adab (Islamic pedia, literary tradition), and ṭibb (medicine) are part of philosophical traditions concentrating on human nature (fiṭrah, ṭabīʿah). Despite vital differences, taṣawwuf may also be considered as part of these traditions. Muslim philosopher Abū ʿAlī ibn Miskawayh’s (d. 1030) Tahdhīb al-Akhlāq (Refining Human Conduct), outstanding polymath Ibn Qutaybah’s (d. 889) Adab al-Kuttāb (Manual for Secretaries), twelfth-century physician Isḥāq ibn ʿAlī al-Ruḥāwī’s Adab al-Ṭabīb (Physician’s Code of Ethics), and mystic al-Muḥāsibī’s (781–857) Ādāb al-Nufūs (Manual for Disciplining Souls) are examples of ethical normative treatises. These works defined normativity subjectively and therefore emphasized disciplining body and mind.

Traditional Medical Ethics, reasoning based on philosophical and Islamic principles of ethics alongside legal norms, was already prevalent among Muslim scholars. Emphasis on ethics alongside law kept Muslim physicians aware of the ethical concerns about their profession and public welfare, as well as with questions about life, death, suffering, and care for human dignity in medical treatment. As discussed later, al-Shāṭibī argued that Islamic law aimed to protect basic human needs and defined the physical and ethical limits of legal obligation, especially relating to suffering, treatment of illness, and exceptions to dietary laws in medicine.

Muslim physicians such as Abū Bakr Muḥammad ibn Zakariyyā al-Rāzī (854–925) regarded physical health as integrally related to moral health. “The self is an integral unit; a part of an integrated moral-physical universe” (Sonn, 1996, p. 190). A physician must take care of patient’s moral as well as physical health. Isḥāq ibn ʿAli al-Ruḥāwī expressed similar concerns and recommended penalties for moral and professional malpractices. He also believed that physicians must not engage in commercial practice (Sonn, p. 194).

Islamic Legal Tradition

Fiqh began as a discursive tradition in the form of question (istiftā, inquiry) and answer (fatwa). One finds several examples of such questions and answers in the Qurʾān (e.g., 2:189, 215, 217, 219, 220, 222; 4:127,176; 5:4; 8:1) and ḥadīth. The Qurʾān criticized the pre-Islamic Arab veneration of the forefathers (43:35), declaring that such devotion was devoid of wisdom and guidance (2:170). The Qurʾān uses the term fiqh for groups of people who devote themselves to understanding (tafaqqaha) religion (9:122). Discursive activities and inquiries about various events continued after the death of the Prophet. It is significant that these discourses produced jurist groups (fuqahāʾ, plural of faqīh, expert in fiqh) who believed that revealed commands in the scriptures could be interpreted and extended to ever-rising issues. Consequently, several independent schools of Islamic law came into being during eighth and ninth centuries; among which the following are still extant: Ibāḍī (ʿAbd Allāh ibn Ibāḍ al-Tamīmī, d. 708), Zaydī (Zayd ibn ʿAlī, 695–740), Ismāʿīlī (Ismāʿīl ibn Jaʿfar al-Ṣādiq, 719–755), Jaʿfarī (Jaʿfar al-Ṣādiq, 700–765), Ḥanafī (Abū Ḥanīfa Nuʿmān ibn Thābit, 699–767), Mālikī (Mālik ibn Anas, 711–795), Shāfiʿī (Abū ʿAbd Allāh Muḥammad ibn Idrīs al-Shāfiʿī, 767–820), Ẓāhirī (Dāwūd ibn Khalaf al-Ẓāhirī, 815–833), and Ḥanbalī (Aḥmad ibn Ḥanbal, 780–855).

Most of these schools separated legal theories (uṣūl al-fiqh) from theology in order to focus on actual practice. For instance, Mālikīs relied on practice in Medina and Ḥanafīs considered the local knowledge in Kufah and Basrah normative. Al-Shāfiʿī was concerned with the growth of this diversity; to foster unity, he developed an epistemology (jimāʿ al-ʿilm) to relink legal methodology to scriptures. First, he limited the number of legally valid sources to four: the Qurʾān, Sunnah, ijmāʿ (consensus of the jurists) and qiyās (analogical reasoning). Second, he focused on the Sunnah of the Prophet and rejected the reports not directly attributed to him. The experts on ḥadīth had developed the science (ʿilm) of ascertaining the authentic ḥadīth and rejected legal statements not based on authentic ḥadīth as raʾy (opinion) and ẓann (conjecture). Third, he defined qiyās as a method of ijtihād, legal reasoning based on similarities derived from the texts of the Qurʾān and Sunnah. Subjecting the norms to literal and deductive reasoning, he declared other legal methods invalid. His disputes with other jurists are included in his voluminous work al-Umm (e.g., 1990, 4:66, 7:20, 323). For example, he rejected the Ḥanafī principle istiḥsān (juristic preference) as opening the door wide for personal biases (1940, 1:507). Following him, al-Ghazālī (1058–1111) describes the Mālikī principle of istiṣlāḥ (human welfare) and istiḥsān as doubtful (mawhūmah) sources of legal and ethical interpretation (1993, 1, p. 173).

Other jurists were also divided on the issue of valid sources. Shīʿī jurists extended the normative authority of ḥadīth to the sayings of their reverend imāms as well. The Ḥanafīs considered the ḥadīth reported by the Companions of the Prophet normative but rejected solitary reports (khabar wāḥid). The Ẓāhirī school rejected the unconditional validity of both qiyās and ijmāʿ; restricting the latter to that of the Companions of the Prophet. These controversies led to a general agreement on the division of sources into primary and secondary ones; contested sources were categorized as secondary. Legal theories recognized also legal maxims (qawāʿid, as general rules of reasoning such as “hardship begets facility”). Some were commonly acceptable and others were allowed as specific to schools such as istiḥsān, istiṣlāḥ, and istiṣḥāb (presumption of continuity) among the Sunni and the distinction between akhbārī (invoking the authority of precedent) and uṣūlī (rational argument) among the Jaʿfarī schools. The principle of unconditional adherence (taqlīd) to one specific school consolidated and fortified the diversity of these institutions, but it also limited the scope of ijtihād (legal reasoning).

Al-Shāṭibī’s Doctrine of Maqāṣid al-Sharī‘ah

Muslim jurists developed legal devices such as talfīq (patching) and takhyīr (selecting) that allowed cross-school borrowing in cases of hardship and expediency. However, ongoing social, economic, political, and legal developments posed new legal questions. In fourteenth-century Spain, for example, shrinking natural resources compelled Muslim farmers in Granada to pool quantities of milk from many sources in order to produce cheese. Similar contracts of partnership were adopted in agriculture and commerce. Traditional Islamic law regarded such contracts of partnership invalid on account of uncertainty in shares and profit. Invoking the principles of maṣlaḥah (public interest) and taysīr (convenience), Abū Isḥāq al-Shāṭibī and Ibn al-Sirāj (d. 1444) permitted such contracts (Ibn al-Sirāj, 2006, p. 192; Lopez-Ortiz, 1941, pp. 73–127). Al-Shāţibī’s contemporaries accused him of bidʿah, (innovation in religion) and deviating from the agreed norms of the community of jurists.

Al-Shāṭibī wrote al-Muwāfaqāt (a reconciliation between the Mālikī and Ḥanafī jurisprudence) and al-Iʿtiṣām to respectively clarify the principles of maṣlaḥah and bidʿah. He argued that bidʿah was limited to rituals (ʿibādāt) because humans cannot fully understand their objectives and benefit (maṣlaḥah). However, in social affairs (muʿāmalāt) human reason and experience can guide the jurists. Innovation was forbidden only if it was introduced as a religious obligation.

Al-Shāṭibī developed the doctrine of Maqāṣid in al-Muwāfaqāt in five parts: Premises, Legal Values, Objectives, Evidence, and Legal Reasoning. The first and third parts are directly relevant to the doctrine. The first part discusses the definition, nature, and scope of fiqh as a science of Shariʿah. Thus the kulliyāt al-Shariʿah (universal principles in Shariʿah) are regarded as exact and conclusive, not probable. These principles are based on several types of evidence such as inductive logic, cumulative reading of text (i.e., collecting all the relevant verses on the subject), and universal social experience. Al-Shāṭibī did not discuss qiyās and ijmāʿ as normative sources. Instead, he criticized the deductive method of qiyās, and found legal reasoning on the basis of specific texts (nuṣūṣ), single verse or ḥadīth inconclusive (al-Shāṭibī 1975, 1, p. 37). He favored the inductive method (istiqrāʾ) of reasoning that reflected upon the Qurʾān and ḥadīth texts as a whole and did not consider minor disagreement in particular details significant. He argued that even though theology and Arabic grammar are helpful they are not essential parts of Islamic legal theory. Shātibī clarified that matters such as grammar, though discussed in legal theory, are only loaned elements, not essential, because they are not employed in deducing laws or ethical rules.

The third part explores the objectives of Shariʿah as intentions of God as lawgiver. In this regard, al-Shāṭibī uses two terms maqāṣid—plural of maqṣid (objective)and qaṣd (intent). The intent of the lawgiver and the objective of the law are both for the benefit of mankind. This conclusion is based on an inductive study of the lawgiver’s intent from the perspectives of communication (ifhām), obligation (taklīf), self-interest (ḥuẓūẓ), and obedience (imtithāl). Regarding communication, the lawgiver intended the law to be intelligible to human beings. Analyzing the issues related to language, usage, grammar, translatability, and social understanding, al-Shāṭibī found that Shariʿah communication focused on meanings rather than words.

As for obligation, the lawgiver commands only what is humanly possible. This means that hardship is not the objective. Al-Shāṭibī clarifies that good and bad do not exist in absolute and pure form. It is through experience (ʿᾱdᾱt) that humans define what is generally beneficial. The lawgiver also intends only the good, not what is difficult and harmful. Shariʿah, therefore, endorses human experience and modifies and reforms what is discriminatory and unjust in human practices (al-Shāṭibī, 1975, 2, p. 307). The lawgiver distinguishes self-interest from hawā, arbitrary choices and desires, and rejects exaggerated taʿabbud (religious extremes). Regarding obedience, the lawgiver does not demand obedience per se; it must accord with lawgiver’s intent, that is, human welfare.

Al-Shāṭibī concluded that protection of maṣlaḥah (human interest) is the objective of Shariʿah. This objective is based on three categories of universal premises; ḍarūriyyāt (necessities), ḥājiyāt (basic needs), and taḥsīniyyāt (aesthetics). The ḍarūriyyāt consists of religion, life, progeny, property, and intellect. Shariʿah protects these five as basic human needs. Maṣlaḥah means “everything that concerns the subsistence of human life, the completion of man's livelihood, and the acquisition of what his emotional and intellectual qualities require of him, in an absolute sense” (al-Shāṭibī, 1975, 2, p. 25). Maṣlaḥah is the primary objective and the kullī (universal principle) that permeates all divine laws. Even though these universal principles are not mentioned in a specific text, it is evident from scriptures that they are the essence of laws. Shariʿah not only provides laws on rituals, marriage, divorce, inheritance, commercial transactions, and education in order to protect respectively the above five basic needs, but also prescribes penalties for those who violate laws.

The above three universal categories are like concentric circles that complement and protect one another. Next to the five basic needs, the second category (necessities) consists of laws of exceptions and relaxation for individual and collective cases of emergencies in order to protect the first circle of basic needs. It prescribes relaxation in cases of illness, hardship, wars, disasters, and so on. The third category (aesthetics) takes into consideration the political, local, and cultural as well as international customs to ensure the efficient working of law in the first and second categories. Al-Shāṭibī explains that aesthetic preferences like modesty, cleanliness, and other cultural norms define reasonability and diverse ethical values in human societies. For instance, going out in public bareheaded is regarded as an affront in the (Muslim) East, not in the (Muslim) West (al-Shāṭibī, 1975, 2, p. 284).

Al-Shāṭibī concludes his book with a discussion on ijtihād (scope of legal reasoning). He distinguishes the categories of ʿibādāt or ritual obligations, from all other laws, which he calls muʿāmalāt. The former are not open to human experience and therefore not subject of ijtihād; laws in the second category are open to ijtihād. Accordingly the term bidʿah (innovation, addition, or deletion) applies only to the first category.

Contemporary jurists criticized al-Shāṭibī for his views, and his doctrine did not make much impact on Muslim thought until al-Muwāfaqāt was first published in Tunis in 1884. Since then, this book has influenced and inspired Muslim reformers and jurists like Khayr al-Dīn al-Tūnisī (d. 1890), Muḥammad ʿAbduh (d. 1905), Muḥammad Khuḍarī (d. 1927), Rashīd Riḍā (d. 1935), Muhammad Iqbal (d. 1938), ʿAbd Allāh Dirāz (d. 1958), and Ibn ʿĀshūr (d. 1970), to name a few, for example (Masud, 1995, pp. 109–119). The doctrine of maqāṣid has been generously employed to develop Islamic perspectives on issues relating to development (Auda, 2008; Chapra, 2008), development index (Ali, 2014), law reforms (Duderija, 2014), environment (Husaini, 1980), economics (Hasan, 2006), and finance (Dusuki, 2007). Some scholars like al-Būṭī (1966) and Ḥassān (1981) expressed concerns about the liberal use of the doctrine and suggested regulating the objectives theory by subjecting it to the classical methodology of analogical reasoning. But as illustrated by discourses on bioethics the doctrine has successfully revived the ethical perspective on legal issues.

Relevance and Significance to the Field of Bioethics

Advancements in biotechnology and medicine have improved the conditions of living things and are generally considered essential for life (Wieczorek, 2003), or universal basic needs according to maqāṣid doctrine. There are nevertheless mixed consequences, as the use of technology involves both benefits and risks for human well-being. It has, therefore, raised ethical concerns (Twardowski, 2008). According to Darryl Macer (2003), the term bioethics is the outcome of these concerns about the practice of biotechnology for issues related to modern attitudes to life, nature, and ecology (Aksoy and Tenik, 2002). It is in this context that the doctrine of maqāṣid has attracted the interest of jurists, economists, environmentalists, and medical scientists.

Muslim jurists were approached for legal opinions on the validity of medical practices such as blood transfusions, organ transplantations, postmortem examinations, artificial insemination, and test-tube reproduction. Special sections on medical treatment in the fatwas collections reflect the growing concerns. Khālid Raḥmānī remarked that “Shariʿah cannot be made irrelevant and inoperative due to change of time and conditions” (Raḥmānī, 1990, 1, p. 14).

Muslim thinkers were divided about approaching these issues; some considered them products of Western sciences and cultures, others regarded them as problems of expediency, still others called for ijtihād (al-Qaraḍāwī, 2009; Moazzam, 2011). Ijtihād on these issues was not feasible within the framework of traditional legal theory that distinguished between law and ethics; the former was divine and the latter allowed space for human reason and interests. As Vardit Rispler-Chaim (1993) remarked, that despite a considerable number of fatwas on biomedical issues, one could not find an Islamic medical ethics. Fazlur Rahman (1989, p. 70) stressed the congruity of physical and moral health in Islamic tradition (Sonn, 1996). He applied these objectives to the issues of family planning, environment, and genetic engineering “for the improvement of health and that it has no negative precedents in Islamic law” (Rahman, 1989, p. 107). According to Mohammed Ghaly, the main breakthrough came in the twenty-first century when academics “managed to create a distinct position for Islamic bioethics, as an academic discipline, in mainstream Western scholarship” (Ghaly, 2013). Gradually, medical practitioners and bioethicists came together and began developing bioethics from the perspective of the objectives of Islamic law and ethics (Padela, 2010; Amin, 2011; Rasheed, 2013; Saifuddin, 2014). Omar Kasule adapted al-Shāṭibī’s doctrine of maqāṣid to develop outlines for the development of Islamic medical ethics and to define the purposes of medicine, its principles and code of ethics in the framework of this doctrine (Kasule, 2004).

As Islamic bioethics progress, al-Shāṭibī’s doctrine requires a broader and fuller understanding. Presently its relevance is conceived often as an alternative to Western “values” on the one hand and restricted by the fears of deviation from the Islamic legal tradition on the other. Full appreciation of this doctrine requires a comprehensive study not only in terms of five “basic needs” but also conceptualization of the three categories of objective as concentric circles. This comprehensive approach broadens the perspective of bioethics from a legal approach restricted by the juridical theology of qiyās but also allows for the inclusion of environmental and universal social concerns.

Conclusion

The relevance of the doctrine of maqāṣid to contemporary needs has played a significant role in the advancement of Islamic bioethics in the twenty-first century. The doctrine formulated by al-Shāṭibī in the fourteenth century is a genealogical product of Islamic normative and legal traditions. He argued that protection of the five human necessities (religion, life, progeny, property, and intellect) is the overall objective of Islamic law. The three concentric circles of universal premises of ḍarūriyyāt, ḥājiyāt, and taḥsīniyyāt systematically embrace legal, social, and cultural perspectives. Invoking the objectives of Islamic law offers useful insights for fruitful application in the realm of bioethics. Understood as a legal theory of basic needs, the doctrine has made limited progress, but a broader scope of the ethical normative dimensions of ḥājiyāt and taḥsīniyyāt may enhance its relevance to advancing bioethics. However, it has made little progress as a legal theory of five basic needs. Adding the categories of ḥājiyāt and taḥsīniyyāt as ethical and social perspectives to maṣlaḥah has broadened the normative dimensions of this doctrine and enhanced its relevance to bioethics, environment, and medicine.

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