New Trends in Islamic Legal Theory: Maqāṣid al-Sharīʿa as a New Source of Law?

In: Die Welt des Islams

The purposes of the law (maqāṣid al-sharīʿa) were traditionally tied to the definition of maṣlaḥa expounded by al-Ghazālī and employed in legal analogy (qiyās) and precepts (qawāʿid). This article addresses recent developments in the interpretation of the maqāṣid al-sharīʿa in the works of legal scholars promoting alternative interpretations, such as Ibn ʿĀshūr, Yūsuf al-Qaraḍāwī, Aḥmad al-Khamlīshī, Yaḥyā Muḥammad, and Jamāl al-Dīn ʿAṭiyya. Several trends can be observed: rejecting the Ghazalian definition of essential necessities by enlarging their scope beyond five and including justice, freedom, and equality; refining the categories of the purposes and creating more nuanced hierarchies of maṣlaḥas; and expanding the application of the purposes of the law beyond the sphere of the law proper, thereby giving considerations of maṣlaḥa a proactive role in shaping society through public policies. It is suggested that new interpretations of the objectives of the sharīʿa also alter the traditional four sources of law theory (uṣūl al-fiqh).

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     al-Ghazālī, al-Mustaṣfā, 2: 502-03.

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     See for example: Felicitas Opwis, “Shifting Legal Authority from the Ruler to the ʿUlamā⁠ʾ: Rationalizing the Punishment for Drinking Wine During the Saljuq Period,” Der Islam 86 (2011): 65-92; Wael B. Hallaq, A History of Islamic Legal Theories: An Introduction to Sunnī Uṣūl al-Fiqh (Cambridge: Cambridge University Press, 1997), 130-32.

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  • 23

     In 1906, Rashīd Riḍā published al-Qāsimī’s edition of Najm al-Dīn al-Ṭūfī’s interpretation of maṣlaḥa in al-Manār, as well as al-Qāsimī’s gloss (ḥāshiya) on this text (al-Manār [1324/1906]: 746-70). In this edition, al-Qāsimī also refers to al-Shāṭibī’s views in the footnotes. Commins states that al-Qāsimī had made excerpts of the latter’s works (David Commins, Islamic Reform: Politics and Social Change in Late Ottoman Syria [New York: Oxford University Press, 1990], 112, and 171 n. 33).

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     Cf. Adis Duderija, “Introduction,” in Maqāṣid al-Sharīʿa and Contemporary Reformist Muslim Thought, pp. 1-11, at 3; David Johnston, “A Turn in the Epistemology and Hermeneutics of Twentieth Century Uṣūl al-Fiqh,” Islamic Law and Society 11, 2 (2004): 233-82.

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  • 35

     Attia, Towards Realization, 77.

  • 53

     al-Ḥasanī, Naẓariyyat al-maqāṣid, 299.

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     Attia, Towards Realization, 116-49.

  • 57

     Attia, Towards Realization, 119.

  • 59

     Attia, Towards Realization, 119.

  • 60

     Attia, Towards Realization, 119.

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     Attia, Towards Realization, 120. Attia does not further explain what constitutes a “disorder.”

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     Attia, Towards Realization, 120. Attia does not elaborate on how to define and avoid corrupting media sources.

  • 63

     Attia, Towards Realization, 203. Attia considers professional or vocational training a collective duty (farḍ kifāya).

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     Attia, Towards Realization, 124-31.

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     Attia, Towards Realization, 131-41.

  • 66

     Attia, Towards Realization, 142.

  • 68

     Attia, Towards Realization, 142-49.

  • 69

     Attia, Towards Realization, 103.

  • 72

     Cf. Hallaq, History of Islamic Legal Theories, 75.

  • 74

     Cf. Khallāf, Maṣādir al-tashrīʿ, 165.

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     al-Ḥasanī, Naẓariyyat maqāṣid, 437. Al-Ḥasanī is aware that Ibn ʿĀshūr’s interpretation changes the common understanding of analogy and of law-finding methods based on inference (istidlāl) (ibid.).

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  • 99

     Attia, Towards Realization, 120.

  • 100

     Jackson, “Literalism, Empiricism, and Induction,” 1479. Based on the examples and levels of abstraction for the preservation of the intellect presented in this article, Jackson’s comment that prohibiting alcohol and drugs is the only application of this legal purpose ( Jackson, “Literalism, Empiricism, and Induction,” pp. 1479 and 1484) needs to be revised.

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  • 102

     Adis Duderija, “Maqāṣid al-Sharīʿa, Gender Non-patriarchal Qurʾān-Sunna Hermeneutics, and the Reformation of Muslim Family Law,” in Maqāṣid al-Sharīʿa and Contemporary Reformist Muslim Thought, pp. 193-218, at 206 and 215; Attia, Towards Realization, pp. 124-31. Ibn ʿĀshūr’s emphasis on equality as a divine objective likewise does not extend to gender (cf. Maqāṣid, 95-99).

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