The author had planned to work on a monograph related to the potential of using the maqāṣid in Islamic jurisprudence, uncoupled from their religious foundations, as a tool for the conversation with secular law and legal thinking, which by and large has shed its own religious roots and proceeded to an ethics-driven approach based on public policy or interest, and/or systemic logical coherence. The premise of the research project was that lawyers largely think the same thoughts and that they use different building blocks to construct rather similar-looking houses. The main instrument of the research was a survey questionnaire with a series of case-based scenarios sent to a number of Islamic scholars to provide the answers to the scenarios from the Shari’ah perspective. The survey failed in its entirety, so the research turned into an attempt to find the reasons for the failure. This paper will set out reflections on why it went wrong.
The conversation between Islamic and secular scholars of law has been going on for a long time. Publications in European languages are flooding the market on almost any conceivable topic related to Islam. Yet, there is still little evidence of a proper dialogue, but merely of an exchange of monologues. Both sides are wary of engaging in open-ended discussion. For the Muslims, the divine origins of their religion, and consequently their attitude to the foundations of law-making, would seem non-negotiable; any addition based on secular thinking is likely to be viewed as forbidden innovation and watering-down of Islam and, in extreme cases, as an attack on the very identity of Islam. The secularists will consider some core Muslim teachings as being in breach of the fundamental freedoms for which people in the ‘West’ have fought for generations and with great sacrifice. This article advocates the use of the maqāṣid al-shari‛ah as a tool for advancing the debate.