The Development of Maqashid al-Shari’ah

The Development of Maqashid al-Shari’ah

Maqashi>d al-Shari>’ah is theory of islamic law most widely considered by scholars in modern era. This theory, independent theory (‘ilm mustaqil), was developed by al-Thahir ibn Ashur (w. 1973), the writer of “Maqashid Shari’ah Islamiyah.” In introduction of his book, he emphasized, “We have to leave ushul fiqh toward maqashi>d.” He believed ushu>l fiqh was irrelevant and unable to respond contemporary issues related to the islamic law.
This statement condemned controversial among scholars and paid attention to be discussed more widely. Hasan Hanafi and Jamaluddin ‘Athiyah disagreed with Ibn Ashur Statements because maqashid shari’ah is the core part (the spirit) of Ushu>L Fiqh. Ushu>l al-Fiqh will be broken without maqa>sid shari’ah, as body without any spirit. On the other hand, some scholars supported it by their work, Nuruddin al-Khadimi wrote a book with the title ‘Ilm Maqashid Shari’ah and ‘Abdul ‘Aziz bin ‘Abdurrahman bin ‘Ali bin Rabi’ah by ilm maqa>shid Sha>ri’. Agil Munawar assumed that the inclusion of word “’ilmu (knowledge)” in these books showed their agreement to make maqashid shari’a as independent theory.
The purpose of the scholars revives the discourse of maqashid shari’ah is to mediate the gap between islamic law and global challenge. Actually, Maqashid Shari’ah appeared at responding stagnation of islamic law, especially the methodology of islamic law (ushu>l fiqh). Ushu>l Fiqh is claimed not able to answer global issues because it over focuses on tekstual meaning and ignores the objectives of sharia. Moreover, Hashim Kamali said, several theories of ushul fiqh, for instance qiyas, have the difficult requirements to be applied for modern era.

Maqashi>d Shari’a: Between Tradisionalist and Modernist Perspective

It is commonly understood that maqashid shari’a is not a new theory in islamic law, but it was introduced by tradisionalist scholars on several centuries ago by Hakim al-Tirmidzi (w. 320 H), al-Qaffal al-Syasyi (w. 365 H), al-Juwaini (w. 478), al-Ghazali (w. 505 H), Izzuddin bin Abdul Salam (w. 660 H), Najmuddin al-Thufi (716 H), Ibn Taimiyah (w. 728 H), al-Syatibi (w. 790 H). They were reputed the first of tradisionalist scholars who had introduced maqashid shari’ah. They had discussed it in their books although most of them did not discuss it completely and systematically, only al-Shatibi having wrote maqa>sid al-shari>ah perfectly in his book, al-Muwa>faqa>t fi> al-Ushu>l al-Shari>’ah.
Therefore, Tha>hir al-Misa>wi> called him as the first teacher of maqashid syari’ah (mu’allim al-awwal). After al-Syatibi, we did not find the book focused on theory of maqashid al-shari’ah until Ibn Ashur and ‘Allal al-Fasi were born. They had wrote the special books about this discourse; The most famous Work of Ibn Ashur was maqa>s{id al-shari>’ah al-isla>miyah and ‘Alal al-Fasi had wrote Maqashid al-Syari’ah wa Makarimuha). Through the both of books maqashid shari’ah began to be discussed by a lot of scholars. Thahir Misawi said If al-syatibi called as the first teacher, we could call Ibn Ashur as the second teacher of maqashid al-shari’a (mu’allim al-tsani).
Despite maqashid is classical theory which was represented by modern scholars, there are three significant differences understanding between tradisionalist and modernist of maqashid shariah and their position in islamic law discourse:
Firstly, mostly traditionalist scholars put maqashid as wisdom of islamic law (hikmah), not a methodology of islamic law. They did not apply maqashid to formulate and produce the law. According to them, wisdom cannot be used for the cause of law (‘illat hukm). It is totally different from the modernist regarding maqashid as theory and can be used for methodology of islamic law. They said maqashid al-syari’ah was the same as the cause of law (‘illat hukm) itself.
. Secondly, mayority of tradisionalist thought revelation (wahyu) was the primary source of maqashid al-shari’ah. They did not consider the ratio (aql) as the main source. Actually, there are a few of them, Izzuddin ibn ‘Abd al-Salam and Najm al-Din al-Thufi, regarded the ratio as source of maqashid syari’ah, but their sound was not familiar and refused by most of tradisionalis scholars.
It is different from the modernist who entered the ratio as one of source of maqa>shid al-shari>’ah. Several of modern scholars has been supporting tradisionalist idea, the revelation is only main soure of maqashid sharia. For instance, Ramadhan al-Buthi in his works, Dhawa>bith al-Mas}lahah, had criticized some scholars whom argued the ratio can be used for main source.
According to Felicitas Opwis, the background of education, cultur, social, and politic scholars has more influential for their thought. The most of scholars that agreed with the ratio as one of main source are originated from the modern education and they directly encountered modern issues and global challenge. One of them was Jamaluddin al-Qasimi. Meanwhile, they had refused the ratio was mostly origanted from the traditional education and did not deal directly with modern issues. Indeed, most of them lived in midle east and islamic states.
Thirdly, the tradisionalist did not yet appreciate social science, philosophy, and others to improve maqashid syari’ah theory. Besides, the modernist has began to adopt these knowledge to improve maqashid syariah. Jasser Auda was a scholars that developed this idea. He explained it in his books, Maqashid Syari’ah as Philosophy of Islamic Law. This book showed how did Jasser effort hard to integrate the methodology of islamic law with philosophy system. Humaniora science takes the most important role to improve methodology of islamic law. In modern era, we can not only use ushul fiqh to make a decition and an instruction (fatwa). We need others perspective, like social science, politic, philosopy, phsycology, and so forth, to strengthen basis of Islamic law methodology. For example, a jurist can not make decition related to politic law before understand well about political science and he might integrate this knowlodge with theory of Islamic law.
The purpose of maqashid shari’a theory is to make islamic law always relevant for each time and place and compatible with modern era. Essentially, Islamic law is dynamic, flexible, facilitated, and judicial. This is the highest value in Islamic law which has to be mainteined. Some of scholars called this as philosopy of islamic law. Ibn Qayyim Said If he found an opinion which related to shari’a, but it was contrast with the principle of shari’a, so the opinion could not be claimed on the name of shari’a.





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