The aim of ijtihad
was to discover the purpose of the lawgiver in order to reach a hukm shar’i.
Ijtihad in the closed part of the Law is referred to the nass. Ijtihad
in the open or flexible part of the law is referred to the maqasid. The law was revealed to fulfill specific underlying
purposes and for the benefit and in the interests of humans. Without the Law humans cannot use their reasoning to discover
their true interests and establish the equilibrium between mafasid and masalih since these are relative and
not absolute. The maqasid are permanent, consistent, derived form the nass by induction
and are therefore definitive. They ensure that the Law is unchanged or violated. They deal with whole and not the parts.
The purposes of
the Law-giver, maqasid al shariu, must
in ideal situations correspond with the purposes of the individual, maqasid
al mukallaf. Maqasid al shar’iu can be primary or secondary. The primary maqasid can be private or
public; they can relate to rights of Allah or rights of humans.
to 14th centuries witnessed relatively little change in the ummah in the physical sense. However in the
15th century, technological changes have created new and complex problems that require a bird's eye view for solution.
It is the maqasid that can provide this bird's eye view and thus lead to appropriate
PURPOSES OF THE LAW GIVER, maqasid al shariu ibtida'an
The primary purposes
of the lawgiver are necessities, dharuraat;
needs, hajiyat; refinements, tahsinaat; and complementaries, mukammilaat. Dharuraat ensure human interests on earth and in heaven. Normal human life is impossible without
them. Haajiyat allow proper functioning of life relieving difficulties arise in implementing dharuraat. Tahsinaat assure human dignity and makarim al akhlaq. Mukammilaat
are complementary purposes.
The 5 necessities
that are generally referred to as maqasid al shariat arranged here in order of
importance are: religion, diin; life, nafs,
the mind, 'aql; progeny, nasl; and property,
maal. They are permanent and are unchangeable.
Hifdh al din is ‘aqidat, ‘ibadat
and supporting functions of ‘aadaat, munakahaat, and mu’amalat. Laws that forbid spread of evil
ideas and practices also protect the religion. Hifdh al nafs is protection of the body from harm and involves ‘aadaat,
muamalaat, and jinayat and could take the forms of quarantines and isolation in epidemics, qisas, and liability for medical negligence. Hifdh al nasl is assured by marriage, child-birth within the
marital bond, and proper child upbringing. Hifdh al ‘aql is assured by normal psychosocial relations as well
as prohibition of alcohol and drugs. Hifdh al mal is assured by property rights and prohibition of stealing and embezzlement.
PURPOSES OF THE LAW GIVER, maqasid al shariu al taabi'at
purposes of the law giver relate to interpretation and clarification of the Law, injunctions as they relate to performance
capacity in normal and difficult circumstances, and compliance with the Law,
OF THE HUMAN, maqasid al mukallaf
Purposes of the
human refer to intentions, validity of acts, the effort to comply, interests, rights and obligations. Acts are judged by the
intention behind them. The intention of the human must correspond to the intention of the law-giver. Human and divine intentions
may correspond by design or by chance. A human may intend a bad act that turns out to be good. Validity of human acts is judged
solely by their conformity to the purposes of the law-giver. An act contrary to the intention of the law giver is still invalid
even if the intention was good. The human is rewarded for the effort to comply even if the effort is not perfect or the aim
is not reached. Fulfilling the purposes of the law-giver assures satisfaction of human interests, masalih; there is
no real contradiction between maqasid and masalih. The human is free to give up his rights but cannot give up
or pardon situations that involve Allah’s rights. Legal tricks, hiyal, defeat the purpose of the Law.
There are rules
for resolving conflicts between and among various maqasid. The dharurat have priority over the hajiyaat
which in turn have priority over tahsinaat. Among the dharurat, the stronger purpose prevails; the order of
strength being diin, nafs, nasl, aql, and maal. Public interest
has priority over private interest. The definitive, qatai, has priority over the probable, dhanni. Rights of
Allah have priority over rights of the humans. The maqasid are the basis for siyash shar'iyat. It is siyasah
‘adilat if it relies on the mujtahid. It is siyasah dhaalimah if it does not follow the Law. The maqasid
define clear objectives for the community and allow it to grow as a living balanced organism. The economic system must follow
the priorities of the maqasid.