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Lecture by Professor Omar Hasan Kasule for Year 3 medical students at the Kulliyah of Medicine UIA Kuantan on Saturday 20th July 2007
INTRODUCTION
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.
The 1st 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 solutions.
PRIMARY 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.
SECONDARY PURPOSES OF THE LAW GIVER, maqasid al shariu al taabi'at
The secondary 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,
PURPOSES 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.
APPLICATIONS
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.