Tenets of Islamic law (Maqasid al-Shari'ah)

Maqasid al-Shari’ah may be stated simply as the higher objectives of the rules of the Shari’ah,
the observance of which, facilitate the normal functioning of society by enhancing the public
good (maslaha), this implies avoiding actions likely to harm to individuals and society. The
intent, objective and purpose is simply to achieve social and economic justice as well as
enhancing the welfare of the community.

Maqasid literally means intent, objective and purpose with a desire to create harmony with
others; this relates to welfare, interest, or benefit. The vital part of the Maqasid’s objective is
preserving public good (maslaha), whereby it looks at the public good and welfare of society
as a whole in relation to the consequences of the intentions and actions of individuals. Thus,
Maqasid can also be considered as the wisdom and knowledge behind governing rules.

Shari’ah, literally translated means “the way”. The Shari’ah is a broad term for Islamic law in
the sense of principles and rulings, and represents the way to the one God (referred to as Allah
by Muslims, the Creator and Sustainer of the Universe) and purity. The overarching goal of the
Shari’ah is to establish justice.

While the Shari’ah applies to Muslims it provides guidance that regulates lives for the benefit
of mankind; it forbids all that is harmful to human being, society and the environment, and
permits all that is useful and beneficial to human beings, society and the environment. In the
broadest terms it has comprehensively tackled every aspect of human activity and provided the
rules with the greatest concern for public good.

The goal of Maqasid al-Shari’ah

Maqasid al-Shari`ah, or the goals and objectives of Islamic law, is an evidently important and
yet somewhat neglected theme of the Shari’ah. Generally the Shari`ah is predicated on the
benefits of the individual and that of the community, and its laws are designed so as to protect
these benefits and facilitate improvement and perfection of the conditions of human life on
earth. The Qur’an is expressive of this when it singles out the most important purpose of the
Prophethood of Muhammad (peace be on him) in such terms as:

"We have not sent you but a mercy to the world" (21: 107).

This can also be seen perhaps in the Qur’an’s characterization of itself in that it is:

"A healing to the (spiritual) ailment of the hearts, guidance and mercy for the believers" (and
mankind) (10: 57).

The two uppermost objectives of compassion (rahmah) and guidance (huda) in the foregoing
verses are then substantiated by other provisions, in the Qur’an and the Sunnah that seek to
establish justice, eliminate prejudice, and alleviate hardship. The laws of the Qur’an and the
Sunnah also seek to promote cooperation and mutual support within the family and the society
at large. Justice itself is a manifestation of God’s mercy as well as an objective of the Shari’ah

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in its own right. Compassion (rahmah) is manifested in the realisation of benefit (maslahah)
which the ‘Ulamâ’ have generally considered to be the all-pervasive value and objective of the
Sharî’ah and is to all intents and purposes synonymous with rahmah.

Classification Of Benefits

The ‘ulama’ have classified the entire range of masalih-cum-maqasid into three categories in a
descending order of importance, beginning with the essential masâlih, or daruriyyat, followed
by the complementary benefits, or hajiyyat, and then the embellishment tahsiniyyat. The
essential interests are enumerated at five, namely faith, life, lineage, intellect and property.
These are, by definition, essential to normal order in society as well as to the survival and
spiritual well being of individuals, so much so that their destruction and collapse will
precipitate chaos and collapse of normal order in society. The Shari’ah seeks to protect and
promote these values and validates measures for their preservation and advancement. Jihad has
thus been validated in order to protect religion, and so is just retaliation (qisas) which is
designed to protect life. The Shari’ah takes affirmative and also punitive measures to protect
and promote these values. Theft, adultery and wine-drinking are punishable offences as they
pose a threat to the protection of private property, the well-being of the family, and the
integrity of human intellect respectively. In an affirmative sense again, but at a different level,
the Shari’ah encourages work and trading activity in order to enable the individual to earn a
living, and it takes elaborate measures to ensure the smooth flow of commercial transactions in
the market-place. The family laws of the Shari’ah are likewise an embodiment largely of
guidelines and measures that seek to make the family a safe refuge for all of its members. The
Shari’ah also encourages pursuit of knowledge and education to ensure the intellectual well-
being of the people and the advancement of arts and civilisation. The essential masalih, in
other words, constitute an all-encompassing theme of the Shari’ah as all of its laws are in one
way or another related to the protection of these benefits. These benefits are an embodiment, in
the meantime, of the primary and overriding objectives of the Shari’ah.

Presumption of Continuity( Istishab)

It is derived from an Arabic word suhbah meaning accompany. It is one of the fundamental
principles of the legal deduction that presumes the continuation of a fact. It is based on
probability and can be applied in the absence of other proofs.

Istishab, an initiative of ash-Shafii, is the rationalistic principle of extracting a legal solution

according to which changes are not considered to occur until clear signs of these changes are
apparent. It serves as the basis for many legal rulings such as the presumption of innocence -
the person is regarded as innocent unless proven guilty. Malik ibn Anas and ash-Shafii
regarded it to be a proof until it is contradicted. Several classical jurists differed over this
principle with some Hanafi jurists refusing to regard it as an evidence. It is now widely
employed by the contemporaries scholars with the exception of Hanbali scholars

Istishab means the belief that the past or present matter must be assumed to remain as it is in
the present or future.

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Istishab refers to the process of deducing law by linking a later set of circumstances with an
earlier set. It is based on the presumption that the laws applicable to certain conditions remain
valid so long as it is not these conditions have altered.

It is the continuity of a legally established fact until the contrary is established.

In other words; it is the presumption in the laws of the evidence that a state of affairs known to
exist in the past continues to exist until the contrary is proved.

Example of Istishab is that a person is presumed innocent until the guilt is established.

Another example is that a debt is presumed to subsist until its discharge is evidenced.

A marriage is presumed to exist until its dissolution becomes known.

Types

Istishab is divided into several types. The majority of the scholars agree upon three types.

 Presumption of the original absence

It is the absence of any Shariah norms on an adult Muslim, until their legitimacy is established.
An example is the absence of the mandatory sixth prayer for a Muslim, the resumption of the
person's innocence in a crime, etc. Islamic theologians are unanimous regarding the validity of
this type.

 Basis in everyday life is permissiveness

The overwhelming majority of jurists believe that the basis in useful everyday things is
permissiveness and in harmful things is prohibition. For example, a certain type of food is
allowed until a Sharia argument is established, proving its prohibition.

 Presumption of existence before evidence is available

If there are Sharia texts with respect to any norm, backed up by the Istishab, then statements
about the abolition of this rule will not be accepted until they are backed up by evidence. An
example is the continued ownership of property rights. The application to terminate property
will not be accepted until evidence is submitted supporting these statements. Another example
is the validity of the ablution, which will not invalidate on the mere basis of doubt.

Blocking the means to evil (Sadd al-dharā’i‘)

Dharai is the plural of Dhariah which signify means. Sadd means to block. In Usul, it
means blocking the means to evil. Sadd al Dharai is often used when a lawful means is
expected to produce an unlawful result.

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 Dharai have been divided into the following four types from the point of view of their
probability of leading to evil ends:

a) Means which definitely lead to evil. Such means are totally forbidden.
b) Means which are most likely to lead to evil and rarely leads to benefit. Examples
of this are selling weapons during war time and selling grapes to a wine-maker. Most
Ulama have invalidated such means.
c) Means which frequently lead to evil, but there is no certainty or even dominant
probability. Ulama differ widely on the illegality of such means.
d) Means which rarely lead to evil. Examples are digging well in a place which is
not likely to cause harm or speaking a word of truth to a tyrannical ruler. Ulama have
ruled in favor of permissibility of these means.

Sadd al-Dharai should not be used too much, particularly in the 3 rd category stated above.
Such use would render the "mubah" (lawful) and the Mandub (recommended) unlawful which
cannot be accepted.

The principle of Sadd al-Dhara’i’ applies in cases where: a lawful means is expected to lead to
unlawful result or that a lawful means which normally leads to lawful results is used to procure
an unlawful end.

Examples:
The use of the name Allah by non Muslims to refer to their god. The act (the use of the name
Allah) is lawful but may lead to evil What is the evil?
Allah says: ‘And let them not strike [stamp] their [women] feet [on the ground] so as to make
kn own what they conceal of their adornments’ [al- Nur: 31].

The expected result of a woman striking her feet on the ground while adorning herself with
something [anklets as was done in the Jahiliyyah days] that will cause eyes of foreign men to
turn is prohibited since this will most certainly lead to fitnah.
In addition, women are also forbidden to wear perfume outdoors in case foreign men are
enticed by their fragrance.
Hadith narrated by al-Bukhaari (1729) and Muslim (2391) from Ibn ‘Abbaas (may Allaah be
pleased with him) who said: The Prophet (peace and blessings of Allaah be upon him) said:
“No woman should travel except with a mahram, and no man should enter upon her unless a
mahram of hers is present.” A man said: “O Messenger of Allah, I want to go out with such
and such an army and my wife wants to go for Hajj.” He said: “Go out (for Hajj) with her.”

Urf (Local Custom)

Urf or local custom was accepted as a source of Islamic law in matters which are not directly
regulated by Quran or Sunnah provided that the custom at issue is predominant among people
and is not in conflict with principle of shariah.

Types of ‘Urf

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‘Urf is divided into several categories and subcategories.

The first two categories are the general divisions which cover all other subcategories:

1. Approved or Valid Custom (al-‘urf al-sahih)

“One which is observed by the people at large without there being any indication in
the Shari’ah that it contravenes any of its principles.”
2. Disapproved Custom (al-‘urf al-fasid)
“Also practiced by the people but there is evidence to show that it is repugnant to the
principles of Shari’ah.”

The approved custom category above is divided into two types:

1. Verbal (qawli)
“Consists of the general agreement of the people on the usage and meaning of words
deployed for purposes other than their literal meaning. As a result…the customary
meaning tends to become dominant…the original or literal meaning is reduced to the
status of an exception.” Examples of this are the words salah, zakah, hajj, etc. They
are understood based on their custom meanings and not their literal meanings.
2. Actual (fi’li)
“Consists of commonly recurrent practices that are accepted by the people.”

The two categories above are each subdivided into two types:

1. General ‘Urf (al-‘urf al-‘aam)

“One which is prevalent everywhere and on which the people agree regardless of the
passage of time.”
2. Special ‘Urf (al-‘urf al-khaas)
“ It is prevalent in a particular locality, profession or trade…it is not a requirement…
that it be accepted by people everywhere.”

Conditions of Valid ‘Urf

Mohammad Hashim Kamali lists four requirements for a valid form of ‘Urf from which
Islamic law may be derived:

1. Custom must be a common and recurrent occurrence. It must be dominant to the point
that it is upheld in most of the cases to which it applies, otherwise, it does not hold any
authority. Also, the practice of a few people in a large community is not sufficient;
rather, it must be a regular occurrence among the masses.
2. In contracts and commercial transactions, custom must still be in existence at the time
of the conclusion of the transaction.
3. Custom must not violate a clear stipulation of an agreement. Contractual agreements
take preference over custom. Latter will only be resorted to in absence of the former.

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4. Custom must not go against the definitive principles (nass) of Islamic law. If it does
so, custom will be given no consideration. In case “the custom opposes only certain
aspects of the text, then custom is allowed to act as a limiting factor on the text.”

An example of Urf – is seen in the amount of dower (Mahr) a Muslim gives to his wife
during marriage (Nikah). Shariah has made payment of mahr to the wife by the husband as
requisite for the validity of marriage. Allah says: “And give to the women (who you marry)
their dower with a good heart”. (4:4). However, no fixed amount has been determined by
both the Qur’an and Sunnah. It is therefore the custom prevailing in the certain tribe, area
or family which should determine it.