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Written by Louay Safi   
Feb 20, 2004 at 07:00 PM
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The Creative Mission of Muslim Minorities in the West
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Ijtihad took a decisive turn when Muhammad bin Idris al-Shafi‘i declared that the Sunna was an inviolable source of law on par with the Qur’an, and insisted that it enjoyed an independent authority.[3]  Shafi‘i confined ijtihad to legal analogy (qiyas), declaring all other legal reasoning to be arbitrary.[4]  The restrictions on ijtihad were further extended by Ahmad bin Hanbal, who insisted that legal analogy has to be used only as a last resort.  He therefore required that even a weak hadith has to be given priority over legal analogy.[5] The other two major schools of jurisprudence of the Sunni branch of Islam,[6] the Hanafi and Maliki, were able to escape the severe restrictions on ijtihad imposed by Shafi‘i and Hanbali schools by employing the techniques of istihsan and istislah respectively.  Istihsan meant that the jurist was not bound by the apparent reason of a particular rule, but could utilize other reasons of shari`a whenever deemed more relevant.  Istislah, on the other hand, allowed the jurist to base the rules of shari`a on public interests and utility, rather than confining them to ‘illah (efficient reason).

The desire of Hanafi and Maliki jurists to overcome the literalist approach that equates ijtihad with qias (à la shafi`i), or with linguistic explication of the Qur’an by reference to hadith (à la Hanbali), has inspired them to develop methods aimed at prioritizing shari‘ah rules and principles.  Methods such as al-qaw‘`id al-fiqhiyyah (juristic rules) or al-maqasid al-shari‘iyyah (shari‘ah purposes) aim at the systematization of the shari`a rules by eliminating internal contradiction, and constitute what is referred to today as maqasid approach.

By its emphasis on meaning, reasoning, and purposes the maqasid approach provide a powerful tool for reforming historical shari`a, because it rejects the literal reading of statements apart from their rationale, and insist that those rationale cannot contradict basic Islamic values.  The definitive exposition of this approach can be found in the work of the Andalusian jurist Ibrahim bin Ishaq al-Shatibi, Al-Muwafaqat. The maqasid approach expounded by Shatibi can be summarized in the following points:  (1) Shari`a rules purport to promote human interests; (2) Shari`a consists of a hierarchy of rules, whereby the particular rules (ahkam juz’iyyah) are subsumed under universal laws (qwanin kulliyyah); (3) General rules must be modified to accommodate – whenever possible – particular rules; (4) Particular rules that contradict general rules should be rejected or ignored; (5) The various rules and laws of shari`a aim at advancing five general purposes: the protection of Religion, life, reason, property, and progeny.


The Purpose of Shari’ah

As classical Muslim jurists (fuqaha) continued throughout the early centuries of Islam to explore the meaning and rationale of various rules of shari’ah, they discovered by the forth century that shari’ah consists of different fiqhi rules that aim at protecting and promoting individual and collective human life. Classical Islamic jurists identified five main purposes of shari’ah: protection of religion, life, property, intellect, and progeny.  The purposes of shari’ah ultimately boils to developing a normative order capable of enhancing human life and advancing the human condition.

The Qur’an presents its message as to provide guidance to humanity to criteria so that right (haq) may be distinguished from wrong (bati1). By adhering to the rules of law, the Muslims would develop a society superior in its moral as well as material quality to societies which fail to observe the revealed will of God. Shari’ ah, as a comprehensive moral and legal system, aspires to inform different aspects of human behavior to produce conformity with divine law. Adhering to the rules and principles of shari‘ah not only causes the individual to draw closer to God, the Qur’an stresses, but also facilitates the development of a just society in which the individual may be able to realize his or her potential, and whereby prosperity is ensured to all. Islamic Law (shari‘ah) is closely intertwined with religion, and both are considered expressions of God’s will and justice, but whereas the aim of religion is to define and determine goals (justice or others) the function of law is to indicate the path (the term Shari’ah indeed bears this meaning) by virtue of which God’s justice and other goals are realized.[7]

Two Notions of Law:
Legal Regulations in Islamic Tradition and Modern Society

Modern society is the result of a systematic restructuring and reordering of society in accordance with a set of core values that define modern life. Max Weber (1864-1920), the eminent German sociologist, called this process rationalization. Although he admired this process, Weber was disturbed by its tendency to shrink the area of individual liberty and thereby cause a progressive loss of freedom. This loss, he observed, is the outcome of rationalization, which takes the form of bureaucratic control. Although he considered bureaucracy to be the cornerstone of capitalist civilization and claimed that it brought a superior form of organization to society, he noted that it simultaneously transforms society into an enormous human machine in which everyone has to fit into a socially predetermined niche and perform a socially pre-designed role. Clearly, this mechanical environment engenders a tremendously increased efficiency but also undermines individual freedom and turns society into an “iron cage.”


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