The Importance of Maqasid Al-Shariah in Islamic Finance – a Short Essay by Nadifa Abdulhalim Mohamed
The Global University of Islamic Finance CERTIFIED ISLAMIC FINANCE PROFESSIONAL (CIFP) Part One SHARIAH ASPECTS OF BUSINESS AND FINANCE Assignment Topic The importance of Maqasid al-Shariah in Islamic Finance June 2012 Semester Lecturers: Dr.Yong Bao Wang Dr.Ahcene Lahsasna Student Name: Nadifa Abdulhalim Mohamed Student ID: 1200331 Abstract Maqasid Al-Shariah is one of the very important aspects in Islamic jurisprudence.
Maqasid Al-Shariah is taking a crucial position in Ijtihad in order to process a valid examination of the text and provide intact interpretation to achieve the Islamic ruling.
The aim behind that is to comprehend the Shariah in all aspects. The primary objective of Maqasid al-Shariah is the realization of benefit to the people, connecting their affairs both in this world and hereafter. It generally held that the Shariah in all of its parts aims at securing a benefit for the people or protecting them against corruption and evil. The aim of this paper is to elaborate the importance Maqasid al-Shariah in Islamic finance. The study found that Maqasid al-Shariah is the most important Shariah aspect in Islamic finance because protection of wealth is one of the five major elements of Maqasid l-Shariah. Objectives of the research: ____________________________________________ • Definition of Maqasid Al-Shariah. • Identification of the importance of Maqasid Al-Shariah in Islamic finance. • Classification of Maqasid Al-Shariah Key terms of the research: 1. Qur’an 2. Sunnah 3. Maqasid Al-Shariah 4. Islamic finance 5. Islamic law 6. Fiqh 7. Usulfiqh TABLE OF CONTENTS TOPIC PAGE NUMBER [pic] 1. Abstract…………………………………………………………………………………. 1 2. Objectives of the research…………………………………………………………….. 3. Introduction…………………………………………………………………………4 1. 1 History and background………………………………………………………….. 4 2. Identification of Maqasid Al-Shariah………………………………………………8 3. Definition of Maqasid Al-Shariah…………………………………………………11 4. Objectives of Maqasid Al-Shariah………………………………………………… 13 5. Classification of Maqasid Shariah……………………………………………….. 15 5. Essential (Al-daruriyat)……………………………………………………………. 16 6. Complementary (Al-hajiyat)………….. …………………………………………19 7. Embellishments (Al-Tahsiniyat)…………………………………………………19 8.
Maqasid Al-Shariah in Islamic Finance……………………………………………19 9. Advantages of Shariah compliance……………………………………………….. 24 10. Conclusion…………………………………………………………………………25 11. References…………………………………………………………………………. 26 1. Introduction The linguistic meaning of the word Maqasid is as follows: Maqasid is the plural of the word Maqsad and comes from the verbal root qa-sa-da which has several meanings, some of which are: ‘to intend,’ ‘to take a middle course’ and ‘to walk towards. ’ From this root comes the noun, Qasd which means ‘a goal,’ ‘an aim,’ or ‘an aspiration. The second part of the title is the word Shari’ah, which is a noun meaning ‘a path to a water hole,’ and in its more common usage, ‘the law of God as revealed to Muhammad. ’ Together, the term Maqasid al-Shari’ah carries the meaning, based on its constituent parts, of the ‘goals and objectives which are the reason for the legislation of the rules of Islam’ or more simply, ‘The Objectives of Islamic Law’ The Maqasid theory is based on an inductive reading of the Quran in order to identify the higher objectives, intent, and purpose of the divine laws, which are intended to preserve human interests in both this world and the next.
This theory asserts that no commandment of God is intended to cause harm for its own sake, although some actions may require struggle and hardship. All legal rulings are intended to achieve ‘balance’ and ‘moderation’ by steering Muslims toward a middle course between various types of extremes. Also it gives consideration for outcomes or consequences. He explains that part of the objective-oriented approach is considering the outcomes of actions, in accordance with the Sunnah of the Prophet who would consider outcomes and consequences before passing judgment or taking action. 1. History and background As a theme of the Shari’ah in its own right, the maqasid did not receive much attention in the early stages of the development of Islamic legal thought and, as such, they represent rather a later addition to the juristic legacy of the madhahib. Even to this day many a reputable textbook on Usul al-Fiqh does not mention maqasid al-Shari’ah in their usual coverage of familiar topics. This is partly due perhaps to the nature of the subject, which is largely concerned with the philosophy of the law, its outlook and objective, rather than the specific formulations of its text.
Although the maqasid as a distinctive theme of the Shari’ah are obviously relevant to ijtihad, they have not been treated as such in the conventional expositions of the theory of ijtihad. Islamic legal thought is, broadly speaking, preoccupied with concerns over conformity to the letter of the divine text, and the legal theory of Usul al-Fiqh has advanced that purpose to a large extent. This literalist orientation of the juristic thought was generally more pronounced in the approach of the tendency – the traditionist – the Ahl al-Hadith – than that of the Rationalists – the Ahl al-Ray.
The literalists thus tended to view the Shari’ah as a set of rules, commands and prohibitions that were addressed to the competent individual mukallaf and all that the latter was expected to conform to its directives. The precedent of the leading Companions indicated, on the other hand, that they saw the Shari’ah both as a set of rules and a value system in which the specific rules were seen as tangible manifestations of the overriding values. The textualist tradition of the first three centuries did not take much interest in maqasid al-Shari’ah and it was not until the time of al-Ghazali (d. 05/1111) and then al-Shatibi (d. 790/1388) that significant developments were made in the formulation of the theory of maqasid. The basic outlook that was advocated by the theory of the maqasid was not denied by the leading schools, yet the maqasid remained on the fringes of the mainstream juristic thought that was manifested in the various themes and doctrines of Usul al-Fiqh. Except for the Zahiris who maintained that the maqasid are only known when they are identified and declared by the clear text, the majority of ‘ulama’ did not confine the maqasid to the clear text alone.
For they perceived and understood the Shari’ah to be rational, goal-oriented and its rules generally founded on identifiable causes. A mere conformity to rules that went against the purpose and outlook of the Shari’ah was. , therefore, generally considered unacceptable. A totally different approach to the maqasid was taken by the Batiniyyah who held, contrary to the Zahiris, that the essence and objective of the nusus were always to be found, not in the explicit words of the text, but in its hidden meaning (i. . batin), hence their name, the Batiniyyah. There were also differences of orientation among the leading madhahib toward the maqasid: some were more open to it than others, but elaboration into the goals and objectives of the Shari’ah was generally not encouraged. This rather unspoken attitude contrasted with the fact that the Qur’an itself exhibits considerable awareness of the underlying purposes and objectives of its laws and often expounds the causes and rationale on which they are founded.
The general reticence of the ‘ulama’ in respect of the identification of the maqasid might have partly been due to the elements of projection and prognostication that such an exercise was likely to involve. Who can tell, for sure, for example, that this or that is the purpose and overriding objective of the Lawgiver, without engaging in a degree of speculation, unless of course, the text itself declared it so. But then to confine the scope of the maqasid only to the clear declaration of the texts was also not enough, as I shall presently elaborate. It was not until the early fourth century that the term ‘maqasid’ was used in. he juristic writings of Abu ‘Abd Allah al-Tirmidhi al-Hakim (d. 320/932) and recurrent references to it appeared in the works of lmam al-Haramayn al-Juwayni (d. 478/1085) who was probably the first to classify themaqasid al-Shari’ah into the three categories of essential, complementary and desirable (daruriyyat, hajiyyat, tahsiniyyat)which has gained general acceptance ever since. Juwayni’s ideas were then developed further by his pupil, Abu Hamid al-Ghazali who wrote at length on public interest (maslahah)and ratiocination (ta’lil)in his works, Shifa’ al-Ghalil and al-Mustasfa.
Ghazali was generally critical of maslahah as a proof but validated it if it promoted the maqasid of the Shari’ah. As for the maqasid themselves, Ghazali wrote categorically that the Shari’ah pursued five objectives, namely those of faith, life, intellect, lineage and property which were to be protected as a matter of absolute priority. A number of prominent writers continued to contribute to the maqasid, not all of them consistently perhaps, yet important to the development of ideas. Sayf al-Din al-Amidi (d. 31/1233) identified the maqasid as criteria of preference al-tarjih among conflicting analogies and elaborated on an internal order of priorities among the various classes of maqasid. Amidi also confined the essential maqasid to only five. The Maliki jurist, Shihab al-Din al-Qarafi (d. 684/1285) added a sixth to the existing list, namely the protection of honour (al-‘ird)and this was endorsed by Taj al-Din ‘Abd al-Wahhab ibn al-Subki (d. 771/1370) and later by Muhammad ibn ‘Ali al-Shawkani (d. 1250/1834).
The list of five essential values was evidently based on a reading of the relevant parts of the Qur’an and the Sunnah on the prescribed penalties (hudud). The value that each of these penalties sought to vindicate and defend was consequently identified as an essential value. The latest addition (i. e. al-‘ird) was initially thought to have been covered under lineage (al-nasl, also al-nasab), but the proponents of this addition relied on the fact that the Shari’ah had enacted a separate hadd punishment for slanderous accusation (al-qadhf), which justified the addition. ‘Izz al-Din ‘Abd al-Salam al-Sulami’s (d. 60/1262) renowned work, Qawa’id al-Ahkam, was in his own characterisation a work on ‘maqasid al-ahkam’ and addressed the various aspects of the maqasid especially in relationship to ‘illah (effective cause) and maslahah (public interest) in greater detail. Thus he wrote at the outset of his work that “the greatest of all the objectives of the Qur’an is to facilitate benefits (masalih) and the means that secure them and that the realisation of benefit also included the prevention of evil. ” Sulami added that all the obligations of the Shari’ah (al-takalif) were predicated on securing benefits for the people in this world and the next.
For God Most High is Himself in no need of benefit nor is He in need of the obedience of His servants. He is above all this and cannot be harmed by the disobedience of transgressors, nor benefit from the obedience of the righteous. The Shari’ah is, in other words, concerned, from the beginning to the end, with the benefits of God’s creatures. Taqi al-Din ibn Taymiyyah (d. 728/1328) was probably the first scholar to depart from the notion of confining the maqasid to a specific number and added, to the existing list of the maqasid, such things as fulfilment of contracts, preservation of the ties of kinship, honouring the rights of ne’s neighbour, in so far as the affairs of this world are concerned, and the love of God, sincerity, trustworthiness, and moral purity, in relationship to the hereafter. Ibn Taymiyyah thus revised the scope of the maqasid from a designated and specified list into an open-ended list of values, and his approach is now generally accepted by contemporary commentators, including Ahmad al-Raysuni, Yusuf al-Qardawi and others. Qardawi has further extended the list of the maqasid to include social welfare and support (al-takaful), freedom, human dignity and human fraternity, among the higher objectives and Maqasid of the Shari’ah.
These are undoubtedly upheld by both the detailed and the general weight of evidence in the Qur’an and the Sunnah. 2. Identification of Maqasid As already indicated the ‘ulama’ have differed in their approach to the identification of the maqasid. The first approach to be noted is the textualist approach, which confines the identification of the maqasid to the clear text, commands and prohibitions, which are the carriers of the maqasid. The maqasid, according to this view, have no separate existence outside this framework.
Provided that a command is explicit and normative it conveys the objective maqsud of the Lawgiver in the affirmative sense. Prohibitions are indicative of the maqasid in the negative sense in that the purpose of a prohibitive injunction is to suppress and avert the evil that the text in question has contemplated. This is generally accepted, but there are certain tendencies within this general framework. While the Zahiris tend to confine the maqasid to the obvious text, the majority of jurists takes into consideration both the text and the underlying ‘illah and rationale of the text.
The chief exponent of the maqasid, Shatibi, has spoken affirmatively of the need to observe and respect the explicit injunctions, but then he added that adherence to the obvious text should not be so rigid as to alienate the rationale and purpose of the text from its words and sentences. Rigidity of this kind, Shatibi added, was itself contrary to the objective (maqsud)of the Lawgiver, just as would be the case with regard to neglecting the clear tent itself.
When the text, whether a command or a prohibition, is read in conjunction with its objective and rationale, this is a firm approach, one which bears greater harmony with the intention of the Lawgiver. Shatibi elaborated that the maqasid that are known from a comprehensive reading of the text are of two types, primary (asliyyah)and secondary (tab’iyyah). The former are the essential maqasid or daruriyyat which the mukallaf must observe and protect regardless of personal predilections, whereas the supplementary maqasid -hajiyyat- are those which leave the mukallaf with some flexibility and choice
A comprehensive reading of the textual injunctions of the Shari’ah has given rise to such questions as to whether the means to a wajib or haram should also be seen as a part of the objective that is pursued by that injunction; whether the means to a command, in other words, is also an integral part of that command. Another question raised is whether avoiding the opposite of a command is integral to the goal and objective that is sought by that command.
The general response given to these questions is that the supplementary aspects of commands and prohibitions are an integral part of their objectives, although disagreements have emerged over details. There is a general agreement that the opposite of a command amounts to a prohibition in the event where that opposite can be clearly identified. Most of the injunctions of the Shari’ah are easily understood, and their objectives as well as their opposites can be known and ascertained from the reading of the clear text. It is thus noted that whatever might be necessary for the carrying out of a command or a wajib is also a part of that wajib.
Shatibi has similarly concluded that whatever is complementary to the maqasid and in the service thereof is also a part of the maqasid. The question then arises regarding the silence of the Lawgiver in respect of a certain conduct in situations especially where a general reading of the relevant evidence sheds light on the value of that conduct. The question may be put as follows: We know that the maqasid are known from clear injunctions, but can they also be known from a general reading of the nusus by way of induction?
This is where Shatibi has given an original response. Induction (istiqra’) to Shatibi is one of the most important methods of identifying the maqasid of the Shari’ah. There may be various textual references to a subject, none of which may be in the nature of a decisive injunction. Yet their collective weight is such that it leaves little doubt as to the meaning that is obtained from them. A decisive conclusion may, in other words, be arrived at from a plurality of speculative expressions.
Shatibi illustrates this by saying that nowhere in the Qur’an is there a specific declaration to the effect that the Shari’ah has been enacted for the benefit of the people. Yet this is a definitive conclusion which is drawn from the collective reading of a variety of textual proclamations. Shatibi then adds that the benefits (masalih) are to be understood in their broadest sense which is inclusive of ail benefits pertaining to this world and the hereafter, those of the individual and the community, material, moral and spiritual, and those which pertain to the present as well as the interests of the future generations.
This broad meaning of benefits also includes prevention and elimination of harm. These benefits cannot always be verified and ascertained by human reason alone without the aid and guidance of divine revelation. The typical classification of the maqasid into the three categories of essential,-complementary and desirable, and the conclusion that the Lawgiver has intended to protect these are based, once again, on induction-as there is no specific declaration on them in the textual sources.
On a similar note, the ruling of the Shari’ah that the validity of an act of devotion (‘ibadah) can not be established by means of ijtihad is an inductive conclusion which is drawn from the detailed evidence on the subject, as there is no specific injunction in the sources to that effect. These conclusions are, in the meantime, of great overall importance; they are not open to doubt, nor is their credibility a matter of speculative reasoning.
It is also the same inductive method which has led the ‘ulama’ to the conclusion that the protection of the five values of faith, life, intellect, property and lineage is of primary importance to the Shari’ah – there being no textual ruling to specify any category or number of values in that order. Shatibi’s inductive method is not confined to the identification of objectives and values but also extends to commands and prohibitions, which may either be obtained from the clear text, or from a collective reading of a number of textual proclamations that may occur in a variety of contexts.
Shatibi then goes a step further to say that the inductive conclusions and positions that are so established are the general premises and overriding objectives of the Shari’ah and thus have a higher order of importance than specific rules. It thus becomes evident that induction is the principal method of reasoning and proof to which Shatibi resorted in his theory of the maqasid and it is also in this regard that he has made an original contribution to this theme.
Shatibi’s approach to induction is reminiscent of the knowledge that is acquired of the personality and character of an individual that is based on sustained association with that individual and observation of his conduct over a period of time. This kind of knowledge is broad and holistic, as it is enriched with insight, and likely to be more reliable when compared to the knowledge that might be based only on the observation of specific, isolated incidents in the daily activities of the individual concerned. 3. Definition of Maqasid al-Shariah
The term is a possessive construction, known in Arabic grammar as an Idafa, by which the meaning, “The Maqasid of the Shari’ah” is conveyed. We shall look at the first component in this construct first. The linguistic meaning of the word Maqasid is as follows: Maqasid is the plural of the word Maqsad and comes from the verbal root qa-sa-da which has several meanings, some of which are: ‘to intend,’ ‘to take a middle course’ and ‘to walk towards. ’ From this root comes the noun, Qasd which means ‘a goal,’ ‘an aim,’ or ‘an aspiration. The second part of the title is the word Shari’ah, which is a noun meaning ‘a path to a water hole,’ and in its more common usage, ‘the law of God as revealed to Muhammad. ’ Together, the term Maqasid al-Shari’ah carries the meaning, based on its constituent parts, of the ‘goals and objectives which are the reason for the legislation of the rules of Islam’ or more simply, ‘The Objectives of Islamic Law’. Technically, many definitions have been given, particularly, by contemporary scholars.
Al Imam Al Shatibi who is the founder of Maqasid al-Shariah in Islamic jurisprudence did not provide a definition for this Islamic discipline. There are two other major definitions of Maqasid al-Shariah provided by two other scholars who came after Al Shatibi. They were behind the development of Maqasid al-Shariah in Islamic jurisprudence. These two definitions are provided by Ibn Ashur defined Maqasid al-Shariah base on two aspects: 1: The general aspect which is the purpose and wisdom behind the enactment of all or most of the Shari’ah ruling.
This definition is more related to the general objective of Shariah and those overall principles that guide the enactment of Islamic law in their totality. 2: The second definition of Maqasid al-Shariah is very specific. It is related to specific objective to those objectives that are designed to achieve specific benefits to people in their daily activities, such as the importance validation of contracts. Alal al-Fasi defined Maqasid Shariah as the end sought behind the enactment of each of the ruling of Shariah and the secret involved.
This definition covers the public Maqasid (ama) and the private Maqasid (khasa). The definition focus on the end sought behind the enactment of each of the rulings of Islamic law, and the secret of these rulings. The secret of the Islamic rulings means the goals intended by Allah in the law. Maqasid al-Shariah aims to protect the interest of mankind and prevent the evil from them, and also realize the public benefit for the society and encourage virtues and avoid vices.
Al-Raysuni (2006) stated that “al Maqasid are the purposes which the Law was established to fulfill for the benefit of humankind”. Therefore the Law is not an end in itself; it serves to attain an objective, a purpose which is the Maslahah (benefit). The word benefit in this context means the achievement of profit or the prevention of harm. Ibn Ashur (2006) maintained that: “This (the knowledge of Maqasid al-Shariah), in fact, ensures the continuity of the rules of the Islamic Shariah throughout the ages and generations following the age of Revelation until the end of the world. It is important to notice that, even though, Maqasid al-Shariah was not known as a discipline in the early generations of Muslims, the scholars were aware of the danger of neglecting the spirit of the law and only sticking to its literal form. The knowledge of the higher objectives of Shariah is to help preserve the essence of the Islamic law. Maqasid Al-Shari’ah is the objectives and the rationale of the Shari’ah .
A comprehensive and careful examination of the Shari’ah rulings entails an understanding that Shari’ah aims at protecting and preserving public interests (Maslahah ) in all aspects of life. Many Shari’ah texts state clearly the reasoning behind certain Shari’ah rulings, suggesting that every ruling in Shari`ah comes with a purpose, which is to benefit the Mukallaf. In-depth comprehension of the objectives of Shari`ah is important for analogical deduction and other human reasoning and its methodology.
Indeed, Maqasid al-Shari’ah allows flexibility, dynamism and creativity in social policy, According to Imam Al-Ghazali definition “The objective of the Shari’ah is to promote the well-being of all mankind, which lies “in safeguarding their faith (din) , their human self (nafs), their intellect (‘aql), their posterity (nasl) and their wealth (mal). Whatever ensures the safeguard of these five serves public interest and is desirable”. 4. Objectives of Shariah (Maqasid Al-Shariah) Maqasid al-Shariah is the objectives and the rationale of the Shariah.
A comprehensive and careful examination of the Shariah rulings entails an understanding that Shariah aims at protecting and preserving public interests (maslahah) in all aspects and segments of life. Many Shariah texts state clearly the reasoning behind certain Shariah rulings, suggesting that every ruling in Shariah comes with a purpose, which is to benefit the mukallaf (accountable person), for example, when Quran prescribes Qisas (retaliation), it speaks of the rationale of it, that applying retaliation prevents further killing as Allaah says in Qoran “There is life for you in Qisas” Surah Baqarah Ayah No 179.
Similarly when Quran prohibits wine it says that wine is the works of devil as it causes quarrel and instills hatred and enmity among Muslims, Allaah said in Qoran “The devil only wants to excite enmity and hatred between you in intoxicants and gambling and hinder you from remembrance of Allah and from prayer”, Surah Ma’idah Ayah No. 91. In depth comprehension of the objectives of Shariah is important for analogical deduction and other human reasoning and its methodology (Kamali, 1999). Indeed, Maqasid al-Shar ’ah allows flexibility, dynamism and creativity in social policy.
According to Imam Al-Ghazali “The objective of the Shariah is to promote the well-being of all mankind, which lies in safeguarding their faith (Din), their human self (Nafs), their intellect (‘Aql), their posterity (Nasl) and their wealth (mal). Whatever ensures the safeguard of these five serves public interest and is desirable. ” Al-Shatibi approves al-Ghazali’s list and sequence, thereby indicating that they are the most preferable in terms of their harmony with the essence of Shariah.
Generally, Shariah is predicated on 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 human lives’ conditions on earth. This perfection corresponds to the purposes of the Hereafter. In other words, each of the worldly purposes (preservation of faith, life, posterity, intellect and wealth) is meant to serve the single religious purpose of the Hereafter. The uppermost objectives of Shariah rest within the concept of compassion and guidance, that seeks to establish justice, eliminate prejudice and alleviate hardship.
It promotes cooperation and mutual supports within the family and society at large. This is manifested in the realization of maslahah (public interest) which the Islamic scholars have generally considered to be the all-pervasive value and objective of the Shariah and is to all intents and purposes synonymous with compassion. Maslahah sometimes connotes the same meaning as Maqasid and the scholars have used the two terms almost interchangeably. To further shed light on our discussion of the objectives f Shariah, especially with regard to their application in the preservation of public interest, the following section elaborates on the principles of Maslahah, serving as an important tool to uphold Shariah. 4. 1Maslahah Maslahah is one of the juristic devices that have always been used in Islamic legal theory to promote public benefit and prevent social evils or corruption. The plural of the Arabic word maslahah is ‘Masalih’ which means welfare, interest or benefit. Literally, Maslahah is defined as seeking the benefit and repelling harm. The words maslahah and manfa`ah are treated as synonyms.
Manfa`ah (benefit or utility), however, is not technical meaning of maslahah. What Muslim jurists mean by maslahah is the seeking of benefit and the repelling of harm as directed by the Lawgiver or Shariah. 4. 2Other General Objectives of Shariah Through studies of the Qoran and Sunnah will reveal that apart from the above objectives of Shariah, there are several other general objectives of Shariah these objectives include: 4. 2. 1Educating the Individual (Tahdhib al-fard) One of the primary objectives of the Shariah is to educate the individuals.
Shariah seeks to educate the individual and inspire them with faith and instill in them the qualities of being trustworthy and righteous, Islam aims to achieve its social goals through reforming the individual All the different aspects of IBADAH involve both mental and physical training, it leads to inner perfection. All punishments mentioned in the shariah was done because the main objective was not only to penalize the person as such, but it is to discipline the criminal and the whole of society to teach them and to prevent such crimes from being committed by others. This is the reason why Qoran has ordered that punishment for those ho commit some crimes must be executed in public so as to create awareness to the society of the implication in committing such crime. 4. 2. 2Upholding of Justice (AL-ADL) Upholding the principle of justice or ADL is another objective of Shariah. It is to establish a balance by the way of fulfilling rights and obligations and by eliminating excess and disparity in all spheres of life. Allah has sent scriptures and messengers in order to establish JUSTICE among people, the Qoranic message of justice is objective, and is not tainted by considering of racial, tribal, national, or religious sentiments.
In dealing with friends of foes, Muslims and non-muslims, Islam orders all must be treated with justice. 5. Classification of Maqasid al-Shariah Two general categories of maqasid al-shariah were recognised: the Purposes of the Allaah the lawgiver, maqasid al-shari’ah, and the Purposes of the human, maqasid al mukallaf. In an ideal situation the purposes of the law-giver conform to the purposes of the human. Humans do not always know what is in their best interest because of personal whims, hiwa al nafs. The good may appear bad and vice versa. Humans may see immediate benefit while ignoring long-term harm.
The Purposes of the Lawgiver are divided into two types: primary and secondary. The primary purposes of the lawgiver, maqasid al-sharia ibtidaa’an, are the most important and are a basis for the secondary purposes. The secondary purposes can be described in three types: the purpose of law as understanding, maqasid al-shariat li al ifhaam; law as injuctions and obligations, maqasid al-shariat li al-takliif; and the law as implementation, maqasid al-shariah li al-imtithaal. This classification shows that the law is not only commands but also has secondary rules that help understand and execute the commands of the primary rules.
The primary purposes of Maqasid al-Shariah are divided in to three levels of priority according to its inner strength and all the Islamic legal ruling refers to realize one of the categories namely:- 1) The necessities or essentials (Daruriyyat). 2) The needs (Hajiyyat). 3) The complementary (Tahsiniyyat). Each of the three have complements, mukammilaat. Each of these three can be divided into private and public purposes. Each of them can also be described in three categories: right of Allah, haqq al-llaah; rights of the human, haqq al-‘abd; rights of the community, and rights of the state, haqq al-sultan.
Wants are not mentioned at all in this scheme because they are based on hiwa al-nafs. 5. 1The Essentials (Al-Daruriyyat) The essentials are the matters on which the religion and worldly affairs of the people depend upon, their neglect will lead disruption and disorder and also evil ending and must be protected whether by the individuals, or the government authorities, the essentials can be further divided into the protection of the five fundamental values (Al-Daruriyyat Al-Khamsah).
These essential five values are:- ? Protection of Religion (Al-Din) ? Protection of Life (Nafs) ? Protection of Dignity (Ird) ? Protection of Intellect/Mind (Al-Aql) ? Protection of Property (Al-Mal) 5. 1. 1Protection of Religion (AL-DIN) Al-Din is the most important value that must be protected by the Muslims, protection of al-din at a personal is achieved through the observance of the IBAADAAT, such as five praying, fasting, paying Zakah and performing hajj.
Also the protection of Al-Din at wider scope involves defending Islamic faith particularly if it is attacked by the enemy of Islam. The process of protecting can be done through various means such as writings, in speeches and other practical means. If the situation demands waging of war with the enemy of Islam, then it should be done for the sake of protecting. Islam from being destroyed by others Allah S. W. T has enacted the law of JIHAD and commanded the Muslims to defend their faith. 5. 1. Protection of Life (AL-NAFS) Life is essential and valuable to everyone, and it must be protected in all circumstances and in this respect, between the life of the rich and poor, between the leader and subordinates, Muslims and non-muslims. Protecting everyone’s life is equally important and obligatory to each and every individual and society, the Shariah has enacted severe punishment for those who kill each other, the punishment for those who kill an innocent human being is the death penalty in Islam.
In the punishment of the murderer, even though one life is killed because of the crime, this will lead to saving many more lives as the punishment will deter other from committing such crime, saving one’s life is required and it should be done at the expense of other lives, but if the saving of this live might lead to losing of another life then it should be done as the principle of Shariah states “a particular harm shall not be removed by inflicting another harm”. . 1. 3Protection of Dignity (AL-IRD) Islam is very concerned about the dignity of a person and emphasizes the importance of protecting dignity. Protection of dignity includes the protection of individual rights to privacy and not exposing or accusing others of misbehaviors. It means ensuring that the relationship between men and women is done in a respectful and responsible way; Islam has enacted a number of guidelines in order to protect the dignity of mankind
Islam prohibits its followers committing adultery or other immoral behaviors; any accusation toward a crime, a proof must be confirmed. Otherwise the punishment will be imposed for false accusations. Islam also regulates the relationship between men and women in order to protect their dignity; also Islam disallows the manipulation of women or making women sexual objects and commercial objects by portraying them as an attraction for purchasing such commercial products.
Islam tells followers to cover their “AURAH” and is one of the ways to protecting their dignity. 5. 1. 4Protection of the Intellect/Mind (AL-AQL) Al-Aql or the intellect is a great gift from Allah S. W. T to mankind; it is one of the human capacities that differ from animals. Allah has ordered protecting this gift by utilizing the mind for the benefit of all and not for any kind of evil, on the other hand Islam gives freedom to express their views, and it must conform that views with the moral and ethical values provided in the Qoran and Sunnah.
Protection of the mind requires safeguarding it from anything that might harm the ability and function of the brain, this includes consumption of liquor or similar substance that will disturb the function of the brain, a punishment will be imposed for those who consume liquor. These are made in order to prevent the spread of such habits that could damage the mind and the brain. 5. 1. 5The Protection of Property (AL-MAL) Acquiring property is one of the necessities of mankind. Islam encourages its followers to acquire wealth through Halal borders.
Islam has ordered that no one should transgress and acquire the property of others without a legitimate reason and without proper contract, and there will be severe punishment in the Day of Judgment against those who acquire the properties of others unlawfully. Acquiring the property of others illegitimately can be done through, when engaging usury (Riba), cheating in transactions, breaking the trust in matters related to property, stealing the property of others and other similar means. . 2The Complementary (Al-Hajiyyat) There are many examples of Al-Hajiyyat such as the dispensations or legal excuses (Rukhsah), travelers are allowed to combine and shorten their five obligatory prayers and also break their fast in Ramadan month. A sick person is allowed to pray in a sitting or sleeping position and break his fast in Ramadan, also the basic permissibility regarding the enjoyment of victuals and hunting also fall under this category. 5. 3The Embellishments (Al-Tahsiniyyat)
The embellishments refer to interests whose realization lead to the improvement and attainment of that which is desirable. The observance of cleanliness in personal appearance and in IBADAH, moral virtues, avoiding extravagance and measures that are designed to prevent proliferation of false claims of false claims in the courts, all these fall under this category. The disappearance of al-tahsiniyyat may not interrupt the normal life but it might lead to the lack of comfort in life. 6. Maqasid Al-Shariah in Islamic Finance
The objectives of the Shariah in financial transactions refer to the overall goals and meaning that the Shariah aims at achieving from its rulings related to financial activities and transactions. Looking deeply and constantly into several texts of the divine book and the Sunnah of prophet Mohamed (PBUH) on financial activities. It can be stated that the Shariah has observed specific objectives in the enactment of financial laws and principles, these objectives include:- 1. The Objective of Continuity of the Circulation of Wealth
This objective refers of preserving the transactional nature of the financial dealing so as to enable large sectors of population to become a part of the monetary cycle of wealth and to avoid the concentration of wealth in a few hands. It is underlined in several verses and Hadiths which call for giving Zakah, the generous donation and spending for the sake of Allah and to refrain from hoarding and monopolizing the wealth. This can be strengthened by several ruling and commands including those contractual transfers of money and other financial transactions like Mudarabah, Musharakah, Muzara’ah and e. . c. this will protect the entire society against crimes and greediness of opportunities, and also surely and definitely bring prosperity and happiness to the whole society. 6. 2The Objective of Continuity of the Investment of Wealth When societies develop, also economic activities and transactions develop. A society develops their finances to the benefit and prosperity of their members, this is done when wealth must be invested and should be available in many hands for its investment and increment.
In support of this objective, there are several verses in the Qoran and Hadiths of prophet (PBUH) which address the issue of necessity and obligation of the continuity of the investment of wealth as they call upon all Muslims to earn, strive and continue to extend themselves to the corners of the earth in search of the bounty of Allaah S. W. T. 6. 3The Objective of Achieving Comprehensive Communal Prosperity This objective is directed at fulfilling the basic material needs of all members of society by achieving personal satisfaction and social tranquility and security.
The achievement of this objective will also rid society of negative social attributes such us stratification of the population into privileged and non-privileged classes. The verses and Hadith that call upon Muslims to pay Zakah and cooperate and also help each other in business transactions, upholds all the objective of achievement of prosperity in society. 6. 4The Objective of Validation of Financial Ownership This objective aims the lawful authentication of the rights of lawful financial ownership.
Numerous verses and Hadiths verify the right of lawful ownership and spending and they serve the purpose of safeguarding Islamic economic activity. Earlier objectives of Shariah discussions was based on reading and looking deeply into verses on trade, expenditure, investment and consumption, this objective is governed by permissiveness (Halal) of such activities like sales and purchases, cooperate business undertakings, farming activities, financial activities and other pertained activities like forgiving minor uncertainties and binding contracts by witnesses. . 5Protection of the wealth in Islamic Business Transactions Preservation of wealth in finance and business transactions is one of the primary Maqasids in Shariah. The verses from the Qoran and also Sunnah have very strong statements indicating very clearly the importance of wealth whether for individuals or for the community and the society at large. The right to own and earn, Shariah gives the right to the Muslim community to own and earn, thus creating wealth, Muslims can acquire wealth through owning (Tamaluk) or earning (Takasub).
Owning (Tamaluk) consists of possessing anything from which they can gain satisfy their needs, whether from their produce or their substitutes, on the other hand Earning (Takasub) consists of exerting one’s self to gain its own needs whether by physical labor or by mutual consent with others. 6. 6Transparency in Wealth and Finance Transparency is very objective in Shariah for business and finance, this objective seeks to rid Islamic finance from misuse and squander and to prevent disputes, arguments and grudges among the community on financial matters.
Islamic law requires security in some business transactions, the main purpose of transparency is to avoid dispute among people in daily business activities as much as possible. In this respect transparency in finance is applied, especially if it is related to the subject matter of the contract which must be known to both parties including specification, quality and quantity. Such business activities which clearly understood make the contracting parties more comfortable to conclude the deal and execute the business transactions with mutual consent and understanding. . 7Development and Investment of Wealth in Business Transactions The Shariah is very concerned about the development of economic and finance. In supporting this objective the Qoran and Sunnah urge Muslims to look at this aspect respectively. The development of wealth and investment in finance is an obligation not an option, because it contributes to the growth of wealth and protection of property of the society. Shariah considers money as a potential capital rather than a capital, meaning that money becomes capital only when it is invested in a business.
Thus the investments and development of wealth will enhance the financial status of members of the society respectively. 6. 8Prevent Harm and Hardship in Wealth and Finance Maqasid al-Shariah tries to achieve command prosperity in the society as a whole, if this is achieved every member of society will be satisfied and safe, as a result from that, all harm and hardship will be either removed from the society or minimized in the finance and business transactions.
It is understood that preventing harm in finance comes from putting in to practice most of the objectives of the Shariah in business finance, because those objectives are the key factors. 6. 9Ensure Justice in the Circulation of Wealth in Business Transactions Justice is a prime in human life in all aspects; it is also a vital objective due to its implication in the business community and social activities as well. However justice in terms of wealth starts from earning wealth and possessing property by right, without any harm.
In order to implement justice the Shariah has imposed some rules and regulations and has prohibited all elements that may lead to injustice in business such as bribery, fraud and deception, gambling, uncertainty, Riba and so on. To ensure the establishment of justice in all aspects of business and finance, meanwhile shariah encourages all types of business activities which create justice and benefits the business community and social life as well. 6. 10Objective of Individual Economic Activities
The question of why to produce or why to get involved in economic activities in the first place, is that Shari’ah wants individuals to look after their welfare. Shatibi has used the maslahah (welfare-benefit) to describe this objective of Shari’ah. Human beings have been required by Shari’ah to seek maslahah. Economic activities of production, consumption and exchange that involve maslahah (welfare) as defined by Shari’ah have to be pursued as a religious duty to earn one’s betterment not only in this world but in the world hereafter.
Also all such activities that have maslahah for human beings are called needs. These needs have to be fulfilled. “Fulfilling needs” rather than “satisfying wants” is the objective of economic activities, and the pursuit of this objective is a religious duty. Man is, therefore, obligated to solve his economic problems. The approach that unlimited wants relative to scarce resources defines the economic problem of man may be explaining the economic behavior of a capitalistic society, but it certainly fails to explain the behavior of several traditional societies of the world.
The members of traditional societies do not feel motivated to maximize the satisfaction of their wants with the resources available with them, because they find their needs adequately fulfilled and they do not feel obliged to look for the satisfaction of wants beyond their needs defined by themselves or by their environment. All development strategies thus fail to bring development in such societies because of the lack of motivation to earn more or to expand resources at one’s disposal. Islamic economic theory, on the other hand, is on more sound footing.
It defines economic problem in the light of the objective that Islam assigns to human activities. The fulfillment of this objective is made a religious duty. Islam, thus, becomes a force of economic development even for such traditional societies that are not motivated by the materialistic approach, to maximize the satisfaction of wants. The economic problem of human beings is, therefore, to “fulfill needs” with the available resources which most of the time may turn out to be scarce relative to needs.
The inconsistency that was pointed out in the concept of “satisfying human wants” is not present in the concept of “fulfilling human needs”. If the resource constraint is relaxed, the human needs can be fulfilled as they are objectively defined. 7. Advantages of Shariah Compliance in Islamic Finance Current literature proclaims that Islamic financial system differs significantly from conventional system, not only in the ways it functions, but above all the values which guide its whole operation and outlook.
The values which are prevailed within the ambit of Shariah, are expressed not only in the minutiae of its transactions but in the breadth of its role in realizing the Maqasid al-Shariah (objectives of Shariah). Indeed, Maqasid al-Shariah reflects the holistic view of Islam which has to be looked at as a whole not in parts as Islam is a complete and integrated code of life and its goal encompasses the whole life, individual and society; in this world and the hereafter (Dusuki ; Abozaid, 2007).
Hence, a deep understanding of Maqasid al-Shariah entails intense commitment of every individuals and organizations to justice, brotherhood and social welfare. This will inevitably lead to a society whereby every member will cooperate with each other and even compete constructively, as success in life is to obtain the ultimate happiness (falah). Thus mere maximization of profits cannot, therefore, be sufficient goal of a Muslim society.
Maximization of output must be accompanied by efforts directed to ensure spiritual health at the inner core of human consciousness and justice and fair play at all levels of human interaction. Only development of this kind would be in conformity with the Maqasid al-Shariah. Despite progress in the improvements and introduction of an enabling Islamic capital market environment through various Shariah-compliant product innovations like sukuk, some structure which attempt to achieve the same economic outcome like conventional bond distort the Maqasid al-Shariah.
This distortion stems from the restricted view of understanding Shariah, by only focusing on the legal forms of a contract rather than the substance especially when structuring a financial product. The overemphasis on form over substance lead to potential abuse of Shariah principles in justifying certain contracts which in fact contradictory to the Shariah text and ultimately undermining the higher objectives of Shariah. Conclusion The methodology of interpreting the Quran integrates three approaches: Maqasid, contextualization, and social science research.
The maqasid- oriented approach promotes a focus on the higher objectives intent, and purpose of the text. Contextualization offers insight as to the both the historical and contemporary circumstances relevant to the text, while social science research provides an understanding of the contemporary conditions and realities that enables the interpretation and application of the text to be directed towards achieving the higher objectives. The purposes of Islamic Law are not all equally evident. Some are clear to the general public, like basic ethical principles and the essential necessities of life.
Others, however, require a trained jurists’ eye, because they are more subtle, and require deeper investigation to discern. This is where juristic reasoning really needs to be exercised. This is where the jurist qualified to engage in juristic reasoning – the mujtahid – comes into play, someone who can understand the sacred texts in conjunction with the broad purposes of Islamic Law and then apply this knowledge to the actual circumstances of the outside world in order to come up with an appropriate legal ruling.
Our present need is all the more acute due to the paucity of understanding that Muslims have regarding what Islam wants for Muslim society and for the people – the protection of their liberties, the effective management of their affairs, the cultivation of virtue among them, the prohibition of vice, the development of their resources, the advancement of their capabilities, and the inculcation of the value of being a productive member of society.
Today’s Muslims are in need of all of these things, people who often know a lot of Islamic legal rulings but know very little about the purposes behind them. I also propose to add economic development and strengthening of Research and Development in technology and science to the structure of Maqasid al-Shariah as they are crucially important in determining the standing of the ummah in the world community. Lastly Maqasid al-Shariah remains open to further enhancement which will depend, to some extent, on the priorities of every age.
We should understand that Maqasid Al-Shariah is an important discipline which can play a crucial role in economics, finance and business transactions nowadays. It is time to go forward with full implementation of Maqasid Al-Shariah in finance, business and economic activities to achieve the noble adjectives of the Shariah. These objectives give value to finance, banking, trade and all business transactions. We believe that the implementation of Maqasid Al-Shariah will enhance the performance of finance and trade, and establish justice in the business community and society at large.
Furthermore, the achievement of Shariah objectives in business transactions creates happiness and satisfaction, and fulfills the needs of society in terms of wealth. Islam allows all financial activities and transactions leading to the actualization to its noble objectives. Furthermore, investment is considered as an obligation upon all Muslims. This means Muslims have to make use of the wealth in their hands in order to make it grow and gain more profit and benefits. Wealth which is not invested as hoarded.
Although the underlined main principles are closely linked to the main objectives of the Shariah in financial activities and transactions, one cannot deny that there are other subsidiary principles, such as prohibition of making money from money, or prohibition of Najash and certain types of sales.
References: 1. Dr. Ahcene Lahsasna (2011). Shariah Aspects of Business and Finance: INCEIF CIFP. Part 1, January Semester, 2012: Kuala Lumpur: International Centre for Education in Islamic Finance. . Dr. Ahcene Lahsasna (2011). Shariah Aspects of Business and Finance: INCEIF CIFP. Part 1, January Semester, 2012: Online Class Lectures. Kuala Lumpur: International Centre for Education in Islamic Finance. 3. Dr. Asyraf Wajdi Dusuki. “Challenges of realizing Maqasid Al-Shariah in Islamic Capital Market” 4. Dr. Mohammad Hashim Kamali. “Maqasid Al-Shariah: The objectives of Islamic law” ———————– The Global University of Islamic Finance