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An Examination of the Modern Discourse

on Maqāṣid al-Sharī‘a
Yasir S. Ibrahim
Published online: 26 Mar 2014.

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Sharī‘a, The Journal of the Middle East and Africa, 5:1, 39-60, DOI: 10.1080/21520844.2014.882676

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ISSN: 2152-0844 print/2152-0852 online
DOI: 10.1080/21520844.2014.882676

An Examination of the Modern Discourse

on Maq¯as.id al-Shar¯ı‘a

YASIR S. IBRAHIM
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This article presents and evaluates the modern theoretical discourse

on maqās.id al-sharı̄‘a (the objectives of Islamic law) as expressed
in the writings of a group of Middle Eastern and North African
Muslim religious scholars, particularly their reformulation of Abū
Ish.āq al-Shāt.ibı̄’s seminal theorization on the subject. The writ-
ings studied include those of Muh.ammad al-T.āhir Ibn ‘Āshūr,
Muh.ammad ‘Allāl al-Fāsı̄, the contemporary religious scholar
Yūsuf al-Qarad.āwı̄, and a few others. In Western scholarship, a
specific detailed reference will be made to Sherman Jackson’s crit-
ical article on the same subject. The modern application of this
classical model has been unable to produce significant practi-
cal results without expanding the number and scope of what are
considered “necessary” objectives of Islamic law beyond Shāt.ibı̄’s
definition and consequently creating a theoretical inconsistency.
The maqās.id scholars have also compensated for this theoretical
deficit by developing specific objectives that cover the fields of social,
economic, and political relations. At least some of these specific
objectives have helped the cited jurists to issue legal rulings that
are distinguished from very “literalist” ones.

KEYWORDS Islamic law, Islamic legal philosophy, maqās.id

al-sharı̄‘a, religious reform

YASIR S. IBRAHIM is an associate professor of religion in the Philosophy and Religion

Department at Montclair State University, New Jersey. He has taught at Princeton Theological
Seminary and at Princeton and Lehigh Universities. His recent publications include articles
published in Studia Islamica, the Journal of Islamic Studies, and the Journal of Ecumenical
Studies.

39
 40 Y. S. Ibrahim

INTRODUCTION

There is a vibrant contemporary academic interest in the Arab Middle East,

North Africa, and beyond in the study of maqās.id al-sharı̄‘a (the objec-
tives of Islamic law). Muslim jurists and legal theorists who incorporate this
concept into their legal thinking claim that by focusing on the higher objec-
tives of Islamic law that are clearly stated in the sacred texts of Islam, the
Qur’ān and the Prophetic traditions, all particular religious rulings will be
applied according to the spirit of the law as intended by the divine Lawgiver.
In this strain of thought, this approach will ensure that Muslims at the indi-
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vidual and social levels do not wrongly follow a very “literalist” application
of religious rulings without considering their intended objectives. Since this
maqās.id discourse has become an important focus in contemporary Islamic
thought, there is an urgent need to examine its theoretical foundation and
practical significance. This article aims to present and evaluate the modern
reformulation of the premodern maqās.id theory by examining the writings
of a group of Middle Eastern and North African religious scholars.

THE MODERN INTEREST IN MAQĀS.ID AL-SHARĪ‘A

Since its inception in the nineteenth century, the movement of religious

reform inaugurated by Jamāl al-Dı̄n al-Afghānı̄ (1838–1897) and his Egyptian
disciple Muh.ammad ‘Abduh (1849–1905), which influenced Islamic thought
in Arab countries and beyond, strove to produce an interpretation of Islamic
law and jurisprudence that represented a middle position between religious
conservatives on one side and proponents of mostly secular reform on the
other. This approach aimed, according to the reformers, to ensure a success-
ful and modernist application of the sharı̄‘a (Islamic law) in societies with
Muslim majorities. A crucial part of this reform project included a vigorous
reevaluation of traditional doctrines in theology, ethics, and legal philoso-
phy. As an instrument of change, ‘Abduh proposed a fundamental revision of
academic sources used in religious education programs in Egypt, including
incorporation into the curriculum of the appropriate premodern scholastic
works. For example, he strongly disapproved of certain premodern scholas-
tic works in the curriculum of religious education at al-Azhar University in
Cairo because of his conviction that such works misrepresented the true spirit
of Islamic law.1 In contrast, he apparently found in Abū Ish.āq al-Shāt.ibı̄’s
(d. 1388 CE) theoretical discourse on maqās.id al-sharı̄‘a (the objectives or
legal aims of Islamic law), expounded in his seminal work al-Muāfaqāt f ı̄

1
Muh.ammad ‘Abduh, al-A‘māl al-Kāmila lil-Imām Muh.ammad ‘Abduh [The Complete Works of
Imam Muh.ammad ‘Abduh], ed. Muh.ammad ‘Amāra, 6 vols. (Beirut: al-Mu’assasa al-‘Arabiyya lil-Dirāsāt
wa’l-Nashr, 1972–1974), 4:648–53.
 Modern Discourse on Maqās.id al-Sharı̄‘a 41

Us.ūl al-Sharı̄‘a (The Reconciliation of the Fundamentals of Islamic Law),2 a

legal philosophy that could challenge a traditionalist/conservative view that
mostly relied on premodern interpretations as recorded in scholastic works.
When ‘Abduh assumed the position of grand muftı̄ of Egypt (the nation’s
highest-ranking religious scholar, authorized by the government to issue reli-
gious edicts, or fatwās, as responses to questions) between 1899 and 1905,
he issued several fatwās that challenged conservative thinking based on his
conception of the higher objectives of Islamic law. A case in point is a
fatwā in which he permitted judges to prevent Egyptian men from practicing
polygamy based on his conception that marriage should achieve the religious
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objective of “justice” and that in most contemporary polygamous marriages

in Egypt at the time, justice within the family was not served. This ruling was
made despite the traditional juristic view, based on a Qur’ānic verse, that
the practice of polygamy itself is religiously permitted.3 ‘Abduh did not write
any theoretical work in which he reflected on Shāt.ibı̄’s systematic treatment
of maqās.id al-sharı̄‘a. However, his special reference to Shāt.ibı̄ led to the
editing and publication of the Muāfaqāt at the beginning of the twentieth
century and created an interest in the writing of commentaries on Shāt.ibı̄’s
book, such as the one by ‘Abduh’s student ‘Abdullah Drāz.4
Moreover, ‘Abduh’s disciple, Muh.ammad Rashı̄d Rid.ā (1865–1935),
made several references to Shāt.ibı̄’s Muafāqāt, with a focus on maqās.id al-
sharı̄‘a, in his writings on Islamic law and jurisprudence.5 Later in 1946, the
Tunisian religious scholar Muh.ammad al-T.āhir Ibn ‘Āshūr (1886–1970) pub-
lished what most maqās.id writers consider the first book in Arabic dedicated
to the topic of maqās.id al-sharı̄‘a, in which he very much relied on Shāt.ibı̄’s
Muāfaqāt to present his detailed analysis of the topic. The writings in
Arabic dedicated to maqās.id al-sharı̄‘a continued with the publication of
Moroccan scholar Muh.ammad ‘Allāl al-Fāsı̄’s (1910–1974) Maqās.id al-Sharı̄‘a
al-Islāmiyya wa Makārimuhā (The Higher Objectives of Islamic Law and Its
Virtues) in 1963.6

2
Abū Ish.āq al-Shāt.ibı̄, al-Muāfaqāt fı̄ Us.ūl al-sharı̄‘a (Beirut: Dār al-Ma‘rifa, 1975). The first volume of
this work is available in English translation. See Ibrāhı̄m Ibn Mūsā Abū Ish.āq al-Shāt.ibı̄, The Reconciliation
of the Fundamentals of Islamic Law, trans. Imran Nyazee (Reading, UK: Garnet, 2011).
3
‘Abduh, A‘māl, 2:80–83.
4
One of the most detailed studies of Shāt.ibı̄’s legal thought in Western scholarship is Muhammad
Khalid Masud’s Islamic Legal Philosophy: A Study of Abū Ish.āq al-Shāt.ibı̄’s Life and Thought (Delhi:
International Islamic Publishers, 1989).
5
Rid.ā’s maqās.id thinking has been investigated in Western scholarship. See David Johnston, “A Turn
in the Epistemology and Hermeneutics of Twentieth Century Us.ūl Al-Fiqh,” Islamic Law and Society 11,
no. 2 (2004): 233–81. Also see Yasir S. Ibrahim, “Rashı̄d Rid.ā and Maqās.id al-Sharı̄‘a,” Studia Islamica,
nos. 102/103 (2006): 157–98.
6
Muh.ammad ‘Allāl al-Fāsı̄, Maqās.id al-Sharı̄‘a al-Islāmiyya wa Makārimuhā (Casablanca: Maktabat
al-Wah.da al-‘Arabiyya, 1963).
 42 Y. S. Ibrahim

From the 1970s until the present, there has been a plethora of academic
writings in Arabic on maqās.id al-sharı̄‘a, mostly as a result of the resur-
gence of the Islamic movement in the Middle East and North Africa. Many of
these printed volumes originated as dissertations or master’s theses submit-
ted to Islamic universities such as al-Azhar in Egypt, the Islamic University
in Medina, and universities in other North African countries. It is beyond the
scope of this article to survey all or even most of these academic writings, but
the chosen group of studies can suffice for the current purpose. In addition
to these purely academic writings, certain contemporary Muslim jurists such
as the Egyptian religious scholar Yūsuf al-Qarad.āwı̄ (b. 1935) have expressed
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an interest in exploring the topic of maqās.id al-sharı̄‘a in their writings in

order to incorporate this concept into the process of issuing fatwās and legal
opinions responding to different questions on religious practice.

THE TERMS “GENERAL” (HIGHER) AND “PARTICULAR” (LOWER)

MAQĀS.ID IN MODERN LEGAL PARLANCE

Western scholars of Islam often refer to maqās.id al-sharı̄‘a as “the higher

objectives of Islamic law.” This is based on the ideas of Shāt.ibı̄ and other
classical legal theorists who envisioned such maqās.id as encompassing all
or most of the particular objectives of sharı̄‘a rulings. Abū H.āmid al-Ghazālı̄
(d. 1111), for example, states that “the intended objective (maqs.ūd) of the
Lawgiver is to preserve people’s religion, lives, intellects, properties and
progeny.”7 Therefore, the preservation of life, for example, can be consid-
ered a “higher” objective under which all the “lower” objectives of particular
rulings that contribute to the preservation of this objective are included, such
as the prohibition of murder, the prohibition of abortion, and so on. It seems
that Ghazālı̄, Shāt.ibı̄, and other premodern legal theorists used the term
maqās.id al-sharı̄‘a to mostly refer to such “higher” objectives that have been
formulated by an inductive survey of particular rulings. But there are also
few general maqās.id that are mentioned as such in the Qur’ān or Prophetic
traditions; among the few that are mentioned are the objectives of “justice”
and “the lifting of hardship,” under which headings many particular rulings
can be included. However, we find in the academic writings of many con-
temporary Muslim scholars a classification of maqās.id al-sharı̄‘a into three
categories: maqās.id ‘āmma (general objectives), maqās.id juz’iyya (objec-
tives of particular rulings), and maqās.id khās..sa (specific maqās.id covering

7
Abū H
. āmid al-Ghazālı̄, al-Mustas.fā min ‘Ilm al-Us.ūl [The Refined Knowledge from the Discipline of
Legal Theory]. (Beirut: Mu’assasat al-Risāla, 1997) 1:417. See Abū H . āmid al-Ghazālı̄, The Quintessence of
the Sciences of the Principles of Islamic Law, trans. Ahmad Zaki Hammad (Chicago: University of Chicago
Press, 1987).
 Modern Discourse on Maqās.id al-Sharı̄‘a 43

one area of legal activity, such as social, economic, or political). This mod-
ern nomenclature is based on the writings of medieval scholars as well, such
as al-H. akı̄m al-Tirmidhı̄’s (d. 869 CE) maqās.id al-Salah (The Objectives of
Prayer). In this work, it is clear that Tirmidhı̄ is using the term maqās.id to
refer to the particular religious objectives of the Muslim ritual prayer and not
to any higher objective reached through induction.

Shāt.ibi’s Typology of the General Maqās.id

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It is well known to historians of Islamic legal theory that the concept of

maqās.id al-sharı̄‘a existed before Shāt.ibı̄, but among all premodern Sunnı̄
legal theorists, Shāt.ibı̄ alone dedicated a whole chapter in his Muāfaqāt to
the study of maqās.id al-sharı̄‘a and developed a detailed system through
which the general objectives of Islamic law are presented.
According to Shāt.ibı̄, every sharı̄‘a ruling mentioned in Qur’ānic verses
or Prophetic traditions must have a specific objective(s) or legal aim(s)
intended by the Lawgiver. This notion is derived theologically from the
belief that God’s revelation to the Prophet Muhammad, including His eth-
ical and legal commands, must have a purpose that relates to achieving the
good (mas.lah.a) of humanity and/or preventing harm. Shāt.ibı̄ includes all
sharı̄‘a rulings within four main categories of human action: worship rit-
uals (‘ibādāt), customary practices (‘ādāt), interpersonal relationships and
transactions (mu‘āmalāt), and designated criminal punishments (jināyāt).8
Shāt.ibı̄ further advances his maqās.id project by indicating that there is
a need to use induction (istiqrā’) by surveying the maqās.id of particular
rulings so that one can arrive at a group of general maqās.id. These general
maqās.id can then guide jurists’ understanding and application of particular
religious rulings mentioned in the sacred texts and help them successfully
address novel questions on religious practice that are not answered in the
sacred texts. These general maqās.id are called by Shāt.ibı̄ “the spirit of divine
legislation.” The maqās.id of all particular rulings should be listed under these
general maqās.id.
After establishing the definitive character of this generalization, Shāt.ibı̄
further divides the general maqās.id of the sharı̄‘a into three main groups.
These are the necessary (d.arūriyya), the needed (h.ājiyya), and the enhanc-
ing (tah.sı̄niyya) maqās.id. This stratification is based on religious priority
and function. Furthermore, the necessary maqās.id are strictly divided into
five components: the preservation of “religion, life, progeny, property and
intellect.”9 In another section of the Muāfaqāt, the list of the five necessary
maqās.id appears in a different order as the preservation of “religion, life,

8
Shāt.ibı̄, Muāfaqāt, 2:8–9.
9
Ibid., 10.
 44 Y. S. Ibrahim

intellect, progeny and property.”10 Unless this inconsistency is caused by

scribal error, the difference might reflect Shāt.ibı̄’s oscillation in deciding the
best order of these priorities based on his consultation of the works of legal
theorists before him who had mentioned the necessary maqās.id. The order
as Shāt.ibı̄ explains it reflects the priorities intended by the Lawgiver. Thus,
the preservation of religion has a priority over the preservation of life in
conflicting cases that require choosing one or the other. The main example
used by Shāt.ibı̄ is a Muslim combatant’s engagement in a military campaign
of jihad against the enemies of Islam and the sacrifice of his life for the
preservation of religion. Since life is listed before property, the preservation
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of the former has a priority over the latter in case of conflict.

Shāt.ibı̄ asserts that all five main maqās.id of the sharı̄‘a should be con-
sidered necessary, because the lack of all or any one of them in a community
or society will lead to anarchy and great loss of life, as well as to loss of
salvation in the hereafter.11 This assertion is based on the assumption that
members of every community rationally realize the importance of protecting
their beliefs, lives, intellects, progenies, and properties, viewing such preser-
vation as the ethical thing to do even if religious teachings provided no
instruction. However, it is clear that Shāt.ibı̄’s perception of the five neces-
sary maqās.id is influenced and shaped by his Muslim religious commitment.
The most obvious one influenced by this background among the five is
the preservation of the intellect or the mind (‘aql). This general objective
is based on the Qur’ānic prohibition on consuming intoxicating drinks, and
therefore this preservation must necessitate preventing people from being
drunk in order to preserve their intellects. But it is clear that not all nations
throughout human history have had laws that prohibited the consumption of
intoxicating drinks. To escape this dilemma, Ghazālı̄, for example, argues that
including the preservation of the intellect as one of the necessary maqās.id
existing in the laws of every nation means that even if the consumption
of such drinks is not prohibited, no nation would accept having most of its
members drunk all the time.12 If this were not the case, Ghazālı̄ observes, the
lack of this preservation would lead to anarchy and chaos in such societies
or communities.
Shāt.ibı̄ also observes that the Lawgiver’s preservation of the five neces-
sary maqās.id through many particular rulings aims both at maintaining their
existence in the society and at preventing the harms that can lead to their
extinction. He then gives examples of particular religious rulings that mainly
preserve one or more of the five necessary maqās.id. The basic rulings con-
cerning the five pillars of Islam—belief, prayer, obligatory almsgiving, fasting

10
Ibid., 3:47.
11
Ibid., 2:8.
12
Abū H. āmid al-Ghazālı̄, Shifā’ al-Ghalı̄l [Quenching the Thirst] (Baghdad: Maktabat al-Irshād, 1971),
164.
 Modern Discourse on Maqās.id al-Sharı̄‘a 45

during the month of Ramad.ān, and pilgrimage to Mecca—all contribute to

the preservation of religion. In the field of customary practices, the rulings
concerning the necessity to eat food, wear clothing, and establish places of
residence are considered part of the preservation of life and the intellect.
In the field of social relations and transactions, the contract of marriage is
essential to the preservation of progeny. Also, particular rulings related to
the protection of private property clearly contribute to the necessary objec-
tive of the preservation of property. All such rulings positively contribute to
the preservation of the existence of the necessary maqās.id. Rulings such as
the prohibition on consuming an intoxicating drink or the instituted pun-
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ishments for crimes such as murder and stealing actually are preventative,
ensuring that the five necessary maqās.id not be compromised.
As for the “needed” maqās.id, Shāt.ibı̄ defines them as achieving the
divine Lawgiver’s intention of easiness and lack of extreme hardship when
applying religious rulings. He argues that a lack of the needed maqās.id
in a society will not result in anarchy and mass killings, as in the case of
the necessary maqās.id, but their absence will imbue life with difficulties
and hardship. For example, the rulings related to the permitted exceptions
(rukhas.) to religious obligations, such as breaking the fast of Ramad.ān in
cases of sickness or travel, contribute to the achievement of the needed
maqās.id. Also, the permission to hunt for food and the enjoyment of per-
mitted food and drink beyond what is absolutely necessary also contribute to
the achievement of the needed maqās.id in the field of customary practices.13
The last category of general maqās.id, according to Shāt.ibı̄, includes
sharı̄‘a rulings that aim to enhance religious practice and the life of Muslims
in general but are not necessary or distinctively needed. He refers to rulings
related to the removal of impure substances in places of worship and cov-
ering private parts of the body during prayer as achieving the maqās.id of
enhancement in the field of worship rituals. As for customary practices, the
rulings concerning appropriate manners in eating and drinking achieve this
general objective. Also, the religious teachings on ethics, such as avoidance
of uttering inappropriate words, are considered to be among the enhancing
maqās.id. In economic transactions, the prohibition against selling impure
substances contributes to this objective. In the field of prescribed punish-
ments for crimes, the religious prohibition against killing enemy women,
children, and monks during warfare achieves this goal.14
The rulings listed and the general maqās.id mentioned previously that
help to achieve such objectives are considered, according to Shāt.ibı̄, the
“main” maqās.id of the sharı̄‘a. He notes that there are other general
maqās.id, which can be called “complementary” (takmı̄liyya), that are con-
nected to the main maqās.id and considered secondary to them. Thus, there

13
Shāt.ibı̄, Muāfaqāt, 2:10–11.
14
Ibid., 2:11–12.
 46 Y. S. Ibrahim

are rulings in the sharı̄‘a that achieve the general objective of complement-
ing one or more of the five necessary, needed, or enhancing maqās.id. He
finds that the religious call to Muslims to attend the Friday sermon and
prayer can be considered complementary to the ruling of performing the
prayer in general, which contributes to the main necessary objective of
the preservation of religion. The needed and enhancing maqās.id also have
complementary maqās.id of their own.15
It is worth mentioning that Shāt.ibı̄’s focus on maqās.id al-sharı̄‘a in his
Muāfaqāt aims at achieving practical results in applying the sharı̄‘a and not
merely presenting an intellectual exercise. He clearly instructs jurists to be
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aware of maqās.id al-sharı̄‘a when responding to questions coming from

laypeople. He also distances his legal interpretation from a non-maqās.idı̄
“literalist” one represented by the followers of the Z.āhirı̄ school such as
Muh.ammad Ibn H . azm al-Z.āhirı̄ (d. 1064).
The last point is important, since there is a disagreement among Western
scholars on the applicability of Shāt.ibı̄’s maqās.id theorization and whether it
can bring any practical change in terms of positive ethical and legal rulings.
While Muhammad Khalid Masud believes in the potential of such reform,
Wael Hallaq does not see such a theoretical impulse in practice and cites
Shāt.ibı̄’s own fatwās as being deficient in advancing such reformist maqās.id
thinking.16
In general, Shāt.ibı̄, as a Mālikı̄ jurist, strives in his Muāfaqāt to distin-
guish his maqāsid theorization from a literalist Z.āhirı̄ one. He notes also that
the writings of Z.āhirı̄ jurists, who were active in North Africa and Muslim
Spain, where Shāt.ibı̄ lived, focus only on the strict literal meanings of the
sacred texts and reject any understanding or interpretation of their mean-
ings based on a location of their objectives. Shāt.ibı̄, in contrast, cites a clear
example of how such strict literality will lead to errant and strange appli-
cations of sharı̄‘a rulings. The Z.āhirı̄s, asserts Shāt.ibı̄, expanded the notion
of worship (ta‘abbud) to make it the primary objective of the Lawgiver in
all fields of human activity, including customary practices (‘ādāt) and inter-
personal dealings/transactions (mu‘āmalāt). In this understanding, all legal
rulings in the sacred texts have to be literally applied as acts of worship
and obedience to God. Z.āhiri jurists, for example, insist on a very “literalist”
interpretation of a Prophetic tradition stating that “a virgin woman should
be asked for her consent [to sign a marriage contract] and her silence is [an
indication of] her consent.” Most Sunni jurists interpret this possible “silence”
as reflecting a cultural behavior in which the woman might be reluctant
to declare her consent in public because of shyness despite her desire to
sign the marriage contract. In contrast, Z.āhiri jurists argue that based on this

15
Ibid., 2:13.
16
See Masud, Islamic Legal Philosophy, 35; Wael Hallaq, A History of Islamic Legal Theories: An
Introduction to Sunnı̄ Us.ūl al-Fiqh (Cambridge: Cambridge University Press, 1997), 162–63.
 Modern Discourse on Maqās.id al-Sharı̄‘a 47

tradition, a woman’s consent to marriage has to be in the form of silence,

and if she states her willingness to sign the contract of marriage, this vocal
consent should be considered religiously invalid.17 They also reject the use
of induction to develop the general maqās.id of the sharı̄‘a. Therefore, we
understand from Shāt.ibı̄’s refutation of the Z.āhirı̄ thesis that he wrote his
Muāfaqāt to provide a theoretical discourse against such “literalist” under-
standing and application of Islamic law. The Z.āhirı̄ school, founded in the
ninth century by Dāwūd al-Z.āhirı̄ (d. 883 CE) and later achieving prominence
at the hand of its main theoretician Ibn H.azm, did not manage to become
one of the established Sunnı̄ schools of Islamic law. However, as we see in
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Shāt.ibı̄’s Muāfaqāt, there is a tendency toward “literalism” that can exist even
among jurists who belong to one of the four established Sunnı̄ schools.18
In fact, one of the main reasons for the modern interest in Shāt.ibı̄’s
system of maqās.id al-sharı̄‘a is the claim made by several maqās.id writers
that there is a contemporary rebirth of the same Z.āhirı̄ literalist interpreta-
tion of Islamic law. The prominent Egyptian jurist Yūsuf al-Qarad.āwı̄ refers
to a “neo-Z.āhirı̄” contemporary approach to Islamic law that, he argues, is
very much against its spirit and general objectives.19 It thus seems that the
religious scholars who focus in their writings on maqās.id al-sharı̄‘a have
found in Shāt.ibı̄’s Muāfaqāt a detailed system to combat this strict “literalist”
approach.

THE MODERN DISCOURSE ON MAQĀS.ID AL-SHARĪ‘A AND THE

REFORMULATION OF THE GENERAL MAQĀS.ID

In most of the published modern and contemporary writings in Arabic

on maqas.id al-sharı̄‘a, especially those focusing on incorporating Shāt.ibı̄’s
typology, we find that the overwhelming majority agree that the result of
applying induction to particular sharı̄‘a rulings will constitute three types
or levels of general maqās.id: the necessary, the needed, and the enhanc-
ing. There is a general agreement on Shāt.ibı̄’s five categories of necessary
maqās.id in the sense that the five preservations should be considered nec-
essary. There is also a general agreement with Shāt.ibı̄ on the primacy of
the necessary over the needed maqās.id and the needed over the enhanc-
ing maqās.id in cases where resolving the conflict requires determining the
appropriate religious ruling for a specific legal case.

17
This example is cited by Yūsuf al-Qarad.āwı̄, Dirāsa fi Fiqh Maqās.id al-Sharı̄‘a: Bayna al- Maqās.id
al-Kulliyya wa’l-Nus.ūs. al-Juz’iyya [A Study in the Understanding of the Objectives of Islamic Law: Between
the Higher Objectives and Particular Texts] (Cairo: Dār al-Shurūq, 2006), 13–14.
18
Shāt.ibı̄, Muafāqāt, 2:396.
19
Qarad.āwı̄, Maqās.id, 12.
 48 Y. S. Ibrahim

Modern maqās.id writers also remind their readers that the focus on
the general maqās.id does not imply a lack of focus on the application
of particular textual rulings. But as Shāt.ibı̄ observes, one has to differenti-
ate between the fields of worship rituals, in which the primary objective is
worship (ta‘abbud), and the fields of customary practices and interpersonal
dealings/transactions. The primary objective in the latter two areas of human
activity is to achieve specific benefits and/or to prevent harms that relate to
people’s lives. Therefore, according to most modern maqās.id thinkers, the
general maqās.id should guide the application of particular rulings that are
mentioned in the sacred texts of Islam according to this differentiation of
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fields of human activity and the primary prescribed objective in each one of
them. In terms of the role that the general maqās.id play in crafting religious
rulings for novel cases that are not addressed in the sacred texts, modern
maqās.id writers agree with Shāt.ibı̄ that all such rulings should be in tune
with maqās.id al-sharı̄‘a.
Within the parameters of this general agreement with Shāt.ibı̄’s typol-
ogy of the general maqās.id and their role in guiding the application of
the sharı̄‘a, the modern discourse on maqās.id al-sharı̄‘a encompasses varia-
tions, disagreements, and even an attempt to expand the scope of the general
maqās.id beyond Shāt.ibı̄’s model. These points are explained in the following
sections of this article.

The Definition and Limitations of the Necessary Maqās.id

Modern maqās.id writers reflect on Shāt.ibı̄ and several other premodern legal
theorists’ reasons for choosing the five necessary maqās.id. For example, al-
Fātih. Mukhtār H
. amad argues in his article “al-Khit.āb al-Maqās.idı̄ wa Qad.āyā
al-‘As.r” (“The Maqās.id Discourse and Modern Issues”)20 that one reason for
selecting the five types of preservation is based on a religious reasoning in
which there are sharı̄‘a rulings that prescribe physical punishments for those
who commit actions that endanger this preservation. Thus, the religious
punishments for apostasy, murder, consuming an intoxicating substance,
adultery, and stealing correspond to these actions’ effects of endangering the
preservation of religion, life, intellect, progeny, and property, respectively.
In other words, having a prescribed severe punishment for committing an act
that endangers the preservation of a religious objective clearly indicates the
necessary character of such preservation. H.amad claims that the medieval
scholar Abū al-H . asan al-‘Āmirı̄ (d. 992) was the first one who built the five
necessities on the idea of prescribed punishments.21

20
al-Fātih. Mukhtār Muh.ammad H.amad, “al-Khit.āb al-Maqās.idı̄ wa Qad.āyā al-‘As.r” in Maqās.id
al-Sharı̄‘a al-Islamiyya wa Qad.āyā al-‘As.r [The Objectives of Islamic Law and Modern Issues], 22nd
Conference of the Supreme Council of Islamic Affairs (Cairo: Dār al-Kutub al-Mis.riyya, 2010), 1:187–200.
21
Ibid., 193.
 Modern Discourse on Maqās.id al-Sharı̄‘a 49

But Shāt.ibı̄ and other legal theorists, as mentioned previously, do not

base their reasoning for selecting the five necessary objectives primarily on
this religious argument. They clearly indicate that the five preservations are
found in the legislation of every religious community and society in general,
since the lack of one or more of them will lead to anarchy and chaos. This
appears to be a more relevant factor than the prescribed punishments. Ibn
‘Āshūr clearly indicates in his Maqās.id book that some medieval legal the-
orists, such as Tāj al-Dı̄n al-Subkı̄ (d. 1370), added a sixth category to the
necessary maqās.id, the preservation of sexual honor (‘ird.), because there
is a prescribed religious punishment in the Qur’ān for the false accusation
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of committing fornication or adultery (qadhf ). But Ibn ‘Āshūr rejects the

reasoning that the type and severity of a prescribed punishment would indi-
cate the necessary character of the preservation of a general objective.22 Like
Shāt.ibı̄, he emphasizes the point that the attribute of necessity is determined
by contemplation of the social consequences of that objective’s nonexistence
in any society.
Ibn ‘Āshūr, following Shāt.ibı̄, observes that the reason for designating
only the first five types of preservation as the necessary maqās.id is that
without any one of them, the “systematic organization (niz.ām) of the society
will be imbalanced despite the acknowledgement that the lack of one of
them in any society will not make it in a state of extinction.”23 But if life
is not preserved in the society, Ibn ‘Āshūr observes, it becomes clear that
many people will be murdered and the society will not be able to function
properly and achieve communal harmony. He further argues that, unlike the
preservations of life or the intellect, a failure to preserve sexual honor in a
society’s members (e.g., if false accusations of fornication or adultery become
the norm) will not prevent the society’s basic organization and function from
remaining intact. Therefore, Ibn ‘Āshūr includes the preservation of sexual
honor within the needed maqās.id and not the necessary one. In contrast
to Ibn ‘Āshūr’s view about the preservation of sexual honor, Yūsuf al-‘Ālim
argues that sexual honor should be included within the objective of either
the preservation of life or the preservation of progeny.24 Here, we find that
the meaning of sexual honor is not limited to what Ibn ‘Āshūr refers to as
accusations of fornication but also extends, most importantly, to preventing
acts of rape that could endanger the life of the raped person or disturb the
preservation of progeny by causing a possible unwanted pregnancy in the
raped woman. According to this understanding of the meaning of “sexual

22
Muh.ammad al-Tāhir Ibn ‘Āshūr, Maqās.id al-Sharı̄‘a al-Islamiyya [The Higher Objectives of Islamic
Law] (‘Amman, Jordan: Dār al-Nafāis, 1999), 223. This book is available in English translation. See
Muh.ammad al-Tāhir Ibn ‘Āshūr, Ibn ‘Āshūr: Treatise on Maqās.id al-Shari‘ah, trans. Mohamed El-Tahir
El-Mesawi (Herndon, VA: International Institute of Islamic Thought, 2006).
23
Ibid., 218.
24
Yūsuf al-‘Ālim, Al- Maqās.id al-‘Aāmma lil-Sharı̄‘a al-Islamiyya [The General Objectives of the
Islamic Law] (Riyad: al-Dār al-‘Ālamiyya lil-Kitāb al-Islamı̄, 1994), 80.
 50 Y. S. Ibrahim

honor,” ‘Ālim argues that it must be included among the necessary maqās.id.
The contemporary jurist Yūsuf al-Qarad.āwı̄ also argues that the preservation
of sexual honor should be included among the necessary maqās.id, but he
considers this preservation to be a sixth necessary objective rather than one
that falls within the preservation of life or progeny.25
Ibn ‘Āshūr’s point, that the maqās.id should be determined based on
the degree of social damage that can be done to the basic functions of any
society, is also employed in his discussion of the content of the necessary
objective of preservation of progeny (nasl). Some medieval legal theorists
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refer to the preservation of genealogy (nasab) instead of the preservation of

progeny as one of the five necessary maqās.id. He responds to this disagree-
ment by arguing that if what is intended by this general religious objective
is “to know that [for example] Zayd is the son of ‘Amr, then this objec-
tive should be considered needed and not necessary.”26 Again, Ibn ‘Āshūr
employs the criterion of the potential social consequences that will result
from the nonexistence of such an objective to say that the lack of such
knowledge of individual genealogy would not fundamentally affect the basic
organization or functioning of a society. But the preservation of progeny
(nasl), according to Ibn ‘Āshūr, is understood as the ability to procreate and
therefore is a necessary one without which a society will cease to exist.

The Disagreement on Including Particular Rulings Within the

Necessary or Needed Maqās.id
Another disagreement that relates to the criterion by which the necessary
maqās.id are distinguished from the needed ones concerns which particu-
lar sharı̄‘a rulings should be included in one category or the other. This
disagreement is mostly apparent in rulings that relate to “the preservation
of property.” Shāt.ibı̄, in fact, refers to this disagreement in his Muāfaqāt.27
Some premodern legal theorists considered all contracts of sale as contribut-
ing to the needed maqās.id and not to the necessary preservation of property.
In contrast, Ibn ‘Āshūr and al-‘Ālim follow al-Juwaynı̄’s (d. 1085) view that
the basic existence of contracts of sale is necessary, since without any form
of economic exchange (mu‘āwad.a or mubādala), most people in any soci-
ety cannot be self-sufficient in obtaining the basic necessities of life, such as
food, clothing, and shelter, for themselves and their families.28 But based on
this view, detailed types of contracts are only needed, not necessary.

25
Qarad.āwı̄, Maqās.id, 27.
26
Ibn ‘Āshūr, Maqās.id, 222.
27
Shāt.ibı̄, Muāfaqāt, 2:13.
28
See al-‘Ālim, Maqās.id, 164.
 Modern Discourse on Maqās.id al-Sharı̄‘a 51

The Disagreement on the Order of Listing the Five Necessary

Maqās.id
As noted, most maqās.id writers list among the five necessary maqās.id the
preservation of religion, life, intellect, progeny, and property. However, as
we have already seen in Shāt.ibı̄’s Muāfaqāt, the five might be arranged
differently. There is a disagreement among premodern legal theorists on
the order in which the five should be listed. The point is significant, since
the arrangement reflects a priority of religious value. Thus, in a case of
conflict in which two necessary maqās.id compete to guide the religious
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ruling on a specific action, the first one listed should have priority over the
second, and so on. In his study on maqās.id al-sharı̄‘a, Muh.ammad al-Yūbı̄
lists several possibilities for this arrangement based on the choices made
by premodern legal theorists.29 One of them is to assign the preservation of
religion to the last position in the list of the five necessary maqās.id. This view
is based on the idea that while religion relates to God’s rights concerning
the Muslim, the remaining four necessary maqās.id relate to people’s rights
toward one another. These latter four, according to this view, are given
precedence over the former in textual religious rulings. The cited example
here is the case in which a Muslim is coerced to utter a word of disbelief in
God or disloyalty to the Prophet Muh.ammad. According to a Qur’ānic verse
(16:106) and Prophetic traditions, a Muslim is permitted to utter such words
of disbelief in order to save his or her life. If this coerced proclamation
of disbelief is considered an act that functions against the preservation of
religion, then the preservation of life has a priority over the preservation of
religion. However, Yūbı̄ and most modern maqās.id writers insist that this
example does not indicate the primacy of preserving life over religion, since
any action done under coercion does not represent the actor’s intention to
endanger religious belief.30 On the contrary, the previously cited case of a
Muslim who sacrifices his life by being killed in a just war for the sake of
his religion stands as a clear indication of the primacy of protecting religion
over all other necessary maqās.id. This is also Ibn ‘Āshūr’s view.
However, ‘Alı̄ Jum‘a, the former grand muftı̄ of Egypt, argues in the arti-
cle “Tartı̄b al-Maqās.id al-Shar‘iyya” (“The Arrangement of the Objectives of
Islamic Law”) that the sacrifice of a Muslim soldier is clearly done to pro-
tect the lives of other members of the community. Hence, such a sacrifice
still relates to the objective of the preservation of life.31 Also in support of

29
Muh.ammad al-Yūbı̄, Maqās.id al-Sharı̄‘a al-Islamiyya wa ‘Alāqatuhā bi’l-Adilla al-Shar‘iyya [The
Objectives of Islamic Law and Their Relationship with Textual Evidence] (Riyad: Dār al-Hijra, 1998), 183,
304.
30
Ibid., 311.
31
‘Alı̄ Jum‘a, “Tartı̄b al-Maqās.id al-Shar‘iyya” [“The Arrangement of the Objectives of Islamic Law”],
in Maqās.id al-Sharı̄‘a al-Islamiyya wa Qad.āyā al-‘As.r [The Objectives of Islamic Law and Modern Issues],
22nd Conference of the Supreme Council of Islamic Affairs (Cairo: Dār al-Kutub al-Mis.riyya, 2010), 1:65.
 52 Y. S. Ibrahim

Jum‘a’s view, one might ask whether Islam as a religion can still exist with-
out preserving the lives of Muslims who adhere to the faith and practice its
religious rituals. If Islam cannot exist without Muslims, then protecting the
lives of Muslims as a community becomes necessary to ensure the existence
of religion. Jum‘a clearly cites the Qur’ānic permission to eat religiously for-
bidden food when necessary to preserve one’s life as a clear example that
the preservation of life has a priority over that of religion.32
In general, the previous description of the choices made by modern
maqās.id thinkers when dealing with disagreements over the identity of the
necessary maqās.id in order to create a systematic theory that can respond
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to contemporary situations highlights the reality of the subjective character

of this maqās.id theorization. While Shāt.ibı̄ attempts to project this triple sys-
tem of general maqās.id, including the recognition of five necessary ones, as
being ingrained with “certainty,” the disagreement at least reflects the “proba-
ble” nature of this intellectual endeavor. Even if one argues that at least some
parts of this theory can provide “certain” knowledge, no serious attempt has
been made either by Shāt.ibı̄ or by the selected group of modern maqās.id
theorists to distinguish what is “certain” from what is “probable.” Ibn ‘Āshūr
himself refutes Shāt.ibı̄’s claim that the principles of Islamic legal theory (us.ūl
al-fiqh) are “definitive” or “certain” by arguing that the mere disagreement on
the validity of such principles among premodern legal theorists renders them
“probable.”33 Ibn ‘Āshūr, however, claims that the general maqās.id should
epistemologically be considered “certain” or “near certain.”34 But Ibn ‘Āshūr’s
argument can also be used to indicate that several parts of the maqās.id the-
ory are subject to disagreement among those who advocate this line of legal
philosophy. In other words, not all parts and details of the maqās.id theo-
rization can be developed through a successful inductive process based on
surveying all or most of a particular set of sharı̄’a rulings. This point is signif-
icant, because, similar to Shāt.ibı̄’s methodology, a large number of modern
theoreticians of maqās.id al-sharı̄‘a tend to present the entire theory as being
definitive and hence authoritative.
In light of this commitment to the presumed certitude of the classical
maqās.id system, there are a number of modern maqās.id writers who believe
that by incorporating additional views from other premodern legal theorists,
Shāt.ibı̄’s triple system of the general maqās.id (including the five necessary
ones) can successfully respond to the needs of modern life. Based on this
view, such a classical model can guide the application of the sharı̄‘a today.
In such writers’ works on maqās.id al-sharı̄‘a, we can see a restatement of
both Shāt.ibı̄’s system and the disagreements among premodern legal theo-
rists discussed previously without also finding any serious attempt by the

32
Ibid., 56–57.
33
Ibn ‘Āshūr, Maqās.id, 119.
34
Ibid., 168.
 Modern Discourse on Maqās.id al-Sharı̄‘a 53

authors to expand the content of the necessary maqās.id or develop a new

group of general maqās.id that have not been formulated by the premodern
legal theorists. A case in point is al-‘Ālim’s study, al-Maqās.id al-‘Āmma lil-
Sharı̄‘a al-Islāmiyya (The General Objectives of Islamic Law), in which he
reiterates the classical model of the triple system of maqās.id and com-
pares the views of legal theorists on the previously mentioned points of
disagreement.

The Expansion of the Number and Content of the General Maqās.id

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Beyond Their Premodern Limits

In contrast to this conformist line of thinking, some modern Muslim jurists
and legal theorists criticize the classical maqās.id theory as deficient in
addressing the modern problems of today’s Muslims and the possibility
for such a theory to guide an efficient application of the sharı̄‘a. Many of
these modern writers reflect a declared or undeclared dissatisfaction with
the classical model when dealing with the modern milieu. The main criti-
cal questions are: Is the definition of the necessary maqās.id, compared to
and contrasted with the definition of the needed and enhancing maqās.id,
compatible with the expectations of modern social realities (this is mostly
apparent in examining the classical meaning of the preservation of life and
the preservation of the intellect)? Does the general objective of preserving
life (nafs) include only religious rulings that aim at keeping Muslims alive?
Why did Shāt.ibı̄ and other medieval legal theorists not mention human dig-
nity, freedom, and other basic human rights? In other words, why are the
necessary maqās.id not presented as the preservation of an honorable life
for all Muslims in which they are protected from oppression, humiliation,
and indignation? Moreover, in terms of the preservation of the intellect, why
did premodern legal theorists focus on keeping a sober mind as the fulfill-
ment of this necessary objective, rather than including rulings that call for
developing the intellect and mental abilities through education? Also, why
should those acts of moral responsibility that are at the center of Islamic
ethics be relegated to the status of enhancing maqās.id and not to that of
necessary or even needed ones?
One of the most vocal critics of the premodern conception of the nec-
essary maqās.id is the contemporary Egyptian jurist Yūsuf al-Qarad.āwı̄. It is
clear that Qarad.āwı̄ is not satisfied with the premodern formulation of the
necessary maqās.id and their assigned meanings. He argues, for example,
that those legal theorists did not include “freedom, equality, brotherhood,
economic cooperation (takāful) and human rights.”35 Moreover, concern-
ing the necessary objective of the “preservation of the intellect,” Qarad.āwı̄

35
Qarad.āwı̄, Maqās.id, 27.
 54 Y. S. Ibrahim

observes that these early scholars did not include “seeking knowledge, build-
ing the scientific mentality and the rejection of blind imitation (taqlı̄d).”36
His explanation of these deficits in the ascribed meanings of the necessary
maqās.id is that the focus of premodern legal theorists was on “the good-
ness of the legally responsible individual and they did not similarly pay
enough attention to the society, the Muslim nation, the state and human
relationships.”37 He also notes that those legal theorists wrongly considered
“ethics as part of the enhancing maqās.id,” but he acknowledges that the
main moral teachings of Islam, such as truthfulness, trust, and justice, were
probably classified as part of the “necessary” preservation of religion.38 He
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further points out that the reason for the limited number and scope of the
premodern necessary maqās.id is that legal theorists focused on the major
criminal punishments stated in the Qur’ān or the Prophetic traditions to
determine what was considered necessary to preserve. He does not refer
to their consideration of the necessary maqās.id based on an anthropological
observation of what sustains the basic functions of a society.
Qarad.āwı̄’s critique of premodern Sunnı̄ legal theorists, specifically their
conception of the necessary maqās.id, suffers from inconsistency. First, one
can argue that legal theorists, such as Juwaynı̄, Ghazālı̄ and Shāt.ibı̄, took
into consideration the significance of the five necessary maqāsid in achiev-
ing the public good and maximum benefit for the community at large and
not only the personal interests of individuals. Even if they relied on the pre-
scribed religious punishments for crimes to define the necessary maqās.id,
one can assume, for example, that they were aware of the Qur’ānic verse
that describes the purpose of punishments for committing crimes (qis.ās.)
as sustaining the continuous life of the community.39 The preservation of
life, therefore, contributes to the common good and not only to individual
interests. Moreover, the preservation of property definitely contributes to a
successful regulation of economic life in the community, so that people will
not illegally acquire each other’s property. In addition, Qarad.āwı̄ wrote a
book on the concept of public policy (siyāsa shar‘iyya) to show that schol-
ars of Islamic law since the early years of its inception have studied and
analyzed issues related to the decisions made by Muslim authorities in terms
of public policy. Does not this interest in this field of Islamic law reflect not
only a deep engagement among at least some jurists with public policy and
community affairs but also the role of the caliph/imam in executing such
policies based on sharı̄‘a principles?
Second, I think that Qarad.āwı̄’s misinterpretation of the juristic assign-
ment of the necessary maqās.id in contrast to the needed and enhanced

36
Ibid., 29–30.
37
Ibid., 28.
38
Ibid., 29.
39
See Qur’ān 2:179.
 Modern Discourse on Maqās.id al-Sharı̄‘a 55

ones might be the reason behind this inconsistency. If we take the meaning
and scope of such maqās.id as they were apparently intended by Shāt.ibı̄ and
other premodern legal theorists, it makes sense to say that certain qualities of
ethical behavior recommended in Islam, such as the avoidance of anger and
of uttering inappropriate words to people, should be considered as “enhanc-
ing,” since the lack of them will not necessarily lead to the disintegration of
a society, as will pervasive criminality such as murder, rape, and theft. It is
true that the previously discussed disagreements among premodern legal
theorists reflect a lack of clarity regarding what constitutes a state of anarchy
or chaos in a society and what may or may not lead to such an existence.
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For instance, even if we limit the meaning of preserving sexual honor, as

Ibn ‘Āshūr argues, to the prevention of false accusations of committing an
act of fornication or adultery, then the lack of this preservation would mean
that many people in the society could easily accuse each other of com-
mitting fornication or adultery. If this were the case, then one could argue
that such a situation in any society would lead to enmities and a lack of
cooperation among the society’s members, contributing to the development
of a chaotic state of existence. But despite this relative vagueness of the
premodern perception of what leads to anarchy and chaos in any society,
the failure to include certain moral teachings, such as freedom of expres-
sion or freedom from oppression, among the necessary maqās.id was mainly
because, according to Shāt.ibı̄ and other legal theorists, failing to preserve
these moral teachings does not necessarily lead to social anarchy and chaos.
Many premodern religious scholars lived under oppressive political author-
ities, and it seems that, based on their observations, a Muslim society with
an oppressive leader was not in a state of chaos or anarchy, despite the
reality of political authorities committing many inhumane and immoral acts
against their subjects. As an illustration of this way of thinking, Shāt.ibı̄ quotes
a well-known legal case as an example of a conflict between two legal rul-
ings, in which one of them contributes to a necessary objective and the other
to a complementary objective. The case is whether an able-bodied Muslim
should fight in a just war against enemies of the Muslim community under
the leadership of an oppressive Muslim caliph or his local representative.
Shāt.ibı̄ concurs with many other legal theorists and jurists that the religious
ruling that requires the Muslim community to have political and military
leaders actually contributes to the necessary preservation of life and religion.
This argument contends that without leadership, the community will fall into
a state of anarchy, and the enemy’s army could easily defeat Muslims and
cause great bloodshed. But the religious ruling that requires the leaders to
rule according to just policies and avoid promulgating oppressive policies
is considered complementary to the previous necessary ruling. Therefore,
according to Shāt.ibı̄, Muslim combatants should participate in military cam-
paigns under those leaders because the preservation of what is necessary has
a priority over the preservation of what is complementary to this necessary
 56 Y. S. Ibrahim

ruling. This example illustrates that the quality of justice at the political level
was not considered necessary, since the lack of it would not lead the society
to fall into a state of anarchy or chaos.
But one can agree with Qarad.āwı̄’s approach that, based on the Qur’ān
and many Prophetic traditions, the main religious objective is to create a
righteous Muslim community and so, with this in mind, what is considered
necessary to achieve this goal is different from what is considered necessary
in the classical system of maqās.id al-sharı̄‘a. In other words, Qarad.āwı̄’s cri-
tique presents this premodern system as being non-Qur’ānic, and, according
to his methodology, the necessary maqās.id should be determined based on
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what the sacred texts present as necessary to build a righteous Muslim com-
munity. However, such an interpretive move would render Shāt.ibı̄’s system
irrelevant, since the redefinition of the necessary maqās.id would also require
a redefinition of the needed and enhancing maqās.id. A case in point is the
previously cited ruling in which Shāt.ibı̄ considers the religious prohibition
against intentionally attacking the women and children of an enemy people
during warfare as contributing to the enhancing maqās.id. Shāt.ibı̄ does not
believe the failure to observe this prohibition would lead the Muslim commu-
nity to fall into a state of anarchy and chaos. At the same time, Shāt.ibı̄ does
not classify this ruling as a needed objective, since the needed maqās.id cover
only those rulings that make Muslims’ practice of their religion less difficult.
Therefore, Shāt.ibı̄ considers such a prohibition on attacking noncombatants
during warfare as reflecting a Muslim’s virtuous behavior, which contributes
to the achievement of the enhancing maqās.id. On the contrary, Qarad.āwı̄’s
conception of the necessary maqās.id would make this ruling contribute to
the achievement of what is considered necessary, since it would constitute a
prohibition on the unjustified killing of innocent people. Such acts of aggres-
sion during warfare would be viewed as anathema to the perceived care
for humanity at large and to the preservation of life. This is why Qarad.āwı̄
includes freedom, equality, and human rights in general among the necessary
maqās.id.
Another important critique of the premodern system of maqās.id al-
sharı̄‘a is found in Western scholarship. Sherman Jackson addresses in a
critical article what he sees as the deficit in the classical definition of the
preservation of the intellect (reason).40 Jackson argues that the preservation
of reason was “a largely inert mental abstraction.” This is because the pro-
cess of induction used to reach this general objective did not survey a large
number of textual rulings to define the role of reason or the intellect. Rather,
the focus was on how to avoid consuming intoxicants in order to keep a
sober mind. He further states that the preservation of reason, “if applied

40
Sherman A. Jackson, “Literalism, Empiricism, and Induction: Apprehending and Concretizing
Islamic Law’s Maqasid al-Sharı̄‘a in the Modern World,” Michigan State Law Review 12, (2006): 1469–86.
Jackson calls this necessary objective the “preservation of reason.”
 Modern Discourse on Maqās.id al-Sharı̄‘a 57

as such across time and space, turns out to be substantially and practically
empty.”41 He suggests that this abstract notion needs to be concretized by
expanding its meaning to include, for example, the point that “the corruption
of the mind” is not caused only by intoxicants. Instead, “regimes of normal-
ized domination corrupt reason on a grander scale.” Jackson finds that a true
inductive survey of all or most textual rulings related to this objective will
“equate ‘aql [reason] with the ability to know.”42 Consequently, Jackson treats
the preservation of the intellect or reason as a potential religious declaration
that aims to strengthen a Muslim’s “ability to know” through education that
concentrates on fighting any source of ideas that corrupt the mind.
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Jackson, like Qarad.āwı̄, does not examine the criterion according

to which the preservation of the intellect has a limited meaning in the
premodern formulation. According to those legal theorists, the lack of such
education does not necessarily lead a society to fall into a state of anarchy
or chaos. But they assume that the consumption of intoxicants by a majority
of the people in a given society to the level of being drunk all or most of
the time would lead to many transgressions and threaten the lives of many
members of this society. This is probably why they did not include education
as part of the preservation of the intellect. Moreover, Jackson’s description
of the premodern objective of the preservation of the intellect/reason as a
“mental abstraction” that has no practical significance in the modern world
is not fully accurate. He criticizes Ibn ‘Ashūr for attempting to substantiate a
practical benefit for such an objective. It is true that the premodern percep-
tion of this objective was almost wholly limited to keeping a sober mind by
avoiding consuming intoxicants. But this limited application still has a con-
crete practical significance in modern societies. If we assume, for example,
that all or most Muslims living in a society with a Muslim majority follow
the dictates of this general objective and refrain from consuming alcohol or
drugs that cause mental impairment, then it is expected that no drunk driving
accidents will occur and no quarrels among people will happen as a result
of such impairment.
Despite this clear practical significance, Jackson is correct in criticizing
contemporary proponents of the classical maqās.id model who refer to it as
an instrument of reform; the preservation of reason/intellect, at least, does
not appear to be a very promising tool for reform. The only way this reform
can happen, Jackson observes, is by expanding the general meaning of this
objective to include a call for developing the mind through progressive edu-
cation. But through this extension of the meaning of this general objective,
Jackson, similar to Qarad.āwı̄ and other maqās.id writers, in fact creates a new
system of maqās.id al-sharı̄‘a’ in which the main criterion for distinguishing
the necessary from the needed and enhancing maqās.id is transformed into

41
Ibid., 1479.
42
Ibid., 1486.
 58 Y. S. Ibrahim

“what is necessary to build a righteous and civilized modern Muslim com-

munity.” This transformation is apparently carried out based on a direct and
modernist reading of the Qur’ān. The problem of such a transformation,
however, is that one has to adjust the definitions of the categories of “nec-
essary,” “needed,” and “enhanced” maqās.id to include new meanings and
then assign particular religious rulings to be included within each one of
them. Because of such a difficult task, many modern maqās.id writers such
as Rid.ā, Ibn ‘Āshūr, ‘Allāl al-Fāsı̄, Qarad.āwı̄, and several others have created
a parallel system of general maqās.id that are specific to one area of legal
activity, mostly interpersonal dealings/transactions (mu‘āmalāt) and custom-
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ary practices (‘ādāt), in order to guide the application of the sharı̄‘a in these
two fields in a way that is presumably distinct from a very “literalist” non-
maqās.idı̄ approach. The following few examples from Fāsı̄ and Qarad.āwı̄’s
writings on maqās.id al-sharı̄‘a will suffice to illustrate this.
Fāsı̄ enumerates a group of general maqās.id that relate to the preserva-
tion of “human rights.” He lists the rights of life and honor (karāma). The
first one clearly corresponds to the medieval “preservation of life” included
among the five necessary maqās.id. But Fāsı̄ expands this general objective
by indicating that it includes rulings that relate to the application of criminal
justice, the prevention of suicide, the fight against epidemics that destroy
the health of people and their safety, and the end of wars and international
conflicts.43 Under the right of human honor, he includes rulings that relate to
human dignity, gender equality, freedom, and justice. All these contribute to
the preservation of human honor. Although one can note that Fāsı̄’s presen-
tation of these general maqās.id is mostly rhetorical, his reference to gender
equality in Islam, for example, might have a practical significance. Based on
his interpretation of Qur’ān 9:71, he affirms the right and responsibility of
women, similar to that of men, to achieve political justice in a society.44 It
is clear that Fāsı̄ rejects a traditionalist interpretation of this verse in which
women’s participation in commanding good and prohibiting wrong is very
much limited to a restricted role of social activity. But he does not address
the point of whether Muslim women can assume leadership roles to oversee
the achievement of social and political justice. There is a well-known view
that prohibits Muslim women from assuming such leadership roles based on
a “literalist” interpretation of a Prophetic tradition.
In addition, it is worth noting that Fāsı̄’s conception of “peace” as pro-
tecting human life and honor is presented as not only ending wars and
conflicts among nations but also doing so in the spirit of achieving “inter-
national justice.” Here, similar to ‘Abduh and Rid.ā, Fāsı̄ strongly affirms the
point that the notion of justice in Islam includes treating with kindness all
non-Muslims who have not transgressed against Muslims. War can only be

43
Fāsı̄, Maqās.id, 227.
44
Ibid., 219.
 Modern Discourse on Maqās.id al-Sharı̄‘a 59

legitimized in Islam to ward off an act of aggression. Therefore, it is an objec-

tive in Islamic teachings to conclude an international treaty that bans all wars
and establishes peace.45 This view is clearly in contrast to that of some mod-
ern specialists of Islamic law who reiterate a medieval view that the essence
of relations between Muslims and non-Muslims is based on warfare, unless
this natural state of conflict is prevented by legitimate peace treaties between
Muslim and non-Muslim nations.
Another example of such a presentation of general objectives in the field
of mu‘āmalāt is Qarad.āwı̄’s focus on achieving political justice in Islamic
law. Following ‘Abduh and Rid.ā, Qarad.āwı̄ refers to Qur’ān 42:38, in which
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Muslims are commanded to enter into consultation (shūrā) among them-

selves to manage their affairs. Based on this verse and a few others, Qarad.āwı̄
explains that there has been a traditional consensus among Muslim jurists that
political authorities should consult with people of knowledge and expertise
on all matters relating to public policy and the common good. But he raises
the question of how to enter into this kind of consultation in contemporary
Muslim-majority societies in light of the objective of promoting political and
social justice. He finds the legal opinions of the modern “neo-Z.āhirı̄ ” jurists
on this issue to lack a focus on achieving this general objective. Religious
scholars who belong to this line of legal thinking, he contends, believe that
a Muslim ruler, whether a president, imam, or caliph, is only obligated to
consult with his subjects on matters related to domestic and foreign policies
but is free to decide whether to act upon the result of this consultation or
not. With this in mind, a Muslim political leader can rule for life, since he
is only obligated to practice this consultation. Therefore, according to this
view, there can be no limitations on the tenure of a Muslim political leader,
since such limitations are not part of the sharı̄’a. However, Qarad.āwı̄ reverts
to the general objective of achieving political and social justice to argue that
in today’s societies, the best way to achieve such an objective is to adopt a
democratic system of government to prevent leaders from promoting author-
itarian policies that might lead to tyranny and dictatorship, preventing justice
from being served.46

CONCLUSION

The modern maqās.id discourse, as represented by the cited writings in this

article, has clearly adopted Shāt.ibı̄’s maqās.id theorization, with its focus on
the triple system of the general objectives in Islamic law. The goal of such
modern interest is to find an application of Islamic law that is guided by
its spirit in contrast to the literalist “neo-Z.ahiri” approach that has continued

45
Ibid., 231.
46
Qarad.āwı̄, Maqās.id, 216.
 60 Y. S. Ibrahim

to exist throughout the twentieth century until today. However, the adop-
tion of this classical model has been unable to produce significant practical
effects in its modern application without expanding the number and scope
of what are considered “necessary” objectives of Islamic law. This expan-
sion in the meanings of Shāt.ibı̄’s “necessary” maqās.id creates a theoretical
inconsistency, since it does not acknowledge the definition and limitations
of such “necessary” maqās.id in Shāt.ibı̄’s formulation. Any reassignment of
the meanings of the “necessary” maqās.id requires that the “needed” and
“enhancing” maqās.id in Shāt.ibı̄’s system be reconsidered and reformulated.
To avoid facing such a theoretically difficult task, modern maqās.id writers
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have shifted their focus toward crafting a group of general maqās.id in the
fields of social, economic, and political relations that highlight the primary
objective of achieving the public good in these fields. The cited examples in
this article from Fāsı̄ and Qarad.āwı̄’s writings illustrate a relatively successful
effort to emphasize the respect for basic human rights in Islamic law and
a religious mandate to achieve economic and political justice through the
adoption of a democratic system of government.
One has to acknowledge, however, that the maqās.id discourse, whether
in its classical form or its modernist one, cannot present an epistemologi-
cally efficient system in which what is “certain” or “near certain” is clearly
distinguished from a jurist’s preference among competing views based on
a personal interpretation of a few Qur’ānic verses and/or Prophetic tradi-
tions for which a claim of comprehensive inductive argument cannot be
substantiated.
In the final analysis, it is worth noting that the reformist movement
inaugurated by Afghani and ‘Abduh has offered a very strong critique of
many premodern traditional views on theology, ethics, and law based on
the central idea that such doctrines represent a subjective reflection on the
perceived meanings of the sacred texts. If this is the case, then modern reli-
gious scholars can also offer their own reflections and interpretations and can
develop new ideas or elevate traditional ones that were expressed by only a
minority of premodern scholars to established positions in the modern age.
However, the modernist discourse on maqās.id al-sharı̄‘a, through its rebut-
tal of conservative/literalist views, has presented an ideological framework
in which religious texts and their authority are not clearly distinguished from
personal interpretations and reflections. Therefore, there is a constant need
for continuous scholarly discussion on the theory and practical significance
of this contemporary legal discourse.