Asim Zahoor BA Islamic Studies

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Student and Course Details

Full Name Asim Zahoor

Course Title BA Islamic Studies

Assignment/coursework Details

Module Name Maqasid al-Shariah (Objectives of Islamic Law)

Module Code BIS 601

Name of Tutor Dr Fella Lahmar

Due date 26th November 2019 

Assignment title The role of liberty and human rights in light of maqāṣid al Sharī’ah

Word count 2598

Student signature: Asim Zahoor

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Asim Zahoor BA Islamic Studies

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Asim Zahoor BA Islamic Studies

The role of liberty and human rights in light of Maqāṣid al Sharī’ah’

This essay shall seek to explore the role of liberty and human rights in light of maqāṣid al
Sharī’ah (the aims of Islamic law). The term liberty (ḥur’riyyah) referred to here is distinct
from the more specific term ‘itq (emancipation) which medieval jurists were more familiar
with, the latter refers to freedom from slavery (which is included in the word ḥur’riyyah)
whereas the former refers to freedom more generically as the ability to act upon one’s
wishes (mashī’ah)1. From the onset it is to be made clear that freedom in its absolute sense
is not recognized by any legal institution which will make criminal certain human acts. This is
consistent with Western conceptions of human rights which when discussing liberty do not
so in its absolute sense, human rights are defined as certain rights deemed as inherent for all
human beings 2.

The first to propose ḥur’riyyah as an aim pursued by Islam law was Ibn ‘Ashur 3 who himself
limited the freedom sought by Islamic law as limited to those things which are made
permitted and at the exclusion of those things proscribed, in this sense as already mentioned
ḥur’riyyah is not absolute, however Ibn ‘Ashur as well as mentioning certain freedoms such
as freedom of thought, speech and actions within law also argued a most compelling case
advocating that the general sense of freedom (within the bounds of ethics) served as a
desired quality in Islam4. He does this by pointing to his readers the great virtues that exist in
the emancipation of slaves in the Islamic tradition and the many avenues made possible in
the Qur’an to facilitate freedom for slaves5, although enslavement of prisoners of war
represents a legal means in Islamic law to remedy the question of POWS, enslavement is a
mere option presented to a leader in Islam and has no spiritual value, on the contrary
emancipation features greatly as a positive act in Islam. Ibn ‘Ashur thus points out that given
the fact that the only real utility that exists in emancipation is that one enables another
person greater self-determination, this then serves to indicate the value liberty bears in
Islamic tradition, hence he argues liberty not found contrary to Islamic values represents an
aim of Islamic law. Further to this the Qur’an’s strong censuring of prohibiting permitted
matters in numerous verses 6 also gives an impression that liberty beyond those things that
1
Jasser Auda (2007) Maqāṣid al Sharī’ah as a philosophy of Islamic Law; A Systems approach (The
International Institute of Islamic Thought) p.6
2
Universal Declaration of Human Rights (Accessed Online: https://www.un.org/en/universal-
declaration-human-rights/)
3
Jasser Auda (2007) Maqāṣid al Sharī’ah as a philosophy of Islamic Law; A Systems approach (London;
The International Institute of Islamic Thought)
4
Ibn ‘Ashur (Translated by Mohamed el Tahir el Mesawi; 2006) Ibn ‘Ashur Treatsies on Maqāṣid al
Sharī’ah (The International Institute of Islamic Thought)
5
Ibid
6
Qur’ān 5:87, Qur’ān 7:32, Qur’ān 66:1 (Translated by Saḥīḥ’ International)

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Asim Zahoor BA Islamic Studies

conflict with Islamic value is prized. Furthermore to this there exists the legal maxim in
Islamic legal tradition that all things are by default permitted unless proven otherwise 7
reflects liberty as the default and not restriction.

However the special emphasis supposedly placed on liberty in Islam can be put to question
when it is recognized that all cultures have freedoms and restrictions, the fact that Islam
allows its adherent liberty beyond prohibited matters is common in all cultures and
represents no great feat of liberty, in fact the legal maxim that all things are permitted
except that which is prohibited by Islam is a legal maxim that even the most despotic nations
may permit, that all things are permitted except those matters proscribed by an autocrat
represents no great act of liberty , consequently this maxim is not indicative of liberty as an
ideal. Also the term ḥur’riyyah is seen as alien to Islamic terminology as pointed out by Ibn
‘Ashur himself who did not deny the western origin of this term 8.

The concept of human rights however does have precedent in Islam with Qarḍ āwī declaring
it to be a concept well established in Islam 14 centuries ago 9, the division of law between
huqūq Allah (the rights of God) and ḥuqūq al ‘ibād (the rights of the subject) clearly attests to
this10. Kamālī11 also makes the point that certain obligations depend on freedoms such as
freedom of speech which is required to encourage good and discourage evil or to speak ‘a
true word’ before a tyrant ruler 12, but he also makes the point that free speech in Islam is
merited for the purpose to progress truth and thus speech which do not correspond to such
aims such as slander or personal abuse are proscribed, the same can be said of Western
thought as echoed by thinkers such as John Stuart Mills who viewed free speech valued only
for the good it brings 13, thus freedom itself is not inherently prized but the virtue it brings .
Free will itself is prized as the means by which humans may earn greater distinction than
angels who do not have the ability to sin 14, however this is not to be seen as a great
reflection of freedom in Islam as free will is not prized in itself but the ability to make the
right choices out of one’s own volition, conversely the wrong choices results can result in

7
Yusuf al Qarḍāwī (2016) al aṣl fil ahyā’ al ibāḥah’ (Accessed Online: https://www.al-
qaradawi.net/node/2241)
8
Jasser Auda (2007) Maqāṣid al Sharī’ah as a philosophy of Islamic Law; A Systems approach (The
International Institute of Islamic Thought) p.6
9
Yusuf al Qarḍāwī (2014) Huqūq al Insān (Accessed Online: https://www.al-qaradawi.net/node/687)
10
Al Bulandshehrī (2009) Provisions for the Seekers (California: White Thread Press)
11
Mohammad Hāshim Kamali (1997) Freedom of Expression in Islam (Islamic Text Society)
12
Al Bulandshehrī (2009) Provisions for the Seekers (California: White Thread Press)
13
John Stuart Mills (2001) On Liberty (Batoche Books Limited) (Accessed Online:
https://socialsciences.mcmaster.ca/econ/ugcm/3ll3/mill/liberty.pdf)
14
Qur’ān 16:49-50 (Translated by Saḥīḥ’ International)

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Asim Zahoor BA Islamic Studies

perdition despite free will. However the notion of human rights as representing fundamental
rights intrinsic to all people certainly has basis in Islam especially with respect to the concept
of karāmah’ (dignity), the Qur’ān declares all of humanity to have been endowed with
intrinsic honour15, this corresponds with the ideal of ḥifẓ al ‘irḍ (protection of honour) and in
fact has synonymous connotations, the truth remains that the very concept of maqāṣid al
sharī’ah and its 5 aims seem to give credence to the idea that the law is aimed to preserve
the welfare of humanity and thus by extension there exist certain rights integral to
humanity. Although there exists a joint recognition of human rights as a concept in both
Islam and Western ideals, its manifestation shows a clear distinction between western and
Islamic models of human rights, this is especially pronounced with respect to sexual
freedoms such as homosexuality and relationships formed out of wedlock, these clashes
revolve around different understandings of the wisdom behind proscribing such acts,
however these differences are seen as severe enough as reflected by the unwillingness of
some Muslims to associate Islamic law with the term human rights’16.

In conclusion it is the view of this essay that freedom does not represent an aim of Islamic
law, this is because freedom in itself is a meaningless expression. Freedom can denote the
freedom or right to do things destructive or constructive and as pointed out earlier, absolute
liberty is not recognized by any legal institution, western connotations have it that liberty
aims to maximize the choices an individual can make whilst conceding total liberty to be
paradoxical to the very concept of law 17. It is understood that virtue not freedom is what
Islam seeks of its adherents, acts that are bereft of any virtue or utility whatsoever are
condemned in the Qur’an as la’ib (folly)18. Freedoms that Islam does extend to its adherents
are only done so for virtues that exist behind them, so for example freedom of speech is
sought so long as it allows for truth and justice to be conveyed, the virtues of emancipation
lie in the happiness of a slave in possessing greater self-determination. Further evidence that
liberty itself is not prized but merit, is the fact that even permissible matters in Islam may be
proscribed should there exist disadvantageous consequences under the purview of sad al
dharī’ah (blocking the means to a harm) 19. It is thus incumbent upon legal experts to look for
the virtues behind freedoms sanctioned in Islam as freedom in and of itself is meaningless.
Conversely the concept of human rights on the other hand does have strong precedent in

15
Qur’ān 17:70 (Translated by Saḥīḥ’ International)
16
Basma Abdel Ghafar (2018) Public Policy beyond traditional jurisprudence A Maqāṣid approach (The
International Institute of Islamic Thought)
17
Concise Oxford Dictionary of Politics, Oxford University Press (2009)
18
Qur’ān 57:20 (Saḥīḥ’ International)
19
Mohammad Hashim Kamali (2003) Principles of Islamic Jurisprudence (The Islamic Text Society)

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Asim Zahoor BA Islamic Studies

Islam in that every human is endowed with karāmah (dignity) intrinsic to them, thus
anything that runs contrary to human dignity falls foul of Islamic law, the very fact that
scholars have already captured this aspect of Islamic law under the purview ḥifẓ al ‘Irḍ
challenges the usefulness of adding human rights as an aim of Islamic law.

Index for measuring the Islamicity of a mosque

This essay shall be focusing on the function of the mosque in Islamic law and the objectives
that underpin its existence, through this there shall be an attempt to draw up an index by
which it can be discerned how successfully a mosque corresponds to these objectives. Finally
this index will be applied to a mosque that shall remain unidentified and for the purpose of
this research shall be termed as ‘Mosque A’.

The word Masjid (mosque) linguistically refers to a place in which prostration to God is done,
from this we understand the essential function of the mosque is to serve as a place of
worship, however there must exist certain added utilities relating to a mosque given that
Islamic tradition has it that the entire earth (beyond the mosque itself) is a place of prayer
for all Muslims20. Ibn ‘Ashur explains that a mosque serves as a physical manifestation and
reminder of God’s existence21. The Qur’an itself describes the mosque as a place in which
God is remembered22. Thus one measure of a mosque can be as to how far it will go to
impart greater awareness of God and spirituality. This can be measured by establishing as to
whether a mosque establishes the five daily prayers? How many times during the day are
gatherings held in remembrance of God (a practise which was done by the companions of
the Prophet23)? , this could refer to discussing the names of God or any gathering which aims
to exhort good deeds which Islamic tradition sees as bringing closer to God.

The second objective of a mosque is education, this can be understood in the life of the
Prophet who hosted the ahl al suffah’, which were a group of disciples who stayed in the
mosque to gain religious education24, the Friday prayer in which the Imām is to deliver a
sermon is also an opportunity to impart education to the masses. There is an overlap here
between the first objective that of imparting spirituality and this objective, this is because
imparting spirituality is a form of education, however the form of education discussed here
refers to necessary education which deals with contemporary issues. In the UK this refers to
issues such as dealing with atheism and doubts with respect to religion, issues related to
20
Saḥīḥ’ Muslim No: 522 (Accessed Online: https://sunnah.com/muslim/5/5)
21
Ibn ‘Ashur (1994) al Taḥ’rīr wal tanwīr (Dār al Suḥ’nūn li al Nashr wal Tawzī’) Vol 3
22
Qur’ān 2:114 (Saḥīḥ’ International)
23
Saḥīḥ’ Muslim No.2701 (Accessed Online: https://sunnah.com/muslim/48/51)
24
Sunan Ibn Mājah No:2157 (Accessed Online: https://sunnah.com/urn/1264760)

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Asim Zahoor BA Islamic Studies

extremism, gender interaction in the workplace and extremism etc. Any issue which may
sever to impede the Muslim community in their faith, practise of their religion and their
relationship with the wider community is considered as necessary to discuss and
corresponds with the first aim of Islamic law ḥifz al dīn (preservation of religion). Given the
limitations of this work only certain issues shall be added to the measure as a sample, more
issues can be added. A mosque shall be deemed successful if it discusses all the specified
issues at least once a year, also a mosque is to be measured by how relevant the Friday
sermons are to topical issues affecting the Muslim community that may have occurred
during the week.

Fig A

Mosque A Yes No


Does it establish
the five daily
prayers?
Total One Point Zero Points
Total highlighted in bold to show how much Mosque A has scored

Fig B

Mosque A After each 4 x a day 3 x a day 2 x a day 1 x a day Once a

prayer week


How often
do there
exist
gatherings
serve to
impart
spirituality
beyond
prayers?
Total 5 points 4 points 3 points 2 points 1 point 0.5 point

Fig C

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Asim Zahoor BA Islamic Studies

Discussion of Yes No
following topical
issues at least once a
year


Atheism


Gender Interaction


Extremism

Total 1 point 0 points

Mosque A has only discussed one issue throughout the year, more topical issues can be
added depending how far they affect the Muslim communities, this checklist could provide
guidance to mosques to discern what issues need remedying. This checklist can also help
mosques to cooperate with one another in providing helpful information in tackling these
issues.

Fig D

Mosque A Yes No


Did there exist any issue
during the week that
affected the Muslim
community at large?
Did the Friday sermon N/A
address the issue?
Total 1 point 0 points

The third measure is inclusivity, this is because the mosque is a place which is open to all
categories of people, ṣadd ‘an al Masjid (preventing people from the mosque) is deemed a
great sin in Islam25, the Prophet prevented men from forbidding women to come to the
mosque26 and even hermaphrodites have a place in the mosque as affirmed by Hanafite

25
Qur’ān 2:114 (Saḥīḥ’ International)
26
Sunan Abi Dāwūd No.566 (Accessed Online: https://sunnah.com/abudawud/2/176)

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Asim Zahoor BA Islamic Studies

jurists27. This will be measured by discerning whether the mosque places a ban on any
categories of people and how accessible the mosque is.

Fig E

Mosque A Yes No


Is the mosque open to all?


Is the Mosque always open
to people who require its
facility?
Total 2 Points 0 points

Mosque A although kept lock after prayers for security reasons allow for worshippers who
require the facility to contact a key holder who can open the mosque, this is especially
convenient for travellers from distant cities.

The fourth measure revolves around the mosque’s involvement in social projects, this is
because the mosque in the time of the prophet served as a place where charity was
distributed, travellers were housed and even the wounded were treated 28. This can be
measured by gaging whether a mosque houses charity boxes and how often a mosque raises
awareness of an ongoing charity or social project?

Mosque A Yes No


Does the Muslim house
charity boxes?


Did the mosque support a
charity this week?
Total 2 Points 0 points

Mosque A is limited as to how much social projects it can raise funds for, this is because
most weeks, time is spent raising much needed funds for the mosque itself, thus its support
is at times limited to raising awareness or collection is only allowed after funds for the
mosque have been collected.

27
Al Murghinānī  (2011) al Hidāyah (Karāchī: al Maktabah al Bushrā)
28
Muhammad Ali (1994) The Religion of Islam (Delhi: Motilal Banarsiddas Publishers) p.284

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Asim Zahoor BA Islamic Studies

The fifth measure revolves around the facilities offered by the mosque, this can be gaged in
verses of the Qur’an which obligate purifying mosques for the convenience of worshippers 29
which indicate that worshippers are meant to feel comfortable in the mosques. This can be
measured by gaging how often a mosque undergoes cleaning during the week? Whether it is
provided with adequate lighting? Does it provide heating during winter and cool air during
summer? More can be added to the list but given the limitations of this study, these
standards shall serve as a sample.

Mosque A Yes No


Is the Mosque cleaned every
day?


Does it provide adequate
lighting for worshippers?


Does it provide heat during
winter?


Does it provide cool air
during summer?
Total 7 (cleaning daily during the 0 points
week) + 1+1+1 = 10 points

Out of a total of 24 points Mosque A has scored 21 points.

In conclusion it is hoped that these five measures of education, social projects, inclusivity,
and facilitation can serve as an index for which mosques can measure their development by
and improve. Due to the limited nature of this work, further additions can be made to
improve this index.

29
Qur’ān 22:26 (Saḥīḥ’ International)

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Asim Zahoor BA Islamic Studies

Bibliography

1) Abdel Ghafar. Basma (2018) Public Policy beyond traditional jurisprudence A Maqāṣid
approach (The International Institute of Islamic Thought)

2) Al Bulandshehrī. A (2009) Provisions for the Seekers (California: White Thread Press)

3) al Qarḍāwī. Yusuf (2016) al aṣl fil ahyā’ al ibāḥah’ (Accessed Online: https://www.al-
qaradawi.net/node/2241)

4) Auda Jasser (2007) Maqāṣid al Sharī’ah as a philosophy of Islamic Law; A Systems

approach (The International Institute of Islamic Thought) p.6

5) Al Qarḍāwī .Yusuf (2014) Huqūq al Insān (Accessed Online: https://www.al-

qaradawi.net/node/687)

6) Concise Oxford Dictionary of Politics, Oxford University Press (2009)

7) Ibn ‘Ashur. Muhammad (1994) al Taḥ’rīr wal tanwīr (Dār al Suḥ’nūn li al Nashr wal Tawzī’)
Vol 3

8) Ibn ‘Ashur (Translated by Mohamed el Tahir el Mesawi; 2006) Ibn ‘Ashur Treatsies on
Maqāṣid al Sharī’ah (The International Institute of Islamic Thought)

9) Kamali. Mohammad Hashim (2003) Principles of Islamic Jurisprudence (The Islamic Text
Society)

10) Kamalī. Mohammad Hashim (1997) Freedom of Expression in Islam (Islamic Text Society)

11) Mills. John Stuart (2001) On Liberty (Batoche Books Limited) (Accessed Online:
https://socialsciences.mcmaster.ca/econ/ugcm/3ll3/mill/liberty.pdf)

12) Universal Declaration of Human Rights (Accessed Online:

https://www.un.org/en/universal-declaration-human-rights/)

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