MAQĀṢID AL-SHARĪ‘AH OR THE HIGHER OBJECTIVES OF ISLAMIC LAW: AN INTRODUCTION

Muhammad Munir

Abstract

The study of Maqāṣid al-Sharī‘ah or the higher objectives of Islamic law and maṣlaḥah has

attracted the attention of eminent scholars since the second century hijrī. This work discusses

what is Maqāṣid and maṣlaḥah? Who were the pre-modern as well as the post-modern scholars

who focused on Maqāṣid cum maṣlaḥah? What is the nature and structure of the Maqāṣid? What

are the types of Maqāṣid? Are there priorities within the Maqāṣid? And can the scope of the

Maqāṣid be broadened? The most noticeable works on Maqāṣid cum maṣlaḥah pre-modern

times is Imam al-Ḥaramayn al-Juwaynī, Muḥammad al-Ghazālī and Ibrāhīm b. Mūsā al-Shāṭibī.

There are many scholars in the 20th and 21st centuries who focused on maqāṣid. The most

important work is by Ṭāhir b. ‘Āshūr. Scholars have focused on maqāṣid cum maṣlaḥah because

these are considered as vehicle for change in the legal, social, political, and economic issues.

Post-modern scholars have expanded the scope of Maqāṣid to include, inter alia, justice,

freedom, equality, and rights etc.

Key Words:

Maqāṣid, maṣlaḥah, Maqāṣid al-Sharī‘ah , the higher objectives of Islamic law, public interest,

ḍarūrāt, ḥājāt, taḥsīnāt, essential interests, complimentary interests, embellishments, Juwaynī,

Ghazālī, Shāṭibī, Ibn ‘Āshūr.


Professor at the Department of Law, International Islamic University, Islamabad. Email:
[email protected]. He wishes to thank Muhammad Rafeeq Shinwari, lecturer Shaykh Zayed Islamic
Center, University of Peshawar for transliterating this work.

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Introduction

Scholars who specialize in the area of Maqāṣid believe that Islamic law is purposive in nature

which means that the law serves particular purposes (e.g., promoting people’s benefit and

welfare and protecting them from harm) that are either explicitly present in or can be derived

from the Qur’ān and the Sunna. The pre-modern jurists’ idea of maṣlaḥah was developed to

ensure that the maqāṣid of Islamic law are preserved and protected when adjudicating legal

cases. Both maqāṣid and maṣlaḥah are premised on essentially the purposive nature of Islamic

law and ultimately serve the purpose of promoting social welfare of the people, they are found to

be acting in harmony with each other. Therefore, the Maqāṣid cum maṣlaḥah approaches to

Islamic law are worth investigating. This work discusses the above issues, especially what is

maṣlaḥah? What are the purposes of Islamic law? What is beyond the purposes? What is the

nature and structure of the maqāṣid? What are the primary and secondary purposes of the

maqāṣid? Are there priorities within the maqāṣid? How can the scope of the maqāṣid be

broadened?

Maqāṣid and Maṣlaḥah?

The rules of sharī‘ah have purposes (Maqāṣid) behind them. Some of these are explicit and are

known to us whereas the philosophy of what is the purpose behind each rule may not be easily

known to us, but it does not mean that there is no purpose behind it. It is pertinent to mention that

Maqāṣid al-Sharī‘ah 1 is an umbrella term and scholars have discussed many other concepts that

have been closely linked to it in the classical Islamic tradition, most notably the idea of public

1
Also known as maqāṣid al-shari‘.

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interests (al-maṣāliḥ al-‘āmmah)2 and unrestricted interests (al-maṣāliḥ al-mursala). Other

concepts that are linked to Maqāṣid are: istiḥsān (juridical preference)3 and istiṣḥāb

(presumption of continuity). Ibn al-Muqaffa (d. 139/757) has used the technical word istiṣlāḥ

when he advised Caliph al-Mansur to describe how jurists should decide people’s affairs when

no textual ruling existed.4 Maṣlaḥah and manfa‘ah are treated as synonyms. It means benefit,

utility that leads to some kind of utility. Maṣlaḥah is defined as ‘the seeking of benefit and the

repelling of harm’ (jalb al-manf‘a wa daf‘ al-maḍarrah). The most systematic study of maṣlaḥah

was undertaken by Abu Ḥāmid Muḥammad al-Ghazālī (d. 505/1111) whose understanding of

this concept set the scales for the future interpretation. In Ghazālī’s view “maṣlaḥah was God's

purpose (maqṣad pl. Maqāṣid) in revealing the divine law, and, more concretely, that this

intention was to preserve for humankind the five essential elements of their well-being, namely

their religion, life, intellect, offspring, and property.”5 These five elements became known as al-

ḍarūrāt al-khamsa or the five fundamental objectives or higher objectives of sharī‘ah. In

Ghazālī’s scheme what protects these fundamental elements and averts harm from them is

maṣlaḥah and what fails to do so its opposite, namely mafsada.6 Thus, to Ghazālī, maṣlaḥah is

the preservation of the ends of the shar‘. The implementation of sharī‘ah is driven by maṣāliḥ

(sing maṣlaḥah, benefit). For Muslim jurists maṣlaḥah is the seeking of benefit and the repelling

of harm as directed by the Lawgiver. Islamic Law revolves around the interest of human being in

2
Abd al-mālik b. Abdullah Al-Juwaynī, Al-Burhān fī ’Uṣūl al-fiqh annotated, Abd al-Aẓīm al-Dīb (Qatar: Ministary
of Religious Affairs, 1400 AH), 183.
3
For example, Saḥnūn b. Sa‘īd, al-Mudawwana al- kubrā (Egypt: Maṭba‘at al-Sa‘ādah, 1323/1904-05), mentions
Istiḥsān instead of maṣlahah, see, Parts 1, 14, 134, 16, 217.
4
See, ‘Abd Allah b. al-Muqaffa', "Riālah fī l-ṣaḥābah," in Athār Ibn al-Muqaffa', ed. 'Umar Abu l-Nasr (Beirut: Dār
Maktabat al-Ḥayāt: 1966), 345-61, at 360.
5
Felicitas Opwis, “Maṣlahah in Contemporary Islamic Legal Theory”, Islamic Law and Society, 12:2 (2005), 182-
223 at 188.
6
Muhammad al-Ghazālī, al-Mustaṣfā min ‘Ilm al-’Uṣūl 4, vols. (Jidda: Sharikat al-Madīna al-Munawwara n.d.
1993), 2:481-2, 502-3.

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this world and in the hereafter. All the rules of Islamic law also revolve around the interest of

human being. Opwis argues that that the concept of maṣlaḥah has become a pervasive topic in

contemporary legal discourse has many reasons. She mentions that the main reasons is that

Muslim jurists considered maṣlaḥah as the realization of Maqāṣid al-Sharī‘ah or maqṣūd al-

shar‘ since the 5th/11th century.7 Moreover, “the concept of maṣlaḥah can serve as a vehicle for

legal change. It presents jurists with a framework to tackle the problem, inherent in a legal

system that is based on a finite text, of bringing to bear the limited material foundation of the law

(i.e., Qur’ān and ḥadīth) on everyday life in an ever-changing environment. It thus bestows

legitimacy to new rulings and enables jurists to address situations that are not mentioned in the

scriptural sources of the law. How much legal change may be achieved through applying

considerations of maṣlaḥah depends primarily on the purpose maṣlaḥah serves within a jurist's

overall conception of the law.”8

However, Maqāṣid are neither discovered by classical Muslim jurists nor are these

innovated by the post-modern scholars because these, i.e., Maqāṣid, are the core of religion from

day one. The Qur’an and the Sunnah have given many examples of the purposive nature of rules

of Islamic law. According to Ibn al-Qayyim, the Qur’ān and the Sunnah are full of examples

where the reasons and maṣlaḥah behind the rules are given. He argues that such reasons and

maṣlaḥah behind rules are available in the Qur’an and the Sunnah in over a thousand places in

different styles.9 For example, when Allah the Exalted says in the Qur’an, “[A]nd We placed

firm mountains on earth lest it should sway with them, and We made wide paths in them that

7
Felicitas Opwis, “Maslaha in Contemporary Islamic Legal Theory”, Islamic Law and Society, 12:2 (2005), 182-
223 at 183.
8
Ibid.
9
Ibn al-Qayyim, ‘Ilām al-Muqa‘īn, 1:169-200 and his Shifā’ al-‘Alīl, 2:537-575.

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they may find their way.”10 Similarly, when the Qur’an states, “[W]hatever (from the possessions

of the towns people) Allah has bestowed on His Messenger belongs to Allah, and to the

Messenger, and to his kinsfolk, and to the orphans, and to the needy, and to the wayfarer so that

it may not merely circulate between the rich among you”11, Allah has given the reason behind

the rule in this verse. In addition, Allah says, “[A]nd to those who had Judaized We have

forbidden all beasts with claws, and the fat of oxen and sheep except the fat which is either on

their backs or their entrails, or that which sticks to the bones. Thus did We requite them for their

rebellion.”12 Allah has given the reason for the rule. There are many other examples in the

Qur’an which cannot be produced here. Similarly, when the Prophet Muhammad (peace be upon

him) said, “[T]his rule of asking permission has been ordained so that one may not look

unlawfully (into people’s houses)”13, he was giving the reason why it is prohibited to look into

houses of other people. According to Shāh Wali Allāh Dehlavi, the rules of Islamic law are not

without maṣāliḥ (benefits). He argues that anyone thinking otherwise is wrong as per the Sunnah

[of the Prophet Muhammad peace be upon him] and the consensus.14

Maṣlaḥah is divided into ḍarūrāt (necessary interests), ḥājāt (supporting interests), and

taḥsīnāt (complimentary interests). Auda has documented works that employed or referred to

Maqāṣid since the third century hijri.15 The first scholar in premodern times who used the word

‘Maqāṣid’ is Muhammad b. ‘Ali Al-Tirmidhī, known as Al-Tirmidhī al-Ḥakīm (d. 296/908) in

10
Qur’ān, 21:31.
11
Qur’ān, 59:7.
12
Qur’n, 6:146.
13
Abū Abd al-Raḥmān Aḥmad b. Shu‘ayb Nasā’ī al-Sunan al-Ṣughrā, ḥadith no. 4859. See,
https://sunnah.com/nasai:4859 (last visited 25 December 2021).
14
Shāh Wali Allāh Dehlavi, Ḥujjat Allah al-Bāligha, 1:27. Also see, Shaykh Muhammad Muṣṭafā Shalabī, Ta‘līl al-
Aḥkām fī Sharī‘ah al-Islāmiyah, p. 96.
15
Auda, Y., Maqasid al-Sharī‘ah as Philosophy of Islamic Law (London: IIT, 2008).

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his book, Al-Ṣalāh wa Maqāṣiduhā.16 Abū Bakr Qafāl al-Shāshī’s (d. 365/976) Maḥāsin al-

Sharī‘ah is another noteworthy book on Maqāṣid where he has discussed Maqāṣid and

maṣlaḥah in the rules of sharī‘ah.17 Other jurists from the premodern times who are on Maqāṣid

cum maṣlaḥah are: Abū Zayd Al-Balkhī’s (d. 322/930) al-Ibānah ‘an ‘ilal al-Diyānah/Maṣāliḥ

al-Abdān wa al-Anfus, Ibn Babawayh al-Qummī’s (d. 381/991) ‘Ilal al-Shararī‘ah, and Al-

‘Āmirī al-Faylasūf’s al-I‘lām bi-Manāqib al-Islām. The last two are shī‘a scholars from

premodern times. However, the jurists who systematically focused on Maqāṣid are: Abu Al-

Ma‘ālī Al-Juwayni’s (d. 478/1085) Al-Burhān fī ‘Uṣūl al-Fiqh, Al-‘Izz Ibn Abd Al-Salām’s (d.

660/1209) Qawā‘id al-Aḥkām fī maṣāliḥ al-Anām, Shihāb al-Dīn Al-Qarāfī’s (d. 684/1258) al-

Furūq, Ibn Al-Qayyim’s (d. 748/1347) I‘lām al-Muwaqqi‘īn, and Al-Shāṭibī’s (d. 790/1388) Al-

Muwāfaqāt fī ’Uṣūl al-Sharī‘ah. The most noteworthy postmodern works on Maqāṣid are:

Muḥammad Ṭāhir b. ‘Āshūr’s Maqāṣid al-Sharī‘ah al-Islāmiyyah, Al-Qaraḍāwī’s (b.

1926/1344) Kayf Nata‘āmal Ma‘a al-Qurʿān al-‘Aẓīm, T. Al-Alwānī’s (b. 1935/1353) Maqāṣid

al-Sharī‘ah , ʿAbd al-Wahhāb Khallāf’s (d.1956) Maṣādir al-tashrī‘ al-Islāmī fī mā lā naṣṣa fīhi

(1954), Muḥammad Saʿīd Ramaḍān al-Būṭī (d. 2013) has written his doctoral dissertation,

Ḍawābiṭ al-maṣlaḥa fī l-sharī‘ah al-Islāmiyya. In 1963, ʿAllāl al-Fāsi ̄ (1910-74) published

Maqāṣid al-sharī‘ah al-Islāmiyya wa-makārimuhā. Other authors who have written on the

subject in the recent past are: Ismāʿīl al-Ḥasanī,18 Aḥmad al-Khamlīshī,19 Jamāl al-Dīn ʿAṭiyya,20

16
Ahmed Al-Raysuni, Naẓariyyat al-Maqāṣid ‘ind al-imām al-Shāṭibī, 1st ed. (Herndon: IIIT, 1992). The book is
edited and annotated by Hasni Nasr Zaydan and is published by Dār al-kutub al-Arabi, Egypt.
17
See, Abū Bakr Qafāl al-Shāshī, Maḥāsin al-Sharī‘ah.
18
Ismāʿīl al-Ḥasanī, Naẓariyyat al-maqāṣid ʿinda al-imām Muḥammad al-Ṭāhir Ibn ʿĀshūr (Herndon, Virginia:
International Institute of Islamic Thought, 1415/1995).
19
Aḥmad al-Khamlīshī, Wijhat naẓar (Rabāṭ: Dār Nashr al-Maʿrifa, 1998 (vol. 2), 2000 (vol. 3), 2002 (vol. 4).
20
Jamāl al-Dīn ʿAṭiyya, Naḥwa tafʿil̄ maqāṣid al-sharī‘ah (Damascus: Dār al-Fikr, 2001).

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Ahmad Al-Raysūnī,21 and No‘man Djaim.22 It is interesting to note that scholars of the 20th and

21st centuries have focused on the maqāṣid instead of maṣlaḥah.

The pre-modern jurists’ idea of maṣlaḥah was developed to ensure that the maqāṣid of

Islamic law are preserved and protected when adjudicating legal cases.23 Both maqāṣid and

maṣlaḥah are premised on essentially the same principle (i.e., the purposive nature of Islamic

law) and ultimately serve the same purpose (promoting social welfare of the people), they are

found to be acting in harmony with each other.

Types of Maqāṣid

Ghazālī has divided Maqāṣid into two: Dīnī or purposes of the hereafter and Dunyāwī or

purposes pertaining to this world. Each of these is divisible into tahsil or securing of the interest

and ibqā’ or preservation of the interest. Ḍarūrāt (necessary interests) are those without which

there will be anarchy and chaos in society. The absence of protection for these interests would

mean the loss of everything that we hold dear. Al-Ghazālī has identified five such objectives,

namely:

 Ḥifẓ al-dīn (preservation and protection of religion)

 Ḥifẓ al-nafs (preservation and protection of life)

 Ḥifẓ al-nasl (preservation and protection of progeny)

21
Aḥmad Raysūnī, Imam Al-Shāṭibī’s Theory of the Higher Objectives and Intents of Islamic
Law (The International Institute of Islamic Thoughts, 2005), and his Maqāṣid al-maqasid: al-
ghayat al-'ilmiyah wa-al-'amaliyah li-maqāṣid al-sharī‘ah (Al-Shabakah al-Arabiya Lil
Abḥāth Wa Al-Nashr, 2013).

22
No‘man Djaim, Turuq al-Kashf ‘an Maqāṣid al-Shari‘ah (Amman, Dār al-Nafā’is, 2001), his commentary on
Shāṭibī’s treatise, titled, Taysīr al-Muwāfaqāt li al-Imām Al-Shāṭibī (Beirut: Dār ibn Ḥazm, 2009), and his Al-
Muḥarar fī Maqāṣid al-sharī‘a al-Islāmiyah (Amman: Dār al-Nafā’is, 2018).
23
Imran A. Nyazee, Outlines of Islamic Jurisprudence, 134.

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  Ḥifẓ al-‘aql (preservation and protection of intellect)

 Ḥifẓ al-māl (preservation and protection of wealth)24

The five essential interests are viewed as the roots or foundations of all other interests. The

second category of interests is known as Ḥājāt (supporting needs/interests). These are

required for the smooth operation/implementation of the ḍarūrāt. If ḥājāt are not protected

there would be hardship and loss in the performance of social functions. Ḥājāt or ḥājiyāt are

complimentary interests and are not independent interests. These seek to protect and promote

the essential interests in a secondary capacity. These are benefits, which seek to remove

severity and hardship that do not pose a threat to the very survival of normal order. There are

many examples of concessions (rukhas) given in the sharī‘ah aimed at removing hardship,

such as the shortening of prayers (ṣalāh), and opening of the fast or fasting when one reaches

his destination or is recovered for the traveler and the sick respectively but they are not

essential since people can live without them if they had to. In almost all areas of obligatory

‘Ibādāt the Sharī‘ah has granted such concessions. Regarding mu‘āmalāt, the Sharī‘ah

certain contracts are validated, such as the sale of salam, and also that of lease and hire

(Ijārah) because of the people’s need for them notwithstanding a certain anomaly that is

attendant in both.

The third type of interests are called taḥsīnāt are in the nature of embellishments as these

provide additional rules that lead to the moral and spiritual progress of the individual and

society. For example, voluntary ṣadaqah (charity) and many ethical and moral rules (like the

prohibition of cutting of trees or killing animals during war). These seek to attain refinement

24
See, Abū Ḥāmid Muḥammad Al-Ghazālī, Al-Mustaṣfā fi ‘ilm ul ‘Uṣūl (Cairo: Makbat Dār al-kutub al-Miṣriyya,
1997).

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and perfection in the people’s conduct at all levels of achievement. For instance, the Sharī‘ah

encourages cleanliness of body and attire for purposes of prayer and recommends, for

instance, the use of perfume when attending the congregational Friday prayer. On the other

hand, the consumption of raw garlic before going to the mosque is condemned. Similarly, the

sharī‘ah recommends supererogatory prayers (nafl). In customary matters and relations

among people, the sharī‘ah encourages gentleness (rifq), pleasant speech and manner (ḥusn

al-khuluq) and fair dealing (Iḥsān). The purpose of all this is the attainment of beauty and

perfection in all areas of human conduct. It means that there is a moral shell around the

necessities. Thus, morality is inseparable from law in Islam.

How are the Necessary Interests Protected?

Ḥifẓ al-dīn or the protection of religion is two-fold: internal and external. For internal

protection God has prescribed ‘Ibādāt (prayer, fasting, ḥajj, and zakāt) for Muslims. For

external protection jihad becomes obligatory when there is an attack on faith/religion from

outside. It is the duty of the Imam (head of Muslim state) to ensure proper conditions for

both. Ḥifẓ al-nafs or the protection and preservation of life is secured through the provision

of sustenance and the maintenance of good health. For external protection penalties are

imposed on those who destroys it without legal justification. This is why retribution (qiṣāṣ) is

imposed to protect life. Ḥifẓ al-nasl (progeny) is promoted through the maintenance of

healthy family life and the institution of marriage. Penalties are provided for those who

corrupt it by committing zina- adultery or fornication. The Ḥadd of zinā and ḥadd of qadhaf

are meant to protect progeny. Ḥifẓ al-’aql (intellect) is achieved through the provision of

education and healthy conditions for its growth. Penalties are provided for those who

consume substances that destroy intellect. This is why drinking alcohol and other intoxicants

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 are prohibited to protect and preserve intellect. The protection and preservation of wealth

(Ḥifẓ al-māl) is achieved by encouraging its growth and providing rules for its smooth

conduct. Penalties are provided for those who commits crimes against property such as theft,

robbery, burglary, blackmail, etc.

Widening the Scope of Maqāṣid

Post-modern Maqāṣidi scholars have expanded the scope of Maqāṣid from the traditional

five. Adis Duderija25 argues that Rashīd Riḍā (d. 1935) in his Al-Waḥy al Muḥammadī:

Thubūt al-Nubuwwah bi al-Qur’ān, included reform and women’s rights in his theory of

maqāṣid26; Muhammad Al Ghazālī (d. 1996) in Naẓaarāt fī al-Qur’ān, added justice and

freedom to the five maqāṣid;27 Yusuf al-Qaraḍāwī (1926) included human dignity and rights

in his theory of maqāṣid; Ibn ‘Āshūr included values such as equality, freedom, and

orderliness, among others, in his as part of universal maqāṣid of Islamic law in his Maqāṣid

al-Sharīʿah al-Islamiyyah ;28 Ṭāha al-Alwānī, in his work, Issues in Contemporary Islamic

Thought, has included the concept of developing civilization on earth (ʿimrān);29 and Gamal

Eddin Attia, in his work has identified 24 essential maqāṣid under four four-level realms, that

is, individual, family, ummah, and all humanity.30

Are There Priorities within the Maqāṣid?

25
Adis Dudreja, “Contemporary Muslim Reformist Thought and Maqāṣid cum Maṣlaḥa Approaches to Islamic
Law: An Introduction”, in Maqāṣid al Sharī‘a and Contemporary Reformist Muslim Thought: An Examination, ed.,
Adis Dudreja (New York: Palgrave Macmillan, 2014), 6.
26
Rashīd Riḍā, Al-Waḥy al Muḥammadī: Thubūt al-Nubuwwah bi al-Qur’ān (Cairo: Muʿasasah ʿizz al-Dīn, n.d.).
27
Muhammad Al-Ghazālī, Naẓarāt fī al-Qur’ān (Cairo: Nahḍat Miṣr, 2002).
28
Muḥammad al-Ṭāhir Ibn ‘Āshūr, Maqāṣid al-Shariʿah al-Islamiyyah (Cairo: Dār al-Kitāb al-Maṣri, 2011).
29
Ṭāha Al-Alwānī, Issues in Contemporary Islamic Thought (Washington and London: IIIT, 2005).
30
Gamal Eddin Attia, Toward Realization of the Higher Intent of Islamic Law (Maqasid al Sharī‘ah): A Functional
Approach, trans. Nancy Roberts (Kuala Lumpur: IIIT, 2010), 116–151.

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There are priorities within the Maqāṣid. Dīn has precedence over life. Life has precedence

over nasl; Nasl has precedence over ‘aql; ‘aql has precedence over mal. Thus, Dīn is the

inner most shell, followed by life, nasl (progeny), ‘aql, māl. Each primary purpose has its

own supporting needs, like shells, one inside the other. For example, prayer has farā’iḍ, inner

shell; sunnah is the middle shell and nafl is the outer shell. One who crosses the outer

shell/boundary will soon demolish the inner shell. An overarching principle of all policy

making (political, legal, economic, social, environmental etc.) that emerges from these

objectives is maṣlaḥah (public interest). Thus, public interest (maṣlaḥah) should be the main

goal of policy making. Public interest can be defined in simple words as promoting and

preserving the things that are beneficial to society and preventing the things that are harmful

to it.

Conclusion

The main points may be summed up here. The rules of the Sharī‘ah are purposive in nature.

In many cases the Qur’an and the Sunnah of the prophet Muhammad (peace be upon him)

mention the purpose behind a rule but on other occasions it is not mentioned but is like an

implied condition (to use the language commercial law) and is always read into the rule.

Early scholars used different terms such as istiṣlāḥ or istiḥsān to discuss Maqāṣid and

maṣlaḥah. Although there are many scholars who wrote on Maqāṣid cum maṣlaḥah or what

is derived from them since the second century hijrī but it was Juwaynī and his student Al-

Ghazālī who focused more on Maqāṣid. Ghazālī divided Maqāṣid into ḍarūrāt (essential

interests), ḥājāt (complementary interests) and taḥsīnāt (embellishments). Ghazālī argued

that maṣlaḥah is the purpose (maqṣid) of the divine law, namely to protect religion (din), life

(nafs), intellect (‘aql), offspring (nasl), and property (māl) for humankind. Whatever attains

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 and preserves these elements on the level of necessity (darūra), need (ḥāja), and

improvement (taḥsīn) constitutes maṣlaḥah and is intended by the Lawgiver, and whatever

forfeits and harms them is a mafsada, a cause of corruption that needs to be averted.31

Ḍarūrāt are the most fundamental interests that must be protected and preserved. Muslim

jurists have considered maṣlaḥah as the realization of Maqāṣid al-Sharī‘ah or maqṣūd al-

shar‘ since the 5th/11th century.32 Moreover, the concept of maṣlaḥah can serve as a vehicle

for legal change. The second category of interests is known as Ḥājāt (supporting

needs/interests). These are required for the smooth operation/implementation of the ḍarūrāt.

If ḥājāt are not protected there would be hardship and loss in the performance of social

functions. The third type of interests, taḥsīnāt are in the nature of embellishments as these

provide additional rules that lead to the moral and spiritual progress of the individual and

society. Post-modern scholars have widened the scope of Maqāṣid and have included, inter

alia, reform and women’s rights, justice, freedom, human dignity, rights, values such as

equality, freedom, and orderliness, among others, the concept of developing civilization on

earth (ʿimrān).33 Gamal Eddin Attia, has identified 24 essential maqāṣid under four-level

realms, that is, individual, family, ummah, and all humanity. There are priorities within the

Maqāṣid. Dīn has precedence over life. Life has precedence over nasl; Nasl has precedence

over ‘aql; ‘aql has precedence over māl. Thus, Dīn is the inner most shell, followed by life,

nasl (progeny), ‘aql, māl.

31
Ghazālī, Al-Mustaṣfā, 2:481-82.
32
Felicitas Opwis, “Maslaha in Contemporary Islamic Legal Theory”, Islamic Law and Society, 12:2 (2005), 182-
223 at 183.
33
Ṭāha Al-Alwānī, Issues in Contemporary Islamic Thought (Washington and London: IIIT, 2005).

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