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Grundnorm and the higher objectives of the Shariah (maqasid al-shari'ah)

If the maqasid al-shari’ah are so integral to the Shari’ah, why were they not as systematically and extensively elaborated as the science of usul al-fiqh (legal methodology)? As early as the 10th century, these purposes have been mentioned, such as by the eminent Sufi and jurist, al-Tirmidhi al-Hakim in his work on the Objectives of Prayer (al-salah wa maqasiduha). Then Abu Ma’ali al-Juwayni in the 11th century classified them into the essentials (daruriyyat), the supplementary (hajiyyat) and the embellishments (tahsiniyyat). His student Abu Hamid al-Ghazali expanded this into the ‘five essentials’ (which is still in vogue today), namely the protection (hifz) of religion (din), life (nafs), intellect (‘aql), property (mal) and lineage (nasl). In all these there is recognition that the Shari’ah actually pursues certain objectives which have to be kept in mind and not simply apply the rules for the sake of applying them. Yet none have been able to produce a systematic methodology of identifying the maqasid from the revealed sources of the Qur’an and Sunnah. The first to actually take up this task was the Andalusian jurist, Abu Ishaq al-Shatibi in the 14th century. But even then, it remained a latent development that is overwhelmed by the science of usul. That is now changing in the 20th and 21st century, for the scholarly literature is now replete with calls to expand and elaborate on the maqasid. Shatibi has been rehabilitated to speak in our generation, but even with such credential, critics usually bring up a valid point – that the science of maqasid cannot rival the methodological sophistication of usul. Throughout its long career, usul al-fiqh was developed and refined not only by drawing nourishments from a strictly ethico-legal discourse and case studies that the jurists actually came across. It turned out that usul came into contact with many other sciences, such as theology (kalam), epistemology, logic (mantiq), dialectic (jadal) and the science of argumentation (adab al-bahth). Along the way it picked up elements from each and melded them into its own epistemic architecture.

When usul al-fiqh was evolving and undergoing all these transformations, what happened to the maqasid? They were simply subsumed and as a result, were not subjected to the same rigorous scholarly treatment as the usul. So now critics are claiming that a science of maqasid can’t work because it has not systematic methodology. At best the maqasid can only be deduced where there is clear textual pronouncement or otherwise only arbitrary and conjectural speculation. But if the text is clear to start with, why on earth is there a need for a science? So it explains why they didn’t feature so prominently in the classical discourse. That brings us back to the original question: why didn’t the scholars pay as much attention to the maqasid?

One reason is that it is because it is mostly in our time, in the post-colonial period, that the assumption that the science of usul does not serve the Shari’ah first came into prominence. Before this period, it was accepted that the usul is meant to serve the Shari’ah (and naturally that means its maqasid). If indeed, there was any deficiency in the application, what is usually called into account is that specific instance itself, not the entire science as a whole.

The conventional assumption that the literalist orientation of usul was so powerful that for centuries people merely accept dogmatically its postulates and rulings risks oversimplifying a process that unfolds in complex and variegated ways. This is not unique to the Shariah, for in any legal system, once the objectives are made to be operationalised within a system, there is bound to be some distance between the means and the original purpose, so that the rules themselves create sub-objectives that are themselves meant to achieve the higher objectives. These sub-objectives are like the stilts on which the higher objectives rest.

Once the ultimate source is accepted as the basis and fundamental principle on which society should be based, as the Grundnorm of that society to use Hans Kelsen’s vocabulary, the question is how should this source interact with the daily lives of individuals? Usually this will mean application of this principle in specific situations. Often in involves some distancing from the original purpose.

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