Maqāṣid Al-Sharī‘at: The Main Reference
and Ethical-Spiritual Foundation for the
Dynamization Process of Islamic Law
Iffatin Nur, Syahrul Adam, M. Ngizzul Muttaqien

Abstrak: Peran paling utama dan penting maqāṣid al-sharī‘at yang patut
dipelajari adalah sistem direktif dan pertahanan. Sistem direktif, misalnya,
menempatkan maqāṣid al-sharī‘at sebagai rujukan utama untuk setiap reformasi
atau proses perubahan dan dinamisasi hukum Islam, sedangkan yang terakhir
menempatkannya sebagai prinsip moralitas tertinggi yang memberikan landasan
dan kekuatan etis-spiritual untuk masyarakat Muslim ketika mereka berinteraksi
dengan hukum. Dengan dua peran tersebut, maqāṣid al-sharī‘at dapat menjadi
pendorong perubahan masa depan menuju masyarakat yang lebih konstruktif
dan humanistik. Penelitian pustaka ini meneliti maqāṣid al-sharī‘at dari masa
Nabi Muhammad Saw. hingga hari ini. Hal ini bertujuan untuk menguraikan
posisi maqāṣid al-sharī‘at sebagai acuan utama dan landasan etis-spiritual bagi
dinamisasi proses hukum Islam dalam menghadapi persoalan kontemporer.
Ini juga mengkaji konsep maqāṣid al-sharī‘at dan menganalisis fleksibilitas,
kemampuan beradaptasi, dan dinamika hukum Islam. Selain itu, dimaksudkan
untuk membuka pikiran mereka yang menyatakan bahwa hukum Islam begitu
lestari, doktrinal, abadi, dan final sehingga dianggap tidak dapat beradaptasi
dengan berbagai bentuk perubahan sosial dan modernisasi yang membawa
banyak isu kekinian.
Kata kunci: Masalah-masalah Kontemporer; Dinamisasi; Landasan etika-spiritual;
Maqāṣid al-Sharī‘at
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Abstract: The two primary and significant roles of maqāṣid al-sharī‘at worth
studying are directive and defensive systems. The directive system, for instance,
puts the maqāṣid al-sharī‘at as the main reference for any reformation or
changing processes and dynamization of the Islamic law, whereas the latter
places it as the supreme principle of morality that provides the foundation
and ethical-spiritual power for Muslim Societies when they interact with
the law. With these two roles, the maqāṣid al-sharī‘at can serve as a driving
force to create future changes towards a more constructive and humanistic
society. This study is library research which examines the maqāṣid al-sharī‘at
from the time of Prophet Muhammad (Peace be Upon Him) to this very
day. It aims at elaborating the position of maqāṣid al-sharī‘at as the primary
reference and ethical-spiritual foundation for the dynamization process of
Islamic law in dealing with contemporary issues. It also examines the concept
of maqāṣid al-sharī‘at and analyzes the flexibility, adaptability, and dynamic
of Islamic law. In addition, it is intended to open the mind of those who
claim that Islamic law is so immutable, doctrinal, eternal, and final. This
means that Islamic law is assumed to be inadaptable to various forms of
social changes and modernization.
Keywords: Contemporary Issues; Dynamization; Ethical-spiritual Foundation;
Maqāṣid al-Sharī‘at

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Introduction
Allah established the Islamic law to give benefits to human beings
and to prevent any mafsadāt (harms), both in this world and the
hereafter (Syabani, 2015: 127- 142). Creating benefits is crucial in
the formulation of law, – These laws include the divine law deriving
from a transcendent source (revelation) as in the Islamic law and the
human-made law-, although each law has their respective emphasis
(Bakrie, 1996: 130).
Concerning the Islamic law, the difference is in the privilege
of the law itself. In the meantime, lots of contemporary public
issues including democracy, general election, parliamentary system,
corruption, life and health insurances, stem cell therapy, and alike need
a critical, wise and thorough reviews by applying the maqāṣid al-sharī‘at
(the objectives of Islamic law) In Indonesia, for example, democracy
which is manifested in general elections, usually taking place every
five years, has been accepted as a means to elect the head of central,
provincial, and local governments as well as their respective members of
parliaments. Regarding its implementation, the majority of Indonesian
Muslim scholars have accepted the concept of democracy positively
considering its compatibility with the Islamic teachings (Hakiki, 2016:
1-17). Regarding the corruption phenomenon, the Transparency
International mentions that Indonesia’s Corruption Perception Index
(CPI) score rose to 38, and the country ranked the 89thout of all
countries in the world in 2018. Here, the Zero Point denotes the most
corrupt country; the higher the rank of a country, the less corruption
is found in the country (Saputra, 2019).
Life and health insurances have also been part of public needs
and interests. Therefore, practicing them in a way which is in line
with the Islamic law must be studied and, in turn, stipulated under
the government regulations (Hasanah, 2019: 239-268). Similarly,
the practice of human organ transplantation, including the recent
breakthrough in medical treatment, stem cell therapy, need to be
taken into account as well (Setiawan, 2014). These are a few examples
of contemporary issues in today’s human life, where an up-to-date
perspective of Islamic law must be present.
Questioning maqāṣid al-sharī‘at is essentially considered as a
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perennial issue with great questions; Is the Islamic law eternal or
temporary? Is it adaptable to changes and modernization? Can it answer
different and new issues that arise among society? And Is it capable of
accommodating the changes and the process of modernization? among
others. There are also a series of other questions closely related to the
maqāṣid al-sharī‘at issues. To this end, discussing and elaborating the
issues has been relevant to this date.
Addressing the characteristics of Islamic law, two groups of
scholars have different opinions. The first group, comprising of some
fuqahā’ (Islamic jurists) and several Islamologists, concludes that the
Islamic law is eternal. Here, C. S. Hurgonje (2010) and Joseph Schacht
(1996: 1) belong to this group. They claim, in accordance with its
concept, development and methodology, the Islamic law is eternal.
Consequently, it is not adaptable to any form of social changes and
process of modernization (Masood, 1998). They build their claim
based on the following premises: First, the Islamic law is eternal as
the concept of law is authoritative, divine and absolute, which in
turn does not allow any change in it. As a logical consequence of
this concept is that the law is sacred, final, and eternal and closes
any door to changes. Second, the Islamic law is eternal due to the
nature of its origin and development, in which it was untouched by
any institution of law and social changes during its formative period.
Third, Islamic law is eternal as it does not develop any methodology
for its changes.
In contrast, the second group says Islamic law can adapt to
social changes and modernization. This group includes the majority
of fuqahā (Islamic jurists), Subhi Mahmasani (Mahmashani, 1981),
for example, and a small number of Islamic law observers including
Linant Bellefond (1956: 412-425) and Coulson (2011: 81). They
argue the principles of the Islamic law that depends on maṣlaḥat
(public interests), maqāṣid al-sharī‘at (the objectives of Islamic law),
and the flexibility of law in practice, as well as Ijtihād (independent
reasoning) (Arief, 2017) clearly show that the Islamic law is adaptable
to social changes and modernization. They construct their arguments
rationally. According to this group, Islamic law aims at giving benefits
to all human beings. Therefore, it is expected that the Islamic law
appreciate and welcome every social change and modernization for
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they considerably take parts in making efforts to achieve the maqāṣid
al-sharī‘at (the objectives of Islamic law). Given its objectives, Islamic
law must be flexible.
Acknowledged or not, the interaction between social changes
and the theory of Islamic law has taken place since the time of
Prophet Muhammad (Peace be Upon Him). This interaction reached
its peak during the time of the enculturation between the Islamic and
the Western cultures. This is a logical consequence of the expansion
efforts during the reign of the Rashidun Caliphs, Umayyad caliphate,
and Abbasid caliphate. Consequently, the renewal of Islamic law has
occurred in terms of codification and modification. This renewal or
modernization that has taken place in the body of Islamic law is based
on the concepts of maṣlaḥat (public interest) and maqāṣid al-aḥkām
(the objectives of rulings) (Halaq, 2005; Bsoul, 2016; Thahir, 2019).
Al-Shaṭibi wrote a mature concept of maqāṣid al-sharī‘at in his
book al-Muwāfaqāt fī Uṣūl al-Sharī‘at, (al-Shaṭībī and Daraz) ‘Allal
al-Fassi in Maqāṣid al-Sharī‘at al-Islāmiyyat wa Makārimuhā, (al-Fasi,
1993) and Ibn ‘Āshūr in Maqāṣid al-sharī‘at al-Islāmiyyah respectively
(Zed, 2008). They, among others, are regarded as maqāṣid al-sharī‘at
initiators. To name a few, the contemporary Muslim scholars with
their works on maqāṣid al-sharī‘at include Abd al-Wahhāb Khallāf,
al-Raisūnī, Sayyid Quṭb, Yūsuf al-Qaraḍāwī, and Jasser Auda.
This study aims at elaborating the position of maqāṣid alsharī‘at as the main reference and ethical-spiritual foundation for the
dynamization process of Islamic law in dealing with contemporary
issues. This study also examines the concept of maqāṣid al-sharī‘at
and analyzes the flexibility, adaptability, and dynamic of Islamic law.
This is library research (Zed, 2008) in which its sources of data are
literature, a collection of written works. In term of the data collection,
this study uses a documentary technique (Creswell, 2014; Nawawi,
1991: 133). According to Bailey, a documentary technique refers to
analyzing documents that contain information about the phenomenon
expected to study (Bailey, 2007). According to Payne and Payne,
this method is used to investigate and classify physical sources, most
commonly written documents, in the private or public domain (Payne
and Payne, 2004). Hadari Nawawi mentions that a documentary
technique is a technique of collecting data through written heritages
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- especially in terms of archives and books - about opinions, theories,
and arguments regarding the problems being studied (Nawawi). Here,
this study conducts an in-depth study on some works (i.e. books) of
previous Muslim scholars focusing on maqāṣid al-sharī‘at including, but
not limited to, al-Shaṭībī’s Al-Muwāfaqāt fī Uṣūl al-Sharī‘at, al-Fassi’s
Maqāṣid al-sharī‘at al-Islāmiyyat wa Makārimuhā, and Ibnu ‘Ashur’s
Maqāṣid al-sharī‘at al-Islāmiyyat respectively. It also reviews the works
of contemporary scholars: Maṣādir al-Tashrī‘ al-Islāmī fī mā lā Naṣs{
fīh by Abd al-Wahhāb Khallāf, Naz}ariyyat al-Maqāṣid ‘ind al-Imām
al-Shaṭībī by Ahmad al-Raishuni, Al-‘Adālat al-Ijtimā’iyyat fī al-Islām
by Sayyid Quṭb, Al-Ijtihād fî al-Sharī‘at al-Islāmiyyah ma’a Naẓrāti
Taḥlīliyyāt fī al-Ijtihād al-Mu’āṣir by Yūsuf al-Qaraḍāwī, and Maqashid
Shariah as Philosophy of Islamic Law: A Systems Approach by Jasser
Auda. Other works in terms of books, articles, and journals are also
used to gain a better understanding of the maqāṣid al-sharī‘at.
To analyze the data in this study, the following procedures are
applied: 1) capturing the basic ideas of the primary sources, 2)
highlighting the ideas through the research method perspective, 3)
presenting various views and theories in secondary sources to sharpen
and complete the analysis, and 4) performing further analysis to
develop a new analysis which is in line with the ideas. By conducting
the last procedure, this study is expected to produce objective findings
and conclusion.
Discussion
Understanding the Roles of Human Beings
According to Hasan al-Turabi, the preservation of the earth has
something to do with human existence. For this reason, saving the
human species from extinction is necessary (1975: 75). One of the
ways to save them is by allowing them to live in pairs, a man and a
woman, to have descendants (tawallud) and to breed (tanāsul). Here,
human souls need proper and effective regulations since damaged
human souls will cause damages on earth (Junaidi, 2014: 71).
Islam teaches universal norms stating that everyone is a part of
and has a responsibility to others. They are a part of nature and
universal humanity. Therefore, they cannot escape from others and
need to live in groups to defend themselves, to breed, and to carry
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out more comprehensive functions to fulfil their tasks of being Allah’s
vicegerents (Junaidi, 2014: 71). The smallest society is family, and
it joins with other families to form a community. In turn, lots of
communities form a large group of people which is known as a nation
or a state. Everyone has different status according to their role in life.
This is what encourages each of people to support one another; the
weak and vulnerable are protected, and the rich can benefit from the
poor. Human beings are weak creatures as Allah said in Sūrat al-Nisā‘
[4]: 28 (Ali, 1992: 193). They are unable to fulfill their own needs
as they must complement and support one another. In other words,
they depend on other creatures in this world (al-Ṭabarī, 2000: 32).
Islam also teaches that all human beings are brothers and sisters
since they come from one ancestor, the Prophet Adam, as mentioned
in Sūrat al-Nisā‘ [4]: 1 (Ali, 1992: 183). Allah then created Eve from
Adam as his wife. From them come all human beings in this world.
During his last pilgrimage, Prophet Muhammad gave his farewell
sermon. Among others, he said, “O people, know that your God is
one, your ancestors are one. Do know there are no privilege for Arabs
over ‘Ajam (non-Arab) people and neither do ‘Ajam over Arabs. White
people have no superiority over black people, and neither do black people
over white people except for their fear of Allah.” (Hanbal, 1978).
His sermon becomes an essential principle that all human beings
are created equal. Ethnic, linguistic, and skin color differences due to
geographical factors are only signs to make it easier to recognize them
and provide help as mentioned in Sūrat Al-Ḥujurāt [49]: 13: “Indeed,
the noblest person in Allah’s side is the most pious. Men and women only
differ in gender. Their deeds are judged and justified by their piety and
their ability to give more benefits for others.” (Ali, 1992: 1342-1343).
The Islamic Law at a Glance
Throughout human history, a social change over time is a natural
phenomenon. No society is in a dormant state at different times; all is
always moving and heading towards an increasingly perfect civilization
(Junaidi, 2014: 67). To realize such noble mission of creating a perfect
civilization and fulfilling Allah’s order to become His vicegerents and
preserve the earth, proper and effective regulations to rule their life is
necessary. Allah has established such regulations through the teachings
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delivered by all of His Messengers. For Muslims, the regulations are
written in Islamic law, which is different from other laws as previously
mentioned.
The Islamic law is different and is exceptional compared to other
laws for several reasons; 1) the Islamic law has benefits and effects
which are not only limited to one’s life in the present time in this
world, but also in the hereafter. This is because the law itself is created
for happiness in both dimensions, the present and the afterlives; 2) the
benefits brought by the Islamic law are not only related to material
dimension (māddī) but also immaterial dimension (rūḥī), and 3) the
religious benefits in the Islamic law become the foundation for other
laws. This means if a religious benefit in the Islamic law contradicts
to the one which belongs to the other laws, the religious benefit must
come first (Bakrie: 64; Sya’bani, 130).
Islamic law is a law which is closely related to this change.
Besides playing a role in changing society from its bad condition to a
good one, the Islamic law itself has also been a product of change as
the result of contextual Ijtihād by its scholars and practitioners from
the time of Prophet Muhammad to the present day (al-Awwa, 1998:
4). During the Prophet’s days, religious issues were solved through
revelation, whereas worldly issues were settled through consultation
with his Companions. In the era of the Companions, naṣṣ (texts)
from the Qur’ān and Hadīth became the primary reference, but the
policies and decisions were made through discussions and deliberations
among them.
In responding to the contemporary issues, Islamic law has been
more developed than its initial inspiration. However, the law still
refers to the texts in the Qur’an and Sunnat as its primary sources.
In this regard, the Islamic law is not an instant law made by God
according to His desires. Still, it is the law that will progressively
develop and guide the development of Muslim society through Ijtihād
(independent reasoning). The Ijtihād is conducted by understanding
the texts, analogizing new cases to the ones that already have legal
rules, and issuing new laws in line with the objectives of sharī‘at
(Madkur, 1983: 58-62).
According to Anwar, the process of legal reasoning in stipulating
a legal regulation involves three poles which have dialectical relations
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to one another. These three include the texts, the reality, and the
objectives of the law. The texts, with their symbols and dependence
on generalization and abstraction in expressing an object, enable the
mujtahid (the one who conducts Ijtihād) to add a new meaning to
them. This meaning is produced to adequately understand the issues
and the spatio-temporal space in which it happens and to consider the
objectives of law. The reality of the issues lights up the understanding
of the texts, while the texts give a clear orientation in coping with
reality at the same time (Anwar, 2003: 154).
One’s dependency on Islamic law can bring glory as the law has
an ability to shape human beings into perfect beings or make them
more humane. In its realization, the Islamic law includes 2 (two)
categories: sharī‘at which is permanent, clear, firm, qaṭ’iy (absolute)
and universally applicable; and fiqh which is open to changes and
interpretable. Here, the mujtahid plays a significant role in finding
the truth based on their independent reasoning. For this reason, the
truth is ẓanniy (interpretable) and supposedly applicable. The latter
category is flexible, adaptable and responsive to the social dynamics
and the changing times. With such natures, Islamic law can provide
reasonable and applicable solutions (Junaidi, 2014: 77).
The Qur’ān is the primary source of Islamic law. However, according
to Wahyuni, not all of the texts contain and give an understanding
which is qaṭ’iy al-dilālah (in a strict, specific, and detailed manner)
and no longer requires a detailed explanation. There are a lot of
verses in the Qur’ān with mujmal (global/undetailed), khafī (unclear),
or mushkīl (abstruse) narration. In many cases, the Qur’ān even only
mentions universal norms and values. To understand such verses would
undoubtedly require further explanation and details. However, it does
not mean the imperfection or weakness of the Qur’ān, but it is an
advantage that makes it to be always up to date and relevant to every
place and era and in line with its position as the source of the sharīa
(Wahyuni, 2016: 225-252).
The Islamic law which has been practiced until now is a
dynamic law stipulated by Muslims based on their understanding
and interpretation on the revelation (texts) (ibn Khaldun, 200). Such
understanding and interpretation, which is adaptable and adjustable
to the changing times, is called fiqh. Here, fiqh is known as al-ḥukm
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al-Islām (Islamic law). The term al-ḥukm al-Islām distinguishes it from
other laws. Such term is not popular in the books of uṣūl fiqh, and
it is only mentioned once by Ibn Hazm al-Ẓāhirī in al-Nubzat alKāfiyah, Volume I, on page 59. Besides, it is mentioned three times
in al-Furūq, a book written by As`ad ibn Muhammad ibn al-Husayn.
In the work of Muhammad ibn Bahādur al-Zarkashi, al-Manthūr fī
al-Qawā‘id, it is only mentioned once (Junaidi, 2014: 18).
The term al-ḥukm al-Islām is often understood and interpreted as
fiqh and al-sharī‘at al-Islāmiyyah. However, each of these terms has its
framework. For this reason, in several posts and forums, contemporary
Muslim scholars make extra efforts to describe each term so that
they can be distinguished from one another and have a respective
proportional position (Khatib, 2014: 79-80).
The method of conducting istinbāṭ (searching for legal cause) in
uṣūl fiqh (the principles of Islamic Jurisprudence) is classified into
three forms: ṭarīqat al-Ijtihād al-bayāni (a semantic/linguistic Ijtihād
method), ṭarīqat al-ijtihād al-tawfīqi (reasoning towards conflicting
religious propositions), and ṭarīqat al-ijtihād al-ta’līli (reasoning with
legal causes/purposes), one of which is the method of maqasid alsharī‘at (Anwar, 2003: 157). This method is developed to achieve
the ultimate objective in establishing and implementing Islamic law,
benefits for humanity.
Ṭarīqat al-ijtihād al-bayāni is an Ijtihād method or legal discovery
by explaining the existing naṣṣ (texts) through linguistic/semantic
reasoning or approaches to the texts. The followings are the procedures
of this method: 1) checking on the clarity of the statements mentioned
in the texts (Qur’ān and Hadīth), 2) finding the meaning of the texts,
3) observing the scope (broadness and narrowness) of the statements
mentioned in the texts, and 4) analyzing the forms of taklīf (a legal
charge or obligation) mentioned in the texts (Anwar, 2003: 157-158).
In the meantime, tarīqah al-ijtihād al-tawfīqi is a method of
making law by harmonizing the conflicting texts in the Qur’ān and the
Hadīth. This method of ijtihad is carried out in three techniques; aljam’u (compromising), al-Naskh (abrogation), and at-tarjīḥ (reinforcing)
(Anwar, 2003: 158). Lastly, ṭarīqat al-ijtihād al-ta’līli is a legal discovery
method by finding the legal causes or purposes mentioned in the
texts in the Qur’ān and the Hadīth. This ta’līli method is classified
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into two types; ta’līlu al-aḥkām bi al-‘illah (legal discovery based on
legal causes) and ta’līlu al-aḥkām bi maqāṣidi al-sharī‘at (legal discovery
based on legal purposes) (Anwar, 2003: 158).
According to Hazri, the maqāṣid is supposed to give way for the
uṣūl al-fiqh for the uṣūl has been occupied with technicalities. Any
difficulties are expected to be solved or dealt with by discovering the
underlying objectives of the sharī‘at. Here, the historical look at the
development of Islamic law has revealed the constitution of ijtihad
(Hazri, 2015: 422-426).
Understanding Maqāṣid al-Sharī‘at
The term maqṣid (plural: maqāṣid) means a purpose, a principle,
an objective, an intent, an end, a goal, telos (Greek), finalité (French),
or Zweck (German) (Auda, 2008: 2).
It derives from the verb qaṣada-yaqṣudu and has different meanings,
i.e. leading to one direction, goal, middle-path, fairness, consistency,
not exceeding limits, straight path, a middle-way between exaggeration
and insufficiency. In the meantime, the word sharī‘at, according to
Thahir, etymologically means al-‘utbah (the lap of the valley), al-‘atabah
(a doorway and a stair), mawrīd al-sharīah (a path where the thirsty
look for water), and al-ṭarīq al-mustaqīmat (a straight path). The use of
the term sharīah referring to the meaning mawrid al-sharī‘at is found
in the words of the Arabs: shara’at al-ibil, which means a camel goes
out and heads to the water source to drink (Ismai’il, 1985; Musa,
1989: 17), whereas its meaning as ṭarīqat al-mustaqīmat is mentioned
in Sūrat al-Jāthiyah [45]: 18: “Then We put thee on the (right) way of
religion; so follow thou that (way), and follow not the desires of those
who know not” (Ali, 1992: 1297)
For Muslims, sharī‘at means religion, al-ṭarīqat al-mustaqīmat
(the straight path), and al-nuṣuṣ al-muqaddas (the sacred texts) from
the Qur’ān and Sunnat (Rauf, 1989: 1-50). Schacht says, sharī‘at
is the sacred law of Islam. He adds, it is an all-embracing body of
religious duties, the totality of Allah’s commands that regulate the life of
every Muslim in all aspects; it consists of ordinances regarding worship
and rituals, as well as political and (in the narrow sense) legal rules.”
(2007: 142). In short, maqāṣid al-sharī‘at is defined as the objectives
or purposes behind the Islamic law enactment (Auda, 2008: 2).
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The knowledge of maqāṣid al-sharī‘at is essential. Here,
understanding the maqāṣid al-sharī‘at can be used as a tool to
comprehend narratives in the Holy Qur’ān and the Sunnat/Hadīth.
It also helps to settle the conflicting arguments (ta’ārud al-dilālah) that
may be found in both sources of Islamic law. Further, it can also be
used as a method to establish a law in cases where legal provisions are
not available either in the Qur’an or the Sunnat (Sya’bani, 138: 138).
In uṣūl al-fiqh, the objectives or purposes of Islamic law are often
referred to as maqāṣid al-sharī‘at which is manifested or reflected
through the five fundamental elements ​​in the Islamic law: hifz al-din
(protection and preservation of religion), hifz al-aql (protection and
preservation of intellect), hifz al-nafs (protection and preservation of
soul), hifz al-mal (protection and preservation of property), and hifz
al-‘irdh (protection and preservation of lineage). Maqāṣid al-sharī‘at is
also mentioned in different terms, including maqāṣid al-sharī’, maqāṣid
al-sharī‘at, and al-maqāṣid al-shar’iyyah (Raosuni, 1992: 17). Essentially,
these different terms imply the same meaning, which is the purposes
or objectives of Islamic law enactment. In general, the Muslim scholars
of Islamic jurisprudence interpret maqāṣid sharī‘at as the essence of
the Islamic law enactment (al-Fasi, 1993). Najm al-Din al-T{ūfī (d.
716 H/ 1216), for example, defines maṣlaḥat as what fulfills Allah’s
purpose as the Law Maker (al-Shāri’). Meanwhile, al-Qarafī (d. 1285
H/ 1868) associates maṣlaḥat and maqāṣid with the principles of
Islamic Jurisprudence. He states ‘A purpose of the law (i.e. maqāṣid
al-sharī‘at) is invalid unless it gives benefits or avoids harms’ (al-Qarafī,
1994: 33). Al-Fasi, as quoted by al-Raisūnī, mentions:
“Maqāṣid al-sharī‘at is the objectives of sharī‘at and the secrets that have
been set by al-Shāri’ (Allah) in any provisions of His law” (al-Rausani,
1992: 18).

The general principle of maqāṣid al-sharī‘at is enforcing the
significance of jalb al-maṣāliḥ wa dar’ al-mafāsid (getting benefits and
avoiding harms). In this case, al-Raisuni states:
“In general, maqāṣid means upholding rules, getting benefits, avoiding
harms, building equality among human beings and establishing sharī‘at
(the Islamic law) as an authoritative legal product. On the other hand,
it can also lead Muslim to become a strong, respectable and calming
community. Suffice to say, maqāṣid al-sharī‘at is the objectives of the

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Islamic law enactment which needs to happen for the sake of human
beings as a whole” (al-Rausani, 1992: 18-19).

A Brief History of Maqāṣid al-Sharī‘at
The literature review shows that the maqāṣid al-sharī‘at in terms of
maṣlaḥat or any other terms having a close meaning with maqāṣid has
essentially been present since the time of Prophet Muhammad (Peace
be Upon Him) and his Companions, especially ‘Umar ibn Khattab
and the other caliphs (i.e. Abu Bakr, ‘Uthman and ‘Ali), as narrated
in several events. This is because the sharī‘at brought by Prophet
Muhammad (Peace be Upon Him) to give benefits to all human beings
is not supposed to be understood textually. Such benefits have existed
since the Qur’ān verses were revealed and have also been mentioned
in the hadīth. This indicates that maqāṣid al-sharī‘at basically never
leaves the texts but always goes along with it (Hasan, 209).
One of the most popular examples is mentioned in a mutawātir
(mass transmitted) hadīth about performing ‘Asr prayer in Banī Quraiẓat
(Auda, 2008). Prophet Muhammad (Peace be Upon Him) sent some
of his companions to Banī Quraiẓat to ask them to perform ‘Asr prayer
(al Bukhari, 1986: 321). However, the usual time for performing ‘Asr
prayer was almost over, yet they had not arrived in Banī Quraiẓat
area. At the time, the Companions were divided into two groups
with two different opinions. The first group argued for performing
the Asr’ prayer in Banī Quraiẓat area with any consequences, while
the second insisted on performing the prayer on the way before the
‘Asr prayer time ran out.
The argument behind the first opinion is that the Prophet’s
command literally asked everyone to perform the ‘Asr prayer in Banī
Quraiẓat area. In the meantime, the second opinion is based on the
objective or purpose mentioned in the Prophet’s command, which was
to ask the Companions to rush into Banī Quraiẓat area. It was not
intended to postpone the ‘Asr prayer until the time was over. According
to the narrators of the hadīth, when the Companions reported the
incidence to the Prophet, the Prophet (Peace be Upon Him) confirmed
and justified the two opinions. The Prophet’s taqrīr (acknowledgement),
as later practiced by Islamic jurists and scholars, shows the possibility
and permission to have different points of view (Isra, 2018).
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The only scholar who disagreed with the opinion of the
Companions who performed the Asr’ prayer on their way to Bani
Quraizah is Ibn Hazm al-Ẓahiri (a prominent jurist of the Ẓahiri
school). He argued that those Companions should have performed
the ‘Asr prayer after arriving at Banī Quraiẓat as told by the Prophet
even though they did it after midnight (Ibnu Hazam, 29). The above
example illustrates an early history of the concept of maqāṣid al-sharī‘at
in implementing the Islamic law and the arising implications from
giving the fundamental position on the maqāṣid which has existed
even at the times of the Prophet and his Companions.
The Quran, as the transcendental source of Islamic teachings,
provides an essential foundation, the principle of governing the interest
of people in every enactment of its legal regulation (Hallaq, 2005,
84). One of the shreds of evidence showing the presence of maqāṣid
or maṣlaḥat in every law enactment and texts is that the texts only
mention the basic principles in the application of practical laws; civic,
crime, economics, politics, and any other aspects. In some verses in
the Qur’ān, the law on a matter is mentioned along with its wisdom,
explicitly or implicitly, The examples are the verse about gambling and
wine (Ali, 1992: 277), the verse about alms or charity (Ali, 1992:
468), and the verse about women’s menstruation, among others (Ali,
1992: 89-90). This shows the importance of seeking benefits in the
objectives of law which have become the fundamental principle of
Islamic law. Many texts in the Quran only state the general principles
of law; al-aṣlu fī’l-ashyā’ al-ibāḥat ḥattā yadull al-dalīl ‘alā al-taḥrīm
(permissibility is the fundamental norm in all things unless there is
evidence to establish a prohibition) (Ali, 1992: 23), the verse on
the fundamental of law enforcement about raf’ al-ḥaraj wa al-taysīr
(avoiding difficulties and promoting simplicities) (68-69), and the
verse about performing obligations and giving rights to their owners,
among others (Hasan, 2019).
During the era of the Prophet’s Companions, the need for
maqāṣid was more pressing. This happened since a lot of issues
needed definitive legal answers considering many Companions were
in different places, especially after the expansion of Islam. They found
customs and cultures in one place were different from the ones in
another. Consequently, they, as warathah al-anbiyā’ (the heirs of the
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Prophets) played a significant role in continuing the Prophet’s duty
to spread Islam. They had been trained well since they accompanied
the Prophet during their lifetime. No wonder if they could have a
powerful potential in capturing and applying maqāṣid in every process
of conducting Ijtihād.
The implementation of maqāṣid shari’ah during their era is found
in many occasions: electing Abu Bakar as the first caliph; forbidding
Abu Bakar from conducting business due to his public position by
allocating some wages for him in return; not executing the penalty of
cutting off the thieves’ hands during the prolonged drought; (Khasan,
2008 296-314; Amir, 1987) and so on. In formulating the rules of life
for Muslims at the time, they referred to the texts in the Quran and
the hadīth of the Prophet. If they did not find any from both, the
one that could correspond to the existing issues, they then conducted
Ijtihād by looking for the lessons mentioned in the Qur’ān and the
hadīths.
One of the issues that arose after the Prophet Muhammad passed
away is Ḥudhaifa’s marriage to a Jewish woman. ‘Umar bin Khattab,
who heard the information, asked him to divorce her. Since Ḥudhaifat
knew that marrying a woman of the book was allowed, he asked
‘Umar if the woman was ḥarām (unlawful) for him. ‘Umar then replied
that it was not ḥarām to marry a woman of the book. However, he
was worried that other Companions would follow his step as Jewish
women generally had a more beautiful appearance. If that happened,
it could cause a slander for Muslim women and lead to pre-marital
sex among society as there would be a large number of unmarried
Muslim women (Hasan, 2019).
Just like the Companions, tābi‘īn (the generation right after the
Companions) always associated the implementation of the Islamic law
to maqāṣid. This is because they learned and followed the methods
directly from the Companions. If they did not find any texts regarding
a specific issue, they would consider maṣlaḥat (benefits) and qiyās
(analogy). As Ibrahim an-Nakha’i once said, “Allah’s laws surely have a
purpose which is al-ḥikmat (wisdom) and maṣlaḥat (benefit) that returns
to us” (ibn Ali ibn Hajar al Asqalani, 1995). The pattern of maqāṣid
during the tābi’īn era is reflected by two strong schools, the Hejaz and
Iraq schools. They have both practiced the fundamentals of maṣlaḥat in
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producing legal decisions. In addition, different circumstances between
the era of the Companions and that of tābi’īn encourage the latter to
perform istinbāṭ (searching for legal cause) with any means of maṣlaḥat.
A clear example is the issue of tas’īr (setting up a price as a
general benchmark) when prices rise, and demands increase. The tābi’īn
including Sa’id bin al-Musayyab, Rabi’ah bin Abdul Rahman, and
others issued a fatwā (religious advice) that tas’īr is permissible. The
Prophet (Peace be Upon Him) himself was reluctant to set up a fixed
price even at the time when prices rose since tas’īr contains elements
of unwillingness from the capital owners. However, the tabi’īn clarified
that the contexts that occurred at the time of the Prophet (Peace be
Upon Him) and what happened in their time are different. They
added that the rising prices of daily necessities during the time of
the Prophet (Peace be Upon Him) were triggered by changes in the
natural conditions due to the prolonged drought. In other words, the
issue was not pressing at the time. In the context of the tabi’īn era, the
increasing price was triggered by the spread of stockpiling, greediness,
and weak religious capacity. For this reason, such a condition requires
the regulation of general pricing to maintain balance and avoid
hoarding practices. These two examples are frequently mentioned in
the books of hadīth, including Ibn Majah’s Sunan and Imam Malik’s
Al-Muwaṭṭa’ and become an essential discussion in the classical and
contemporary fiqh books (Hasan, 2009).
Conducting such method in making a decision on a new issue,
after the death of the Prophet (Peace be Upon Him), by referring to
the texts in the Qur’an and hadīth and upholding the maqāṣid shari’ah
essentially has tarted from the era of the Companions, tābi’īn, tābi‘
al-tābi’īn (the generation right after tābi’īn), the imam of madhāhib
(schools of Islamic law), and so on, to this present time.
In view of the al-a'immat al-mujtahidīn (the imāms of Ijtihād), the
maqāṣid can essentially be found in the methodology of their istinbāṭ.
In Maliki’s school, for instance, fiqh maṣāliḥ (jurisprudence based
on benefits) is very popular for the results of the jurisprudence are
dominated with the principle of achieving benefits. In the meantime,
Imam Abu Hanifah generated maqāṣid through qiyās, istiḥsān and ‘urf.
Similarly, Imam Shafi’i also applied qiyās while Imam Ahmad ibn
Hanbal and Imam Malik went with qiyās, maṣāliḥ mursalah, shadd
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al-dharī‘ah, and fatḥ al-dharī‘ah. In short, all scholars of the majority
schools have agreed to use maqāṣid syarī‘ah as a legal foundation except
the Ẓahiriyyah school that only refer to the texts in the Qur’ān and
the Hadīth. For this reason, they have denied the presence of ta‘līl
and qiyās. Nevertheless, they have applied maqāṣid on a limited basis
to those which are only mentioned by the texts (Nur, 2008).
The study conducted by Ahmad al-Raisūnī mentions that the first
person used the term maqāṣid al-shar’īy is Abu al-Ma’ali Abd al-Malik
Ibn Abdullah Imam al-Haramain al-Juwaynī, (d. 478 H / 1085) in
his book al-Burhān fi Uṣūl al-Fiqh (al Juwayni, 1980). The book is
also known as al-Kulliyyah al-Khams and al-Uṣūl al-Sharī‘at (al-Raisūnī,
1992: 38). According to the works of previous Muslim scholars, Imam
al-Shaṭibi illustrates and draws a conclusion that all scholars agree
that Allah has established various legal provisions to maintain the five
fundamental elements (al-ḍarūriyyat al-khams) in the Islamic law: hifz
al-din (protection and preservation of religion), hifz al-aql (protection
and preservation of intellect), hifz al-nafs (protection and preservation
of soul), hifz al-mal (protection and preservation of property), and hifz
al-‘irdh (protection and preservation of lineage). These five elements
are also known as the objectives of the Islamic law (al-maqāṣid alshar‘iyyah) (al-Raisūnī, 1992: 39) while Imam al-Ghazālī has used
the term al-uṣūl al-khamsah (2018: 286-287) Al-Ghazalī then claims
anything which is aimed at maintaining the five fundamental elements
is considered as al-maṣlaḥat. In contrast, anything contradicts to them
is regarded as an opponent of the al-maṣlaḥat, which is al-mafsadah
(harms). Avoiding mafsadah itself is also considered as al-maṣlaḥat (al
Ghazali, 2018: 286-287).
Tāj al-Dīn ‘Abd al-Wahhab Ibn al-Subkī, who was usually called
as Imam al-Subkī (d. 771 H/ 1370), adds one more objective of
law, protection and preservation of dignity (hifẓ al-’irḍ). It is then
commonly known as al-kulliyyah al-sittah (ibn al-Subkī: 280). AlQarafī (d. 694 H/ 1295) is actually the first Muslim scholar who
started using such term and classified it into the fifth objective (i.e.
hifz al-mal/protection and preservation of property) (al-Qarafī, 1973:
391). In the same way, a contemporary scholar, Sa’id Ramaḍan al-Būṭī,
also mentions that the objective of sharī‘at is to preserve one’s religion,
soul, intellect, lineage, and property (al-Būṭī, 1990: 27).
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Muslim scholars have also agreed that the scale of priority
in implementing the Islamic law is in line with the order of the
protection and preservation of the five fundamental elements. This
means protecting one’s religion takes precedence over protecting one’s
life, protecting one’s life takes precedence over protecting one’s intellect,
and so on. In short, some scholars divide the objectives of the Islamic
law into five fundamental elements and some others classify them into
six elements. Some do not even develop them in details.
The Maqāṣid shari’ah proposed by al-Shaṭībī (al-Shaṭībī and Daraz,
1999) is basically a follow-up of the concept of maṣlaḥat that have
emerged in the majority works of uṣūl fiqh experts before him. In
other words, the embryo or gene of maqāṣid shari’ah has existed since
the time of Prophet Muhammad (Peace be Upon Him) and the era
of his Companions. Ibn ‘Ashūr states that the validity of the concept
of maqāṣid as a tool for legal formulation lies on the extent of its
certainty and closeness to the level of qaṭ’ī (certain) (Ibnu Ashur). For
this reason, the concept of maqāṣid al-sharī‘at he offers stands upright
and he dared to make a valuable breakthrough and contribution to
the next generation in studying and formulating the maqāṣid al-sharī‘at
on this basis.
His statement has been supported by a historical, systematical,
and periodical reviews starting from the times of the Prophet, the
Companions, the tābi’īn, the mujtahidīn and those who were closest to
the time of al-Shaṭībī. It has gone further until the present day with
the emergence of contemporary scholars including Abd al-Wahhab
Khallaf, Ahmad al-Raisūnī, Yūsuf al-Qaraḍāwī, and Jasser Auda, to
name a few. The literature review shows that maṣlaḥat has been the
essence of maqāṣid shari’ah.
Sharī‘at as the Main Reference and Ethical-Spiritual Foundation
for the Dynamization Process of Islamic Law
The contemporary Ijtihād (independent reasoning) has become
a primary requirement. Al-Qaradawi even claims that its status
reaches farḍu kifāyah (a collective obligation) (al-Qardhawi, 1994: 34)
especially in the today’s era with its dynamic problems and rapid
technological advances. The old and classic methods and approaches
will experience difficulties in providing legal solution to deal with
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contemporary cases. Therefore, finding the right and sophisticated
method in Ijtihād to compete with the progressive development of
society and the dynamics of the demanding era is necessary. In this
regard, the method of maqāṣid al-sharī‘at is considered capable of
interacting with and counterbalancing the progress of contemporary
era (Sapriadi, 2018: 1-2).
Every Allah’s law has its objectives, both special objectives (‘illāt
and ḥikmat) and general objectives (maqāṣid ‘āmmat). All is to give
benefits to human beings. Any law which generally aims at giving
benefits means realizing the maqāṣid al-sharī‘at. Here, the flexibility,
versatility, and dynamics of the Islamic law appear in the concept of
maqāṣid al-sharī‘at. At the same time, the concept also opens the mind
of those who claim that Islamic law is so immutable, doctrinal, eternal,
and final that it is assumed to be inadaptable to various forms of social
changes and modernization which bring lots of contemporary issues.
Referring to the progress and development of the maqāṣid from
time to time, the maqāṣid has a very significant position in the process
of Ijtihād. It is supported by many texts, theorems, logic and realities
that are present and aim at giving benefits to human beings, not
only in this world, but also in the hereafter. In fact, to acknowledge
that the dimension of maqāṣid in the study of Islamic law is very
significant, a number of scholars of Islamic Jurisprudence place it as
one of the main requirements to perform Ijtihād. Al-Raisūnī claims:
‘For the first time and within certain and observable limits, we have
found the first requirement to conduct Ijtihād is to understand the
maqāṣid al-sharī‘at properly. In addition, we have also discovered the
second and last requirement inseparable from understanding the maqāṣid
that is the possibility of performing istinbāṭ of the Islamic law by
understanding the maqāṣid al-sharī‘at.’(al-Rausani, 1992: 353).

The understanding of the objectives of Islamic law is to avoiding
a condition where a person who interpret or conduct reasoning on
Islamic law gets trapped in the laws which are particular (juz’iyyāt)
and ignores the maqāṣid al-sharī‘at. In this regard, al-Qaradāwī (1985:
44) declares:
‘Understanding the objectives of Islamic law (maqāṣid al-sharī‘at) is so
necessary that one does not get caught up in a mistake by only paying
attention to the laws which are partial (juz'ī), without addressing the

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objectives of laws, universal (kullī) in nature. Otherwise, the law will
only lead (us) to a mix-up and confusion.’

As a method, the maqāṣid al-sharī‘at gives a perspective on
reasoning in solving any issues in Islamic law, particularly regarding
mu’āmalah (transaction) in the religious life of plural societies. To
finally reach and make an effort to solve the issues, a mujtahid
must first focus his/her attention on the objective of law (maqāṣid)
mentioned in the Quran and the hadīth. This means they do not
merely see the texts literally, but preferably the objectives of the law
itself as the main point. In this case, to find and formulate ideally legal
ethics and morals mentioned in the verses is the most important thing
(Ghazali, 2005: 359). In other words, the maqāṣid al-sharī‘at or ideally
legal ethics are explored and given more attention when establishing
or making legal products, whether they are explicitly mentioned in the
texts or in the context of the texts. Here, the context is not personal
context which is particular (juz‘ī), but rather universal context (kullī).
Further, performing istinbāṭ is not merely observing the asbāb alnuzul (the occasions of revelation) of a text in its normative sense, but
more importantly on its maqāṣid al-sharī‘at (Ghazali, 2005: 359). The
use of maqāṣid is emphasized and manifested through the expression
al-’ibrah bi al-maqāṣid lā bi al-alfāẓ (what to consider is the maqāṣid,
not the texts literally) (Ghazali, 2005: 359). To this end, what to
consider from a statement mentioned in the texts in the Quran
and the hadīth is the generality of the objective of sharī‘at and such
consideration should be separated from any specific naṣṣ (texts).
To accommodate contemporary issues, the perspective of
understanding the maqāṣid as a method to establish the Islamic law
is to know, to search, and to gain the basic principles of Islam.
Therefore, when a law has come to its maqāṣid, the texts must be
inseparable from their initial Arab context (i.e. decontextualizing
the texts) and re-contextualization is, in turn, made to associate the
basic principles of Islam into the non-Arabic context. In the end,
the contextualization, discontextualization, and re-contextualization
become the interpretation techniques that can be applied over time
(Ghazali, 2005: 359).
As an answer, performing a new interpretation on the approaches
of studying religious texts, especially the texts produced by Islamic
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scholars, is likely to take place. Among the new interpretations is to
present an understanding that emphasizes on the objectives of the
legal enactment itself or the maqāṣid al-sharī‘at. Therefore, developing
an understanding that focuses on the substances instead of the legalformalism of the naṣṣ (texts) is necessary. Abdul Moqsith states “In
searching for maqāṣid al-sharī‘at by various means, one is not supposed to
be enthralled by the beauty of a text. This is because being enthralled is
an ideological act that will only dull their creativity in searching for the
objective meaning and the importance of understanding the background or
the occasions of revelation” (Ghazali, 2005: 361). Finding the substantive
meaning will accordingly shape and analysis not only on the structure
of sentences, but also - what is rather foundational- the social and
cultural classes and structures that surround the history of the birth
of texts.
The Islamic law has no other objective but to bring benefits (jalb
al-maṣāliḥ) and avoid any harms (dar‘u al-mafāsid). This paradigm is
constructed by al-Thūfī in Risālah fi Ri’āyah al-Maṣlaḥat. He mentions
“idhā ta’araḍa al-naṣṣ wa al-maṣlaḥatu arjahā al-maṣlaḥat“ (if a text
and maṣlaḥat contradict to one another, maṣlaḥat will take precedence)
(Khallaf, 1982). Referring to this paradigm, maṣlaḥat may revoke the
texts in the Quran or the Hadīth. This means the reasoning on maṣlaḥat
can become a stronger argument than the one on the texts (naṣṣ).
In this regard, individual (subjective) maṣlaḥat and universal
(collective) maṣlaḥat must first be separated. An individual (subjective)
maṣlaḥat, for instance, is associated with individual interests which are
separated from the interests of others. As it is subjective in nature,
the one entitled to determine it is the individuals concerned (Khallaf,
1982: 362). In the meantime, the maṣlaḥat that has social-objective
nature for the interest of many people is authorized and assessed by
groups of people through a shūrā (deliberation) to reach a consensus
(ijmā’). In turn, the decision that has become the result of the
consensus by considering the maṣlaḥat serves as a binding supreme law.
Maṣlaḥat (benefit), as the realization of maqāṣid, is the basic
foundation of any legislation in Islamic law. Practically, this does not
happen because the Islamic teachings need to follow and adapt to the
development of maṣlaḥat, but to objectively gain maṣlaḥat. Adaptation
is required. For this reason, maṣlaḥat is a fundamental, unchanged, and
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universal religious teaching, In the meantime, the practice to gain the
ideal maṣlaḥat is a religious case which is classified as fuṣūl (branches).
Such case can change due to the changing times and civilizations.
The maṣlaḥat or maqāṣid al-sharī‘at itself serves as the main
reference and ethical-spiritual foundation for the dynamization process
of the Islamic law in dealing with contemporary issues. Due to the
institutionalized and developed concept of maqāṣid al-sharī‘at, further
question, whether the maqāṣid can become an independent legitimacy,
has emerged.
In responding to such question, three groups have different
opinions. The first group sees the maqāṣid as an independent legitimacy.
It can create its own laws and become a means to perform tarjiḥ. In
the meantime, the second group claims that maqāṣid is not seen as
an independent legitimacy. To that end, maqāṣid is powerless before
the texts of the Islamic law and ijmā’. At last, the third group is the
moderates who always keep the maqāṣid in balance with the existing
texts of Islamic law. The last opinion seems closer to the truth as it
is in line with the rules of law and common sense and goes along
with the benefits for all human beings.
The last opinion mentions the maqāṣid al-sharī’at by its nature
is based on the Islamic law. This means it follows legal arguments
and guidance. To that end, it cannot be separated from legal rules
and theorems. As commonly known, the balance used in determining
whether something brings maṣlaḥat (benefits/public interest) or mafsadat
(harms) is the law. Here, the maqāṣid al-sharī‘at is the essence of the
texts, laws, qarīnat (legal clues) and ‘illāt (legal causes). A strong bond
between the maqāṣid and legal arguments resembles the relationship
between kulliyyāt and juz‘īyāt.
Meanwhile, the opinion which sees the maqāṣid as an independent
legitimacy points out the function of ‘aql (reason/intellect) in finding
the benefits in every issue. The rapid development and emergence of
problems which come after one another causes the limited number of
texts to be unable to provide legal solutions. To this end, implementing
the maqāṣid al-sharī‘at in order to open a gap in order to move and
make legal decisions according to the demands of the changing times
is necessary.
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Maqāṣid al-sharī‘at or maṣlaḥat shar’iyyah can be considered as a
legal source if it meets the criteria to protect and preserve the seven
fundamental elements: ḥifẓ al-din, ḥifẓ al-nafs, ḥifẓ al-‘aql, ḥifẓ al-nasl,
ḥifẓ al-māl, ḥifẓ al-‘irḍ and ḥifẓ al-bī‘at (protection and preservation
of religion, soul, intellect, lineage, property, dignity, and environment
respectively), which are commonly known as kulliyyāt sab’ah. These five
(original) or seven (with the last two additions) fundamental elements
are classified into three consecutive phases, i.e. ḍarūriyyāt (primaries),
hājiyyāt (secondaries), and taḥsiniyyāt (tertiaries). The restriction of
maqāṣid which is limited to the five elements is based on istiqrā’
(inductive reasoning). However, some Muslim scholars include ḥifẓ
al-‘irḍ (protection and preservation of dignity).
Muslim scholars have illustrated the maqāṣid and its application
in performing istinbāṭ. Imam Shaṭibi, for example, suggests the
requirement to be eligible to perform Ijtihād is when a person is
capable of understanding the maqāṣid perfectly. Only by then, he/
she is able to perform an istinbāṭ (law-making) from the maqāṣid
point of view.
A contemporary legal decision can be made ​​by applying the
maqāṣid which is supported by arguments. One of the examples is
the issue about istinsākh (cloning). Muslim scholars claim that cloning
is illegal due to the fact that it is not in line with the notion of ḥifẓ
al-nasl (protection and preservation of lineage) and other maqāṣid. The
tendency to apply maqāṣid, in this case, does not necessarily mean
to exclude the arguments mentioned in the texts in making legal
decisions. In fact, the decision made is said to be automatically in
accordance with the arguments claiming about the maqāṣid.
Another example is related to zakāt mustaghallāt which is zakāt on
properties that can bring profit to the owners by leasing or selling the
properties such as villas, factories, hotels, cars, aircraft, ships and other
means of transportation. According to some scholars, such properties
are not subject to zakāt as they are not included in the types of wealth
in zakāt. On the other hand, some others argue that the properties
are bound to zakāt considering that they are included in the types of
wealth subject to zakāt and that the ‘illāt of paying the zakāt has been
fulfilled; the wealth has grown steadily. The obligation of paying zakāt
for the properties is according with the wisdom of paying it, which
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is to purify the wealth and to help people in need. If the owners of
plants and fruits who only get low profits are required to pay zakāt,
it would not make sense if the owners of villas or factories who get
high profits do not pay it.
The issue on human organ transplantation also demands the
presence of Ijtihād to create its legal solution. Several questions have
arisen: Is human or animal organ transplantation legal to save a human’s
life? Is the transplantation permitted if the animal donor is a dog? Can
someone give up his/her whole or parts of body after his/her death for
anatomic study so
​​ that it can be useful for others? and many other
questions which require maqāṣid in the contemporary Ijtihād.
Promoting contemporary Ijtihād, both Ijtihād intiqāi and Ijtihād
inshā’i, play an important role in solving and answering any problems
faced by Muslims nowadays, particularly if no legal provision is
available. Ijtihād intiqai, for example, is an Ijtihād method to choose
one of the opinions expressed by former scholars by performing tarjīḥ
to show that one opinion is better than the other. This method is
expected to harmonize the opinions of scholars and to refer to the
arguments they have used. In the end, the strongest argument which
meets the standards of tarjīḥ is taken.
In the meantime, Ijtihād inshā’i means performing istinbāṭ on
a legal issue which has not been mentioned by former scholars.
The obligation to pay zakāt on factories, villas for rent, or hotels,
for example, is mentioned by Sheikh Abu Zahrah, Sheikh Abd alWahhāb Khallāf, and Sheikh Abdur Rahman Hasan. Their opinion
is eventually justified by al-Qaraḍawi in his book, Fiqhu al-Zakāt, as
it has a stronger argument (rājiḥ).
The next type of Ijtihād is a combination of ijtihād intiqa’i and
ijtihād inshā’i. This means choosing the opinion of former scholars
and adding it with new element of Ijtihād. The example is an Ijtihād
conducted by the Religious Advisory Body, Kuwait, concerning
abortion. Their fatwā refers to the opinion of former scholars and is
supported with the result of a new Ijtihād according to the science
and technology advances in modern medicine. With modern devices,
the state of the embryos can be detected earlier if they are exposed
to any disability or illness that can affect their body or mind after
they are born.
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The fatwā says that a doctor is not allowed to abort or terminate
pregnancy that has reached one hundred twenty days, except to save
the mother’s life from a real danger. In such case, the abortion or
termination is permissible under the agreement of the husband and
his wife and the pregnancy has not reached forty days. However, if
the pregnancy is more than forty days, but less than one hundred
twenty days, the abortion is not permissible unless the existence of
the embryo would endanger the mother’s health due to the embryo’s
disease that may lead to her death or chronic pain after giving birth.
In addition, an abortion is allowed if the embryo to be born is
believed to be exposed to severe disability or acute disease impairing
its body or mind and unrecoverable or curable. The abortion outside
of the ḍarūrāt (emergency) circumstance is required to be performed in
government hospitals. In the meantime, the abortion taken after forty
days of pregnancy should not be done except by the decision of three
specialists, one of whom has specialty in chronic diseases in pregnant
women and birth, and one of the other two specialists is a Muslim.
Conclusion
Referring to the discussion, the following conclusions are made:
Maqāṣid al-sharī‘at is also known with maqāṣid al-Shāri’, maqāṣid
al-sharī‘at, and al-maqāṣid al-shar’iyyat. Essentially, these different
terms imply the same meaning, the purposes or objectives of the
Islamic law enactment. Generally, the Muslim scholars of Islamic
Jurisprudence interpret maqāṣid al-sharī‘at as the essence of the Islamic
law enactment. The general principle of maqāṣid al-sharī‘at is enforcing
the significance of jalb al-maṣāliḥ wa dar‘ al-mafāsid (getting benefits
and avoiding harms).
Maqāṣid al-sharī‘at is an independent legitimacy as it points
out the function of ‘aql (reason/intellect) in finding the benefits
in every issue. The rapid development and emergence of problems
which come after one another causes the limited number of texts
to be unable to provide legal solutions. To this end, implementing
the maqāṣid al-sharī‘at in order to open a gap in order to move
and make legal decisions according to the demands of the changing
times is necessary.

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There are two major and significant roles of maqāṣid al-sharī‘at
worth studying, directive and defensive systems. The directive system
puts the maqāṣid al-sharī‘at as the main reference for any reformation
or changing processes of the Islamic law, whereas the latter places it
as the supreme principle of morality that provides the foundation
and ethical-spiritual power for Muslim Societies when they interact
with the law. With these two roles, the maqāṣid al-sharī‘at is no
longer said to be an obstacle for any reformation as addressed by
the philosophy of materialism which states that religion (i.e. Islamic
law) is opium to society. In contrast, a religion can serve as a
driving force to create future changes towards a more constructive
and humanistic society.
Acknowledgment
This study is self-funded. Nevertheless, the authors would like
to express their gratitude to all librarians at State Islamic Institute
of Tulungagung for their tireless and time-consuming assistance in
providing valuable materials (books, journals, etc.) during the study.
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Iffatin Nur1, Syahrul Adam­, and M. Ngizzul Muttaqien3
1, 3
Institut Agama Islam Tulungagung, Jawa Timur, Indonesia
2
Universitas Islam Negeri Syarif Hidayatullah Jakarta, Indonesia
Email: 1iffaeltinury@gmail.com, 2syahrul.adam@uinjkt.ac.id, 3muttaqinizzul19@gmail.com
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