Wednesday, April 18, 2007

Al-`Awwa on the need to reinvestigate Legal Objectives (Maqasid)

In an interesting article on, Muhammad Salim Al-`Awwa, the Secretary General of the Council of Islamic Scholars, is quoted to have argued in a lecture delivered on April 11 for continuous reinvestigation of the Objectives (Maqasid) of Islamic Law (Shari`a). He cited, for example, the methodology of the great contemporary scholar of Zaytuna Al-Tahir ibn `Ashur, who added such Maqasid as justice, liberty, and egalitarianism to the usual lists by Al-Ghazali and other scholars of the classic era. See this discussion of a translation of ibn `Ashur's treatise on Maqasid. Also, the middle part of this article provides a basic introduction to the thought of ibn `Ashur.

Al-`Awwa is reported to have argued that in modern times, we can infer Maqasid (Islamic legal objectives) based on our understanding of society, not necessarily being restricted to the religious Canon. Utilizing that methodology himself, he added fairness of wealth distribution and fairness of elections to be among the Maqasid of Shari`a today (an implicit reference, no doubt, to the current conditions in his native Egypt).


Blogger Islamic Law, Etc. said...

To note with the mention of Ibn Ashur, wealth distribution is mentioned as a Maqsad, although I dont know if he meant it in the terms that al-Awwa did.

In article you linked two methods are mentioned for understanding Maqasid, while the first might be understood to mean normative values taken from the religious canon, the second he mentions seems to identify the method while not specifying the target. Could we say the second is empirical study of the issue at hand?

He mentions that scholars have let off Maqasid and busied themselves with fiqh and usul. While this may be correct, i think it is a matter of methodology more than one concentration. If we say Maqasid are deduced from the texts and experience, one would have to be as Ibn Ashur said "saturated" with knowledge of the Quran and Sunnah. This would neccesitate knowledge of the tools of deduction, namely fiqh and Usul. I think his intention though is understood, namely (as you pointed out previously) that scholars use fiqh and usul as authorities instead of viewing them as research sciences.

One issue however that I am unable to reconcile yet from the article is his statement "al-Maqasid Hakimah la mahkumah.." is we say that they are deduced, then how can the Maqasid 'rule' or 'judge' before they were deduced? Later in the article he mentions that the Maqasid are necessary for understanding the Quran and Sunnah, which would seem to allude to a set of epistomological principles that supercede the religous canon?

Another issue with the view that the Maqasid are open-ended is: If the Maqasid which have been discovered are considered established (thabitah) after being discovered, what happens when the empirical data for their establishment changes? This last problem takes us back to the problem of scholars busying themselves with fiqh; they did so because they were using a set of principles that was deemed not only established by sacrosanct. This lead to denial of the necessity and reality of change in the legal arena.

Any thoughts?
And do you know if al-Awwa has any printed works? I always enjoy his statements and interviews.

2:22 AM  
Blogger Mahmoud El-Gamal said...

On maqasid being hakima and not mahkuma, I think he meant the same thing that Abdul-Wahhab Khallaf mentioned in his Masadir Al-Tashri` Al-Islami fima la Nassa Fih (Dar al-Qalam, Kuwait, 1972, p. 141):

Benefit analysis and other legal proofs may lead to similar or different rulings... In this regard, maximizing net benefit is the objective of the law for which rulings were established. Other legal proofs are means to attaining that legal end [of maximizing net benefits], and objectives should always have priority over means.

I think that all three (Khallaf, ibn `Ashur, and Al `Awwa -- all incidentally appearing to be greatly influenced by Muhammad `Abduh) are to varying degrees adopting some sort of Zahiri approach -- although Khallaf in the quote above seems ready to overrule even the Canon when it is clear that social benefit lies elsewhere. In this regard, I do not think that the methodology is restricted to juristic deduction as you suggest. They appear to extend it to logical deduction and empirical induction methods -- i.e. the tools of modern social sciences. I have to say that the more that I have come to know about contemporary Islamic fiqh in the area of transactions, the more that I find the term ``fiqh'' (literally: understanding) to be an incredible misnomer. At best, what we have is pietist adherence to outdated fiqh based on outdated economics and only very loosely tied to the Canon.

I am not sure about Al-`Awwa's written works. I have also only seen his journal articles, interviews, etc. I'll look for some books when I travel to Egypt next.

7:17 AM  
Blogger Islamic Law, Etc. said...

Fiqh as a misnomer, agreed.

I'm not sure if I understand what you mean by a Zahiri approach however.

Khallaf's approach of overiding the canon would seem to be in line with al-Tufi's view of Maslaha.

On methodology being restricted to juristic deduction this would seem to apply to the texts alone, in that I agree with you about the use of the tools of modern social sciences for determining benefit. I can't imagine how they would be applied to the texts, but for empirical research then they of course would be the best choice.

Thanks for keeping an eye out for al-Awwa's works.

10:20 AM  
Blogger nhusain said...

He is the author of many publications, such as Ijthad in Islamic Law, On the Political System of the Islamic State, Punishment in Islamic Law, and The Basic Principles of the Islamic Penal System.

On the political system of the Islamic state is available in English from Amazon. The significant thing about this book is that it discusses the sahifah of Madinah as a sort of Islamic constitution and a model of co-existence of Jews, Muslims and Idol Worshipers.

6:27 PM  
Blogger Mahmoud El-Gamal said...

Thanks for the references. Now I know which books to seek. The interpretation of the constitution of Madina as you mentioned it is a common theme in discussions of the status of minorities under Islamic rule.

7:51 PM  

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