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Maqasid al-Shari'ah

Maqasid al-Shari’ah may be stated simply as the higher objectives of the rules of the Shari’ah, the observance of which, facilitate the normal functioning of society by  enhancing the public good (maslaha), this implies avoiding actions likely to harm to individuals and society. The intent, objective and purpose is simply to achieve social and economic justice as well as enhancing the welfare of the community.

It is widely acknowledged that a large role was played by immoral behaviour including the conduct of individuals working in financial institutions led to financial crises, more particularly the one that began in 2007. There was no moral framework in place to guide those who pursued self-seeking interests by adopting what is commonly termed as immoral practices. They were not required to pay attention to the risk entailed in conducting their dealings and the harm immoral conduct was likely to cause to others and to society as a whole.  

Meaning 

Maqasid literally means intent, objective and purpose with a desire to create harmony with others; this relates to welfare, interest, or benefit. The vital part of the Maqasid’s objective is preserving public good (maslaha), whereby it looks at the public good and welfare of society as a whole in relation to the consequences of the intentions and actions of individuals. Thus, Maqasid can also be considered as the wisdom and knowledge behind governing rules.

Shari’ah, literally translated means “the way”. The Shari’ah is a broad term for Islamic law in the sense of principles and rulings, and represents the way to the one God (referred to as Allah by Muslims, the Creator and Sustainer of the Universe) and purity. The overarching goal of the Shari’ah is to establish justice. 

While the Shari’ah applies to Muslims it provides guidance that regulates lives for the benefit of mankind; it forbids all that is harmful to human being, society and the environment, and permits all that is useful and beneficial to human beings, society and the environment.  In the broadest terms it has comprehensively tackled every aspect of human activity and provided the rules with the greatest concern for public good.

 

Professor Rodney Wilson, founder Islamic Finance Programme, Durham University UK; Legal, Regulatory and Governance Issues in Islamic Finance, 2012

Respect for Shari’ah is concerned with determining the right way or ways for financial dealings where right is interpreted in a moral sense and distinguished from wrong or sinful. Citizens can abide by national laws, yet behave in an immoral way, including in financial dealings where laws are unable to curb speculative behaviour or exploitation of the gullible.

Respect for Shari’ah is concerned with determining the right way or ways for financial dealings where right is interpreted in a moral sense and distinguished from wrong or sinful. Citizens can abide by national laws, yet behave in an immoral way, including in financial dealings where laws are unable to curb speculative behaviour or exploitation of the gullible.

Professor Rodney Wilson, founder Islamic Finance Programme, Durham University UK; Legal, Regulatory and Governance Issues in Islamic Finance, 2012

Development of the Maqasid al-Shari’ah

The objectives of Shari’ah are not specifically mentioned in the original sources of the Shari’ah, the Qur’an and the Sunnah (sayings and conduct of Prophet Muhammad. These were developed over the years by Islamic legal scholars (jurists) who sought to protect members of the community by establishing the essential moral values, and validate all measures necessary for their preservation and advancement of a moral society. At an economic level, the Shari’ah encourages work and trading activities in order to enable individuals to sustain a living, and it prescribes a framework of rules and norms to ensure the proper conduct of commercial transactions and financial dealings.  Thus, the objectives of the Shari’ah were seen as requirements for the survival and spiritual well-being of individuals, to the extent that their neglect or omission would precipitate the destruction and collapse of the normal functioning of society.

The Shari’ah was viewed by traditionalists as a set of rules, commands and prohibitions that were addressed to the competent individual. The primary sources from the Shari’ah is derived, and universally accepted by all Muslims (followers of Islam) are the Qur’an (the holy scriptures of the Islamic faith) and the Sunnah (the tradition and examples of Prophet Muhammad as narrated by his Companions. Over time the Shari’ah adapted to address new and changing situations and find the correct course of action without compromising the fundamental principles. The  key methodologies applied, referred to as the secondary sources, are  Ijima (consensus amongst Muslim jurists on a particular legal issue), Qiyas (analogical reasoning that aims to draw analogies to a previously accepted decision, Ijtihad (process, whereby rational efforts are made by the jurist to make his own judgment and arrive at an appropriate ruling) and Urf that refers to the customs and practices of a given society.

Maqasid al-Shari’ah is not restricted to just prohibitive rulings and discouraging immoral conduct and harmful actions; it also places value on promoting and encouraging righteous behaviour, moral conduct and such acts of goodness that are for the public good. The maqasid reflects a holistic view of life emphasised in Islam and has to be looked at as a way of life, as a whole and not in parts.

Muslim scholar, Mohammed Hashim Kamali, writing on Maqasid al-Shari’ah, says that The Qur’an and Sunnah are expressive of the goal, justification and benefit of their ahkam (laws). In addition to the above, which require or sanction the undertaking of some positive action, one may also refer to the ahkam (laws) of the Shari’ah as those which prohibit or discourage certain actions that are or may be harmful and that may result in prejudice, corruption and injustice. However, the overall objective is the realisation of some maslaha (public good).  The provisions derived from the Qur’an and The Sunnah seeks simply to establish justice, eliminate prejudice, and alleviate hardship. The provisions also seek to promote cooperation and mutual support within the family and the society at large.  The purpose of all this is the attainment of refinement and excellence in all areas of human behaviour and conduct.

Maslaha (public good): the goal of Maqasid al-Shari’ah

Maslaha implies the utmost righteousness and high standards of morality, and is the result of an action which produces a benefit or leads to universal goodness. It is an important requirement that has always been used in Islamic legal thought that consists of considerations to secure public good and prevent harm. Abu Ishaq al-Shatibi (720-790 AH/1320/1388 CE), was an Islamic legal scholar of al-Andalus, modern day Spain and Portugal, characterised maslaha as being the only primary objective of Shari’ah broad enough to encompass all measures that are beneficial to the people.  The benefits of (maslaha) in their broadest sense encompasses all  benefits pertaining to the welfare of the individual and the community, material, moral and spiritual, as well as the interests of the future generations. Acknowledging that the individual is by nature self-seeking the Maslaha approach further reaffirms the Shari`ah rules to maintain order and justice in society, while balancing the individual’s rights with those of society. Maslaha reinforces the principle that each individual is a responsible member of society and the purity of intentions and just actions of the individual are integral to the normal functioning of society, including those relating to commercial transactions and financial dealings.

Self-Realisation of Maqasid al-Shari’ah in Islamic Finance

Achieving the higher intents and objectives of the Shari’ah requires righteous behaviour and standards of moral conduct in all dealings, and for generosity in the flow of wealth. It is implicit that individuals working in the Islamic finance industry, and more importantly those who manage Islamic financial institutions as well as those responsible for approving financial products and transactions for Shari’ah compliance, should aspire to establish the Maqasid al-Shari’ah, with utmost sincerity and honesty. In Islamic banking and insurance the realisation of the Maqasid al-Shari’ah is the cornerstone and essence of all contracts that govern all dealings that are labelled as ‘Islamic’.

The Maqasid al-Shari’ah can only be properly realised in Islamic finance when individuals representing stakeholders, in particular the promoters, management, staff and the Shari’ah scholars are collectively conscious and sincerely committed to their moral obligations to promote transactions that are permissible and also for the public good.

  • They must be individually and collectively willing to decline transactions that are prohibited and can have harmful consequences for individuals and society as a whole; they have to uphold the highest professional standards of honesty and justice.
  • They have to disclose all information and records that primarily show where the revenues will come from and be judged for their intentions and actions in distinguishing transactions or investments from what is halal, or permissible, and haram, or prohibited.
  • They must not act to suit their hidden intentions that ignore the harmful consequences of their intended actions.
  • They must not attempt to exploit the gullible and ignorant or attempts at unjust enrichment by withholding vital information or using legal tricks or deception to conceal the mala fide intention of the purpose of a transaction.  Individuals need therefore to always search their own conscience and avoid what is really right or wrong in the moral sense.

Islamic banking and Islamic insurance (takaful) as components of Islamic finance is much more than simply providing products and services that has the appearance or form of Shari’ah compliance; these require be proposed and  structured in a way or ways that are capable of the public good; it requires recognising the importance of establishing public good over self interests and profit maximization; it requires looking at the harmful consequences of transactions along with the intention and actions of those proposing a transaction; it requires doing away controversial transactions however profitable; it requires meeting the obligation for zakat payments; it requires a spirit of sacrifice and compassion. Without all these ingredients Islamic financial dealings will be seen as a paper exercise and the purpose seemingly no different from those of conventional financial institutions.

 

In Islamic banking and insurance (takaful) activities the establishment of the Maqasid al-Shari’ah must be the overriding principle guiding various stakeholders and the personal responsibility of all concerned requiring self-discipline and personal sacrifice.

Al-Ghazali (1056–1111 CE), one of the most prominent and influential philosophers, theologians, jurists, and mystics of Islam, writes in his book ‘Ihya-Yulum-Id-Din’ that Prophet Jesus Christ said to a dishonest learned man when seeing no end of his greed and temptations, “you fast, pray, pay zakat but you do not do what you were ordered and you read what you do not do. What you utter is very bad. You utter Tauba (sincere repentance) by mouth but you follow in heart your passions. Your Tauba by mouth will come to no use. You keep your outer appearance neat and clean but you keep your mind polluted and unclean. I will tell you with truth that you should not become like a sieve. Subtle things come out of a sieve and only outward forms remain. Words of wisdom come out of your mouth, but hatred and evils remain in your mind.”

The realisation of the Maqasid al-Shari’ah involves serious obligations and personal sacrifices on the part of those involved in the Islamic financial services industry including the financial institutions. . Individuals need therefore to always search their own conscience and avoid what is really right or wrong in the moral sense.

Additional Reading

Towards a Just Monetary System, Umer Chapra, 1985, Islamic Foundation, Leicester

http://titis.staff.umy.ac.id/files/2016/03/UMER-CHAPRA_TOWARD-A-JUST-MONETARY-SYSTEM.pdf

Islamic Economics; A Short History, Ahmed El Ashker, Rodney Wilson, 2006, Brill, London

http://www.kantakji.com/media/4510/c116.pdf

Islamic Finance: Debt versus Equity Financing in the Light of Maqasid al-Shari’ah   

https://mpra.ub.uni-muenchen.de/20722/1/Islamic_Finance_
Debt_versus_Equity_Financing_in_the_Light_
of_Maqasid_al-Shariah.pdf