Maqasid al Shari’ah:  A Strategy to Rehabilitate Religion in America

Maqasid al Shari’ah:  A Strategy to Rehabilitate Religion in America

by Dr. Robert D. Crane

  All students of religion in America agree that during the past forty years it has been experiencing one of the periodic renaissances that mark America’s history.  One of the critical questions is whether this is good for human rights and good for justice, because some trends in this revival are not necessarily good for either.

  The focus of current discussion is developed in one of the blogs of the Social Science Research Council (SSRC Blogs), specifically in one known as “The Immanent Frame: Secularism, Religion, and the Public Square.”  Some prominent Muslims have participated in this over the years but not as guiding scholars.  This blog is similar to Khalil Shadeed’s Scholar’s Chair, which is ecumenical but originated for Muslim intra-faith dialogue.  The Social Science Research Council is a staple of Washington paradigmatic debate.  It funded my work at the Center for Strategic and International Studies forty-five years ago.  The particular topic in the current thread, which has several lengthy entries, is on “Justice: Rehabilitating Religious Rights Talk.” 

  The immediate question being addressed is the relationship between religion and human rights, specifically which brand of religious tradition is trying to support human rights.  One perspective is that the most important question is not whether specific religious traditions are addressing human rights on specific issues, such as Gaza, Darfur, or asset-based money, but rather is the question who is trying to revive human rights as a systematic paradigm for viewing all of human life based on a traditionalist or classical system of thought that may have been lost in the modern age. In other words it is a question of conscious paradigmatic transformation from the immanent to the transcendent.

  A good example of an issue-oriented approach favored perhaps by most Protestants is Jim Wallis’s, The Great Awakening: Reviving Faith and Politics in a Post-Religious Right America.  A good example of the systems or paradigmatic approach favored by Roman Catholics would be Russell Hittinger’s The First Grace: Rediscovering the Natural Law in a Post-Christian World, which I reviewed, along with several other recent books in my article “Taproot to Terrorism: The Loss of Transcendent Law in America and the Muslim World,” published in The Muslim World Book Review, Summer 2005.

  The second question is which of these consciously paradigmatic approaches is being revived under the rubric of justice as another word for natural law and as simply an older term for human rights.  The best book in the Roman Catholic tradition, with specific reference to the current issues of banking, credit, and taxation, is Michael D. Greaney’s collection of his articles from the Social Justice Review under the title In Defense of Human Dignity: Essays on the Just Third Way: A Natural Law Perspective.

  Within the Islamic tradition, the best book on natural law and justice is the monumental tome by Jasser Auda entitled Maqasid al Shari’ah as Philosophy of Islamic Law: A Systems Approach.  This is part of an entire library of books being published by the International Institute of Islamic Thought either as translations from the Arabic, such as Ibn Ashur’s seminal treatise of 1946, published as Ibn Ashur: Treatise on Maqasid al-Shari’ah, or else written, like Auda’s, originally in English and translated into Arabic and other languages.  Some of these books are reviewed, for example, in my article, “Human Rights in Traditionalist Islam: Legal, Political, Economic, and Spiritual Perspectives,” in The American Journal of Islamic Social Sciences, Winter 2008.

  The IIIT is now preparing for a twenty-year project to publish in Wikipedic form a twenty-volume Encyclopedia of Natural Law and Justice, perhaps categorized according my own preferred formulation of the irreducibly universal principles of justice, known as the maqasid al shari’ah, as developed jointly during the high point of the Andalucian civilization by Muslims, Jews, and Christians.

  The last and greatest of the maqsudi scholars, Imam Abu Ishaq al Shatibi, who died in 790 AH (1388 AC) taught that the maqasid are part of the art of ‘Ilm al Yaqin, one of the three sources of knowledge (the others being Haqq al Yaqin and ‘Ain al Yaqin).  One might also consider it to be the heart of a sub-category known as ‘Ilm al ‘Adl. 

  The first task in this art is to determine which are the most irreducibly essential and universal purposes or maqasid of Islamic normative law.  Al Shatibi taught that there is no set number of maqasid and no set prioritization among them.  Furthermore, he taught that what Dr. Muna Abul Fadl called the architectonics of this system are flexible and may change according to changing times and cultures. 

  Within the arena of American debate on the revival of transcendent natural law as a framework for human rights, one might zero in on eight maqasid and group them into two categories, the spiritual or transcendent and the social or immanent.  These would correspond to the two halves of the hajj (in Makkah and ‘Arafat) as a grand university of Islamic thought and action.

  Each of these two categories of principles consists of four major purposes, each of which in turn has two levels of sub-categories, known as hajjiyat and tahsiniyat.  This transcendent perspective on Islamic law was perhaps first introduced as a systems approach in the modern West in the book The Sun is Rising in the West, edited by Haleem and Bowman in 1998, specifically in Part Three, entitled “The Search for Justice and the Quest for Virtue: The Two Basics of Islamic Law.”  This was developed to a high level by Jasser Auda in 2008 in his weighty tome, Maqasid al Shari’ah as Philosophy of Islamic Law: A Systems Approach.

  One recommendation for appropriate categories and component parts is the following set, ordered in priority as a code of human responsibilities and human rights:

Spiritual Principles

1) Haqq al Din, the free right and duty to be aware of and worship God (with the implied right also not to do so) and to search for ultimate truth and justice;

2) Haqq al Nafs, the duty to respect the human person, known as the natural law principle of personalism; including the second-order principle or hajj of haqq al haya or duty to respect human life;

3) Haqq al Mahid (from wahada), the duty to respect the coherent order or tawhid of all creation, i.e. ecology and environment;

4) Haqq al Nasl, the duty to respect human community based on the sacredness of each of its members (not on any secular human collectivity);

Social Principles

5) Haqq al Mal, the duty to respect private property and societal institutions of money, credit, and taxation to promote the universal right to individual ownership of productive wealth;

6) Haqq al Hurriyah, the duty to respect the political self-determination of persons and communities, based on the principle of subsidiarity, whereby legitimacy originates in the human person and ascends upwards through such second-order implementing tools as political democracy;

7) Haqq al ‘Ilm, the duty to respect rational thought through freedom of speech, publication, and assembly;

8) Haqq al Karama, especially the duty to respect gender equity in social life

  Since nothing in the modern world is independent of politics, one might consider that the Immanent Frame blog of the SSRC serves, whether consciously or not, as part of the current campaign against what some consider to be the real axis of evil, namely, ideological NeoConservatism, whether of the kind found in some Washington think-tanks or the kind found in some caves of Afghanistan. 

  President Obama is good on issues but, perhaps even wisely as a tactician, he has projected no paradigm or framework for either domestic or foreign policy.  At some point, however, he should at least mention the word justice as part of a paradigm of peace, prosperity, and freedom through justice.  This would resonate with the 90% of the people in the world who are skeptical of more talk about freedom and democracy and who expect much from him.