by Dr. Robert D. Crane
The latest in the campaign to demonize Shi’a and especially the Ithna’ashari or mainline Shi’a in Iran, Iraq, and Bahrain is the effort to claim that the Shi’a did not first develop, support, and use the human rights embodied in the Islamic normative law known as the maqasid al shari’ah, which is the cutting edge of human rights in contemporary Islamic jurisprudence.
This is compounded by the contention that Shi’ism as an Islamic expression with human rights at its core does not exist. This point was made by a scholar who concluded his argument with the following sentence: ” ... the theories of, say, the Supreme Constitutional Court of Egypt respecting Islamicity of legislation on the basis of the maqasid, or the notion of an Islamic ethos that is defined by the protection of life, mind, property, religion, honor, etc, etc. and which ethos then defines the operation of a state, is deeply fundamentally Sunni centric. There just isn’t anything in Shi’ism at least as contemporarily manifested suggesting something like this”.
In fact, in Qum, Iran, all of the six major schools of law are studied and one can choose any one of them for an ijaza. The maqasid are prominent, simple because they always have been in Shi’a jurisprudence. The present government of Iran is not representative of Shi’ism, because the very concept of the wilaya al faqih or clerical governance is contrary to Shi’a thought, even though it has appeared from time to time.
There is a long history of the maqasid, but much of it has been lost. The spread of Islam in Central Asia came through the Isma’ili Shi’a and is terra incognito for modern academics, perhaps in part because this cultural world emphasized transcendent justice. This assumed an essence of truth and of justice and therefore required basic principles in its manifestation. In one of my books, The Natural Law of Compassionate Justice: An Islamic Perspective, I entitled a chapter on Central Asian Islam simply “The Lost World”. People nowadays forget that at one time most of the entire Muslim world was Shi’a and the Sunnis were in a minority. In my new 800-page, two-volume textbook, Islam and Muslims, I have a map showing this, but I merely allude to the philosophical and theosophical culture of the time, because it is really suitable only for a post-graduate or even a post-doctoral seminar.
The scholars who claim that the Shi’a oppose the rational thought of qiyas or decision by precedent do so for all the wrong reasons. The Shi’a have always opposed qiyas only because it is unnecessary in a jurisprudential system that relies on the maqasid or universal principles of human responsibilities and human rights as first developed implicitly by Imam Jafar based on the practice of the Prophet Muhammad, salla Allahu ‘alayhi wa salam. Imam Jafar was the first to develop a maqsudi framework for the spiritual life based on levels descending from the general to the specific, which can be applied directly to Islamic jurisprudence, though to my knowledge no-one yet has studied this correlation as the basis for the maqasid al shari’ah. Admittedly, only recent scholarship has discovered that the maqasid were first used explicitly by Shi’a scholars well before any Sunni scholars did, and centuries before Al Ghazali popularized this system of jurisprudence in the Sunni world.
Since the maqasid, particularly in the Sunni world, have been moribund or dead for six hundred years until recently, only now are scholars looking for the origin of the maqasid in early texts. The maqasid have never been dead in the Shi’a world, because ‘adl or justice is the second of the five requirements in the Shi’a creed, right after tawhid and before even prophethood, nubuwah. The marjaa’ in authoritative Shi’a jurisprudence, led by the ayatollahs, requires the use of ijtihad or intellectual effort and the maqasid to determine the will of the Hidden Imam, because by definition a consensus by them on the parameters of an issue is the Imam’s will, and, once the parameters are set beyond dispute, ijtihad is used to apply general principles to specific cases. I am not a Shi’a, nor do I support the concept of the Imamate, but the presentations that seem to reflect Shi’a-phobia sound like reversing truth and falsehood, which has a name in Islam.
It is interesting, though not remarkable, that anti-Shi’ism sounds very sophisticated. It may be a perfect example of what the head of the Hudson Institute warned me against when he said, “The most dangerous people on earth are geniuses, because only a genius can make irrationality sound reasonable”.
The origin of normative law in Islamic thought, according to Shaykh Taha Jabbir al Alwani’s early publication on the subject, entitled Usul al Fiqh al Islami: Source Methodology in Islamic Jurisprudence: Methodology for Research and Knowledge, which was translated by Yusuf Talal DeLorenzo and Anas al-Shaikh-Ali and published by the IIIT in 1991, can be traced back to the practice of the Prophet Muhammad, salla Allahu ‘alayhi wa salam. He used to gather his knowledgeable companions or sahaba and put to them for judgment test cases, both actual and hypothetical. When each gave his judgment, the Prophet would comment, “I care less about what you have concluded than about how you reasoned to your conclusion.” ‘Ali ibn Abu Talib always traced his judgments back to basic principles.
Although some early jurists, including Jafar al Sadiq (d. 148 A.H.) and Imam Shafi’i (d. 240 A.H.), used rationally derived principles to explain specific verses of the Qur’an, the first known volume dedicated to the maqasid in which the term maqasid was used in the title was written by Al-Tirmidhi al Hakim, who died in 296 A.H. (908 A.C.). This was a Sufi-oriented exploration of the purposes behind specific rules of prayer. He also wrote the first book on the symbolism of the hajj, which even today is condemned by the literalists who insist that symbolism is un-Islamic.
The first scholarly treatises on the maqasid as a means to explain the purposes behind rulings in general, but still without introducing any general theory for the purposes, according to Jasser Auda on page 16 of his magnum opus, were written by two men who both died a century later in the year 381 A.H. (991 A.C.). He writes, “The first known monograph dedicated to maqasid was written by Ibn Babawayh al-Saduq al Qummi, one of the main Shi’a jurists of the fourth Islamic century, who wrote a book of 335 chapters on the subject entitled ‘Ilal al Shara’i. … The earliest known theoretical classification of purposes was introduced by Al-Amiri al Faylasuf,… but his classification was based solely on the hudud.”
The earliest use of maqasid was limited to the use of reason in contextualizing specific scriptural sources. Several centuries were required for the development of the maqasid toward a higher level of systems analysis of purpose designed to understand the message of the entire Qur’an, the matn or content of the ahadith, and the historical accounts in the Sunnah, as well as to apply such insight to public policy.
After the first scholarly writings on the maqasid, another century was required before scholars developed the concept of purpose beyond literalist methodologies used only to deal with what was not mentioned in the scripture. Imam al Juwayni, who died in 478 A.H., developed a complete proposal for the reconstruction of Islamic law by proposing and prioritizing levels of purpose for all human acts, both spiritual and social. He proposed that the highest purpose of Islamic law or any law is to protect people’s “faith, souls, minds, private parts, and money.” His student, Abu Hamid al Ghazali (d. 505 A.H.) used the same five maqasid but demonstrated a higher level of sophistication by generalizing the latter two into the broader categories of “progeny” and “wealth.”
Juwayni equated the maqasid with what was in the public interest, al masalih al ammah, thereby emphasizing the social aspect of Islamic law, though not neglecting the purpose of Islamic jurisprudence in guiding both individual and social awarness of the transcendent. He was also one of the first to deduce maqasid directly from the Qur’an rather than, as previously practiced, only from the Islamic legal heritage embodied in the rulings of the various madhdhahib or schools of law.
The elevation of the maqasid to the level of wisdom was introduced by Shamsudddin ibn al-Qayyim (d. 748 A.H., 1347 A.C.), who was a student of Imam Ahmad ibn Taymiyah (d. 728). Ibn Qayyim wrote, “The Islamic law is all about wisdom and achieving people’s welfare in this life and the afterlife. It is all about justice, mercy, wisdom, and good. Thus any ruling that replaces justice with injustice, mercy with its opposite, common good with mischief, or wisdom with nonsense, is a ruling that does not belong to the Islamic law.”
The peak development of the maqasid during the classical period of Islamic thought was achieved by Imam Abu Ishaq al-Shatibi, who died in Andalucia in 790 A.H., 1388 A.C., as the great Islamic civilization of that era was crumbling from its own internal corruption. He taught and demonstrated that the inductive process of developing a multi-layered system of purpose by the process of ‘ilm al yaqin from the first two sources of truth and justice, namely, revelation (haqq al yaqin) and study of the universal laws of the universe (‘ain al yaqin), was just as certain or reliable (qat’iy) as the first two of this triad. We need not go into the levels of reliability from the qat’iy to the dhany on which some scholars have focused their critique, except to say that the Shi’a scholars were well aware of the spectrum of distinctions.
Al Shatibi’s elevation of the maqasid as fundamentals of Islamic jurisprudence and of all human thought was not widely accepted until half a millennium later when Rashid Rida introduced economic justice, political justice, and women’s rights as independent maqasid, and the two Muhammad al Tahir ibn Ashur (grandfather and grandson, who died in 1907 and 1973) introduced political freedom and religious freedom as essential components of truth and justice.
These were followed by Muhammad al Ghazali (died 1996 A.C.) who emphasized equality and equity, especially by reducing the wealth gap in and among nations and by pursuing broad-based human development, and Yusuf al Qaradawi (born in 1926) who included among the maqasid the search for a cooperative world and peace. This maqasidi or maqsudi movement has culminated in the work of Shaykh Taha al Jabbir al Alwani, who was born in 1935 and is writing separate books on the three supreme maqasid or purposes of all existence, the Oneness of God (tawhid), purification of the soul (tazkiyah), and developing civilization on earth (the hadara of ‘imran).
One of the first tasks in supporting the world’s leading interfaith movement, known as the Common Word and then expanded to include the Eastern religions in Common Ground, is to clear out the cobwebs of mutual recrimination based on ignorance, because this removes the barriers to developing a global ethics, as pioneered by the preeminent Christian theologian, Hans Kung, at the Parliament of the World Religions in Chicago in 1993, which in turn is the key to peace, prosperity, and freedom through compassionate justice.
SHIA & SUNNI Unity Resources - TAM article collection http://theamericanmuslim.org/tam.php/features/articles/shia_sunni/