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Maqasid and Mill: A Comparison of Basic Justice

Introduction

Studies relating to the value of Muslims to British society have pushed forward one generally accepted paradigm: that the Muslim community has not accepted the value system of British society and thus does not subscribe to concept of Britishness. Serious questions can be raised regarding the worth of such an exercise, especially when the divergent views, evolution and demographics of the Muslim people are considered. The wave of anti-terrorism legislation only helps to promulgate such a fallacy by attempting to marginalise certain segments and communities of society.

If general acceptance was, however, given to such a study, the next question would quite clearly be: what are these values that they have failed to adopt?

The following work purposes to comparatively analyse the concept of ‘Adl (justice) through al-Maqāsid al-Sharī’ah (the aims/objectives of Islamic law) and the works of two major philosophers from the democratic world. By undertaking such an analysis, what will be witnessed, is a set of concepts which are innate to any system of legal understanding. Although these concepts do not go as far as to say that all human beings have the same belief system, what they do, is to provide an intrinsic sense of justice and social contractarianism which help to keep relations between humanity.

Al-Maqāsid al-Sharī’ah

The Sharī’ah (Islamic law) forms as the first line of legal understanding for any Muslim living throughout the limited expanse of this world. Whether it is from the manner in which they eat to the way they conduct their warfare, there are rules which regulate every single aspect of their lives. Such a legal system is so clearly definable; that even the United Nations has accepted the Sharī’ah as being among the general principles of international law from which international relations can be conducted and understood. The aims/objectives of the system have been agreed by innumerable scholars since just after the time of the Prophet Muhammad (saw) with only slight differences as to the extent of these objectives.

Imām Al-Ghazālī was among the first from the scholars to put forward the Maqāsid as a validated standard of objectives by stating their purpose being, “to promote the welfare of the people, which lies in safeguarding their faith, their life, their intellect, their posterity and their wealth.”[1] The five aims he set out were generally accepted by other scholars due to their reflection of the hadūd offences. What is apparent, is that the five elements of the statement reflect societal conditions which all human beings require in order to live a free and just life.

Al-Ghazālī’s formulation for al-Maqāsid al-Sharī’ah was by no means the final word on the matter. Almost two hundred years after his death, Shihāb al-Dīn al-Qarāfī added a sixth maqsūd (aim) by including the concept of al-‘Ird (honour). With the hadd offence of al-Qadhf being traditionally included under the concept of posterity/lineage, al-Qarāfī felt that it would be only just to have the concept of honour as a separate aim in the establishment of the Sharī’ah.

Al-Maqāsid al-Sharī’ah despite having generally established itself between the five or six accepted Maqāsid, found its widening through the works of Shaykh-ul-Islam Taqī al-Dīn Ibn Taymiyyah. He departed from the traditional view claiming that the list includes things such as, “the fulfilment of contracts, the preservation of the ties of kinship and respect for the rights of one’s neighbours.” The student of Ibn Taymiyyah, Ibn al-Qayyim Al-Jowzee further states that, “the basis of the Sharī’ah is wisdom and the welfare of people in this world as well as the Hereafter. The welfare lies in complete justice, mercy, well being and wisdom. Anything that departs, from welfare to misery and from wisdom to folly, has nothing to do with the Sharī’ah.” Once again, the norm that is establishment through the Maqāsid relates to the establishment of justice and strong social contractarian ties.

Whichever view of al-Maqāsid al-Sharī’ah that one takes, the essence of the argument is essentially the same. There are certain principles that aim to promote the Sharī’ah in accordance with the divine will of Allah, and it is those that promote a strong sense of justice and society among all human beings. The laws that are formulated can be found to have distinct objectives in the contract that human beings have with their fellow man as well as the contract that they have with their Lord.

Locke, Mill and Maqāsid

“The state of nature has a law of nature to govern it, which obliges everyone: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions: for men being the workmanship of one omnipotent..”[2]

For any person, as suggested by Locke, who will but consult their intellect, the stark similarity between his statement and al-Maqāsid al-Sharī’ah is something which cannot be disputed. To reiterate a point mentioned, the common theme is that of a law which came to establish a system of justice in order for all people to take their rights.

What is interesting regarding Locke’s formulation of a just civil society, is the importance that he placed upon the rights of parents as being part of that system. He states, “…we see the positive law of God in every where joins them together, without distinction, when it commands the obedience of children.” If one is to take the wider understanding of the Maqāsid, Sūrah An-Nahl similarly provides a similar understanding of the rights of parents, “Verily, Allah enjoins Al-‘Adl (Justice) and Al-Ihsān, and giving (help) to kith and kin…” As a standard societal obligation, the concept of basic justice requires duty towards parents, thereby promoting a wider view of innate justice.

Although al-Maqāsid al-Sharī’ah does not make a specific formulation with regard to the concept of ‘liberty’, the maqsūd of ‘intellect’ could be reasoned to be its synonym or at least closest equivalent. It is Mill who has been one of the forerunners in propounding the concept of justice within western democratic philosophy. It was his basic assertion that a genuine civil society would always guarantee the civil liberty of its citizens against any abusive regime, regardless of whether or not that regime relied on the democratic participation of the people. The use of anti-terrorism laws against Walter Wolfgang at the Labour Party Conference for exclaiming political dissent contravene the very system of justice Mill was aiming to bring about. Further than the Gestapo-esque acts of public authorities, the head of MI5 publicly proclaimed that civil liberties would now need to make way for national security. As Mill says, “…in political speculations ‘the tyrant of the majority’ is now generally included among the evils against which society requires to be on its guard.”

The limitation of fundamental civil liberties in the UK not only contravenes the Millian view of liberty, but further contravenes to a great extent al-Maqāsid al-Sharī’ah. Without the liberty to speak against injustice and oppression when the religion of Allah is in threat, a Muslim is not able to fulfil their duties and obligations. In Sūrah Al-‘Asr, Allah warns the Muslim community,

“By the Time. Verily, man is in loss. Except those who believe and do righteous good deeds, and recommend one another to the truth, and recommend one another to patience.”

Without the ability to recommend one another to truth, as Muslims we lose the ability to use our intellect in speaking against oppression and promoting the truth of how to improve one another. From the logic of this line of argumentation, one could possibly say that the promotion of civil liberties falls under the aims of Islamic law while living in a western paradigm. Without promoting such a right, the community may lose its sense of self as parts of their rights are taken away in the name of some unhallowed war on terror.

Mill writes, “No society in which these liberties are not, on the whole, respected, is free, whatever may be its form of government; and none is completely free in which they do not exist absolute and unqualified.” The rights of freedom of expression and liberty are not ones that are delimited to a democratic system of governance. Rather they form as part of an intrinsic set of values that can be respected by all cultures, societies and religions as they form part of our basic humanity.

“To refuse a hearing to an opinion, because they are sure that it is false, is to assume that their certainty is the same thing as absolute certainty. All silencing of discussion is an assumption of infallibility.”

The government is making attempts to ban certain non-violent organisations such as the Hizb-ut-Tahrir and to further extend its powers to trap any form of political dissent through the concept of ‘glorification’. Such laws destroy the very essence of basic justice in any form of society, whether it is a democracy or theocracy. Al-Maqāsid al-Sharī’ah require the Muslim community to act against any form of block against the liberty to speak and practice the religion of Islam. By promoting the maqsūd of liberty/intellect, the community inevitably safeguards itself against any harm on its life, religion, possessions, lineage and any other Maqāsid which further the completeness of the Sharī’ah.

‘Adl

In a hadeeth Qudsi (narration from Allah not in the Qur’an), Allah states,

“O My Servants, I have forbidden wrongdoing for Myself and I have made it forbidden for you. Therefore do not wrong one another.”

The concept of ‘Adl or justice is one that is sanctified by Allah Himself first, and then commanded upon the whole of mankind. It is a principle that takes prominence of position in relation to the Message that has been sent down with the prophets of Allah. In Sūrah Al-Hadīd, Allah clarifies the primacy of ‘Adl when He says,

“We sent Our Messengers and revealed through them the Book and the Balance so that Justice may be established amongst mankind”

The wording of the verse leaves little doubt regarding the elevated status of ‘Adl in the promotion of the Sharī’ah, regardless of which Prophet the Message came. According to Kamali, ‘Adl is, “literally meaning to put things in their proper place – as a fundamental objective of the Sharī’ah, is to seek to establish an equilibrium between rights and obligations, so as to eliminate all excesses and disparities, in all spheres of life.”[3]

One must not be confused regarding the concept of justice in Islam. The social contract that exists between human beings is very much secondary the contract that we have with our Creator and thus with that in mind one must be careful in the way that al-Maqāsid al-Sharī’ah are implemented in the promotion of the Sharī’ah. Essentially this is a task that must be undertaken by the scholars who have understanding of the western paradigm and all the problems and benefits which are associated with that. It is not for every single Muslim to claim that they have full understanding of all the concepts of fiqh (jurisprudence) and its usūl (principles).

The purpose of this work is not for people to understand that there is an open pathway to practice ijtihād without any limits placed upon such activity. Rather it is merely to increase awareness amongst both Muslim and non-Muslim communities living in the UK, that Islam is a religion, which at its very essence, is one that promotes the principles of innate justice. For those people who claim that Islam must change in order to fit in the British western context, it would seem that that the opposite is true. Islam should be promoted in all of its purity with al-Maqāsid al-Sharī’ah being highlighted to show that the laws that it brings in the lives of its community, are ones that only promote the basic justice of humanity.

 

 


Notes:

Source: www.islam21c.com

[1] Imām Al-Ghazālī ‘Al-Mustafa min ‘Ilm Al-Usul’

[2] Locke J ‘Second Treatise on Civil Government’ Section 6

[3] Kamali M.H. ‘Al-Maqāsid Al-Sharī’ah: The Objectives of Islamic Law’ AML

About Asim Qureshi

Asim Qureshi is a Human Rights Lawyer and is Co-DIrector of CAGE UK (previously known as Cageprisoners) where he works as the senior researcher. Asim has led investigations into Pakistan, Bosnia, Kenya, Sudan, Sweden, USA and around the UK. With his team of researchers, he has written and published many reports exposing the use of unlawful detention, rendition, and torture in the 'war on terror'. He is also the author of the book, "Rules of the Game: Detention, Deportation, Disappearance". The work analyses the global detention policies in the 'War on Terror' post 11th September 2001 and the impact on those most affected.

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