Maqasid and Mill

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Maqasid and Mill: A Comparison of Basic Justice

Tuesday, 17 October 2006

Written by Asim Qureshi

There are certain principles that aim to promote the Sharah 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.

Introduction

Studies relating to the value of Muslims to ritish society have pushed forward one generally accepted

paradigm! that the Muslim community has not accepted the value system of ritish society and thus does

not subscribe to concept of ritishness. Serious "uestions can be raised regarding the worth of such an

e#ercise, 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.

%f general acceptance was, however, given to such a study, the ne#t "uestion would "uite clearly be! what

are these values that they have failed to adopt&

The following wor' purposes to comparatively analyse the concept of (Adl )justice* through al$Ma"+sid al$

Sharah )the aimsobjectives of %slamic law* and the wor's of two major philosophers from the democratic

world. y underta'ing 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 socialcontractarianism which help to 'eep relations between humanity.

Al-Maqsid al-Sharah

The Sharah )%slamic law* forms as the first line of legal understanding for any Muslim living throughout

the limited e#panse of this world. -hether 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 /nited 0ations has accepted the Sharah as being among the general

principles of international law from which international relations can be conducted and understood. The

aimsobjectives of the system have been agreed by innumerable scholars since just after the time of the

1rophet Muhammad 23$$4if 3vml5$$6 23$$4endif5$$6 with only slight differences as to the

e#tent of these objectives.

%m+m Al$7ha8+l was among the first from the scholars to put forward the Ma"+sid as a validated standard

of objectives by stating their purpose being, 9to promote the welfare of the people, which lies in

safeguarding their faith, their life, their intellect, their posterity and their wealth.:23$$4if 3
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support;ootnotes5$$64n al$?ar+f added a si#th ma"s=d )aim* by including the

concept of al$(%rd )honour*. -ith the hadd offence of al$?adhf being traditionally included under the

concept of posteritylineage, al$?ar+f felt that it would be only just to have the concept of honour as a

separate aim in the establishment of the Sharah.

Al$Ma"+sid al$Sharah despite having generally established itself between the five or si# accepted

Ma"+sid, found its widening through the wor's of Shay'h$ul$%slam Ta" al$>n %bn Taymiyyah. @e

departed from the traditional view claiming that the list includes things such as, 9the fulfilment of contracts,

the preservation of the ties of 'inship and respect for the rights of ones neighbours.: The student of %bn

Taymiyyah, %bn al$?ayyim Al$ow8ee further states that, 9the basis of the Sharah is wisdom and the

welfare of people in this world as well as the @ereafter. 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 Sharah.: Bnce again, the norm that is establishment through the Ma"+sid relates to the

establishment of justice and strong social contractarian ties.

-hichever view of al$Ma"+sid al$Sharah that one ta'es, the essence of the argument is essentially the

same. There are certain principles that aim to promote the Sharah 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 Cord.

Locke, Mill and Maqsid

9The state of nature has a law of nature to govern it, which obliges everyone! and reason,

which is that law, teaches all man'ind, who will but consult it, that being all e"ual and

independent, no one ought to harm another in his life, health, liberty, or possessions! for men

being the wor'manship of one omnipotent..:23$$4if 3support;ootnotes5$$64D523$$4endif5$$6

;or any person, as suggested by Coc'e, who will but consult their intellect, the star' similarity between his

statement and al$Ma"+sid al$Sharah 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 ta'e their rights.

-hat is interesting regarding Coc'es formulation of a just civil society, is the importance that he placed

upon the rights of parents as being part of that system. @e states, 9Ewe see the positive law of 7od in

every where joins them together, without distinction, when it commands the obedience of children.: %f one

is to ta'e the wider understanding of the Ma"+sid, S=rah An$0ahl similarly provides a similar

understanding of the rights of parents, 9Ferily, Allah enjoins Al$(Adl )ustice* and Al$%hs+n, and giving


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)help* to 'ith and 'inE: As a standard societal obligation, the concept of basic justice re"uires duty

towards parents, thereby promoting a wider view of innate justice.

Although al$Ma"+sid al$Sharah does not ma'e a specific formulation with regard to the concept of

(liberty, the ma"s=d of (intellect could be reasoned to be its synonym or at least closest e"uivalent. %t is

Mill who has been one of the forerunners in propounding the concept of justice within western democratic

philosophy. %t was his basic assertion that a genuine civil society would always guarantee the civil liberty

of its citi8ens 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 -alter -olfgang at the Cabour 1arty

Gonference for e#claiming political dissent contravene the very system of justice Mill was aiming to bring

about. ;urther than the 7estapo$es"ue acts of public authorities, the head of M%H publicly proclaimed that

civil liberties would now need to ma'e way for national security. As Mill says, 9Ein political speculations

(the tyrant of the majority is now generally included among the evils against which society re"uires to be

on its guard.:

The limitation of fundamental civil liberties in the /I not only contravenes the Millian view of liberty, but

further contravenes to a great e#tent al$Ma"+sid al$Sharah. -ithout the liberty to spea' against injustice

and oppression when the religion of Allah is in threat, a Muslim is not able to fulfil their duties and

obligations. %n S=rah Al$(Asr, Allah warns the Muslim community,

9y the Time. Ferily, man is in loss. J#cept those who believe and do righteous good deeds,

and recommend one another to the truth, and recommend one another to patience.:

-ithout the ability to recommend one another to truth, as Muslims we lose the ability to use our intellect in

spea'ing against oppression and promoting the truth of how to improve one another. ;rom the logic of this

line of argumentation, one could possibly say that the promotion of civil liberties falls under the aims of

%slamic law while living in a western paradigm. -ithout promoting such a right, the community may lose

its sense of self as parts of their rights are ta'en away in the name of some unhallowed war on terror.

Mill writes, 90o 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 e#ist absolute and un"ualified.:

The rights of freedom of e#pression and liberty are not ones that are delimited to a democratic system of

governance. Kather 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.

9To 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 ma'ing attempts to ban certain non$violent organisations such as the @i8b$ut$Tahrir and

to further e#tend 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$Ma"+sid al$Sharah re"uire the Muslim community to act against any form of bloc' against


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the liberty to spea' and practice the religion of %slam. y promoting the ma"s=d of libertyintellect, the

community inevitably safeguards itself against any harm on its life, religion, possessions, lineage and any

other Ma"+sid which further the completeness of the Sharah.

Adl

%n a hadeeth ?udsi )narration from Allah not in the ?uran*, Allah states,

9B My Servants, % have forbidden wrongdoing for Myself and % 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 @imself first, and then commanded upon

the whole of man'ind. %t is a principle that ta'es prominence of position in relation to the Message that has

been sent down with the prophets of Allah. %n S=rah Al$@add, Allah clarifies the primacy of (Adl when @e

says,

9-e sent Bur Messengers and revealed through them the oo' and the alance so that

ustice may be established amongst man'ind:The wording of the verse leaves little doubt regarding the elevated status of (Adl in the promotion of the

Sharah, regardless of which 1rophet the Message came. According to Iamali, (Adl is, 9literally meaning

to put things in their proper place L as a fundamental objective of the Sharah, is to see' to establish an

e"uilibrium between rights and obligations, so as to eliminate all e#cesses and disparities, in all spheres of

life.:23$$4if 3support;ootnotes5$$64523$$4endif5$$6

Bne must not be confused regarding the concept of justice in %slam. The social contract that e#ists between

human beings is very much secondary the contract that we have with our Greator and thus with that in mind

one must be careful in the way that al$Ma"+sid al$Sharah are implemented in the promotion of the

Sharah. Jssentially this is a tas' that must be underta'en by the scholars who have understanding of the

western paradigm and all the problems and benefits which are associated with that. %t is not for every single

Muslim to claim that they have full understanding of all the concepts of fi"h )jurisprudence* and its us=l

)principles*.

The purpose of this wor' is not for people to understand that there is an open pathway to practice ijtih+d

without any limits placed upon such activity. Kather it is merely to increase awareness amongst both

Muslim and non$Muslim communities living in the /I, that %slam is a religion, which at its very essence,

is one that promotes the principles of innate justice. ;or those people who claim that %slam must change in

order to fit in the ritish western conte#t, it would seem that that the opposite is true. %slam should be

promoted in all of its purity with al$Ma"+sid al$Sharah 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.


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[1] Imm Al-Ghl" #Al-$ustf min #Ilm

Al-%sul&

['] (o)*e + #,e)ond retise on .i/il

Go/ernment& ,e)tion 0

23$$4if 3support;ootnotes5$$64523$$4endif5$$6 Iamali M.@. (Al$Ma"+sid Al$Sharah! The Bbjectives of

%slamic Caw AMC

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Maqasid and Mill