This is a transcript of lesson 103, March 3rd, 2020 from Shaykh Haider Hobollah’s classes on legal theory.

Maqāṣid-Based Ijtihād and Secularism

There is a major critique that says Maqāṣid-based ijtihād results in secularism, since all you are left with are these higher vague principles, and everything else becomes a mere medium to reach those goals. As a consequence the entire legal system of the Shari’ah essentially becomes historicized.

We have addressed this topic elsewhere a number of times and we will respond to it in just one lesson today so we can move on to our final topic. Some of the major critiques done on Maqāṣid-based ijtihād are:

1) When we studied the history of Maqāṣid at the beginning of the term, we saw that one of the critiques against it was its reliance on the intellect. Reliance on the intellect is a clear instance of secularism. For example, when the Shari’ah tells us to keep our bodies clean, and we understand the purpose of that to be cleanliness, we subsequently ignore the tools the Shari’ah has told us to maintain this cleanliness, instead beginning to use new technologies and chemicals to clean ourselves. Proponents of Maqāṣid will argue that these new technologies can clean us even better than how the nuṣūṣ tell us, therefore allowing us to achieve the goals of the Shari’ah.

According to critics, this is dangerous because the tools the Shari’ah placed themselves were relevant. In addition your new approach may damage other goals that the Shari’ah had in place, for example using all these chemicals can lead to environmental and economic damage.

2) Maqāṣid are based on ma’ālāt, which is the analysis and taking into consideration of the consequences and results people’s actions can generate. For example, if we say wuḍū is nothing but for cleanliness then someone can argue that the actual form is not relevant as long as we can wash with ourselves with any other liquid and in any other way. Or for example, if we say ḥudūd are nothing but a method to decrease crime, then the form and manner of how ḥudud is carried out is not relevant. However, critics say these are all the things that make up the identity of Muslims to begin with and if all of these were to become irrelevant, then what would constitute Muslim identity?

3) The opponents of Maqāṣid say this ijtihād will result in negating many famous religious edicts (fatwas) and the consensus (ijmā‘) on many rulnigs as held by the jurists. Many of the self-evident rulings of Islam will be ruined.

I believe these three points are what intimidate and scare people from Maqāṣid based ijtihād. I will first say these critiques are valid and in fact, I agree with them. Maqāṣid based ijtihād can definitely lead to these consequences, and in fact, you have students in the seminaries who come to the seminary only looking for teachers and jurists who can change things for them to fit their modern lifestyle. They do not care about an academic discussion, and if the teacher does not change things for them they think he is not strong or worthy enough. We have also seen some proponents of Maqāṣid fall into a simplistic forms of ijtihād and throw out terms like dhātī (essenctial attributes) and ‘araḍī (accidental attributes) of religion, the historicity of religion, transgression (ta’addī) from the nuṣūṣ and so on; and when they apply these concepts they do it without any set methodology and clarity.

However, none of this means these concepts are also invalid. The validity of an approach is a different matter and how people end up implementing it and using it is a different matter. As it is obvious from our own lessons, we do not agree with the very extreme approach to Maqāṣid used by some proponents, but at the same time, we do not accept the very narrow way of doing ijtihād either which is widespread and common today.

That being said, I will mention a few quick responses to the above critiques as I believe they are only applicable against those who exaggerate in Maqāṣid based ijtihad:

1) Some claim that maqāṣid-based ijtihād will destroy our entire current Fiqh system. To this we say that the Fiqh system that has come down to us today is not sacred. The Sharī’ah is sacred and the biggest fallacy that is made is between Fiqh and Sharī’ah. Fiqh is simply the understanding of the jurists, and just as it is possible for jurists to understand a certain percentage of the Sharī’ah correctly, it is also possible for them to completely miss the mark in reality. It is not an infallible system, truth is not recognized by a number of people, and this is not a democratic system we are speaking about, we are speaking about reality.

If after extensive discussion and research we realize that the foundations of ijtihād were problematic in some aspects, then after that, what ethical and legal right do we have to ignore those mistakes and continue doing ijtihād off of those same principles? If we find a certain approach to be wrong, then why would we continue to abide by it? Why would someone continue to cite ijmā’ to give legal rulings especially after its probative force has been critiqued, refuted, and rejected numerous times by the greatest of our scholars? On top of that most of the ijmā’ are madrakīyyah, or at least muḥtamal al-madrakīyyah; how can you use that to prevent someone from doing ijtihād based on principles they have concluded are valid?

Closeness to the era of the Imams (a) itself is also not too important for us here, rather what is important is the methodology. Sayyid Sīstānī even mentions that just because some of the Sunni scholars existed closer to the era of the Prophet (p) and were able to gather the sunnah from companions, does not make their corpus more reliable, because ultimately it is the methodology that is important.

2) The claim that the Muslim and religious identity would be ruined, can be responded by saying that a non-exaggerated form of Maqāṣid-based ijtihād can actually assist with maintaining religious identity. For example, consider the Shi’i communities today: where is the concept of Zakāt amongst Shi’as despite its vast presence in the Quran and Hadith? The Shi’as have almost nothing to do with Zakāt today, whereas through Maqāṣid based ijtihād you would be able to make it more expansive and a part and parcel of Muslim life.

What about the notion of protecting and safeguarding the progenies? Maqāṣid based ijtihāḍ can allow you to use science to determine and affirm people’s relationships with one another, something which traditional Fiqh would have not allowed.

This critique of identity can be applicable to traditional Fiqh as well especially since the era of many laws has disappeared and those laws are no longer part and parcel of Muslim identity today – on top of that the traditional jurists have no response and solution for it either!

3) Muslim identity itself is a crucial subject that requires contemplation. What exactly is Muslim identity? Who says what we are following today is Muslim identity and not a combination and mixture of hundreds and hundreds of years of different generations, cultures, and ethnicities? We first have to define Muslim identity so then we can say Maqāṣid based ijtihād results in losing one’s identity or not.

In reality, I believe this phobia of Maqāṣid is a phobia of taṣfīr (starting something from point zero) – which is the phobia of having to start something from scratch. They do not want to build a system from the beginning because of intimidation and they rather stick with what we have right now and with the status quo. The fear of starting from scratch is also because it will bring on responsibility and people are worried about that. This is while they do not realize that any discussion on methodology is a discussion on starting from point zero. Uṣūl al-Fiqh is a discussion on zeros – starting from scratch.

In fact, a Muslim identity cannot be derived except after coming up with a methodology of understanding the nuṣūṣ, and that is exactly what we are speaking of: how to understand the nuṣūṣ.

4) The claim that all Muslim identity will be lost, is also an exaggeration. For example, a lot of what comprises Muslim identity are the acts of worship, and even the most extreme Maqāṣid scholars will end up saying worship, ḥudūd, kaffārāt are completely excluded from Maqāṣid based ijtihād. Most maqāṣid ijtihād is occurring in places where ‘Urf has previous experience, such as in mu’āmalāt (business transactions), which most of the time do not even comprise much of Muslim identity except in a few cases.

Conclusion: In our lessons so far, we have mentioned two barriers that prevent us from applying principles that allow us to overlook the literal nuṣūṣ, namely qiyāṣ and fear of secularism. We have extensively discussed qiyāṣ in our previous lessons and we have addressed the phobia of secularism in this lesson.