The Fundamentals Principles of the Science of Maqāšid: The Third Principle: I‘Tibār Al-Ma’āl (Paying Regard To Consequences)

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Introduction

The principle or theory of ‘paying regard to the consequences (of a ruling)’ explains another feature of istišlāħ. This is a special feature and so needs its own explanation.

This principle was unknown until Imām al-Shāŧibī highlighted it in the 8th Islamic century. Before then, it did present itself in many of the explanations given by different jurists as well as in practice in their legal judgements, and even in a number of juristic principles; however, its foundations and different strands were only brought together, and its importance was only highlighted for the first time by the master of the science of maqāšid studies, Abu Isħāq al-Shāŧibī.

It may be, given the level of similarity and interlinking between the two principles, that the early interest shown in the principle of sad al-dharā’i‘ (blocking the avenues to evil) turned people’s attention away from the principle of i‘tibār al-ma’āl. This is despite the fact that i‘tibār al-ma’āl is more general and broader than sad al-dharā’i‘, which is only one aspect of the former.

Following the era of al-Shāŧibī, nothing new happened until our time, during which it has received a great deal of attention in contemporary studies relating to the sciences of ušūl al-fiqh and maqāšid al-sharī‘ah, with discrete writings and various research papers being published on the subject.[1]

Given that I have no interest in reinventing the wheel, I will not repeat the work that has already been done by others on this issue besides providing a number of suitable quotes and references. Instead I will turn my attention to what I feel still needs clarification or correction, the most important area of which relates to the methodological and maqāšid-based particularities of the principle of i‘tibār al-ma’āl.

For this reason, I will limit myself when dealing with this subject to the following two enquiries:

  1. The Sharī‘ah: Paying Regard to the Present Reality vs. Paying Regard to Future Consequences
  2. Ma’ālāt (Consequences) and Maqāšid (Aims)

1. The Sharī‘ah: Paying Regard to the Present Reality vs. Paying Regard to Future Consequences

Most of those who have written about the subject of ‘paying regard to the consequences (of a ruling)’ (i‘tibār al-ma’āl) or the ‘consequences of actions’ (ma’ālāt al-af‘āl) have emphasised the importance of this juristic principle and its role in formulating legal judgements. I‘tibār al-ma’āl is one of the sources of ijtihād, with its own evidence and unequivocal legitimacy, and with its own sub-categories and far-reaching impact…[2]

It is well known that i‘tibār al-ma’āl in the terminology of the legal theorists means to bear in mind any developments that an action may lead to in the future, and then to include these in the grounds on which the judgement of that action is based. I.e., judgement should take into consideration the current situation and the possible impact, the present and the future. Paying regard to the expected consequences of things, and not being limited by the present reality and the immediate results, is what is meant by the principle of i‘tibār al-ma’āl.

Dr Farīd al-Anšārī spoke well when clarifying the dynamic nature of the principle of i‘tibār al-ma’āl and its concern with looking to the future, when he stated (may God have mercy on him):

“One subtle point which must be highlighted is that al-ma’āl (the consequence) from the perspective of performing ijtihād necessitates an evolutionary viewpoint, i.e. not a static one. This is because i‘tibār al-ma’āl when defining a legal ruling is looking at the current reality in terms of its dynamic development. Al-ma’āl is that reality that you are heading towards after the changing reality that you are currently witnessing. There is a difference between this and the outlook of the jurist who opines only on the basis of the current reality and not of any eventual consequences. The latter is a static viewpoint, a fixed contemplation. As for looking at the eventual consequences, this entails observing the changes that will affect the legal ruling after it has been defined and dressing it in the expected circumstances of the time and place.”[3]

He then states:

“It is clear, then, that i‘tibār al-ma’āl is a source of law, according to which, judgement is passed on an existing situation on the basis of how it will be in the future.”[4] “So, in the final analysis, i‘tibār al-ma’āl means considering the future when defining a ruling in the present."[5]

This all relates to the field of ijtihād and the work undertaken by those jurists proficient at it. However, what I want to focus on here is the importance of i‘tibār al-ma’āl in the establishment of the Sharī‘ah and its stipulated laws, and not merely to derriving rulings by ijtihād for situations, events, and developments that are new, already happening, or expected to happen.

What I mean by this is that the Sharī‘ah from beginning to end legislates rulings vis-à-vis the current situation and the impact, the present and the future. I.e. it exists in relation to the current situation and the consequences together at one and the same time. From this perspective, i‘tibār al-ma’āl is not merely a principle used when deriving laws, which we should store away and then call upon in specific circumstances. Rather, it exists and is effective in all the laws established by the Sharī‘ah. Hence those scholars of fiqh and ušūl al-fiqh that pay heed to the consequences of rulings and who urge others to do likewise do nothing more than to comprehend the eventual scope of the laws stipulated in the Sharī‘ah and then follow this when undertaking their own ijtihād. Their own i‘tibār al-ma’āl is simply an extension of the i‘tibār al-ma’āl found in the foundations of the Sharī‘ah, and in its aims and laws.

So, for example, when we ponder the prayer and see that it was made one of the pillars of the religion and one of its major obligations, and when we see the praise and the sternness, the reward and the punishment mentioned in relation to it, we will not understand or appreciate this fully without contemplating its role and impact on the worshippers and the society, both now and in the future.

If we look at prayer in relation to the present, we find that the person performing the prayer worships their Lord and fulfils one of His rights, this being something noble. We also find that they gain the honour of standing in front of their Lord, and, if they perfect their prayer, they gain tranquillity in their heart and peace in their soul. This repeats itself whenever they repeat the prayer.

Then, if we look at it in relation to its impact, we find that, through its perpetuity and the sequence of the different daily prayers, it admits a person into an agreement, the function of which is to establish a continuous connection with God, Most High, for as long as they live. It is a course of action that gives rise to a solid, long-lasting bond between the servant and their Lord, and forms a kind of insurance policy for their faith and their religious commitment.

In relation to good manners, prayer acts like a fork in the road, at which two paths divide. The one who prays usually embodies uprightness and goodness. Starting to perform the prayer means abstaining from any sin and reprehensible action that one commits, because all who pray know that {prayer restrains outrageous and unacceptable behaviour} [29:45]. In short, the manners and way of those that pray is not the same as the manners and way of those that do not pray.

The prayer is also a course of action that forms a strong, lasting connection with the mosque and those who frequent it. It is as if whoever starts to pray and then begins to frequent the mosque is registering themselves in an actual school, the school of the mosque, and they are joining the community of their local mosque and their mosque at work. This has innumerable, recurring benefits for the individual, religiously, culturally, and socially.

In each and every mosque, those that pray, through their continual contact, comradeship, and fellowship, constitute the core of the local Islamic community in their neighbourhoods, villages, and professional organisations. The Imam of the mosque and the one who offers the Friday sermon, through the guidance they offer and the influence they possess, are therefore leading figures in their community.

The prayer, whether performed alone or in congregation, with its ādhān (call to prayer) and its sublime form, is an open, recurring invitation to Islam and to the worship of God, Most High.

This, then, is how the prayer operates and the impact it offers.

The same is true for the rest of the pillars of Islam. They were only made pillars and fundamentals of the religion on account of the way they operate and their different impacts, and not merely due to their transitory and immediate state.

Taking another example from a different field, the punishment for theft, we see that what is usually considered is the immediate impact of the action, i.e. that the thief commits an offense by stealing and is punished by having his hand cut off.[6] This law has long since aroused consternation and reticence amongst some, on account of the cutting off of a hand being such a weighty matter with huge consequences. How then can it be undertaken for the theft of some money, which when measured against a human hand is insignificant, whatever its amount? In fact, the amount that is usually stolen isn’t huge, not some vast fortune. In fact, the majority of jurists consider the level at which punishment becomes liable to be only a quarter of a gold dinar or its equivalent.

Ibn al-Qayyim states:

“One disbeliever composed the following two lines of poetry on this question:

‘The blood money for a hand is 500 gold coins,
So how can it be cut off for quarter of a dinar?
This is a contradiction about which we can only stay silent;
And we seek our Lord’s protection from any shame.’

Some jurists countered that a hand is valuable when it is honest, but when it cheats it loses its value, with one composing the following verse in this regard:

‘The blood money for a hand is 500 gold coins,
But it is cut off for quarter of a dinar.
To protect obedience to God, He gave it a high price. What diminishes it is
stealing money, so look at the wisdom of the Creator.’

It is reported that Imam al-Shāfi‘ī’s response was:

‘When it is wronged its value is made high,
But when it wrongs others the Creator sets no value on it.’

Shams al-Dīn al-Kurdī’s response was:

‘Say to al-Ma‘arrī[7]: “Shame, yes, the greatest shame is
The ignorance of a man, who has no fear of God.

Do not kindle the flame of your poetry in trying to understand the wisdom [of the ruling];

The rites of the Sharī‘ah were not produced by poetry.
The price of a hand is 500 pieces of gold,
But if it commits wrong it is not worth a single dinar.’”[8]

These responses, despite their excellence, focus on the present, without looking to the consequences. In this case, the consequence is that cutting off a thief’s hand prevents further acts of stealing that they would probably undertake if they escape punishment or if their punishment is light and does not deter them.

Furthermore, cutting off the hand of one thief prevents hundreds, if not thousands of potential thieves, turning their attention from stealing to hard work. This is therefore a serious matter and not a joke.

Added to this is the fact that a large percentage of all cases of murder, assault, injury, break-in, and terrorising people happen as the by-product of stealing. Preventing it therefore protects people’s lives, their health, and their homes.

It is well known that financial security is a necessary condition for encouraging trade and for establishing and organising markets in a climate of trust and harmony. Likewise, all forms of production and all transactions are initiated and grow in line with the degree of safety and security that exists, and the opposite is also true. For this reason we find that financial capital abandons those countries where there is no security.

Another issue similar to this, which I have been asked about many times when teaching about al-darūriyyāt al-khams (the Five Necessities)[9] and their order of priority, relates to the statement of the Prophet (s), recorded by both Imam al-Bukhārī and Imam Muslim in their books: “Whoever is killed defending his wealth is a martyr.” The question here is, if preservation of wealth is the least important of al-darūriyyāt al-khams and preservation of life is considered more important than it, how can it be permissible for a person to sacrifice their life on account of their wealth?

The same answer can be given to this as was given above. However, to this we can add that whoever risks his life in this situation is not only defending his cow, money, appliance, or the furniture in his house, but is also defending, as a result, the safety of the public in general and the wealth of others as well. The protection of wealth and possessions can hardly be divided up. In fact, the preservation of wealth and life, together, can hardly be divided up either. Hence, whoever defends their life or their wealth is, as a result, defending society as a whole, and so if they die, they will become a martyr.

These two examples, in addition to what is mentioned below, should be enough to demonstrate that i‘tibār al-ma’āl is a principle that was there from the beginning, when the rules of the Sharī‘ah were set, and not merely the result of practical ijtihād.

Al-Shāŧibī alluded to this issue in passing in a number of places, among them:

“The consequences of rulings have been taken into account in the establishment of their legality, such as when God, Most High, states:

  • ‘People, worship your Lord, who created you and those before you, so that you may be mindful [of Him].’ [2:21];
  • ‘Fasting is prescribed for you, as it was prescribed for those before you, so that you may be mindful of God.’ [2:183];
  • ‘Do not consume your property wrongfully, nor use it to bribe judges, intending sinfully and knowingly to consume parts of other people’s property.’ [2:188];
  • ‘[Believers], do not revile those they call on beside God in case they, in their hostility and ignorance, revile God.’ [6:108];
  • ‘They were messengers bearing good news and warning, so that mankind would have no excuse before God, once the messengers had been sent: God is almighty and all wise.’ [4:165];
  • ‘Fighting is ordained for you, though you dislike it. You may dislike something although it is good for you, or like something although it is bad for you: God knows and you do not.’ [2:216];
  • ‘Fair retribution saves life for you, people of understanding, so that you may guard yourselves against what is wrong.’ [2:179]

These are examples of where i‘tibār al-ma’āl generally occurs.”[10]

In another place al-Shāŧibī states: “Things are only made ħalāl or ħarām based on their consequences.”[11]

Al-Shāŧibī also laid down principles of maqāšid al-sharī‘ah related to the principle of i‘tibār al-ma’āl, although he did not specifically link the two, neither theoretically nor in practice. Among these is his statement:

“If it appears, on first inspection, that God wishes to impose something beyond the capability of the servant, on closer inspection, this can be seen to relate to either its causes, its effects, or what is associated with it.”[12]

The relevant point here, in my view, is contained in the idea of the ‘effects’ of the ruling. This is because the Sharī‘ah makes certain injunctions and prohibitions, when the intention is not actually these things in and of themselves but what they lead to, whether in the near or distant future. For example, the prohibition on a man and a woman being alone together is due to what it leads to, i.e. falling, sooner or later, into desire, then seduction, and then fornication. Likewise, the prohibition on anger is not for its own sake, but due to what it causes and the consequences brought about by the lack of control that ensues.

Another of these principles can be found in his statement:

“The establishment of certain ‘causes’ necessitates that the one who established them (i.e. God) intended the effects of those causes.”[13]

What he means by ‘causes’ is legal rulings that usually bring about certain effects. These effects are either benefits that are generated or harms that are prevented. He also states:

“‘Causes’, by virtue of them being causes set by God for certain effects, have only been legislated to bring about the effects they produce, these effects being benefits generated or harms prevented.”[14]

These benefits and harms (i.e. the effects produced) may be immediate or may only be felt in the long term. God’s imposition of the ‘causes’ means that He is intending the resulting effects, whether in the present or the future.

For example, the legality of marriage and the encouragement to marry is a lawful ‘cause’, behind which lie certain legally, intended effects, these being the benefits it brings and the harms it prevents. These benefits and harms are not limited to the wedding night, but stretch for years or even decades to come, and its effects are felt from one generation to the next. This is the aspect of this particular principle of maqāšid al-sharī‘ah, laid down by al-Shāŧibī, that relates to future consequences (al-ma’ālāt).

2. Ma’ālāt (Consequences) and Maqāšid (Aims)

Paying regard to the consequences of rulings (i‘tibār al-ma’āl) is in reality paying regard to the aims of the Sharī‘ah (maqāšid al-sharī‘ah) which seek people’s benefit both now and in the future. As such it is an aspect of istišlāħ, and issues from it. Genuine, complete istišlāħ is nothing more than paying consideration to people’s benefit, both in the short and long term, both now and in the future. As Dr Mušŧafā Qirŧāħ states:

“An action is not of complete benefit unless it contains, of all possible advantages, both those that are short term and long term.”[15]

Given that “the laws of the Sharī‘ah have only been laid down for the benefit of God’s servants in both the short and the long term”[16], then i‘tibār al-ma’āl is in reality the second part of maqāšid al-sharī‘ah. In fact, it is, without exaggeration, the greater part of it, because the aims (maqāšid) that are observed in terms of future consequences are many times those that are observed in the present; and because the present is limited and short-term, whereas the consequences can be long-term and unlimited.

The consequences are therefore observed “in the establishment of their legality”, as al-Shāŧibī states. Then the jurist must look at the expected consequences as they occur and as they change, according to people’s social and individual states and particular circumstances. This may then lead the jurist to declare things permissible when they were originally prohibited, and declare others prohibited when they were originally permissible. It all revolves around whether the aims of the Sharī‘ah are realised or not.

If we take, for example, the issue of the general public owning, carrying, and trading in weapons, this is something permitted both textually and on the basis of ijmā‘ (consensus). It may even be considered preferable if not compulsory in certain circumstances. However, the personal weapon has changed these days from the sword, spear, and dagger, to the rifle, handgun, and automatic weapon. Those carrying them rush to use them and kill each other with them. Situations now arise when these weapons become a sudden danger to the safety of individuals and the general public. Sectarian, tribal, and factional fighting may also arise. All of this makes that which would otherwise be permissible impermissible, and the correct opinion is that nowadays carrying and trading in weapons is forbidden for the general public.

Al-Shāŧibi states:

“Reflecting on the consequences of actions is recognised and intended by the Sharī‘ah, whether these actions are in agreement or disagreement [with the consequences]. This is because the jurist only rules on an action that a legally responsible individual undertakes or refrains from, after considering the consequences of that action: is it legal due to a benefit derived or a harm averted by it, although it has a consequence contrary to that; or is it illicit due to a harm that arises from it or a benefit averted by it, although it has a consequence contrary to that. If the first of these is ruled as being permissible, the benefit accrued may be countered by a harm equal to it or even greater than that benefit, such that this would prevent it being generally declared permissible. Likewise if you rule in the second case that the action is impermissible, averting the harm may lead to a harm equal or greater than the one originally averted, such that it is not right to generally declare it impermissible. This is an area for the jurist that is difficult to grasp yet sweet to the taste and admirable to return to, and is in conformity with the objectives of the Sharī‘ah.”[17]

It is truly “an area for the jurist that is difficult to grasp” since it requires that they exert themselves in understanding the current reality and what it will lead to, and that they are able to understand the time they are living in and what it will bring.

Scholars frequently point out that the jurist must have an understanding of the current reality. We also often hear and read of complaints about jurists giving fatwās without understanding the reality that they are discussing, and sometimes not even grasping the events about which they are being asked and giving their opinion. If this is the case regarding understanding the current reality, how is it when looking at the expected consequences? For this reason ijtihād relating to consequences of rulings is “difficult to grasp yet sweet to the taste and admirable to return to, and is in conformity with the objectives of the Sharī‘ah.”

Ibn ‘Āshūr also drew attention to this level of ijtihād and its difficulty, saying:

“Benefits and harms can be divided in another way, according to whether they result from actions intentionally or as a consequence that stems from them. This division attracts the skill of the jurist, for while benefits and harms may not be hidden from people of sound mind…the subtleties of different benefits and harms, their affects, and the means of obtaining them and how they cease, this is the point that leads to confusion. Here the minds of intellectuals differ with regard to being guided or unaware, accepting or rejecting; here the legal devices and avenues arise; here one either grasps the causes or not; here the various systems of law differ, and here the Islamic system of law surpasses others in being suitable for all people and places.”[18]

One of the guiding prophetic ħadīths in this regard is that narrated by both al-Bukhārī and Muslim from Mu‘ādh ibn Jabal (r) that the Prophet (s) said to him one day:

“‘O Mu‘ādh, do you know God’s right over His servants and the right of God’s servants over Him?’ I said: ‘God and His Messenger know better.’ He said: ‘God’s right over His servants is that they worship Him and do not associate any partner with Him. And the right of God’s servants over Him is that He doesn’t punish anyone who does not associate partners with Him.’ I said: ‘O Messenger of God, should I not give these glad tidings to people?’ He said: ‘Do not tell them otherwise they will become lax.’”

Hence the Prophet (s) prohibited him from telling people a matter from the core of the religion, the basic principle being that this is obligatory. This prohibition by the Prophet (s) is due to the consequences arising from the action and not due to the action itself. Scholars have understood this and have justified this prohibition as being out of fear of possible negative consequences: that some people would become lax at this good news and generous promise, would slacken, stop performing good deeds, and in the end abandon most of the rulings of the Sharī‘ah. Therefore all the religious texts must be placed in context so that they are not misunderstood and used in a way opposite to what was intended. If the fear of this happening disappears, it then becomes compulsory to relate this ħadīth and its contents. For this reason, the Prophet (s) did indeed relate it and didn’t hide it, as did the Companions and then scholars after them. Hence the pivotal point in relation to the consequences of a ruling is the listeners’ understanding of the ħadīth and how they will use it.

The scholar al-Mullā ‘Alī al-Qārī states:

“Al-Bukhārī argued [on the basis of this ħadīth] that the scholar should favour some with knowledge over others out of fear that [the latter] will not understand. Idle and permissive people may take ħadīths like this as an excuse to abandon certain obligations and abolish certain rulings, leading to destruction in the next life followed by devastation in this.”[19]

One of the most outstanding judgements based on looking at the consequences of a ruling is that given by the Caliph ‘Umar and other senior Companions on the issue of the lands conquered in Iraq. This came after some of the conquering Muslims requested that these lands be shared out among them on the basis that they were war booty. Abū Yūsuf narrates that:

“‘Umar (r) sent for ten senior nobles of the Anšār, five from the tribe of al-Aws and five from the tribe of al-Khazraj. After they had gathered, he praised God and lauded Him as befits Him. Then he said: ‘I have only disturbed you so that you can participate in this trusteeship over your affairs that I have been burdened with, because I am just like one of you. And you, today, affirm the truth, whether people disagree with me or agree with me. I do not want you to follow my desires. You have been given a book by God that speaks the truth. I swear by God, if I have said something that I want, I only want it to be the truth.’

They said: ‘Speak! We will listen, O Commander of the Believers.’ He said: ‘You have heard the words of those who claim that I have denied them their rights. I seek refuge with God that I commit an injustice. If I was to deny them anything that belongs to them and given it to others, I would be one of the wretched. However, I think that nothing remains to be conquered after the lands of Khosrow, and God has granted us their wealth, land, and men. I have shared out the wealth they have taken as booty between them and I have taken the khums[20] and have directed it as intended and I am aware of what I was doing. But I have seen it best to keep their land with its men in trust and impose on them the land tax and the jizyah tax to be spent on the Muslims, the fighters, their children, and those that come after them. Just think of those border lands? They need men to guard them. Just think of those huge cities: Sham, Arabia, Kufa, Basra, Egypt? They must have troops in them, who will have to be paid. How will these be funded, if I distribute the lands and the men?’

They all responded: ‘We agree with your opinion. What you have said and what you think is excellent. If these border lands and these cities are not filled and money is not spent on them to strengthen them, the disbelievers will return to their cities.’”[21]

One of the guiding judgements in this regard was given by Imam al-Ħaramayn al-Juwaynī who held that if the ħarām becomes prevalent and ħalāl forms of income become nonexistent or rare, it is allowed for people to trade in a ħarām manner and consume from the ħarām to fulfil their needs(ħājahs)[22]. He also did not require that they only consume the ħarām in the case of an absolute necessity (ḍarūrah), as would be keeping with the legal principle ‘necessities makes that which is forbidden permissible’ (al-đarūrāt tubīħ al-maħżurāt). In fact, he considered this principle of necessity, and that it permits the unlawful only to the extent that is necessary, to be specific to individuals, not to the society as a whole. For the latter, Imam al-Ħaramayn formulated the juristic principle ‘a universal need is held as having the same status as an individual’s necessity’ (al-ħājah al-‘āmmah tunazzal manzilat al-ḍarūrah al-khāššah). This he did by looking at general consequences, noting that if an individual lacks something that is a need the harm caused is minor. Therefore they are not allowed to consume that which is ħarām under these circumstance, but must only do so when there is a necessity. For anything else they must patience. As for the society as a whole, restricting it only to that which is a necessity while relinquishing what is merely a need, with the passing of time, will lead to terrible, widespread harm and to the weakening and collapse of the society.

Below is some of what he has said on this issue:

“If the ħarām becomes widespread among people in a certain time, such that they cannot find any way of obtaining the ħalāl, they can take from the ħarām to fulfil their needs. It is not required that things reach the level of necessity, as is required for it to become permissible for an individual to eat carrion. Rather, for society it is enough that the level of need be reached, having the same status as a necessity vis-à-vis an individual. If an individual in a position of necessity attempts to bear it with patience and not consume the carrion, they will die. Likewise, if society bears its needs with patience, and stops doing so only in the case of a necessity, all of the society will be destroyed. All of society abandoning a need out of fear of being destroyed has the same effect as an individual abandoning a necessity. Understand this and you will be guided.

In fact, one person dying does not harm the general religious and worldly affairs, but if everyone leaves a need, every last one of them will be destroyed in the way we have described.

Following all this explanation, grasping the truth will not be beyond the intelligence of those seeking guidance.

If it is decided that needs must definitely be observed, then ‘need’ is an obscure term with no precise definition. What is clear is that necessity and fear for one’s life is not a condition in relation to what we are discussing, as it is with regard to the details of the Sharī‘ah in relation to allowing individuals to eat carrion or food that belongs to someone else. Likewise, it is not possible for us to find an expression to precisely define the level at which one must refrain. We can say for sure that refraining from food may not lead to weakness that disables you from going about your business on a single occasion, but if you continuing to endure hunger to that extent, leads to weakness, then we are not obliged to refrain from eating unlawful food in this way.

The result of all that we have confirmed and renounced is that people can consume that which, if they left it, would cause them to be harmed, either now or in the future. What is meant by the harm that we have mentioned in the course of our discussion is what is expected to ruin one’s health or cause weakness that impedes one from going about one’s daily business.”[23]

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This is some of what I wanted to clarify concerning these three principles that are the main foundations and pillars for the science of maqāšid al-sharī‘ah.

{My success comes only with God’s help. In Him I trust and to Him I turn} [Qur’an 11:88]

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[1] Dr Yūsuf Iħmītū enumerated some of them, mentioning ten publications and university theses, most of them specifically dealing with the principle of i‘tibār al-ma’ālāt, and others dealing with it in relation to some other subject. He did not, however, include the study on the term ‘al-ma’āl’ by Dr Farīd al-Anšārī, which took up 117 pages of his book al-Mušŧalaħ al-Ušūlī ‘ind al-Shāŧibī, despite using the work and mentioning it a number of times. To his list should also be added the book by Dr Iħmītū himself: Mabda’ I‘tibār al-Ma’āl fī al-Baħth al-Fiqhī; see pp. 15-18 of the book.

[2] See, for example, what was written on this subject in: Farīd al-Anšārī, Al-Mušŧalaħ al-Ušūlī ‘ind al-Shāŧibī;  ‘Umar Jiddiyyah, Ašl I‘tibār al-Ma’āl bayn al-Naẓariyyah wa-l-Taŧbīq; Yūsuf Iħmītū, Mabda’ I‘tibār al-Ma’āl fi-l-Baħth al-Fiqhī min al-Tanżīr ilā al-Taŧbīq; and ‘Abd al-Majīd al-Najjār, Ma’ālāt al-Af‘āl wa Atharuhā fī Fiqh al-Aqalliyyāt, study presented at the 9th session of the European Council for Fatwa and Research, Jumādā al-Ūlā 1423/July 2002.

[3] Al-Anšārī, al-Mušŧalaħ al-Ušūlī, op. cit. pp. 430-1.

[4] Ibid, p. 433.

[5] Ibid, p. 433.

[6] It is well-known that the punishment for stealing is only applied if certain social conditions and legal and judicial provisions exist. This, however, is not the place for a detailed explanation of these.

[7] The two verses mentioned above are attributed to the poet Abū al-‘Alā’ al-Ma‘arrī.

[8] Ibn al-Qayyim, A‘lām al-Muwaqqi‘īn, op. cit. vol. 2, p. 48.

[9] Translator’s note: In Maqāšid theory, al-darūriyyāt al-khams (the Five Necessities) are defined as the five things which are necessary for humans to survive and which the Shariah came to preserve, these being: religion, life, intellect, honour, and wealth.

[10] Al-Shāŧibī, al-Muwāfaqāt, op. cit. vol. 4, pp. 196-7.

[11] Ibid, vol. 3, p. 259.

[12] Ibid, vol. 2, p. 107.

[13] Ibid, vol. 1, p. 194.

[14] Ibid, vol. 1, p. 243.

[15] Mušŧafā Qirŧāħ, al-Nażar al-Mašlaħī ‘ind al-Ušūliyyīn, Rawāfid Series No. 47. Kuwait: Ministry of Awqaf and Islamic Affairs, 1432/2011, p. 210.

[16] Al-Shāŧibī, al-Muwāfaqāt, op. cit. vol. 2, p. 6.

[17] Ibid, vol. 4, pp. 194-5.

[18] Ibn ‘Āshūr, Maqāšid, op. cit. p. 244.

[19] Al-Mullā ‘Alī al-Qārī, Mirqāt al-Mafātīħ, op. cit. vol. 1, p.98.

[20] Translator’s note: The one fifth share taken from the war booty and given to the treasury.

[21] Abū Yūsuf, al-Kharāj, p. 28-9.

[22] Translator’s note: The current passage discusses under what circumstances, when there is a đarūrah (necessity) or a ħājjah (need), the illicit becomes permitted; cf. Introduction, fn. 6 above.

[23] Abū al-Ma‘ālī al-Juwaynī, Ghiyāth al-Umam fī al-Tiyāth al-Żulam. 2nd ed. Edited by Dr ‘Abd al-‘Ażīm al-Dīb. Distributed by Maktabat Imām al-Ħaramayn, 1401 AH, pp. 478-81.

Source note:
This article is part of the book; The Fundamental Rules of the Science on Sharīʿah Objectives, translated into English and will be published soon by the Foundation;
Ahmed Raissouni, The objectives of the Law; the Fundamentals Principles of the Science of Maqāšid, Al-Furqān Islamic Heritage Foundation, London, UK.

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