MAQASID AND WASAIL: PURPOSES AND MEANS IN RELATION TO MAQASID. This paper will explore the purpose and means vis-a-vis the theory of maqasid.

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1 MAQASID AND WASAIL: PURPOSES AND MEANS IN RELATION TO MAQASID This paper will explore the purpose and means vis-a-vis the theory of maqasid. The paper will firstly explore the definition of wasail by the scholars. The discussion on wasail by the classical scholars was not deliberated in the form of specified topic, but always encountered while discussing other important topic mostly maqasid or dharai. Thus after the definition of wasail, we will then discussed the position wasail vis-à-vis maqasid and dharai. This is to identify the relationship and position of wasail within the theory of maqasid and sadd al-dharai as one of the sources of Shariah. Next, the characteristics of wasail in relation to maqasid will then be expounded, followed by the classification of wasail and its rulings. The paper found that the terms wasail and dharai in its broad meaning are interchangeable and the concept of dharai should be viewed within the wide concept of wasail, comprising of sadd and fath al-dharai. It is observed that the framework of maqasid and wasail could provide a practical scale of priorities within the values of masalih and mafasid. INTRODUCTION The idea or doctrine of maqasid al Shariah or higher objectives of Islamic law, has gradually captured the attention of increasing numbers of contemporary Muslim scholars who see in it a springboard for solving contemporary issues. This idea provides a guide and framework for the process of ijtihad in its endeavour to solve issues creatively while complying with the will of the Lawgiver. Thus, maqasid al 1

2 Shariah as an independent discipline can be viewed not only as a doctrine or principle of law but more importantly as a philosophy of law or a value system governing the Shariah legal rules and reflecting the Islamic worldview in all its dimensions. Ibn Ashur defined maqasid al Shariah as the deeper meanings (maani) and inner aspects of wisdom (hikam) considered by the Lawgiver (Shari ) in all or most areas and circumstances of legislation (ahwal al tashri ) (Ibn Ashur 2006, p.67). He also explained the importance of the knowledge of maqasid al Shariah for the mujtahids not only in understanding and interpreting the texts of the Shariah but also to find solutions to the new problems facing Muslims on which those texts are silent (Ibn Ashur, 2006, pp. 5-10). DEFINITION OF WASAIL AND DHARAI The discussion on wasail as means to attain maqasid had not been discussed by the classical scholars as an independent study or at least a specified topic. Indeed the word wasilah or wasail was found in classical literature under their discussion on other topics such as al-sabab, muqaddimah al wajib and more particularly sad al dharai. Ibn Ashur had observed this in his book Maqasid al Shariah: This is an important subject with which early scholars did not however deal satisfactorily, they confined themselves to sadd al dharai, in which they designated the dhariah as the means and that which the dhariah is used for attaining the end (maqsad). However, some scholars had in some ways shed some light on this topic particularly Izz al Din ibn Abdul Al Salam, followed by al Qarafi in his book Al Furuq. Maqasid of Shariah in both its dimensions in generating benefits or preventing harms, could only be achieved by abiding to the rules of the Lawgiver, subject to the 2

3 fulfilment of its means and causes. Thus the means or wasail refers to the rules (ahkam) instituted by the lawgiver as a means to the realization of objectives. Thus, they are not intended for their own sake, but as means to achieving something else in the most appropriate manner. Without them, the purpose of the Shariah might be totally missed or not fully achieved. One of the examples mentioned by Ibn ashur is the possession (hawz) of the property in al rahn (mortgage) contract is not required for itself but to fulfil the principle of the pledge and to ensure the security of the debt so that the mortgagee (rahin) will not pledge it to another creditor thus forgoing the first mortgage. Meanwhile, Al qarafi defined wasail as the ways which lead to maqasid. According to Ibn Qayyim wasail everything which is a means or way to something, Ibn Kathir says it is something used to realize an objective. As dharai always overshadow the discussion of the scholars on wasail, it is crucial and indispensable to discuss dharia here. The word dharia (pl. dharai ) signifies the means or way of obtaining an end or attaining a goal. Thus, at least in linguistic term, dharai is synonymous with wasail. Technically however, there are two positions in defining the meaning of dharai as a source of derivation of legal rulings: 1) The position of most classical jurists: They defined dharai in a narrow sense to indicate those ways or means that are lawful but could lead to prohibited ends or unlawful results. For example, Ibn Rushd, the Grandfather, defined dharai as being things which are apparently permissible but are used as a means to something prohibited (Ibn Rushd, 3

4 n.d,p.524). According to Imam al-shatibi, the rule of dharai is to use a benefit (maslahah) as an expedient to attain a harmful thing (mafsadah) Al-Shatibi 1999,p.556). Thus, according to his view, the rule of dharai means prohibiting a lawful act owing to the possibility of its leading to an unlawful result. It is important to mention here that not all lawful acts must be forbidden on the ground of likelihood of harmfulness ensuing from them. In this connection, the jurists divided lawful acts into three categories: A. Those that rarely lead to harmful results, like planting grapes that could rarely lead to wine making. B. Those that usually lead to harmful results, like the sale of grapes to a winery and the sale of weapons to a known criminal. C. Those in which there are equal probabilities of harm and benefit. For example, marrying a woman with the intention to divorce her in order to enable her to remarry her former husband. The first type does not fall within the purview of the rule of dharai and an act that rarely leads to harmful results would not be prohibited. The jurists disagreed regarding the remaining two categories. According to Malikis and Hanbalis they may be prohibited because they could lead to harmful results. However, al-shafie rejected this view, saying that what is permissible could not be prohibited on the ground of the likelihood that it might lead to a harmful result. 2) The second position is to define dharai in a wider and broader sense, covering all means whether they lead to harmful or beneficial results. This means to prevent all means leading to harmful consequences (and is known as sadd al dharai ) or to open and encourage all possible means to beneficial ends (which is known as fath al 4

5 dharai ). Some classical jurists and the majority of contemporary scholars take this position. It should be noted here that although the classical jurists agreed that beneficial acts must be encouraged, yet they did not lay sufficient emphasis on this aspect in their discussion on this issue. Rather, they mainly focused on sadd al dharai or blocking the means. As the prevention of evil assumed more prominence in their discussions, the other part of the rule or doctrine of dharai or the opening of the means to beneficence (fath al-dharai ) did not receive equal treatment from the jurists in their writings. Another explanation is that fath al dharai when the means and ends are both directed towards lawful benefit (maslahah), it falls within the general rule of Shariah, and if it is not explicitly regulated by the nass, it will fall within the ambit of other topics of jurisprudence like istislah and istihsan. Thus it is viewed that in this case, recourse to fath al-dharai seem to be out pointless and unnecessary. However, jurists like al-imam Al-Qarafi viewed dharai in its broad meaning mentioned earlier. Thus, he defined dharai as being all means leading to specific ends. To this definition he added: It should be noted that just as dharai must be blocked (when they lead to unlawful results), they also need to be opened, as they might be required (wajib) repugnant (makruh) recommended or permissible (mubah). Likewise, dharai simply denotes the means; hence, just the means to what is prohibited must be prohibited, so too the means to what is obligatory must also be obligatory (Al-Qarafi 1993 p.448). This broad and comprehensive definition of dharā`i including the two aspects of both sadd al dharai and fath al-dharai has been 5

6 adopted by most contemporary jurists, such as Muhammad Abu Zahrah, Wahbah al- Zuhayli, Abdullah al-juday, etc. (Abu Zahrah, n.d., p.228). It should be noted that the definition of wasail coincide and in fact synonymous with the term dharai in its broad meaning which has been adopted by many scholars in their writings. Al Qarafi for instance stated in his definition for dharia: it is wasilah to something. He added in another place: The rulings could be divided into two, firstly maqasid which comprise of benefits and harms (masalah wa mafasid) in itself and secondly wasail which are the means which realize the maqasid, and their (wasail) rulings take the same rule as what they lead to whether it is prohibited or permitted. Ibn Asyur agreed with Qarafi but at the same time follows the majority in dealing with dharai while he stated: If it is not for the term sadd al dharai had been specified to prevent means which lead to harm, we would say that as Shariah block the means it also open other means. CHARACTERISTICS OF WASAIL 1) Wasail follows maqasid and a subordinate thereto. The position of wasail and its level of importance always determined by and in accordance with the level of maqasid. Thus, wasail succeed (tabiah) maqasid and complement to it. Al Izz Abdul Salam stated: Wasail follows the ruling of maqasid, hence wasilah to the highest maqasid is itself the highest level of wasail, and the wasilah to the lowest level of maqasid is itself the lowest level of wasail. Al-Shatibi added: It has been concluded that wasail as a means- is not intended for itself, 6

7 wasail is a subordinate (taba ) to maqasid, so much so if maqasid is dropped, wasail also will be dropped. 2) Dynamism of Wasail The nature of causal relationship between maqasid and wasail necessitate that a single wasilah might serve multiple maqasid, likewise a maqasid could be achieved via numerous wasail. The examples for these two aspects are countless from the rulings of Shariah. For example, through zakat as a wasilah a few maqasid are intended like to purify the soul, to instill the sense of gratitude for Allah s bounty and to fight against poverty and injustice within the society. As for example for the second category is like the maqsad of protection of property has been preserved by various wasail such as permissibility of trade, restriction on the prodigal s property, prohibition of stealing, cheating, wastefulness and extravagance in spending and many more. However, the wasail in the form of ibadah should be distinguished from wasail in the forms of adah and muamalah. While wasail of ibadah is exhaustive and restricted to what had been prescribed by the nass, the wasail in the category of muamalah is dynamic and ever changing in accordance with the changes and development of human life. This type of wasail is not restricted but open for human reasoning within the scope of ijtihad and considerations of scale of maslahah and mafsadah. As the maslahah in human life will never end and differs across time and places, so is wasail. 3) Consideration for Consequences (I tibar al Maalat) and Subjectivity of Wasail It follows from the dynamism of wasail as explained above, that not every wasilah suitable for attainment of designated maqsad. Hence, a wasilah which is applicable for 7

8 an environment might not be so in another set of reality. In this case, consideration should be given to practical consequences balancing between the benefits (muazanah baina masalih) in determining the wasail, if the wasail is not regulated and specified by a clear nass. CLASSIFICATION AND RULINGS OF WASAIL It has been resolved above that wasail corresponds with the meaning of dharai in its broad sense. Despite this fact, the scholars when they classified wasail, they restrict the classification within the narrow meaning of dharai, which confined to the sad dharai only. However, contemporary scholars like Hisham Burhani had classified dharai which is identical to wasail when he divided it into 4 types: 1) Permissible wasilah (means) leading to permissible end 2) Prohibited wasilah leading to prohibited end 3) Prohibited wasilah leading permissible end 4) Permissible wasilah leading to prohibited end The first two categories are the origin of legal rulings. The Shariah rulings in the forms of obligations, recommended or mere permissible were legislated to achieve permissible ends which is the intention of the Shariah itself. Likewise the prohibited means whether in the form of prohibition abominable (makruh) are to prevent harms and prohibited ends. The last two constitute the cases of discrepancy between wasail and maqasid, which does not represent the origin of Shariah rulings but exceptional cases due to external 8

9 factors. The question here is whether a prohibited wasilah should be allowed and opened as it lead to maslahah and whether permissible wasilah should be blocked because it could lead to harmfulness? The last category, as we may observe represent sadd al dhariah which was disputed by the scholars, whereby the third category represent fath al dhariah. Hence both the third and fourth categories constitute the broad meaning of wasail or dharai. The question whether the third category should be opened and allowed and whether the fourth category should be blocked and prevented need careful consideration and does not entail a standard answer in all cases. The following aspects should be brought into perspective: 1) To what extend the wasilah would result in the maslahah or mafsadah? (quwwatul ifda ) 2) The position of the wasail itself and the maqasid in terms of their five rulings. 3) Subjectivity of the maslahah and mafsadah which ensued from the wasail, which one prevail over another (qhalabah) The following are some examples of cases on fath dharai category: 1) To obligate (ijab) wasail which is merely permissible which could normally entail a required ends (ghalabah al dhan) like to a establish Islamic bank to cater the needs of the Muslim, or to require registration of marriage and divorce or to make it compulsory for the workers and officers to participate in pension scheme. 2) To encourage (istihbab) permissible wasail which lead to required maslahah like giving tax incentive for those who paid zakat. Likewise wasilah 9

10 mandubah which could result in required ends like tabarru in Islamic insurance. 3) To allow wasail which is originally prohibited which in normal situation resulting in required maslahah, which represent exceptional cases and takes its ruling, like permissibility of dealing with the central bank which is ribawi to operate Islamic banks. 4) To allow abominable (makruh) wasail which could result in required maslahah like trading and commercial dealings with the enemies to fulfil the Muslim economic needs. As for sadd dharai category some examples are as follows: 1) To prevent (tahrim or karahah) permissible wasail which could result in prohibited end or mafsadah like the prohibition of buyu al ajal according to the Malikis, or to prevent a person who had performed hajj from performing the second hajj as it could prevent others who had fulfilled conditions from performing it. 2) To nullify contracts or transactions which are permissible as it could result in prohibited ends like to hibah which could frustrate the faraid rulings. 3) To impose for an act which is permissible as it could result in prohibited end like to impose punishment on those who exercise talaq outside the court as it could result in playing around with the right of talaq and taking it for granted (talaub). 10

11 CONCLUSION 1) The term wasail is interchangeable with dharai in its broad sense, thus wasail should be understood within the wider concept of dharai. 2) Consideration of possible consequences in determining the ruling of certain acts or transactions (I tibar al maalat). 3) The framework of maqasid and wasail will provide a scale of priorities of actions and put a balance between maslahah and mafsadah (muazanah). 11