“Upon a survey of Islamic jurisprudence (al-fiqh al-islami), we find various tendencies, which have entrenched themselves. Of these tendencies, we find a tendency inclined toward an exaggeration in stringency by expanding the sphere of the prohibited (haram) under the claim of preventing wrongdoing. This effect is achieved by [constant] recourse to the legal mechanism of “blocking the means.” The same effect is realized under the rubric of following a path of “precaution in action” (ihtiyaat) when taking a course in fiqh and by referral to other legal mechanisms which result in restricting what shar’iah has made allowance for. Dr. Ahmad Raysuni (h) called for a re-evaluation of the use of various legal mechanism which restrict the permissible and the effects of this current in juridical activity to ensure that “the Higher Aims of the Shar’iah” (al-maqasid al-aliyyah li-ash shar’iah) are being realized and undue hardship is eliminated.
…Maqasid ash Shar’iah is to Shar’iah what the soul is to the body”
-Dr. Ahmad Raysuni (h)
Commentary Of Abul-Hussein:
The juridical practice of widening, expanding the sphere of the prohibited (haram) by incorporating more and more action under the category of haram or by taking to the path of precaution (ihtiyaat) by precluding oneself for permissible action is a practice affected by time, place, need, and custom (context) and spiritual pursuit and station. In other terms, restricting the sphere of permissible action by referring to ascetic principles (sufism) that influence juridical preferences and ethos or as a means to curve corruption narrows the sphere of permissibility. This course of action that we find in Islamic fiqh limits what was essentially an area in which the law demonstrates flexibility.
Therefore, a re-evaluation of the way scholars have exercised their juridical judgment is due given the contextual circumstances which weighed heavily in the application of juridical judgment. It may be the case that the contemporary scholar finds that the judgment made of a scholar in the past or in the present to expand the field of the prohibited by way of one means or the other does nothing more that present and instigate unsubstantiated hardship.
So it is necessary to survey the way the field of the prohibited has been expanded by the scholars of fiqh in order to ensure that “the Aims of the Shar’iah” (maqasid ash-shar’iah) are being realized with the change of time, place and custom and need and by juridical activity. This in truth is to understand evidence (dalil) in its totality that is to understand not only the textual basis for an opinion but also the way it is understood and treated in Usul al-Fiqh, and Fiqh and Hadith in light of Maqasid ash Shar’iah.
What may be the case today is that a student follows a fiqh opinion based on the principle of “blocking the means” or is rooted in a tendency to asceticism. As a result, when we return to the foundational spirit of fiqh and Shar’iah we rediscover a degree of flexibility which is absent before us and we are deprived of due to the use of the mechanisms mentioned previously. What is the case is that abandoning the approach of imposed stringency due to understanding the way a proof is handled and read, on occasion, may be in fact a return to what was originally permissible and allowed for by Islamic law and to follow a course that is more in sync with the law and its spirit. Without doubt this effort to understand and apply fiqh in light of maqasid ash shar’iah is the provence of the qualifed and God-fearing.
Wa Allahu Al’am Wa Huwa al- Haqq Tabaraka Wa Ta’la
Adapted And Translated And Commented On By: Abul-Hussein
Source: Talk Given By Dr. Ahmad Raysuni (h)
Produced By: www.altranslators.com