• Book Title:
 Ibn Ashur Treatise On Maqasid Al Shariah
  • Book Author:
Muhammad Al-Tahir Ibn Ashour 
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  • Author’s Preface xvi
  • part i: establishing maq®ßid al-shari¢ah
  • Prefatory Note 3
  • The Jurist’s Need to Know Maqasidal-Shari¢ah 7
  • Methods of Establishing Maqasidal-Shari¢ah 13
  • Evaluation of the Predecessors’ Methods 21
  • Insufficiency of the Literal Methodology without
  • Knowledge of Higher Objectives 26
  • The Prophet’s Intent of Legislation 30
  • Certain and Probable Maqasidal-Shari¢ah 52
  • Rationalised and Non-Rationalised Shari¢ah Injunctions 60
  • part ii: on the general objectives of islamic legislation
  • The Determinant Characteristic of Maqasidal-Shari¢ah 71
  • Grounding of Maqasidal-Shari¢ah on Fi~rah 78
  • Magnanimity of the Shari¢ah 87
  • The General Objectives of Islamic Legislation 91
  • The Meaning of Ma|la^ah and Mafsadah 96
  • The Pursuit of Ma|¥li^ in the Shari¢ah 109
  • Categories of Ma|la^ah Intended by Islamic Legislation 116
  • Universality of the Islamic Shari¢ah 134
  • contents
  • Ibn Ashur Final FOR PRINT.qxp 13/9/06 11:07 Page v
  • Ibn Ashur Final FOR PRINT.qxp 13/9/06 11:07 Page vi
  • Equality in the Shari¢ah 146
  • Freedom in the Shari¢ah 154
  • Alteration and Confirmation Objectives in the Shari¢ah 165
  • Shari¢ah is About Essences and Real Attributes,
  • Not Names and Forms 171
  • Analogical Reasoning Based on Effective Causes
  • and Medium and High Shari¢ah Objectives 174
  • Manipulation to Make the Unlawful Appear Lawful 177
  • Prohibition of Evasive Legal Means 187
  • Precision and Determination in Islamic Legislation 193
  • Rigor and Mercy in Enforcing and Observing Islamic Legislation 199
  • Public and Individual License 204
  • W¥zi¢: Its Meaning and Varieties 208
  • The Merciful Nature of the Shari¢ah 214
  • The Shari¢ah’s Aim in Avoiding Elaboration at the
  • Time of Revelation 217
  • The Shari¢ah’s Aim in Building a Solid and Stable
  • Social Order 221
  • The Necessity of Ijtihad 223
  • part iii: maq®ßid al-shari¢ah – human dealings
  • Ends and Means in Transactions 229
  • Specification of the Principles and Categories of
  • Rights in the Shari¢ah 238
  •  Maqasid al-Shari¢ah: Family 247
  •  Maqasid al-Shari¢ah: Financial Transactions (1) 270
  •  Maqasid al-Shari¢ah: Financial Transactions (ii) 285
  •  Maqasid al-Shari¢ah: Labor-Based Transactions 301
  •  Maqasid al-Shari¢ah: Gifts and Donations 308
  •  Maqasi dal-Shari¢ah: Judgeship and Testimony 317
  •  Maqasid al-Shari¢ah: Penalties 336
  • conclusion 341
  • Notes 343
  • Bibliography 453
  • Glossary of Terms 471
  • General Index 477
  • Translator’s Note 491
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Muhammad al-Tahir ibn Ashur

Muhammad al-Tahir ibn Ashur was born in Tunis in 1879 to an affluent family of high social standing. Originally of Andalusian origin dedication to the pursuit of knowledge seems to have been a continu- ous and established tradition throughout the successive generations of the family’s ancestors.

Although Ibn Ashur’s father is not mentioned by Tunisian biogra- phers as one of the ¢ulam¥’ elite of his time, his paternal grandfather, Muhammad al-Tahir ibn Ashur (1815–1868) is usually referred to as one of the finest and most authoritative scholars of his time. Ibn Ashur, however, was born into the household of his maternal grandfather, the eminent scholar and statesman, Shaikh Mu^ammad al-¢AzÏz B‰ ¢Att‰r (1825–1907), one of the foremost collaborators of the renowned statesman Khayr al-DÏn Pasha (1822–1889) during his reform efforts of the 1860s and 1870s, before French colonial occupation. The young Ibn Ashur thus entered a family milieu that was at once familiar and, to a reasonable extent, aligned with the reformist movement that had been germinating in Tunisia for decades.

In 1892 Ibn Ashur entered the Zayt‰na (a formal educational establishment, like al-Azhar in Cairo) and arrangements were made for the appointment of his future teachers. An eminent senior professor was chosen for this task. As their biographical data clearly show, almost all the teachers appointed for the young Ibn Ashur were reform- minded ¢ulam¥’ involved in the 1860s–70s reform attempts led by Khayr al-DÏn.

During these years Ibn Ashur achieved a number of high level qualifications, which he considered merely formal requisites to consol- idate his scholarly capacity and prove his personal worth. His real aim was general presence amongst the Zayt‰na’s permanent teaching staff and particularly close contact with its authoritative professors, nota- bly his foremost teachers, ¢Umar ibn al-Shaikh (1826–1911)and S¥lim B‰ H¥jib (1828–1924). It was a valuable opportunity for it allowed him to deepen and broaden the scope and nature of his knowledge in a manner more specialized and focused than general formal classes would have made possible.

This type of extensive contact study was also crucial in qualifying Ibn Ashur to earn what is known in classical Islamic scholarship as an ij¥zah, an attestation by a prominent scholar(s) that a student has mas- tered a specific branch of knowledge and become a reliable authority in it. Nevertheless, whatever formal training Ibn Ashur might have recei- ved and whatever the influence of his teachers, personal dedication and natural talent always played an equally essential role in developing his excellent academic and scholastic abilities as well as mastery of an amazingly wide range of disciplines. Ibn Ashur quickly rose to various prominent positions and in 1927 was promoted to the office of chief judge and within a few years (1932), named Shaikh al-Islam, an illus- trious post which conferred upon him the highest scholarly rank and authority in the country.

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Despite his administrative duties and teaching commitments at the Zayt‰na and elsewhere, Ibn Ashur was a prolific writer and author publishing many articles and works. He was an almost regular con- tributer to most of the leading journals and magazines published in Tunisia as well as others published in Egypt and Syria.

The long and varied list of his works include TafsÏr al-Ta^rÏr wa al- TanwÏr (a fifteen-volume commentary on the Qur’an), Kashf al- Mug- ha~~¥ (a commentary on the Muwa~~a’ of M¥lik ibn Anas), al-Na·ar al- FasÏ^ (a commentary on al-J¥mi¢ al-ßa^Ï^ of Mu^ammad ibn Ism¥¢Ïl al-Bukh¥rÏ), Alaysa al-ßub^ bi-QarÏb (an historical and critical study of Islamic education accompanied by a project for reforming it), U|‰l al-Ni·¥m al-Ijtim¥¢Ï fÏ al-Isl¥m (a study of the principles and enduring values of the Islamic socio-political system), ¤¥shiyat al-Taw\Ï^ wa al-Ta|^Ï^ (a critical and elaborate commentary on Shar^ TanqÏ^ al- Fu|‰l, a treatise on u|‰l al-fiqh by the M¥likÏ jurist Shih¥b al-DÏn al- Qar¥fÏ) and Maq¥|id al-Shari¢ah al-Isl¥miyyah the translation of which is provided in this publication.

This latter work on the higher objectives of the Shari¢ah was first published in 1946 in Tunis. It was the outcome of a deep and serious study of the possible ways and means for revitalizing Islamic jurispru- dence. The issue had become a major concern for the author as early as 1903 when he met Shaikh Muhammad Abdu, the spokesman for mod- ern Islamic reformism in Egypt and the Arab world, during his visit to Tunisia. The meeting sealed Ibn Ashur’s alignment with the spirit of the Islamic reform movement and shortly thereafter he began to pub- lish articles on the need for reforming Islamic education (in terms of content, method and administration etc.) laying special emphasis on the place that maq¥|id al-Shari¢ah should occupy in the teaching and study of Islamic jurisprudence. Indeed interest in the subject had been growing since al-Muw¥faq¥t, the work of Ab‰ Is^¥q al-Sh¥~ibÏ (d. 790/1388) was first published in Tunis in 1883.

Ibn Ashur’s work on Maq¥|id al-Shari¢ah is a pioneering study of the Shari¢ah’s higher objectives and it is not known whether any mod- ern jurist prior to Ibn Ashur has made any attempt to develop a com- prehensive and systematic study of its different aspects. The work stands as a testament to his deeply cherished objective of establishing maq¥|id al-Shari¢ah as an independent discipline in its own right, under the title ¢Ilm Maq¥|id al-Shari¢ah.

Ibn Ashur worked tirelessly to the end, never laying down his pen nor losing the great pleasure that reading and research afforded him until he breathed his last on 13 Rajab 1393 (12 August 1973) at the venerable age of ninety-four. He left behind him a wealth of long and detailed experience in public and administrative life as well as a rich legacy of diverse and scholarly publications and articles absolutely unmatched in nineteenth and twentieth century Tunisia, many of

which still await critical study and publication today.

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