Maqasid al-Shariah and Constitutions in Muslim Majority Countries:
The Egyptian Constitution as a Case Study
Jasser Auda
Al-Shatibi Chair of Maqasid Studies, International Peace College (South Africa),
Director, Maqasid Institute (UK), Visiting Professor, Carleton University (Canada)
Abstract
This article proposes a common ground to bridge a serious political and social gap that is the result of a divide between two concepts, namely, the “Islamic state” versus the “civil state”. These two concepts appear in the constitutional language in terms of the “rules (ahkam) of the Shariah” versus the “principles (mabadi’) of the Shariah”, respectively. We have witnessed heated debates over the choice between these two prefixes in the post-revolution constitutions in Egypt, which is taken here as a case study. These debates reflected the deep division over how to answer the question of the relationship between Islamic and its law/Shariah and a modern nation state. By focusing on maqasid al-Shariah (higher objectives of the Shariah), I will show how “civil” and “Islamic” need not be contradictory or mutually exclusive. And I will show the same to be true for “rules” and “principles.” It will be argued that there is an area of intersection between what is “religious” and what is “civil,” and that sound Islamic juridical reasoning (ijtihad) in the area of legal texts should be based on the maqasid of the Shariah, which includes its principles. Thus, maqasid al-Shariah is presented as common ground between ideological extremes, a common ground that is much needed for the current struggle against tyranny and corruption.
