The Process of Evolving Maqasid Theory into Islamic Legal Philosophy: An Analysis on the Example of Muhammed Mustafaw?'s Work Fzkhu'l-falsafa

Abstract

In the evolution process of Islamic law, respectively the concepts of fiqh, fiqh procedure, maqasid and philosophy of fiqh have an important place. Although the meanings and usage areas of the concepts in question are different, there is a close relationship between them. While fiqh refers to all the provisions that concern the taxpayer, the fiqh method focuses on the methods of transferring the provisions and inferring them from rational evidence. The theory of maqasid, which is evaluated within the scope of fiqh procedure, refers to the principle of benefit and harm that are intended to be avoided for people in religious provisions. The principle in question was divided into necessities, needs and tahsiniyâ t and everything that benefits people's life, mind, religion, chastity and property was considered benefit, and everything that harmed them was considered maleficence. The theory of maqasid has been expressed from time to time with different concepts such as hı kma, purpose and cause. There is a general opinion that the process pioneered by Juwayni in using maqasid, which is directly or indirectly included in the nas, as a fiqh term, was transformed into a systematic form with Ghazali. The contributions of İ zz, Karafî and Ş atibi in the later periods are an undeniable fact. Shatibi, who lived in the eighth century Hijri, had a special interest in maqası d, which led him to be evaluated on an independent basis from the fiqh method in later periods. The concept of philosophy, used in disciplines such as philosophy of law, philosophy of religion and philosophy of history, examines the epistemological principles of the branch of science to which it is related. The epistemological principles in question are absolute and are not limited to any dimension within their scope. In this regard, the same sensitivity should be observed in the definition of philosophy of fiqh. Developments in social and cultural life during the transition from the traditional social structure to the social dynamics shaped by the industrial and technological age have paved the way for sciences to gain different horizons. The evolution of the theory of maqasid, updated and developed by Ibn Ashur, into the philosophy of Islamic law in the twentieth century also caused maqasid to become a discipline independent of the fiqh procedure. The works of scholars such as Ahmet er-Raysû nî and Allâ l el-Fâ sî also made serious contributions to the field. The reflections of the tendency to identify maqasid and maslaha with the philosophy of fiqh are seen in Turkey as well as in other Islamic countries. As a matter of fact, it is witnessed that terms such as philosophy of fiqh or philosophy of Islamic law are mostly used in scientific and academic studies today. However, it is clear that Islamic legal philosophy, as a new branch of science, needs to be evaluated on a broader basis in terms of its nature and scope. Muhammad Mustafawi, one of the contemporary researchers who took this fact into consideration, evaluated the philosophy of fiqh on a broader level by displaying a unique approach in his work titled Felsefetü'l-fiqh. Accordingly, Islamic legal philosophy focuses on methodological research to be used in fiqh deductions by observing fiqh as a phenomenon from historical, social, political and cultural perspectives. While the philosophy of fiqh makes the necessary analyzes in a critical manner on the conditions surrounding the mujtahid, who is the subject of fiqh, it does not deal with the aspects of inference and inference. According to this approach, the subject of the philosophy of fiqh is the field and limit of fiqh, the effects of modernism on fiqh, the relationship of fiqh with other disciplines, the language of fiqh, the binding nature of fiqh, the problems and solutions of fiqh, and other factors that surround the jurisprudence and affect ijtihad. In this article, it is aimed to closely examine the ideas put forward by Mustafavi, who evaluates the philosophy of fiqh in a more comprehensive way, in his philosophy of fiqh, in contrast to the studies that reduce the philosophy of fiqh to the theory of maqasid.