Maqasid al-Shariah and Legislative Reform in Pakistan: Reconstructing the Relationship between Islamic Jurisprudence, Human Rights, and Contemporary Legal Development

Abstract

The doctrine of Maqasid al-Shariah (higher objectives of Islamic law) has become the object of increasing scholarly attention as a potential approach to overcome the problems which are faced in the contemporary process of law development in States with Muslims as the majority of their population. In the case of Pakistan, the situation is particularly interesting because in a single constitutional form both the supremacy of the constitution, of fundamental rights and the Islamic character of the State is recognized. The purpose of this paper is to consider how the use of Maqasid al-Shariah can improve law reform in Pakistan through a re-invented process of re-constructing relationship between Islamic jurisprudence, human rights and present-day needs of the legal system. It takes it upon itself to say that Maqasid was not just a theological way of describing the purpose of the rules that already exist but can be used as a disciplined method to evaluate laws based on justice, human dignity, public welfare, equality, and avoidance of evil. Qualitative doctrinal methodology is used in the study, which involves the analysis of the most recent literature on the Maqasid and Islamic legal reform, human rights and Pakistani constitutionalism. It also explores how a Maqasid-oriented approach can help in legislator development such as; family law, gender justice, minority protection, environmental regulation, digital governance and access to justice. The paper argues that this way can offer an Islamic engagement with Islamic methodology for legal reform internally without at the same time narrowing down Islamic jurisprudence into mere textualism or simply copying another legal model. Finally, it suggests a framework for a legislative approach to the use of maqasid in Pakistan by applying the elements of ‘morality of the text', ‘morality of context', ‘morality of public welfare', ‘morality of constitutional rights', and ‘morality of institutions'.

Keywords: Maqasid al-Shariah; Islamic Jurisprudence; Legislative Reform; Pakistan; Human Rights; Constitutionalism; Ijtihad; Public Welfare; Legal Development.

https://doi.org/10.5281/zenodo.23136083