Maslahah and the Purpose of the Law: Islamic Discourse on Legal Change from the 4th/10th to 8th/14th Century

MASLAHAH AND THE PURPOSE OF THE LAW
  • Book Title:
 Maslahah And The Purpose Of The Law
  • Book Author:
Felicitas Opwis
  • Total Pages
384
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MASLAHAH AND THE PURPOSE OF THE LAW – Book Sample

CONTENTS – MASLAHAH AND THE PURPOSE OF THE LAW

  • List of Tables and Diagrams …….. xi
  • Acknowledgements ………. xiii
  • Introduction ………… 1
  • Chapter One: The Emergence of Maslaḥa as a Legal Concept . 9
  • Maslaḥa and Istislāḥ and their Relationship to
  • Juristic Preference (Istiḥsān) ……. 9
  • Maslaḥa and Istislāḥ in Legal Writings Prior to the
  • 5th/11th Century ………. 14
  • Ibn al-Muqaffaʿ ……… 14
  • Muḥammad b. Aḥmad al-Khwārazmī …. 15
  • Abū Bakr al-Jasṣ āṣ ……… 16
    • Ratio Legis and Analogy …… 18
    • The Relationship of Maslaḥa to Rulings … 19
    • Ijtihād ………. 21
  • The Intellectual Background of the Discourse on
  • Maslaḥa in Legal Theory …….. 27
  • Moral Knowledge: Revealed or Rational? …. 28
  • 2. Two Models of the Ratio Legis …… 33
  • IV. Abū l-Ḥusayn al-Basṛ ī …….. 34
    • The Epistemology of Maslaḥa …… 35
  • The Ratio Legis as an Aspect (Wajh) of Maslaḥa .. 38
  • Imām al-Ḥaramayn al-Juwaynī …… 41
  • The All-Encompassing Religious Law …. 43
  • Considerations of Maslaḥa in the Procedure of
  • Legal Analogy ………. 46
  • Five Categories of Rationes Legis and Their Ability
  • to Extend the Law ……… 49
  • Chapter Two: Integrating Maslaḥa into Legal Analogy
  • (Qiyās) …………. 59
  • Incorporating
  • ̣    ̣                      eory   …….    59
  • .viii contents
  • Abū Ḥāmid Muḥammad al-Ghazālī ….. 65
    • Introduction ………. 65
    • The Purpose of the Sharīʿa ……. 67
    • Verifying the Ratio Legis by its Suitability … 80
  • Fakhr al-Dīn al-Rāzī ……… 88
  • Defining Analogy (Qiyās) in Terms of Logic .. 90
  • Identifying the Ratio Legis of Rulings by Suitability . 96
  • 2.1. Defining Suitability ……. 97
  • 2.2. Determining Suitability …… 98
  • 2.2.1. Being a Real Maslaḥa ….. 99
  • 2.2.2. The Law’s Consideration …. 101
  • 2.2.3. Relevance …….. 105
  • 2.2.4. No Countervailing Factors …. 107
  • 2.3. Giving Preference in Case of Multiple Suitable Characteristics …….. 108
    • Is There Causality in God’s Law? ….. 113
  • Arguments by the Proponents of Causality .. 114
  • Arguments by the Opponents of Causality .. 118
    • Including the Unattested Maslaḥa into Analogy .. 121
  • Chapter Three: Applying Maslaḥa in Legal Precepts (Qawāʿid) . 133
  • Shihāb al-Dīn Aḥmad b. Idrīs al-Qarāfī …. 133
    • Introduction ………. 133
    • Maslaḥa as a Legal Precept …… 138
    • Legal License Based on Maslaḥa …. 143
  • Giving Priority to Analogy (Qiyās) over the
  • Singular Tradition Based on Maslaḥa … 148
  • Justifying the Elimination of Pretexts
  • (Sadd al-Dharāʾiʿ) on Account of Maslaḥa .. 151
    • Maslaḥa as Element of Legal Analogy …. 156
  • The Criteria of Necessity, Need, and
  • Complementarity …….. 157
  • The Criterion of the Law’s Consideration .. 161
  • The Criteria of General (ʿĀmm) and Specific
  • (Khāsṣ ) ………. 163
  • Maslaḥa Mursala …….. 165
  • Chapter Four: Using Substantive Legal Reasoning to Integrate
  • Maslaḥa into the Law ……… 175
  • A Shift in Epistemology …….. 175
  • .contents ix
  • Ibn Taymiyya ………. 181
    • Introduction ………. 181
    • Maslaḥa in Law-Finding ……. 184
    • The Unattested Maslaḥa ……. 186
    • The Intellect’s Ability to Know Good (Ḥ asan)
  • and Bad (Qabīḥ) ……… 190
  • Najm al-Dīn al-Ṭūfī ……… 200
    • Introduction ………. 200
  • The Ḥ adīth lā ḍarar wa-lā ḍirār” ….. 202
  • Maslaḥa as the Strongest Legal Indicant … 204
    • The Meaning of Maslaḥa and its Importance
  • in the Law ……… 205
  • The Legal Strength of Consensus Versus
  • Maslaḥa ………. 209
  • Giving Priority to Maslaḥa in the Law-Finding
  • Process ……….. 216
  • Rulings Concerning Acts of Worship and Fixed Ordinances ……… 220
  • Rulings Concerning Civil Transactions and
  • Customs ………. 225
  • The Relationship between Specification (Takhsīs)̣
  • and Legal License (Rukhsa) …… 236
  • Chapter Five: A Comprehensive Theory of Maslaḥa … 247
  • Ibrāhīm b. Mūsá al-Shātibī ……. 247
    • Introduction ………. 247
    • The Epistemology of Maslaḥa: Certainty and
  • Universality ………. 251
    • The Purposes of the Sharīʿa …… 257
  • 3.1. The Certainty of Causality in God’s Law .. 257
  • 3.2. The Purposes of the Sharīʿa ….. 259
    • The Purposes of the Divine Law and the
  • Maslaḥa of Humankind …… 264
  • 3.3.1. Mundane and Legal Maslaḥas … 264
  • 3.3.2. The Nature of Religious Accountability
  • (Taklīf ) …….. 267
  • How to Know God’s Intentions ….. 273
    • The Intelligibility of God’s Law: Acts of Worship
  • and Customs ……… 273
    • Knowing God’s Intentions …… 279
  • .x contents
    • Judging the Legality of Acts by the Intention
  • of the Actor ……… 286
  • The Law-Finding Process ……. 293
    • The Relationship between Universal and
  • Particular Legal Indicants …… 294
    • Identifying Legal Indicants ….. 300
      • Textual Indicants …… 302
      • Al-Shātibī’s Typology of Textual Indicants . 304
  • Independent Reasoning Based on
  • Non-Textual Indicants …… 312
  • Establishing Priority Among Contradictory
  • Indicants ………. 320
  • Conclusions ………… 335
  • References ………… 355
  • Index ………….. 363
  • .LIST OF TABLES AND DIAGRAMS
  • Table 1: Al-Ghazālī’s Typology of Suitable Rationes Legis .. 84
  • Table 2: Al-Ghazālī’s Typology of the Validity of Suitable
  • Rationes Legis ……….. 87
  • Table 3: Al-Rāzī’s Criteria for Determining Suitability .. 109
  • Table 4: Al-Rāzī’s Procedure of Establishing Priority among Countervailing Suitable Characteristics ….. 112
  • Permissible and prohibited Acts ………..
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INTRODUCTION

Law is a changing thing, rulings and judicial interpretations shift in time. Legal reinterpretations should come as no surprise, given that even the laws of nature—thought to be unchanging—every so often get revised or newly discovered by physicists, as Einstein and others have shown us. Islamic law is no exception.

Although for Muslims the revelation of the law ended with the death of the Prophet Muḥammad, the content of the divine law is, one may say, interpreted anew each time a person, usually a jurist, approaches the texts.

 This is not to say that the jurist operates on a tabula rasa. His1 interpretation is influenced, and may even be bound, by his time and his social, political, and economic environment, including its rules and conventions for interpreting language, law, and theology.

Despite variations in legal interpretations, some of the questions jurists ask of the legal texts remain the same. One question which has been posed throughout the existence of Islamic law—and which it shares with many legal systems—is how to apply the finite body of the authoritative legal texts to the infinite number of possible legal incidents.

Finding principles by which the revealed law can be applied to situations beyond the immediate wording of the authoritative texts has been the concern of Muslim jurists from the inception of Islam. Only by devising and applying such principles can Islamic law retain its relevance in an ever-changing environment.

The jurists’ task is to develop legal principles and methodologies that, when applied in law- finding, faithfully reflect God’s will as manifested in the revealed law and that do not lead the believers to stray from God’s path. The following study presents the intellectual history of one such principle, namely the concept of maslaḥa. Maslaḥa, which literally means a source or cause of well-being and good, is sometimes translated as ‘public interest’ or ‘social good.’ While it does include those meanings, it also goes well beyond them; to preserve its conceptual complexity, I retain its Arabic linguistic form and do not translate it into English.2 Maslaḥa, although it is not mentioned in the Qurʾān, has become synonymous with God’s pur- pose in revealing His law to humankind.

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The purpose of the divine law is understood as attaining the well-being (maslaḥa) of humanity in all their mundane and otherworldly affairs. In its relationship to what is referred to as the purposes of the Sharīʿa (maqāsid al-sharīʿa) maslaḥa is one of the main procedural vehicles to address legal change. It can be used as a tool of finding new law when the authoritative texts are silent and of adapting existing law when circumstances call for it.

The function of maslaḥa as a method of law-finding and vehicle of legal change makes it an important legal principle, especially in the contem- porary period; today no book or pamphlet on Islamic law is written without reference to it.

The principle of maslaḥa as the purpose of the Sharīʿa did not emerge overnight. It has a history, a pedigree, and an evolution that is the object of this study. I do not claim comprehensiveness in taking into account every reference to maslaḥa there is and every twist and turn its interpretation took in the hands of every Muslim jurist who ever lived.

My aim is to lay out the main features that shaped its artic- ulation, its interpretation, to indicate the intellectual hurdles jurists had to overcome to make maslaḥa a valid legal method, and to point out how the way a jurist integrates considerations of maslaḥa into the law-finding process impacts the ability for legal change.

 To this end, I focus, first of all, on writings of legal theory (usūl al-fiqh) by Sunnī jurisprudents, disregarding works on legal practice ( furūʿ). Since legal theory is the area of the law where the validity and scope of applica- tion of legal methods are articulated, legal theorists are primarily the ones who discuss the concept of maslaḥa in detail. Secondly, I attend to some of the main figures of Islamic jurisprudence who contributed to making maslaḥa a firmly grounded method of law-finding.3 Hence, this is not a thorough study of its development within a particular

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