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

Felicitas Opwis, Ph.D. (2001) in Arabic and Islamic Studies, Yale University, is Assistant Professor of Arabic and Islamic Studies at Georgetown University. Her publications address the development of Islamic legal theory in light of intellectual currents and historical environment.

Analyzing pre-modern writings on Islamic legal theory, this book comprehensively presents the transformation of the concept of maṣlaḥa as a vehicle of legal change from a minor legal principle to being understood as the all-encompassing purpose of God’s law.

List of Tables and Diagrams xi

Acknowledgements xiii

Introduction 1

Chapter 1 The Emergence of Maslaha as a Legal Concept 9

I Maslaha and Istislah and their Relationship to Juristic Preference (Istihsan) 9

II Maslaha and Istislah in Legal Writings Prior to the 5th/llth Century 14

1 Ibn al-Muqaffa 14

2 Muhammad b. Ahmad al-Khwarazmi 15

3 Abu Bakr al-Jassas 16

3.1 Ratio Legis and Analogy 18

3.2 The Relationship of Maslaha to Rulings 19

3.3 Ijtihad 21

III The Intellectual Background of the Discourse on Maslaha in Legal Theory 27

1 Moral Knowledge: Revealed or Rational? 28

2 Two Models of the Ratio Legis 33

IV Abu 1-Husayn al-Basri 34

1 The Epistemology of Maslaha 35

2 The Ratio Legis as an Aspect (Wajh) of Maslaha 38

V Imam al-Haramayn al-Juwayni 41

1 The All-Encompassing Religious Law 43

2 Considerations of Maslaha in the Procedure of Legal Analogy 46

3 Five Categories of Rationes Legis and Their Ability to Extend the Law 49

Chapter 2 Integrating Maslaha into Legal Analogy (Qiyas) 59

I Formal and Substantive Rationality in Incorporating Maslaha into Legal Theory 59

II Abu Hamid Muhammad al-Ghazali 65

1 Introduction 65

2 The Purpose of the Shari'a 67

3 Verifying the Ratio Legis by its Suitability 80

III Fakhr al-Din al-Razi 88

1 Defining Analogy (Qiyas) in Terms of Logic 90

2 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 Maslaha 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

3 Is There Causality in God's Law? 113

3.1 Arguments by the Proponents of Causality 114

3.2 Arguments by the Opponents of Causality 118

4 Including the Unattested Maslaha into Analogy 121

Chapter 3 Applying Maslaha in Legal Precepts (Qawaid) 133

I Shihab al-Din Ahmad b. Idris al-Qarafi 133

1 Introduction 133

2 Maslaha as a Legal Precept 138

2.1 Legal License Based on Maslaha 143

2.2 Giving Priority to Analogy (Qiyas) over the Singular Tradition Based on Maslaha 148

2.3 Justifying the Elimination of Pretexts (Sadd al-Dharai') on Account of Maslaha 151

3 Maslaha as Element of Legal Analogy 156

3.1 The Criteria of Necessity, Need, and Complementarity 157

3.2 The Criterion of the Law's Consideration 161

3.3 The Criteria of General ('Amm) and Specific (Khass) 163

3.4 Maslaha Mursala 165

Chapter 4 Using Substantive Legal Reasoning to Integrate Maslaha into the Law 175

I A Shift in Epistemology 175

II Ibn Taymiyya 181

1 Introduction 181

2 Maslaha in Law-Finding 184

3 The Unattested Maslaha 186

4 The Intellect's Ability to Know Good (Hasan) and Bad (Qabih) 190

III Najm al-Din al-Tufi 200

1 Introduction 200

2 The Hadith "la darar wa-la dirar" 202

3 Maslaha as the Strongest Legal Indicant 204

3.1 The Meaning of Maslaha and its Importance in the Law 205

3.2 The Legal Strength of Consensus Versus Maslaha 209

4 Giving Priority to Maslaha in the Law-Finding Process 216

4.1 Rulings Concerning Acts of Worship and Fixed Ordinances 220

4.2 Rulings Concerning Civil Transactions and Customs 225

5 The Relationship between Specification (Takhsis) and Legal License (Rukhsa) 236

Chapter 5 A Comprehensive Theory of Maslaha 247

I Ibrahim b. Musa al-Shatibi 247

1 Introduction 247

2 The Epistemology of Maslaha: Certainty and Universality 251

3 The Purposes of the Shari'a 257

3.1 The Certainty of Causality in God's Law 257

3.2 The Purposes of the Shari'a 259

3.3 The Purposes of the Divine Law and the Maslaha of Humankind 264

3.3.1 Mundane and Legal Maslahas 264

3.3.2 The Nature of Religious Accountability (Taklif) 267

4 How to Know God's Intentions 273

4.1 The Intelligibility of God's Law: Acts of Worship and Customs 273

4.2 Knowing God's Intentions 279

4.3 Judging the Legality of Acts by the Intention of the Actor 286

5 The Law-Finding Process 293

5.1 The Relationship between Universal and Particular Legal Indicants 294

5.2 Identifying Legal Indicants 300

5.2.1 Textual Indicants 302

5.2.2 Al-Shatibi's Typology of Textual Indicants 304

5.3 Independent Reasoning Based on Non-Textual Indicants 312

5.4 Establishing Priority Among Contradictory Indicants 320

Conclusions 335

References 355

Index 363