This work arose as a response to the urgent need for epistemological research on the cognitive foundations of Islamic ethical and moral theory that has resulted from the current period of upheaval in Islamic theology.1 Choosing a late-medieval work of legal theory, namely, Abū Isḥāq Ibrāhīm b. Mūsā aš-Šāṭibī’s2 (d. 790/1388) al-Muwāfaqāt, as the point of departure, locates this study’s discussion methodologically and theoretically in the genealogical process of re-reading and reconstructing Islamic tradition in modernity. Thus, profoundly reflecting on modern understanding and interpretation of fundamental theological concepts in the Islamic legacy3 becomes unavoidable.
1 Šāṭibī’s Legal Thought and the Genealogy of the Maqāṣid Approach
Abū Isḥāq Ibrāhīm b. Mūsā aš-Šāṭibī, born in Granada and not in Xàtiva, as his name implies, is one of the most important late-classical representatives of the western Islamic Mālikiyya, whose capital at the time was Granada. In addition to the authority of Mālik b. Anas (d. 179/796), aš-Šāṭibī was also influenced by al-Muwāfaqāt, concerning a goal-oriented understanding of the law and its effects on the derivation of laws.
The history of ideas of Šāṭibī’s philosophy of ethics derives from a rich legal tradition that can hardly be restricted to a school of law in the traditional sense. Nevertheless, his interpretive method can be clearly placed within Malikite legal thought. In contrast to the Ḥanafi, Šāfiʿi, and Ḥanbali schools of law that were named after their respective founders Abū Ḥanīfa an-Nuʿmān (d. 151/767), Muḥammad b. Idrīs Šāfiʿī (d. 204/820),4 and Aḥmad b. Ḥanbal (d. 270/855), the Malikite school of law refers to the scholarly institution to which Mālik b. Anas (d. 179/795) himself belonged and, at best, systematized but by no means founded.5
Aš-Šāṭibī relates to a tradition that Mālik called fiqhahl al-madīna, in which the derivation of a legal norm from the textual source is goal-driven and justified by recourse to the context and circumstances of the action. Following the work Tartīb al-madārik by al-Qāḍī ʿiyād, the expedient interpretation of law can already be traced back to the era of the Medinan scholars, from whom Mālik took guidance in his legal derivations in fiqh. These were none other than Zayd b. Ṯābit and ʿAbd Allāh b. ʿUmar,6 whose fiqh interpretations, according to Ibn Taymiyya, stemmed directly from the second caliph ʿUmar b. al-Ḫaṭṭāb.7 If this hypothesis is correct, ʿUmar’s circumstantial legal reflections serve as a practically oriented foundation for the purposive approach of all initial legal thought in Medina, and therefore also for the Maqāṣid theory that developed later.8
The assumption of an immediate relationship between the maqāṣid theory developed in the late uṣūl al-fiqh and the early Islamic so-called maḏhab ahl al-madīna (Medinan current of thought) is clearly confirmed by Ibn Taymiyya, who was not a proponent of the Malikite school of law, which reinforces the plausibility of referencing the maqāṣid approach to the Malikite school of law.9 Nevertheless, the peculiar progression of Malikite legal thought raises many questions regarding the further development of maqāṣid theory. Since Mālik is not regarded as the founding figure in the Malikite legal tradition, and his work al-Muwaṭṭaʾ did not exhibit the usual systematicity of a legal treatise, the question arises as to how far his authority as a theorist and visionary of later developed concepts is discernible in early Malikite sources. After all, the influence of his theoretical considerations can only be traced implicitly in the earlier Malikite fiqh writings, especially since the legal texts transmitted up to the 9th century are more practical in nature and do not constitute theoretical treatises on the subject of maqāṣid or even uṣūl al-fiqh.
If one examines the normative texts on Malikite law written shortly after Mālik’s era, such as the very early fragment on ḥağğ by Ibn al-Māğišūn (d. 164/780),10 or the legal compendia of Abū Muṣʿab az-Zuhrī (d. 242/856) and Ibn ʿAbd al-Ḥakam (d. 214/829), one finds that these texts consist predominantly of abstract case studies and rules, with occasional references to any theories. Moreover, if such references were to exist, they would have to conform to the logic and reasoning of practical law, and are therefore secondary. In the texts of Mālik b. Anas and Māğišūn there are references to Qurʾān and Sunnah, however, with the following difference: Mālik invokes both Prophetic hadith and the tradition of the Companions, which prompted the late fuqahāʾ to include in his legal treatises a continuation of the so-called fiqhal-madīna (legal tradition of Medina) or even al-fiqh al-ʿUmarī (ʿUmar’s legal propositions). Mālik makes almost no reference to the Qurʾān, nevertheless, provides his own opinion. Ibn Māğišūn often begins his legal suggestions with a qurʾānic verse, followed by a hadith, and brings numerous references to various authorities in addition to his own rulings.11
The development of the maqāṣid theory in the Malikite legal tradition cannot be reconstructed systematically and diachronically because it has not developed linearly in relation to the established legal theories. The pursuit of the maqāṣid concept founded on the taʿlīl principle of “rational justification of religious norms” in the history of the development of Malikism challenges the theories of some of the contemporary scholars.12 Based on this concept, the Islamic law developed linearly in the direction of the well-known uṣūl al-fiqh, i.e., Qurʾān, Sunnah, iǧmāʿ, and qiyās.
Historical research into the ideational development of fundamental concepts of the maqāṣid approach up to the aš-Šāṭibīs period, such as naẓariyyat at-taʿlīl “justification theory,” should also include other concurrent theories of non-Malikite origin.13 The theoretical connections that can be established in this context indicate a dialectic process between sources that rely on the Qurʾān and Sunnah for legitimation and others that establish legitimacy differently, e.g., using the persona of a great scholar. In this context, affiliation with a particular theological current was essential. This interscholastic background should be used as a basis for understanding the significance that aš-Šāṭibī attaches to the legal interpretation in his work al-Muwāfaqāt.
2 Position of Intention within the Legal Sources
In prioritizing the Qurʾān over other legal sources, aš-Šāṭibī indicates the distinctive nature of the textual intention in normative interpretation. Although the work al-Muwāfaqāt adheres to the well-known thematic structure of the fiqh works, it newly arranges the hierarchy of legal sources. In the 2nd chapter called Kitāb al-adilla aš-šarʿiyya, the legal sources are divided into two types: The sources that stem from mere written tradition (an-naqlal-maḥḍ) and the sources that are attributed to pure reason (ar-raʾy al-maḥḍ). The first category includes the Qurʾān (al-kitāb) and the Sunnah. As for the second category, it entails al-iǧmāʿ (consensus) and al-qiyās or ar-raʾy (analogy/rational inference).14 Here, aš-Šāṭibī emphasizes that the two categories are co-dependent, insofar as they are equally accessible only through reason as an interpretive entity whose main task is to detect and analyze the interaction between the intention of action and the intention of the text.
According to aš-Šāṭibī, the interaction between the text’s intention and the purpose of action is hermeneutically linked to the three categories of ethical judgment, called maqāṣid.15 These maqāṣid categories, already transmitted in a rich and trans-scholastic uṣūl al-fiqh genealogy, are thus placed by aš-Šāṭibī at the top of the hierarchy of legal sources. Aš-Šāṭibī refers to the universal conditions for deriving law taken from textual evidence as al-kulliyāt an-naṣṣiyya and defines them as the principles for deriving legal norms (aḥkām) taken from the Qurʾān and the Sunnah. They are distinguished from the general principles (al-kulliyāt al-ʿāmma) that result from the rational inductive consideration (istiqrāʾ) of textual legal sources.
As aš-Šāṭibī indicates in several passages in the book, this classification of legal sources derives from Šāfiʿī’s tradition, who lists them almost identically, even if the categories are sometimes named differently.16 Aš-Šāṭibī first engages with the discourse between God and His messenger not only because they form the basis of the other normative sources, but also because the emergence of the latter cannot occur in a purely rational way.17
The introductory definition on the foundations of law (uṣūl al-adilla) unambiguously suggests that the relationship between textual and rational sources of law is regulated by a kind of dialectical dependence. However, there is also a paraphrastic relationship between the actions/statements of God’s Messenger (Sunnah) and the Qurʾān (foundation of all foundations), comparable to the dependence between textual and rational interpretive procedures. Nevertheless, aš-Šāṭibī does not stop there. He explicitly emphasizes in the first volume of al-Muwāfaqāt (al-Muqaddimāt wa l-aḥkām) that no absolute value (qaṭʿī) can be assigned to the textual sources (Qurʾān and Sunnah) if the rational interpretive procedures, such as (qiyās and raʾy) argumentatively disallowed such an interpretation. Textual authority is thus tied to their reception and understanding.
In the same way that the procedure of consensus iǧmāʿ is intended to ensure the reliability and accuracy of the tradition, qiyās and raʾy18 help to consolidate the content of the disparate texts of the traditional text naql that refer to a comparable legal norm, in order to gain insight into the intention of the legislator. One could not be clearer, the pivot of the theological norm according to aš-Šāṭibī is the word of God, or the discourse of the legislator. The latter may be God’s word or the tradition of His Prophet.
The “discourse of the law” (ḫiṭāb aš-šarʿ) remains the source of the evidential force of iǧmāʿ and raʾy. Aš-Šāṭibī’s predecessors shared this view. However, they placed the emphasis elsewhere. The predecessors stressed more the value of the textual proof itself, whereas aš-Šāṭibī insisted on the interpretive nature of the textual proof through which the law derivation could be achieved. In the first volume of al-Muwāfaqāt, a reserved position is already adopted concerning scholars who give the textual sources of the šarīʿa an inordinately greater place in the derivation of the law.
Here, the attention should be drawn to aš-Šāṭibī’s proposed redefinition of the Sunnah as the second textual source. Previously, Prophet’s qawl (saying), fiʿl (deed), and iqrār (approval) were subsumed under a single category. Aš-Šāṭibī, however, considers Sunnah as merely the sole corpus of Prophet’s statements. The Sunnah is to the Prophet what the Qurʾān is to God; it concerns the relation between the speaker and his statement, in which the question of speech intention is at the forefront of understanding. Because of the intertextual relation between the Qurʾān and the Sunnah, aš-Šāṭibī affirms that the evidential value of the Prophet’s statements is always interpreted with recourse to the Qurʾān in case of doubtful traditions. In this context, aš-Šāṭibī quotes ʿĪsā b. Abān (d. 221–835/36) without explicitly expressing his opinion.
Finally, aš-Šāṭibī asserts that the norm is first and foremost a legal discourse. Granted, this alone is not sufficient to understand his conception of the relationship between textual sources and sources of reason in his jurisprudential theory. Nevertheless, from his determination, stated in the first part of al-Muwāfaqāt, to limit his study of legal sources to the Qurʾān and the Sunnah,19 one might suspect his intention to adopt a per se textual hermeneutic approach. The location of aš-Šāṭibī’s legal thought in the genealogy of Islamic legal theory thus raises many questions that only a hermeneutic analysis of his epistemology could claim some coherence.
3 Preliminary Theoretical Overview
The topics discussed here address certain controversial questions20 that have been the object of numerous studies and exceptionally complex debates. Yet, this study’s initial interest, when explaining fundamental ethical and moral questions such as freedom, responsibility and common good, is not the formal establishment of an Islamic normativity concerning its practical application, though this would undoubtably be of great value in the lively current discussion surrounding the relationship between theological-ethical norms and the modern state’s legal and institutional norms of behavior. Instead, the following work is more interested in an epistemological confrontation with the profound discipline-theoretical ideas on which practical moral norms and their location in modern processes of thought are based. These are fields which, even if only rudimentarily, have traditionally been subordinated to other disciples such as ʿilm uṣūl al-fiqh (legal theory) and ʿilm al-aḫlāq (ethics).
This methodological approach is motivated by the central thought that the challenge faced by Islamic ethics today primarily lies in repairing the problematic relationship between learned academic discourse and popular Islamic discourse. On the one hand, hardly anyone since the beginning of the post-classical era (around the 7th/13th century) through the colonial era and up to the failed attempt at fully connecting with modernity has paid attention to learned academic discourse. On the other hand, popular Islamic discourse has brought into being various forms, from a passive, resigned, and fraternal thought fraught with superstition to a militant, organized, politically oriented, and intellectual tradition.
An attempt to construct an applied Islamic moral normativity21 would, in this respect, not only be premature, but would also be, hardly theoretically and methodologically feasible. In addition, for the social sciences and theology, it would hardly accomplish more than merely treat the symptoms. This is evidenced not only by the failure of numerous attempts to reform the practice of the Islamic law, which was set in motion in Islamic countries in the early-20th-century, but also by the limitation to superficial and sometimes formal suggestions for change.
The theoretical framework used here to reread the Islamic theological tradition is justified by the fact that all modern interaction with practiced Islamic moral and normative systems can lay claim to coherency, plausibility and universal validity, only if the theoretical principles and precepts on which it is based are worked out in their intellectual tradition and read or defined anew in light of modern forms of thought. The necessity of a theoretical examination of Islamic theological legacy is clear, if one considers that all theological disciplines, from hadith studies to qurʾānic exegesis and jurisprudence, have used methods and approaches that are products of worldly or human knowledge.
The use of some pseudo-scientific approaches, which are considered part of Islamic theology, to dismiss or even dispute any epistemological effect of classical thought on the Islamic tradition has led to a destructive ambiguity between the holy and the profane in the believer’s collective consciousness. Furthermore, it has contributed to the limitation of both independent judgment making, and the role of human reason in understanding the word of God.
Islamic scholars hardly ever dispute that the linguistic and analytical concepts inherent in qurʾānic and hadith exegesis have a Hellenistic background and that they were the product of an ingenious, diachronic and rational discourse-oriented reflection. Equally undisputed in Islamic theological discourse were the epistemological roots of fundamental concepts in legal theory, anchored in Greek philosophy, such as manṭiq (logic), qiyās (syllogism) and ʿilliyya (causality), which, in turn developed by Islamic philosophy, have had a decisive influence on European thought from the Age of Enlightenment to today. Analytic concepts central to modernity, such as argumentation, consideration, rational justification and deliberation, can be traced back to the Islamic Golden Age in the 3rd/9th century. Today, this means that the required interpretive work lies in an intellectual-historical approach.
The hermeneutic potential of legal theory, which serves as the basis of this study, stems from legal theory’s proximity to the doctrine of virtues, which, during its development into theological ethics, came to possess a complete concept of action theory. Unfortunately, the ethics developed in this doctrine of virtues had hardly any effect on the process of deriving norms in legal theory. The only exceptions are legal theories that can be categorized as maqāṣid-based on their approach. The special nature of a legal theory oriented towards the intention or goal of the word of God, reveals itself in its derivation of norms from ethical maxims. The keystone of revelation’s ethical orientation is, according to aš-Šāṭibī, the happiness of the faithful in this life and the next. According to this understanding, moral judgment making in the Qurʾān does not occur through an immediate division of qurʾānic statements according to five well-known types of legal norms, namely, ban, commandment, condemnation, recommendation and permission. Rather, deriving norms is a matter of rational reflection about the relationship between moral and legal norms, as well as between ethical maxims derived from the revelation sources.
Aš-Šāṭibī’s fundamental thesis concerning the justification of moral-theological obligations is that moral and legal norms are to be derived from the sources of revelation in light of the ethical orientation determined by reason and belief. He questions ritual and worldly action in terms of what is morally and theologically harmful or beneficial. According to aš-Šāṭibī’s intention-oriented approach, knowledge of a moral judgment is not aimed at determining how it should be implemented, but rather at making the value underlying the moral judgement rationally plausible and formulating it as an obligation.
Like the disciplines of qurʾānic exegesis and qurʾānic studies, Islamic legal theory also occupied itself with qurʾānic hermeneutics from the 3rd/9th century on. In doing so, it developed an independent interpretive method, that focused on deriving legal and moral norms from the revelation and is to this day considered promising for the practical orientation of exegesis. In contrast, content analysis of tafsīr studies began as early as the start of the 4th century, with the goal of establishing a fixed theological meaning of the Qurʾān’s intellectual contents, thus neglecting the hermeneutic potential of a semantic derivation of technical theological concepts.
Concerning the question of binding derivation of legal and behavioral norms from the Qurʾān, the basic characteristics of hermeneutic thought regarding the complex contents of revelation had already been developed in early Islamic exegesis. The interpretations of ʿAbd Allāh b. ʿAbbās (d. 68/687), ʿAlī b. Abī Ṭālib (d. 40/661), Ubayy b. Kaʿb (d. 30/651) and ʿAbd Allāh b. Masʿūd (d. 32/652), to whom all exegetical traditions can be traced back, are still considered of high relevance for a number of prescriptive qurʾānic verses.
ʿAbd Allāh b. ʿAbbās’ exegetical considerations were primarily devoted to processes of linguistic deviation which led to a new perception of the factual reality of life. As a result, certain expressions transformed semantically from words with a conventional and recognized meaning among Arabs to technical, faith-oriented, theological terms. Thus, concepts of faith, hardly comprehensible for those living at the time, were introduced to the community’s consciousness step by step. In the days following the founding revelations of Islamic faith, the process of semantic divergence was lexical in character, as, for example, when new, religious-based usages of individual concepts such as zakāt (alms giving), ṣālāt (prayer) and ḥaǧǧ (pilgrimage) arose.
The transformation of the empirical self, brought about the new faith, however, reached its climax with the call to a change in thought, exemplarily expressed in the theological meaning of the word zakāt. Throughout the Qurʾān, zakāt, which, prior to revelation, simply meant “increase,” took on the meaning of “generous tribute to the needy”. In the Qurʾān, the substance of both zakāt’s conventional (Q 9:103) and theological meaning (Q 2:110) are documented. Early qurʾānic exegesis was interested in determining the relationship between these two levels of meaning. In verse Q 9:103,22 the term ṣalāt is used in the sense of a petitioning prayer and zakāt in the sense of purity (also an emphatic concept). These terms are used in a theological sense in obligatory verses, such as Q 2:110: “And perform prayer, and pay alms; whatever good you shall forward to your soul’s account, you shall find it with God; assuredly God sees the things you do.” Early qurʾānic exegesis reveals its hermeneutic potential when it poses the following question intended to emphasize the essence and ethical meaning of revelation: ‘How can one increase something by expending it?’
The answer to this question provided by Sufism-based hermeneutics and the belief that only love can be increased by its expenditure, implies two fundamental hypothesis about the Qurʾān: firstly, that the qurʾānic language is a language of (neighborly) love and care which demands an unconditional overcoming of the self, and secondly, that an appropriate and theologically relevant understanding of the Qurʾān could never be fully brought into harmony with a description of the qurʾānic language of love in the language of the law.23
This idea is confirmed if one turns to numerous earlier interpretations by ʿAbd Allāh b. ʿAbbās, who, for example, interprets the word ẓulm in Q 31:13 as injustice against oneself and equates it with disbelief. Elevating an emotional tendency (hawā) over and above the faithful will of the believer leads to an act of idolatry (širk), described by ʿAbd Allāh b. ʿAbbās as injustice against oneself. This also results in a hermeneutic mode of access which calls forth the reflection on the relationship between self-love and self-esteem in revelation. This promising relationship between revelation and the ethical message proceeding from its special use of language faded into the background as early as the 3rd/9th century in the process of exegetical canonization.
Due to the variability of exegesis’ intellectual presuppositions, which, in terms of its methodology, is historically oriented towards the constantly changing contexts in which the faithful ones lead their lives, it is indispensable that modern normative qurʾānic hermeneutics examines its tradition in all its theological and methodological breadth from the beginnings of the exegesis of transmitted tradition (tafsīr bi-l-maʾṯūr), with its main representatives ʿAbd Allāh b. ʿAbbās and Muǧāhid b. Ǧabr (d. 104/722), to the period of its establishment with Abū Ǧarīr aṭ-Ṭabarī (d. 310/923), up to the golden age of the rational-theological qurʾānic exegesis with az-Zamaḫšarī (d. 538/1143) and ar-Rāzī (d. 606/1210).
At the same time, one should also consider that, despite all its positive aspects, the pluridisciplinarity that had resulted from changing life realities and the accompanying influence of politics on theology beginning in the 3rd/9th century, had led to theological sciences’ closing off, especially in traditional qurʾānic exegesis.
Though individual aspects of Qurʾānic studies, such as the conditions of revelation, abrogation, ambiguity, Meccan and Medinan suras, etc. provided the historical process of understanding with its methodological foundation, a deep-reaching, mutual, and theoretical fertilization of qurʾānic studies and qurʾānic exegesis has yet to occur. While classical exegesis is increasingly focused on the transmission of traditional analytical methods, legal theory has developed an exceptional hermeneutic approach, whose relevance continuously increased in believers’ way of life. Thus, in his work, al-Mustaṣfā, al-Ġazālī (d. 505/1111) worked out the analytic concepts that plausibly suggest, both argumentatively and action-theoretically, a prescriptive character of individual qurʾānic verses.
Juristic exegesis’ hermeneutical point of departure was a rhetorical differentiation between descriptive and prescriptive statements which involved a fundamental consideration of the difference between the meaning of a word and the injunctive value of the speech act. In addition, within the framework of the analysis, a creative systematization of sentence typologies came about which justified the derivation of norms from a statement both argumentatively and in terms of action theory.
With his understanding of maqāṣid (intentions), the Andalusian scholar, aš-Šāṭibī, who lived in the 8th/14th century and notably influenced the Golden Age of Islamic legal thought, opened up new connections to the fundamental questions of legal theory, including the differentiation of the general from the specific, the context-based from the context-free, the distinct from the manifold, and the explicit from the presupposed, thus contributing to the formation of a judgment-making mode related to the particular situation, at the center of which stood the question of the imputability of actions.
However, the heated contemporary debate both inside and outside specialized Islamic circles concerning the true essence of a moral way of life in the normative form of the šarīʿa, often misses the theological core of this question and transposes it mutatis mutandis onto juristic, political and popular-scientific levels which preclude a specialized theological discussion from the very outset.
While the Islamic mainstream is usually closed to all efforts to reread or reconstruct tradition and continues to pass on simplified, worn-out scholastic ideas and interpretations that are highly dependent on the specific context in which they were formulated, the global or European discourse about Islam is dominated by a dilettante tendency towards apology, projection, and generalization. Considering the current structural changes in Islamic societies, often accompanied by a lack of education, established religious institutions claim that such attempts at reconstruction have not proven to be generally communicable. In addition, the question is avoided altogether by currents of thought outside of this field, who claim that there is no public need for a rereading, thus leading to a marginalization of a specialized theological discourse and, ultimately, a flattening and reduction of the theological legacy.
In the contemporary turmoil amongst the many entangled discourses surrounding Islam, the challenge faced by a contemporary theological approach lies primarily in contributing to a necessary, but still missing self-orientation of Islamic theology. Regarding the complex situations currently faced by Muslims around the world, it would be short sighted to judge the task of theology only in terms of how well it immediately counteracts a given divergent or foreign intellectual tradition, as if its task was first and foremost one of reaction. Rather, the new task posed must be sought in the exploration of ways in which an academic theological discourse, that has been frozen for centuries, can catch up and connect with modern academic debates.
One of this study’s goals is to confront this challenge in a critical and interdisciplinary manner. Thus, it will attempt to epistemologically examine the intellectual presuppositions and the accompanying connotative and argumentative processes, and to hermeneutically question their coherence principles to sound out paths and perspectives for new and contemporary hermeneutic approaches.
This study consists of a foreword, six main chapters, and an afterword. The first chapter briefly outlines this study’s object of inquiry and occupies itself with the conceptional foundations of aš-Šāṭibī’s legal theory. Furthermore, it focuses on locating the maqāṣid theory historically and theoretically within neighboring disciplines, and on their normative character and position in relation to classical juristic approaches. The hermeneutic character of this ethically oriented legal theory will be revealed during a discussion of fundamental technical concepts such as šarīʿa (divine legal order), fiqh (positive law), ʿaql (reason) and fiṭra (created innocence). Regarding the legal theory, and the overview of the doctrine of virtues, it will be necessary to show the extent to which maqāṣid theory can be seen as an independent discipline which creates the theoretical framework for uniting legal-theoretical elements with the foundations of the doctrine of virtues in a comprehensive theory of ethics. The first chapter attempts to provide arguments for the interdependence of a deontological perspective24 on šarīʿa and the teleological character of revelation. The three ways of goal-setting, present in ethical judgment making, which aš-Šāṭibī attributes to revelation, reveal the path to a balanced relationship between moral obligation and ethical orientation as the place of the virtuous. This goal-setting, referred to as maqāṣid, is characterized by its teleological character.25 While so-called ḍarūriyyāt (necessary maxims aimed at protecting faith, life, reproduction and family, property and intellectual abilities) are intended to regulate moral behavior, the ḥāğiyyāt are need-related, and the taḥsīniyyāt welfare-oriented maxims that belong to the field of virtues. According to aš-Šāṭibī, the ḥāğiyyāt imply those optional normative aspects that reduce the severity of obligations in order for God’s commandment to be followed free of troubles or hardships. Aš-Šāṭibī places the ḥāğiyyāt below the ḍarūriyyāt maxims in his hierarchy and cites particularities of trade laws as examples. Moreover, the taḥsīniyyāt maxims, which are intended to serve the well-being of the faithful, are themselves subordinate to the ḥāğiyyāt maxims.
In the second chapter, the relationship between reason and faith for understanding revelation is addressed. This examination is important, above all, for the question of the rational justification of the šarīʿa’s moral and legal norms, which in turn calls for a comprehensive hermeneutic reflection on the key concepts of aš-Šāṭibī’s theory of maqāṣid underlying his theory of justification, such as causa (ʿilla), intention (niyya), motive (ġaraḍ) and occasion (sabab). Aš-Šāṭibī’s argumentation will be examined in light of a modern understanding of actions and events from the perspective of a philosophical-ethical concept of justification. The focus of the second chapter is the relationship between justification and understanding when deriving moral norms from the word of God.
The third chapter examines the considerable role that an Islamic ethos plays in the formation of a community. This is clarified by devising the teleological character of revelation as a message, the ethical direction of which lends the deontological perspective meaning and orientation. This teleological character begins by introducing the relationship between ethical maxims and the common good (maṣlaḥa) as the keystone of ethical orientation. In the first section, the focus lies on the contexts of discussion concerning the origins of value judgments, both in Islamic theology as well as in philosophical ethics. In addition to considering hermeneutic questions regarding the relationship between theological and rational understandings of virtues and the common good, this chapter also attempts to elaborate meanings of concepts such as sin, forgiveness, desire, and will in the process of their entanglement with the reality of action.
While conceptualizing a modern ethical relationship between the various ethical maxims worked out by aš-Šāṭibī, the fourth chapter presents an expanded understanding of the hermeneutic importance of all ethical categories in their relationship to other categories. Proceeding from the maxim of “self-protection,” the concept of ethical selfhood is introduced and defined theologically-hermeneutically in its relationship to the maxims of “protection of faith,” “protection of the spirit,” “protection of the family” and “protection of possession”.
The fifth chapter is devoted to the characteristics of theological moral and legal norms, known as al-aḥkām aš-šarʿiyya. The first section focuses on aš-Šāṭibī’s conception of obligational norms (al-aḥkām at-taklīfiyya) and their relationship to ethical orientation.
In the sixth chapter, the so-called conventional norms are investigated, beginning with a discussion of these norms’ true essence as constitutive rules. This innovative concept of constitutive rules reveals the profound character of aš-Šāṭibī’s moral theory in so far as these constitutive rules provide a judgment with the surrounding framework it would otherwise lack. This means considering acts of obligation from two perspectives: on the one hand, from a speech-act-theoretical point of view and, on the other hand, from the situational and contextual position of the speech act. However, the focus of this section is on the question of attribution considering a causal sphere of action, which will involve examining the concepts of sabab (occasion) and musabbab (effect/result) regarding their hermeneutic potential and discussing them with reference to aš-Šāṭibī’s explications. At the end of this chapter, the relationship between the theological concept of moral or obligational norms and the idea of justice in civil law is examined. The discussion concerns the question raised in the third chapter on the relationship of human justice and divine justice, with regard to the juristic definition of justice as a possibility for future investigation of the relationship between divine and human law.
Conceptually, the main sections of this study represent a narrowing down from the general to the specific and build upon one another thematically and formally. Starting with the question of šarīʿa’s rational justifiability in the second chapter, followed by the topic of ethical orientation in the third and fourth chapters, to the problem of moral normativity in the fifth and six chapter, the relationship between maqāṣid and aḥkām is emphasized as a central object of discussion.
All six chapters of this study seek a discourse with philosophical ethics and modern linguistic theory. This method is based on the idea that a reconstruction of the Islamic-theological legacy can only succeed in a constant interdisciplinary interaction with the intellectual achievements of the modern age.
This book’s main title and its subtitle relate to different fields of study but complement one another in their meaning. While the main title “Virtue and the Common Good” refers to key concepts discussed in this book and emphasize this study’s theological character, the subtitle, “Foundations of hermeneutic thought in post-classical qurʾānic ethics: a study in aš-Šāṭibī’s theory of maqāṣid” describes its epistemological and intellectual-historical objectives as a project in rereading and reconstruction.
A one-to-one translation of discipline-specific Arabic concepts into English is not always possible and always depends on the context. A specific Arabic concept may, thus, be translated using various English terms.
By upheaval are the contemporary challenges faced by both contemporary Islamic theologians and Muslim societies implied. This upheaval stems from the fact that contemporary Islamic theology is faced with crucial methodological questions, such as to what extent can contemporary methods of humanities, linguistics, philosophy, antropology be used today in the interpretation of Islamic sources without compromising their validity. Linguistics, philosophy, anthropology and similar, can be used today in the interpretation of Islamic sources without being charged as the frowned upon innovation. Conversely, the question arises as to how Islamic societies define their identity in the face of globalization and the encounter with the Other.
Cf. Muḥammad aṭ-Ṭāhir b. ʿĀšūr, Maqāṣid aš-Šarīʿa al-islāmiyya, new ed., Cairo, 2005, 38.
Such as tawḥīd (monotheism) and iʿǧāz (inimitability).
Cf. Wustenfeld (1890) devoted one of the first studies in the West to Šāfiʿīsm.
See: Duncan B. Macdonald, Development of Muslim Theology (New York: Charles Scribner’s Sons, 1903), 99–102.
Tartīb al-madārik, vol. 1, 77.
If one follows Ibn Taymiyya’s assumption, then ʿUmar’s legal derivations were at first communicated to the so-called seven scholars of Medina, namely Saʿīd b. al-Musayyab, ʿUrwa b. az-Zubair, al-Qāsim b. Muḥammad b. Abī Bakr as-Ṣiddīq, ʿUbaid Allāh b. Abd Allāh b. ʿUtbah, Ḫāriǧa b. Zayd, Sulaymān b. Yassār, and most recently Sālim b. Abd Allāh b. ʿUmar b. al-Ḫaṭṭāb (cf. Maǧmūʿ al-Fatāwī, vol. 20, 312–13).
Cf. Maǧmūʿ al-fatāwī, vol. 20, 294–396.
For the previous citations in Arabic, see: Maǧmūʿ al-Fatāwī, vol. 20, 312–28.
Cf. Miklós Muranyi (1985, 1999).
Cf. Miklós Muranyi, Ein altes Fragment medinensischer Jurisprudenz aus Qairawān. Aus d. Kitāb al-Ḥağğ d. ʿAbd-alʿAzīz b. ʿAbd-Allāh b. Abī-Salama al-Māğišūn (st. 164/780–81) (Stuttgart: Franz Steiner Verlag: 1985), 47–75.
Cf. Jonathan Brockopp, Islamic Ethics of Life: Abortion, War, and Euthanasia (University of South Carolina Press, 2002), 3–22.
This proposal was rightly defended by J. Brockopp. He suspects that e.g., in addition to the linear conception of “ideas of authority,” which he calls “Salvation History Theory,” other parallel conceptions exist (cf. Weiss, 2002).
Aš-Šāṭibī alternately uses terms qiyās and raʾy to indicate the fourth legal source.
Namely: aḍ-ḍarūriyāt “the imperative factors for the protection of human existence,” al-ḥāǧiyāt “the need-related factors for the life fulfillment of individuals,” and at-taḥsīniyāt “the auxiliary condition for facilitating human life in society.”
Although it seems disputed that this classification was suggested by Šāfiʿī himself, as one contemporary Šāfiʿī researcher assumes: “the usual account of the ar-Risālah’s contents – namely, that Šāfiʿī has a Theory of `For´sources’ of law – does not correspond to what one actually finds in the Risāla” (cf. J.E. Lowry).
On this subject, aš-Šāṭibī explicitly expresses his support for the restriction of the legal evidence to the revelatory texts (al-Muwāfaqāt, vol. 3, 24f.).
Different implications of terms such as ʿaql (reason) and raʾy (opinion, interpretation) are discussed in more detail in the analytical part of the monograph (cf. al-Muwāfaqāt, vol. 3, 4–26).
al-Muwāfaqāt, vol. 3, 345.
Such as the question of the relation between theological principles and philosophical-ethical value judgments.
Explained in detail in chapters 2 and 5.
Q = Qurʾān. Interpretation from the Qurʾān come from, unless otherwise stated: Arthur J. Arberry, The Koran, Oxford, New York: Oxford University Press, 2008.
Q 9:103: “Take of their wealth a freewill offering, to purify them and to cleanse them thereby, and pray for them; thy prayers are a comfort for them; God is All-hearing, All-knowing.”
Cf. Mohammed, Nekroumi and Arnulf von Scheliha, “Klug sein angesichts der Unergründlichkeit des Lebens,” in Deutscher Evangelischer Kirchentag, ed., Silke Lechner, Heide Stauff and Mario Zeißig (Munich, 2016): 101–10.
The term deontology refers to the obligatory nature of a norm and can be traced back to the Roman conception of morality, in which virtue is reduced to compliance to the law.
The term teleology refers to the goal-oriented Aristotelian concept of virtue, according to which ethical behavior is defined by the focus on the good life.