5.1 Guiding Epistemological Interest
5.1.1 The Interaction of maqÄá¹£id and aḥkÄm
As a correlate of earthly and eschatological well-being, the pursuit of maá¹£laḥa has, from the perspective of a theology of creation, an interactive relationship with the preservation of the five worthy foundations of life (elementary objectives). As a sub-field of uṣūl al-fiqh, exploration of the objectives of the Å¡ariÌÊ¿â a (Ê¿ilm al-maqÄá¹£id) primarily serves the goal of grasping the intention of the divine author of discourse, so that human beings âcan live according to the natureâ God created for them.1 As the divine willâs ideal of common good, maqÄá¹£id is, in the system of fiqh, translated at the level of lived reality into moral obligations and legal rules that emerge from the obligatory nature of aḥkÄm. In aḥkÄm, Godâs entrance into the lifeworld intends to show human being the way of a theonomic form of life in accordance with divine revelation. MaqÄá¹£idâs relationship to aḥkÄm resembles the process of deduction in the implementation of which the behavioral norms of the community, developed by humans from the value ideals implied in the discourse of revelation, are supposed to correspond to the inner meaning of the divinely created order. In the course of Islamic ethicsâ historical development, the reciprocal relationship and interaction of maqÄá¹£id and aḥkÄm in the derivation of norms has been interpreted in different cognitive contexts and fields of research.2
Value conservative jurists, however, try to bind maqÄá¹£id to the normative system of aḥkÄm, which was already established in the 3rd/9th century.3 The positioning of aḥkÄm within maqÄá¹£id posed no problems in late Malikite legal thoughtâs broad understanding of Å¡ariÌÊ¿â a as a theological ethic. Furthermore, as a technical term and sub-discipline of uṣūl al-fiqh, since the 3rd/9th century, fiqh had the task of systematizing the practical application of legal and moral norms in light of the ethical-moral orientation of human life and action in a contemporary manner.4 Through its obligational character, fiqh aimed at a practice-oriented ordering of the norms derived from revelation in the context of uṣūl al-fiqh for all events in a believerâs life, to make visible that these norms depend on the fact that the believer is part of divine creation.5
Fiqhâs concept of obligation is not a mere expression of the divine imperative, but rather the spiritual orientation of the believerâs entire life towards a certain wisdom of creation. The essence of the imperative of Godâs commandment has a semantic diversity in Islamic moral and legal norms that stretches from legal to ethical moral without being restricted to any category of moral judgment. According to a modern interpretive model of maqÄá¹£id theory, fiqh is characterized mainly by its general, formally deontological character. Thus, to use the terminology of theological hermeneutics, one could say that fiqhâs system of norms comes closer to a comprehensive morality, i.e., a moral theology, than it does to positive law.
5.1.2 Independent Judgment Making: Between Intellectual Reflection and the Spiritual Search for Meaning
The fact that maqÄá¹£id encompasses both legal and moral norms means nothing less than the fact that eternity asserted by the jurists, i.e., the absolute validity and intransience of Godâs unified legislation, fundamentally refers to the ethical orientation of revelation in the form of maqÄá¹£id aÅ¡-Å¡ariÌÊ¿â a and by no means to aḥkÄm aÅ¡-Å¡ariÌÊ¿â a.6 The act of defining maqÄá¹£id presupposes constant intellectual work on a higher level, namely that of hermeneutically interpreting the QurʾÄn. In this binary subdivision of the divine world order into ethical orientation and moral norm, aÅ¡-Å Äá¹ibÄ« distinguishes between two types of independent decision making. The first one is assigned to the practical application of law and is valid for the entire religious community independent of time. As for the second kind of iǧtihÄd, according to the Å ÄfiÊ¿ite view, it concerns the derivation of norms from the sacred sources and is comprehensible only to a scholar (faqÄ«h) as an interpretive authority and holder of binding interpretive competence.7 Insofar as this category of independent decision-making deals primarily with the interpretation of ambiguous normative textual sources, while also taking into account changing living conditions, their validity claim is historically limited.
In this context, aÅ¡-Å Äá¹ibÄ« uses the term taḥqÄ«q al-manÄá¹ (situational and purpose-based judgment) as an indication of the ephemeral and incomplete nature of textual interpretive processes. Legal, normatively compliant acts can ultimately become unlawful if the underlying text of revelation is misinterpreted or misunderstood. AÅ¡-Å Äá¹ibÄ«âs remarks on the proper understanding of the divine message suggest that his concept of iǧtihÄd is not a merely historical, profane intellectual reflection. The mystical idea of an understanding heart, whose origin is to be found in the emancipated Sufism from Andalusia, offered aÅ¡-Å Äá¹ibÄ« proof that the true instrument of the believing knowledge lays in the perception of the spirit over and above the sensuous and external.8 Through the establishment of independent decision making as a source for legal derivation, the Islamic doctrine of ethics and norms opened up the possibility, as early as the 2nd/8th century, of human reasonâs active and binding participation in both the process of deriving norms and the concrete form of lawâs application to equal degrees.9
5.1.3 Human Free Will in Relation to Divine Obligation
The end of the early Islamic conception of deontological morality of obligation first became apparent in Andalusian teleological legal thought when a search for a supposed intention of divine legislation began. Without overemphasising the new relationship between maqÄá¹£id and aḥkÄm suggested by aÅ¡-Å Äá¹ibÄ«âs intention theory, it should nonetheless be mentioned that the ensuing development of Islamic law was increasingly oriented toward the worldly common good.10
Nevertheless, the central question of Islamic morality did not change significantly as a result of the conflict with the progressive Andalusian philosophy at the time. In the discussion about the question of maá¹£laḥa as the common good and the keystone of Islamic morality, the divine will remain decisive. Even for philosophical thought inspired by MuÊ¿tazilite or rational theology, the human will was not the sole bearer of the predicate âgoodâ, when it came to the derivation or interpretation of moral and legal norms. In Islamic-Andalusian philosophy, the rational-theological concept of the will (irÄda) was inextricably linked to the idea of the emotional inclination (hawÄ) characteristic of rational desire. This is based on the finite nature of man that characterizes human will at an empirical level.11 In his concept of the âwill,â al-Ä azÄlÄ« critically adopts Aristotleâs concept of rational desire and transforms it into a subcategory of the will. To use the terminology of Kantian philosophy, since the 6th/12th century, the Islamic concept of the will can be interpreted as the practical reason shared, in principle, by all rational beings.12 Unlike the Kantian categorical imperative, according to which the individual must act in a self-regulating way according to maxims of reason, good as the product of theological value judgment does not take the form of moral compulsion in Islamic doctrine. The relation of the good to the law is, according to aÅ¡-Å Äá¹ibÄ«âs understanding of maqÄá¹£id, teleological.
That the Islamic and Kantian concepts of the will are diametrically opposed on this point, becomes clear from the aporia of the Kantian concept of the maxim in which the ascent from the finite constitution of the will (emotional inclination) to a practical reasonableness understood as autonomous legislation, is completed without recourse to transcendence.13 How this emotional inclination is to be bindingly restricted in the context of action, whichever form it may choose, is just as unanswerable as the question of evilâs origin. This is clearly shown by aÅ¡-Å Äá¹ibÄ« in his noteworthy treatise on the relationship of the actionâs motive to its result.14 Here, it becomes clear that the riddle of evilâs origin is reflected in the riddle that impairs the factual exercise of freedom in terms of moral judgment. Similar to the Augustinian traditionâs interpretation of human free will, Islamic moral philosophy proceeds from de facto process of life and the associated moral judgment of a situation, even though, in Islamic rational theology, the concept of free choice leans more towards the freedom of action than towards the freedom of will.15
Since, according to Islamic rational theology, the humanâs free will seems to have initial blemishes that limit its ability to decide for or against Godâs law, an ultimate theological focus on well-being must examine the divine moral or legal obligation. The division of the will inherent in humansâ essence can only be abolished by the grace of God, which is predominantly linked to a personâs respect of His commandments.16 Thus, the deontological character of the moral and legal norms of the Å¡ariÌÊ¿â a can assert its bindingness, legitimacy and resistance to the ethical orientation. Consequently, the derivation of moral and legal norms from the QurʾÄn cannot be left up to the discretion of human reason lacking the believing knowledge capable of counteracting a perspersion of the will.17 In this sense, one could argue, with recourse to the Enlightenmentâs reflective intellect, that the Islamic concept of free will sees the emergence of evil as a consequence of the overthrow of the divine legal order, which demands oneâs respect for Godâs moral and legal decrees over oneâs emotional inclinations.18 This is not a demonization of the desire, which, according to the QurʾÄn, corresponds to the fiá¹ra intended by God for the human being. Rather, the origin of evil lies in a âbadâ use of free will.
Divine lawâs position on desire is most clearly reflected in the obligational norms of the Å¡ariÌÊ¿â a, which, according to al-ǦuwaynÄ«, hardly contain any commandments regarding the fulfilment of instinctive needs. According to al-ǦuwaynÄ«, instinctual desire is rarely the subject of a commandment in the Å¡ariÌÊ¿â aâs doctrine of obligations, because the individual is by nature a striving being. Rather, the Å¡ariÌÊ¿â aâs concern is regulating how to deal with desires and feelings through prohibitions or instructions in order to put an end to the excessive desire for pleasure and sensual joys. Commandments and requests, on the other hand, refer to acts that people avoid or reject by nature, such as the practice or worship or commitment to the rights of fellow human beings.19 In the distinction between divine and human effects on the world order, the systematically decisive paradox of the question of the freedom of the will can, for aÅ¡-Å Äá¹ibÄ«, be traced back to the relationship between maqÄá¹£id and aḥkÄm. The derivation of legal and moral norms from the sources of revelation is subject to careful consideration, led by reason and faith, of various contenders for the title of good, maá¹£laḥa, which frequently encompasses the examination of maqÄá¹£idâs relationship, in the sense of a subcategory of dispositional ethical, to aḥkÄm Å¡arÊ¿iyya as a form of moral and legal law. But, if the objectives of the Å¡ariÌÊ¿â a, in its characteristics discussed in the preceding chapter, suggest a claim to universality, aÅ¡-Å Äá¹ibÄ« emphasizes that the moral and legal norms, aḥkÄm Å¡arÊ¿iyya, are unimaginable without reference to an orientation towards welfare, both in this life and the hereafter.
This anchoring of the deontological morality of obligation (aḥkÄm Å¡arÊ¿iyya) in the teleological objective, maqÄá¹£id, reveals the position that the concept of true intention assumes for aÅ¡-Å Äá¹ibÄ«20 at the beginning of his essay on the intention of the believer: the theological evaluation of an action depends fundamentally on the intention behind it. For, intentions are the âsoulsâ of actions that have sprung or spring forth from them.21 A pious and dutiful execution of divine commandments can only succeed and be acknowledged by God, if it is rooted primarily in the believerâs authentic intention to realize one of the goals of the Å¡ariÌÊ¿â a maqÄá¹£id. Translated into rational-theological thought, this means that the necessity for a true and sincere intention results from the unfathomable constitution of free will and the resulting unpredictability of an actionâs consequences.22
For aÅ¡-Å Äá¹ibÄ«, the prerequisites of ethical action are defined by intentionality, judgment and, even more, the feasibility of the criteria of moral and legal attribution. Compulsion, ignorance, or error are expressly seen as reducing oneâs responsibility vis a vis moral-theological obligations.23 Thus, access to the essence of a faith-oriented life leads to the question of how legal and moral norms prescribed by God (aḥkÄm Å¡arÊ¿iyya) are related to the higher objectives of the Å¡ariÌÊ¿â a maqÄá¹£id in the sphere of action. For aÅ¡-Å Äá¹ibÄ«, the first thing to be noted here is that the understanding of the connection between maqÄá¹£id and aḥkÄm reveals itself through the knowledge of faith and cognitive conviction, as well as emotion and reason. Therefore, this study primarily focuses on justifying this fact, such that it is necessary to assume the ethical aims of the Å¡ariÌÊ¿â a as the test of moral-theological normsâ legitimacy.
It remains to demonstrate how the questions of legal application, which brought forth the formalism tied to the deontic moment, can be traced back from the compulsory character of the legal norm to the teleology of the maqÄá¹£id. This second localization is, as will be shown in some of the cases discussed by aÅ¡-Å Äá¹ibÄ«, of fundamental importance for clarifying the question of how an ethical orientation in the form of maqÄá¹£idâs five ethical goals is enriched by the practical application of norms and included in the moral judgment of a situation.
The core of the second stage of this path, which seeks to understand interpersonal legal definitions, is the role of the postulate of responsibility stemming from the concept of communal solidarity as an echo of the solicitude, which, according to the law of creation, reflects the original relationship between the individual and the community. Furthermore, to concretize this hermeneutic reading, it is helpful to imagine the relationship between intentions (maqÄá¹£id) and moral and legal norms (aḥkÄm) as a relationship between a comprehensive life-plan and human practices.24 In the field of tension between more or less distant ideals of the common good in the form of individual categories of maqÄá¹£id, faith-oriented life plans are shaped by a consideration of value judgments in ethical behavior.
5.2 AÅ¡-Å Äá¹ibÄ«âs Theological Moral Normativity (aḥkÄm Å¡arÊ¿iyya) in the Context of Divine Ideals of the Common Good
5.2.1 The Constitutive Elements of Moral Normativity
According to aÅ¡-Å Äá¹ibÄ«, the intention of the divine legal order in Islamic moral and legal norms (aḥkÄm) is to design the believerâs lived reality in such a way that its welfare is ensured here and in the afterlife. Moral obligations and moral and legal norms can only be justified in their relation to the objectives of the Å¡ariÌÊ¿â a. In its concrete application, fiqhâs code of ethics should, therefore, subordinate itself to the process of fundamental research of the divine revelationâs inner meaning, which selectively uses the four above-mentioned legal sources when determining a judgment. In this sense, a qurʾÄnic prescription to âdo thisâ is insufficient for an understanding of the moral assessment of an action. Crucial for a binding decision is, rather, an exact understanding of Godâs will in the sphere of human life.
Fiqh is a matter of insight which, regarding judgment making, is primarily aimed at obtaining a relative certainty. Absolute knowledge of the divine legal orderâs possible backgrounds is Godâs sole prerogative. In the sphere of day-to-day life, in which the idea of divine law finds application, the task of the Å¡ariÌÊ¿â aâs objectives and intentions is to give sense and orientation to the deontic moment in the context of concrete action. Hence, it is first necessary to uphold the traditional hierarchy of the two main categories of moral and legal norms, namely prescriptive norms of behavior (aḥkÄm taklÄ«fiyya) and constitutive social-moral rules (aḥkÄm waá¸Ê¿iyya), which, at their respective level, have a specific organizational principle that contains a variety of connections to the reality of human action.
The five prescriptive norms of conduct, namely, permission (ibÄḥa), recommendation (nadb), commandment (īǧÄb), rejection (karÄha) and prohibition (taḥrÄ«m), have the task of shaping the lived and active belief practice in its individual and interactive performative contexts. Moreover, the constitutive social-moral rules are intended to clarify the basic theological and rational conditions of action and the associated requirements for legal validity. This norm category includes everything that can be understood as reason or presupposition (sabab), as a necessary condition (Å¡ará¹) or as an obstacle (mÄniâ) of a situation in relation to its moral status. AÅ¡-Å Äá¹ibÄ« sees the moral and legal categories25 of the Å¡ariÌÊ¿â a as characterized by the meaning that is fundamentally oriented towards maqÄá¹£id. The five obligatory norms of behavior26 (aḥkÄm taklÄ«fiyya) belong, along with the constitutive rules (aḥkÄm waá¸Ê¿iyya) inherent in the sphere of action, to a broader set of provisions which are traditionally referred to as moral and legal norms (aḥkÄm Å¡arÊ¿iyya),27 and are generally connected to the formation of norms in the realm of action. Regardless of all differences, these norm categories are characterized by a shared relationship to ethical orientation that ultimately leads to the objectives of the Å¡ariÌÊ¿â a and its ideals of the common good. Thus, moral norms are consciously made a subcategory of ethical judgment and maqÄá¹£id, elevated to the status of a main pillar of a universal Islamic ethosâ. Introducing the concept of intention into behavioral normsâ relationship to constitutive rules sheds new light on the relation of action and the moral norm. By broadening the field of action, the constitutive rules add social and moral character to the actionâs intention, presupposed by the application of moral norms. According to a modern understanding of aÅ¡-Å Äá¹ibÄ«âs theory of intention, the deontic approach advocated in normative doctrine only exists on the basis of its relation to the mutual responsibility arising from the concept of community (umma), i.e., through the individualâs faith in a consensual agreement of the community about ethical behaviorâs orientation towards the common good.28
The idea of a deontic, normative order dedicated to the community of believersâ day-to-day life was sometimes used to create a legal system in which the just is distinguished from the good (in the sense of ethics of conviction).29 At the same time, it should be noted that, in the justification-oriented concept of maqÄá¹£id, the distinction between justice and goodness did not serve as the superficial justification of criminal practice in Islam. While aÅ¡-Å Äá¹ibÄ« points out that punitive measures, such as a hundred lashes for fornication (Q 24:1â5) or cutting oneâs hand off because of theft (Q 5:38), undoubtedly concern actions that belong to the category of evils,30 he adds, picking up on the idea of intentions, that the process of evaluating moral action fundamentally proceeds from relations and not from entities, that is, the internal context of the actionâs underlying intention and the sphere of action in which it is performed. The standard of all value judgments is the intention to promote divine ideals of the common good.31 It is in this context, that the following statement of the Prophet (saws) should be understood: âThe deeds are judged according to the intentions, and everyone is repaid for what he intended.â32
However, in post-classical theological debates about the primacy of the Å¡arÄ«Ê¿â aâs deontic obligational character over its ethical objectives, the generation of norms of action as a procedure closed to the meaning of revelation took the place of any prior commitment to ideals of the common good ideals. AÅ¡-Å Äá¹ibÄ«âs innovative teachings on the reciprocal relationship between ideals of the common good and law-making, emphasized the provisional nature of secular law and allowed jurists free independent judgment. In this way, aÅ¡-Å Äá¹ibÄ«âs approach answers one of the most controversial questions in rational theology, namely, the extent to which the prehistorical or unhistorical covenant God made with Adam before time could be binding for a historically contingent society?33 Translated, this means applying Godâs law and shaping lived reality in the spirit of QurʾÄnâs intention, well-aware that this intention conversely tells its story and anticipates its future. This understanding of divine law evidently results from the equation of theological bindingness of revelatory writings with independent judgmentâs secular claim to validity for the derivation of contemporary action norms. Today, this methodology, which is not aÅ¡-Å Äá¹ibÄ«âs alone, is particularly emphasized by cosmopolitan theological approaches.34 Regarding the question of Islamic moralityâs compatibility with the requirements of secular legislation, for example, Muḥammad aÅ¡-Å aḥrÅ«r pleads for a suspension of separation of the divine law and human rights, on the grounds that the Å¡ariÌÊ¿â aâs supertemporal norms require civil, positive legislation for their concrete implementation. Value-conservative theologians, however, warn against equating divine and human legislation and the collectivization of independent judgment that would accompany it and see therein the danger of an opposed development in the form of religious claimsâ neutralization in a public sphere shaped by ideological pluralism.35
5.2.2 Obligational Norms: AḥkÄm taklÄ«fiyya â Categories of Moral Behavior
The teleological aspect of maqÄá¹£id is expressed in value judgments and estimations that directly relate to believersâ actions. Because maqÄá¹£id draws its principles directly from the scriptures of revelation, they are considered universal sources of legal decision making and are entitled to turn statements of belief into theological postulates that provide a framework of justification for the theological and social legitimacy of behavioral norms.36 The deontic predicates that proceed from aḥkÄm taklÄ«fiyya impose themselves on the person in question in form of commandments, prohibitions, recommendations, disapprovals or permissions.
According to Christoph Zehetgruber, it should be noted that, when it comes to the comparison of Islamic morality with modern positive law, the categories used to classify human behavior in the latter are only âthose of permitted and forbidden, whereby an infringement of prohibitive norms with is punished with a purely secular state sanction.â37 AḥkÄm taklÄ«fiyya, thus, focuses on the general definition of a moral status. According to aÅ¡-Å Äá¹ibÄ«, the five categories of moral behavior cannot claim to be complete because of their dependence on the objectives of the Å¡ariÌÊ¿â a underlying them. However, they embody the moral duties of all believers. What is remarkable about aÅ¡-Å Äá¹ibÄ«âs approach in his essay on aḥkÄm taklÄ«fiyya, is that the analysis he chose for behavioral norms, which is based on the concept of relation, sets itself apart from the assumption of a prior essentialization of prohibition and command while placing the category of the permissible at the centre of moral judgment.
The five categories of moral judgment are not fixed, contextually independent acts of commandment, but are subject to a dual principle of definition. On the one hand, the values of moral normsâ demands vary according to the nature and extent of the entanglement of actions performed in the realms of the good or the bad, such that the absolute prohibition and pure command tend to function more as two horizons of orientation. On the other hand, the demands derived from moral and legal norms and applied to practice should be established with regard to their respective maqÄá¹£id category, as the â[five] obligating moral and legal norms are fundamentally connected, both in the case of an actionâs performance as well as its omission, to the Å¡ariÌÊ¿â aâs [ethical] orientation.â38
Thus, the binding nature of legal and moral demands varies according to whether they arise from necessary, need-related, or complementary ethical ideals of the common good.39 According to aÅ¡-Å Äá¹ibÄ«, the decisive characteristic for the formation of judgment is the variability of an actionâs moral status in its relationship to the five different legal provisions concerning the well-being of the community.40 This explains aÅ¡-Å Äá¹ibÄ«âs particular interest in the intermediate stages of moral norms, namely, the commendable (mandÅ«b) and the rejectable (makrÅ«h) â as the secret âsoulsâ of commandment and prohibition that enable a realistic understanding of human behavior.
5.2.3 Intermediate Norms of Behavior: The Recommendable and Objectionable as Characteristics of Gradation in Moral Judgment
In aÅ¡-Å Äá¹ibÄ«âs legal thought, the commendable (mandÅ«b) is not merely regarded as a concept of manifold virtuous descriptions in the Islamic moral system, which includes both areas of righteous social behavior such as voluntary almsgiving (á¹£adaqat at-taá¹awwuÊ¿) or dispute resolution (Q 49:10) and optional religious practices, such as additional fasting beyond the month of Ramadan or the Ê¿umra pilgrimage.41 Rather, aÅ¡-Å Äá¹ibÄ«âs concept of the recommendable is concerned with a subcategory of what is commanded, the practical application of which necessitates that one recognizes an action in the context of its social meaning for the community.
Although aÅ¡-Å Äá¹ibÄ« confirms that commendable action will be rewarded, while the foregoing of commendable action will not be punished, this is only valid if the neglect of the commendable does not enter the realm of the forbidden or, in other words, endanger the interest of the community. The best example of this may be the recommendation to marry. Contrary to traditional morality, which justified the obligation to marry for every individual member of the community with the argument of protecting the chastity, aÅ¡-Å Äá¹ibÄ« had a different view in this regard.42 For him, every individual has a free choice to marry or refrain from marriage.
The society cannot, however, avoid marriage, since this would clearly violate the maxim of reproduction that serves the perpetuation of human life on earth. This understanding of the norm is the basis of AÅ¡-Å Äá¹ibÄ«âs interpretation of the qurʾÄnic verse 5:89: âO you who believe, do not deny the good things that Allah has permitted you, and do not transgress, behold, Allah does not love the transgressors.â Here, in the context of the societal moral consensus, the individual is given the right to individualism to a certain degree.43 The legal interpretation provided here in relation to marriage is presented by aÅ¡-Å Äá¹ibÄ« as the result of the relationship between the moral norms of commandment and recommendation. The following maxim serves as the background for every recommending provision: âIf an action is in part recommended, it should be understood as a duty in its entirety.â44
The behavioral category of disapproval (makrÅ«h) includes acts that can be attributed to the âgrayâ area of moral duty. The avoidance of reprehensible actions is seen as a path to piety, since it includes practices whose execution does not necessitate punishment, but whose omission is rewarded. In aÅ¡-Å Äá¹ibÄ«âs argumentation, reprehensible actions are only negligibly responsible for moral status within the community of the faithful to a certain extent. Within the framework of the affirmative aspect, the common good presupposed, as the secret âsoulâ of the prohibition, always calls forth, in the context of an action, a consideration which probes the candidate categories of action for the predicate of maá¹£laḥa regarding ethical orientation. From this point of view, morally reprehensible behavior, such as divorce, can only be recognized as such in the context of its execution and in terms of the underlying intention behind it.
The location of divorce in the category of reprehensible action cannot be justified, for example, by alleged disgust, which Islamic morality is said to have apparently expressed towards the Christian ideal of celibacy.45 Rather, the moral classification of divorce invokes the endangerment of the social-ethical values arising from the sources of revelation. Both in the QurʾÄn and the Sunna, marriage is a symbol of mercy and social care, as is seen in Q 2:183: âThey are a garment to you, and you are a garment to them,â which, according to al-Qaraá¸ÄwÄ«, means that each of the spouses should be the protection, shelter, support and adornment of the other.46 This understanding of the meaning of the firm bond of marriage, with which God unites a man and a woman, offers practical law the opportunity to situate the theologically psychological character of solicitude. Namely, in the interpersonal and sentimental qualities that arise from the life of the couple: the sharing of sorrow and joy as well as the equal distribution of rights and duties.
The moral classification of condemnable acts, such as divorce, is oriented, according to aÅ¡-Å Äá¹ibÄ«âs, towards the extent of the damage which in such case is inflicted on one of the spouses and the community. Divorce is only allowed when all attempts at reconciliation done by the community fail. Should, when considered, the damage caused by continuing a marriage outweigh the benefits derived from the ethical focus on caring and reproduction and thereby endanger other universal maxims of ethical behavior, such as the protection of life, intellectual ability or faith, disapproval can be understood as a category of the permissible. The objectionable thus maintains a tense relationship to the permissible and to the forbidden, from which it was originally derived. It is in this context, that the following statement of the Prophet (saws) should be understood: âThe deeds are judged according to purpose, and everyone is repaid for what he intended.â47
Although the reprehensible is considered something abhorrent to God, it can, in the case of an inevitable predicament, tend towards the permitted, while in the case of its excessive practice, it can become forbidden. The complexity of the deliberative process initiated by aÅ¡-Å Äá¹ibÄ« in the classification of moral norms stems from the fact that human actions are always characterized by certain ambivalence that can only be overcome by including faith in the search for righteous behavior. Consequently, when clarifying a legal case, the commandments of revelation must be underpinned by an analysis of factual contexts of action. Interpreted from this perspective, the qurʾÄnic verse Q 2:183 contains an equal rights norm, which stands in contrast to the assumption of the spousal inequality of which Islamic matrimonial law has repeatedly been accused. Divorce immediately enters the sphere of the permitted, when living together means pain and suffering for one of the actors, regardless of their gender.48 Instead of the innate inequality between man and woman asserted by value-conservative scholars, an asymmetry of another kind which is decisive for the ethical formation of judgment becomes apparent here, namely, that between the actor and the sufferer. This is where the concept of justice must be employed in order to enable âacceptableâ separation in case of divorce. At the very end of the marriage, Godâs grace crowns the decision of both spouses for their further course of lives: âBut if they separate, God will enrich each of them of His plenty; God is All-embracing, All-wiseâ (Q 4:129). The avoidance of a greater calamity by means of a lesser evil in the form of a reprehensible action deserves Godâs mercy and redemption.
Intermediate moral definitions reflect the dynamics of human endeavour to realize the God-given justice that calls forth the intervention of Godâs grace. At the same time, Q 4:129 can show that Godâs blessing is not preconditioned solely by the lawfulness of human action. Rather, the grace of God is fundamentally different from the consequences and entanglements of the reality of human action. Thus, one reads in Q 3:129, âTo God belongs all that is in the heavens and earth; He forgives whom He will, and chastises whom He will; God is All-forgiving, All-compassionate.â Here, the true intention of an individualâs action, precisely in its affinity for the highest good, holds a special position on the path to salvation.49 The objectionable and the commendable are to be located in the middle of the transition from the freedom of action to the norm. Depending on the context of its performance, the reciprocity demanded by the principle of justice fluctuates between the élan of freedom of action and the compulsion of the commandment. At the same time, it is precisely the location of moral norms of disapproval and recommendation in an intermediate area that shows just how difficult it is to divide human actions into dichotomous categories of good and bad. If one imagines the reality of human action as âstumblingâ50 through various forms of evil in the intersubjective realm opened by the concept of lacking (ḥÄǧa), then the deontic structure of moral obligation should display the variety and dynamic of the spheres of interaction that arise from the ethical maxims (maqÄá¹£id).51 The diversity of evil has its counterpart in the variability of moral prescriptions. This understanding of the moral norm as a relation, which can be clearly demonstrated in the case of aÅ¡-Å Äá¹ibÄ«, has so far received little attention in the discussion of Islamic morality, such that important and realistic intermediate moral norms have generally been reduced to the intermediate sphere of forbidden and commanded things. The consequence of dealing with the moral and legal norm as a concept of relation lies in the pursuit of innovation, as stated by aÅ¡-Å Äá¹ibÄ« in his remarkable essay on the moral category of the permitted.
5.3 Locating the Permitted within Obligational Norms
5.3.1 The Permitted as the Foundation of Moral Invention
AÅ¡-Å Äá¹ibÄ«âs particular interest in the category of the permitted (mubÄḥ) is not only because of his affiliation with the MÄlikite legal school, in which this topic was particularly significant. In his case, the emphasis of this category has more to do with his differentiated and markedly theological-ethical consideration of religious duties.52 AÅ¡-Å Äá¹ibÄ« confronted the ḤanbalÄ«âs static concept of mubÄḥ with a dynamic concept based on a relational and situational definition of the norm. The Ḥanbalite view, which is considered uncontested today, functions on the principle that things/actions are allowed, unless otherwise proved (al-aá¹£l al-ibÄḥa).53 This reading is based on a dogmatic interpretation of numerous qurʾÄnic verses and statements of the Prophet (saws) emphasizing the utility and permission of created things, especially in Q 2:29: âIt is He who created for you all that is in the earth [â¦]â.54 On a practical level, this seemingly broad Ḥanbalite conception of the permitted, creates a close connection between a duty and its object. It was precisely this excessive, almost dialectical relationship between Godâs commandment as an atemporal speech act and a historically conditioned life process that Andalusian theology wanted to counteract.
Traditionally, the permitted was considered indifferent (mubÄḥ) in terms of its moral-ethical status. Since the beginning of the 4th/10th century, however, clearly permitted acts have been the subject of heated discussions among legal scholars, on the one hand, and between legal scholars and rational theologians, on the other. While some jurists asserted that individuals can decide on their own about refraining from or performing permitted acts, rationally oriented theologians emphasized the obligating character of the permitted. A third opinion, mostly supported by the mystics, denounced the negative influence that legitimate actions can exert on righteous beliefs and the ascetic lifestyle associated with them, and equated a total fulfilment of permitted practices according to the norms with the performance of forbidden acts.
Regarding, for example, the qurʾÄnic commandment to populate Godâs earth, which encompasses all of human activity, the assertion that the permitted is essentially an invitation which can be ignored, becomes less and less convincing. For, the righteous actions prescribed by revelation are hermeneutically related to the compulsion of the individualâs physical and earthly constitution. The historical significance of the five-category system, which reached its final form with the introduction of the permitted in the first two centuries after the Hijri, lies in the revealing of the compromise between moral maximalists, most strongly represented by the Ḫariǧites, and the practical demands of an ever-expanding social ethics oriented towards societal development, as represented by rational theologians and legal theoreticians. Beginning with the 5th/11th century, this hierarchical moral system suggested, on the basis of the discussion about the jussive meaning of the permissible, the concept of a two-tiered membership in the Islamic umma consisting of those who obey the laws and move within the moral and legal norms defined by the jurists, and those who seek piety and see in the act of faith that which is essentially right for humans to do before God. It is in this epistemological field, that one should locate aÅ¡-Å Äá¹ibÄ«âs treatise on permission as commandment. The five categories of moral judgment not only evaluate the Islamic understanding of a righteous life, but rather signify an explicit rejection of the ambiguous moral categories of simply good or bad in the sense of a positivist understanding of law, which can be seen best in the prompting structure of permission which aÅ¡-Å Äá¹ibÄ« arduously worked out. This is apparently the reason why aÅ¡-Å Äá¹ibÄ«, in the context of his treatise on moral provisions, focused his attention on permission as commandment. Consequently, this is where the interpretation of his focus on the meaning, function, and moral significance of the act of permission must begin. The first building block in aÅ¡-Å Äá¹ibÄ«âs elaboration of the category of permitted is the realization of detachment of the permitting act from the character of compulsion that otherwise governs all norms of behavior: âThe permitted should be understood, according to its character [and with regard to its legal bindingness], neither as a call to action nor as a call to refraining [â¦] and is indifferent regarding whether the legislator intended for it to be performed or for one to refrain from it.â55
The deeper reason for this relationship between the permitted and the indifference of the legislatorâs underlying intention is found in the implicit goal of the Å¡ariÌÊ¿â a, in which the participation of human reason and the related experiential value is attributed a much greater significance for independent decision making in the earthly aspects of life.56 Thus, the permitted is only to be understood as such, if one assumes that the author of the legal discourse behind the declaration of the permitted implies neither the intention of a commandment to do something, nor the request to forego it. In the course of his confrontation with representatives of different streams of thought, aÅ¡-Å Äá¹ibÄ«âs interpretation proved itself valid, insofar as it reinterpreted the indifference of the legislatorâs intention with respect to what is permitted as an invitation to choose (taḫyÄ«r), thereby making the jussive value of permission morally tangible.57 Hence, with the call to choose, both the actorâs responsibility to the community as an individual, as well as the associated rational process of consideration play a key role in moral judgment.58 These questions, which all circle around the relationship of doing and not-doing in different ways, are developed by aÅ¡-Å Äá¹ibÄ« in three stages and explored in terms of their relationship to the community and the individualâs responsibility.
5.3.2 The Permitted as a Preventative against Sinful Behavior
Following the concept of proportionality in the observance of divine commandments, aÅ¡-Å Äá¹ibÄ« turns to the mystical interpretation of the permitted, which sees the execution of permissible actions as a threat to human fear of God. The mysticsâ scepticism towards measuring the performance of permitted actions in this life solely based on their normative conformity stems from their concern that even a restrained admission of desire could lead to a neglect of ritual duties. Against this radically ascetic attitude, in which the spiritual well-being of the individual is given preference over the social common good, aÅ¡-Å Äá¹ibÄ« argued theologically that the morally regulated expression of permitted actions serves the prevention of sinful behavior in a social context.
The special category of the permitted includes acts such as forbidden sexual intercourse which, in its violation of the law, concern both Godâs instructions and human beingsâ rights.59 This apparently moral disagreement, however, only reveals the escalation of a discussion that had been raging since the 5th/11th century about the status of human deeds between individual piety and social responsibility. This dispute, carried out on the margins of dogmatics, was mostly focused on the relationship between mysticism and theological ethics and culminated in al-Ä azÄlÄ«âs work, IḥyÄʾ Ê¿ulÅ«m ad-dÄ«n.
This ambiguity, emphasized by mysticism, in the demarcation of an actionâs permissibility and inadmissibility may contribute to the fact that the transition from the individual to the social is not always fluid. Permissible actions do not have a constant nature by which they can be recognized, but rather fluctuate depending on their moral position in the context of social action between the five categories of duty already mentioned. Thus, aÅ¡-Å Äá¹ibÄ« writes that âthe permitted can become forbidden through situations, [that effect an exclusion of the actions performed from the field of the permissible].â60
AÅ¡-Å Äá¹ibÄ« argues from the perspective of a concept of society, in whose intellectual framework theological-ethical assessments and social-moral rules of human behavior are intermeshed. The sexual practice regulation example makes clear how much the rights and properties of an individual are interlinked with those of the general public in the Islamic moral system.61 The differentiation between the mystical and the ethical conception of the permitted is, among all, concerned with the connection between Godâs ârightsâ and humansâ. Contrary to the mysticsâ argument, which, based on the distractive nature of worldly pleasures concerning the performance of prescribed worship, amounts to a commandment to abstinence, aÅ¡-Å Äá¹ibÄ« emphasizes that Godâs âlegal claimsâ do not, in principle, precede humansâ rights.62
Based on the assumption that permitted actionâs consequences, in this and in the afterlife, are only connected if the action is performed and not in the case of its omission, aÅ¡-Å Äá¹ibÄ« argues that, on the contrary, one is more likely to be held accountable either on the grounds of which a permitted action is omitted or for the lack of gratitude for the immanent goodness of the permitted in the hereafter. The following verses from the QurʾÄn exemplify this:
Have you not seen how that God has subjected to you whatsoever is in the heavens and earth, and He has lavished on you His blessings, outward and inward? And among men there is such a one that disputes concerning God without knowledge or guidance, or an illuminating Book (Q 31:20)
and:
Say: âWho has forbidden the ornament of God which He brought forth for His servants, and the good things of His providing?â Say: âThese, on the Day of Resurrection, shall be exclusively for those who believed in this present life. So We distinguish the signs for a people who know (Q 7:32).
In the permitted, the created bodily and earthly constitution of the human being is revealed, without which one could not claim that it acts and suffers as an individual. In this framework, the moral values fluctuating in the field of the permitted, between prohibition and commandment, are confronted with each other and thus form the basis of actorsâ responsibility for their deeds. What mysticism and theological ethics have in common is that they seek to understand human behavior in the context of faith. Ethics, however, is interested in capturing the action of a human being, both as an individual and a social being. Translated into modern specialized concepts, aÅ¡-Å Äá¹ibÄ«âs ethical theory seeks to reconcile individual and social ethics oriented towards both a transcendental and a worldly goal.63
According to aÅ¡-Å Äá¹ibÄ«âs argumentation, the interpretation of permissible conduct norms should formulate judgment variations in the context of action, in which the fleeting constitution of permitted is considered. Therefore, regarding independent judgments in the context of complex action courses, aÅ¡-Å Äá¹ibÄ« differentiates between situations in which the permitted is deliberately used as a license for reprehensible behavior and those in which the execution of permissible behavior coincides with a supposed distraction from an obligationâs fulfilment. According to Aḥmad ar-RaysÅ«nÄ«, the aporias that emerge from the two action situations mentioned make clear how fundamental the intention behind an action can be for moral judgment.64 Abuse of permitted acts for the purpose of unlawful objectives is prevented by the application of the principle of prevention, sadd aá¸-á¸arÄʾiÊ¿ (exclusion of legal instrumentalization), that proceeds from the practical analogy.65 Should a permissible action be based on the intention to carry out an action disapproved of or even prohibited, the entire chain of action set in motion to this end is subordinated to a different category of judgment than permitted actions. Decisive for the moral judgment is the question of which ethical maxim should be attributed to the transgressed moral norm.66 By emphasizing the interdependence of ethical orientation and moral duty, aÅ¡-Å Äá¹ibÄ« was able to derive judgmentsâ legitimacy from the arbitrariness of a reflexive derivation of norms from precedent cases.67 By introducing the concept of intention into moral judgment, permitted actions are placed in an intermediate area between prohibition and commandment, such that their moral status is oriented towards the consideration of advantages and disadvantages that would arise in the action environment, should one choose a particular ethical orientation.
Accordingly, the spectrum of what lies between commandment and prohibition should always be considered with regard to the binding nature of the legal source called upon when forming judgments. Thus, the moral status of permissible actions varies, depending on whether the formation of judgment (ḥukm) underlying them arises from a universal (aá¹£l kullÄ«) or an optional legal source (aá¹£l ǧuzʾī).68 Permissible behavior, the fulfilment of which, for example, does not violate any necessary ethical maxim, but whose omission causes harm to the believer in any way, is allowed, despite the negative consequences it entails.69 In this case, it is necessary, by means of rational consideration process (at-tarǧīḥ), to construct a moral hierarchy of practice units which, on the basis of clarification of final relationships, allows for intended goals and actions to be differentiated from those used as means to achieve other goals. According to aÅ¡-Å Äá¹ibÄ«, when doing so, one must always consider an actionâs legitimacy and its usefulness:
When legally codified rules are mixed with the reprehensible, for example, buying and selling, or meeting people and seeking refuge in another, and when misery and the reprehensible spread across the earth such that one cannot perform oneâs tasks as an obligated person or cannot, as dictated by the circumstances, free oneâs behavior of them, then public interpretation of the divine law presupposes that one stop doing what one is doing in order to achieve oneâs goal. But, legitimate interpretation presupposes that one follow oneâs needs, regardless of whether this need is the final goal or part of an larger effort. And, in both cases, the needs sought are seen as fundamental, regardless of whether they actually are or whether they serve a superordinate goal. For, if the legislator prescribed the omission of these actions, he would limit the obligatedâs field of life and make his life more difficult. And this would mean obligating the human being to something it cannot accomplish.70
As a result, AÅ¡-Å Äá¹ibÄ« poses the question of what would happen, if all members in a society suddenly decided not to perform permitted actions, and concludes that â[a]ssuming that all people [in a community of faith] decided to refrain from performing permitted actions, [â¦] would correspond to the process of neglecting a required, necessary rule. The fulfillment [of the permitted] would, in this case, change from a normative category of recommendation to a general obligational category.â71 AÅ¡-Å Äá¹ibÄ«âs view of what is permissible could imply that only the common values a community believes in, by free agreement, fundamentally characterize the idea of the social covenant taking on responsibility for fellow human beings.
The right to freedom of choice between acting and not acting regarding the category of the permitted is individualâs sole responsibility. The community as a moral institution, however, is granted this right only under certain conditions. The implicit âinstitutionalâ relationship between the individual and the community or between the self (Selber) and selfhood (Selbst) is most clearly revealed in the special position held by the category of the permitted within the framework of maqÄá¹£idâs doctrine of obligations. If one understands the institution as a coexistence structure of a historical or religious community which cannot be reduced to the interpersonal relationships of its members, then aḥkÄm can only gain a foothold in the field of the institution based on the idea of a societal bond.
The significance of the relationship between permitted and other categories of moral judgment emphasizes the function of the belief-oriented idea of a societal bond when it comes to differentiating the just from the good. From a modern perspective, one could say that, at an institutional level, the covenant (al-Ê¿urwa al-wuṯqÄ)72 of the community (umma) takes the place that faith occupies at the level of individual religious practice. Nevertheless, while individual faith can be considered as a matter of consciousness in the sense of a âfact of reason,â i.e., the fact that religious morality is recognized per se, the societal covenant can only be understood as an idea that emerges in moral reflection about the relationship between the self (Selber) and selfhood (Selbst), respect for oneself and self-esteem.73
To justify the permitted as an obligation in the context of social responsibility requires the elimination of self-love in contrast to self-esteem. In the QurʾÄn, the elimination of self-love is elevated to the status of a basic condition for belonging to the community. Thus, Q 59:9 reads: âAnd those who made their dwelling in the abode, and in belief, before them; love whosoever has emigrated to them, not finding in their breasts any need for what they have been given, and preferring others above themselves, even though poverty be their portion. And whoso is guarded against the avarice of his own soul, those â they are the prosperers.â This verse not only suggests a certain differentiation between self-love and self-esteem, but rather implies that self-love is a kind of deviation from self-esteem. This shows yet again that the secrets surrounding aÅ¡-Å Äá¹ibÄ«âs particular attention to the category of the permissible, which was the cause of misinterpretation for centuries, can only be adequately decoded if the relationship between aḥkÄm and maqÄá¹£id is analysed using the framework of theological hermeneutics theory.
The elaboration of hermeneutic connections between the ethical categories of self-love, respect for oneself, and self-esteem, shows the affinity of the permitted to the concept of solicitude. In the category of the permitted, the ethical character of the Å¡ariÌÊ¿â aâs moral obligation, respect of oneself as a symbol of individual obedience to the norm and self-esteem as epitomes of ethical responsibility, are revealed as two inseparable conditions of moral judgment. In Islamic theologyâs view of the self (nafs) as an ethical selfhood, the elimination of self-love is not opposed to self-hatred. The hermeneutic approaches regarding the relationship between self-love and self-hatred are clearly reflected in Paul Ricoeurâs thought, who argues that â[e]ven recognizing this, it is still necessary that the irruption of the other, breaking through the enclosure of the same, meet with the complicity of this movement of effacement by which the self makes itself available to others. For the effect of the term âcrisisâ of selfhood must not be the substitution of self-hatred for self-esteem.â74 Here, the respect for oneself can be understood as self-esteem that has passed through the framework of the deontic aḥkÄm taklÄ«fiyya.75
The neutral character attributed to it allows one to locate the category of âpermissionâ (ibÄḥa) in an intermediate area of prescription and free choice, in which the deontic viewpoint of the Å¡ariÌÊ¿â a serves as a guide for various practices and spheres of life and connects the presupposed and necessary respect for fellow human beings, underlying moral obligation with the teleological claim of the divine commandment to live for and with other human beings in a legal community. The freedom of choice presupposed by the category of the permitted allows the ethical orientation towards bliss in this and in the afterlife, contained in maqaÌsÌ£idâs ideals of the common good, to take the place of normative coercion in the foreground of moral judgment. Without in any way denying the break made by the Islamic jurisprudence formalism with the teleological and eudaemonist ethical tradition, it is necessary to emphasize two points: on the one hand, those aspects in which the ethical tradition is ahead of formalism and, on the other hand, those by which the deontic conception of fiqh has remained bound to the teleological conception of ethical reflection, be it in uṣūl al-fiqh or in Ê¿ilm al-aḫlÄq.
If, however, through the characteristics recalled in the discussion of the category of the permitted, the ethical reflection produced in uṣūl al-fiqh or Ê¿ilm al-aḫlÄq suggests a universalism (kulliyÄt), the moral obligation of aḥkÄm taklÄ«fiyya is hardly discernible without recourse to the orientation towards âbliss in the here and in the afterlifeâ formulated in maqÄá¹£id. The anchoring of ḥukm taklÄ«fi as a deontic factor in moral judgment in the teleological objective of maqÄá¹£id reveals the position occupied by the concept of good intent in al-Ä azÄlÄ«âs causal theory of action (an-niyyaaḥsanu al-Ê¿â amal, i.e.: the intention is better than the action).76 The permitted would, thus, promote the passage through the forms of human desire in the context of the intersubjective realm which solicitude opens. Thus, its counterpart finds application in the list of prohibitions and commandments subordinated to the four remaining moral norms, which emerge from the principles of maqÄá¹£id, namely the protection of the self, the faith, the intellect, the protection of property, and the protection of reproduction and family.77
5.3.3 Normativity in Light of the Social Field of Action
5.3.3.1 The Jussive Form of Moral Obligation: Deontology in the Context of Speech Acts
If one looks at morality and legal norms from the perspective of the speech act theory, the question of their linguistic localization can be raised. However, their jussive character and legal bindingness remain to be clarified. By contrasting the theological and linguistic qualities of the demand, the relationship between command and obedience marks a new difference between a statementâs jussive form and the commandmentâs moral-ethical commitment. Drawing on Arabic-Islamic rhetoric, jurisprudence assumes that the idea underlying an action is based on a particular relationship in their meanings. This relationship of meanings is expressed in the notion of constitutive rules (qarÄʾin al-maqÄm), borrowed from legal theory and then extended to the rhetorical discipline of Ê¿ilm al-maÊ¿â ÄnÄ«, which has today been reintegrated into modern hermeneuticsâ theory of praxis.78
Implementing John Searleâs extension of the concept of constitutive rules to the field of speech acts, within whose framework they are considered actions or practices valid for a certain age, the compulsory norms elaborated in Islamic jurisprudence, i.e. ibÄḥa (permission), nadb (recommendation), īǧÄb (obligation), karÄha (disapproval), and taḥrÄ«m (prohibition) would have to be considered illocutionary acts79 that produce a reaction of a verbal or active nature.80 Thus, the speech acts ascribed to the obligational norms, such as promises, commands, warnings, or discoveries, would be distinguished only by their illocutionary force which is constituted by the so-called qarÄʾin al-maqÄm, that states, for example, that the act of warning implies submitting to the obligation to sanction tomorrow that about which one has warned others today.
Certainly, the development of late Islamic rhetoric was beneficial for aÅ¡-Å Äá¹ibÄ« when he established the maqÄá¹£id theory. The remarkable depth of his reflections on moral and legal norms has to this day not been exhausted in the investigations of this subject, most likely due to the intellectual impoverishment of theological education. By distinguishing several subcategories81 within al-aḥkÄm at-taklÄ«fiyya, aÅ¡-Å Äá¹ibÄ« shows that the scholarâs concern when deriving moral and legal norms from the Å¡ariÌÊ¿â a, is not the formulation of a criminal or civil law, but rather the establishment of an ethical system of human action. Robert Brunschvig has already highlighted this overlapping of law and ethics in Islam as a typical feature of the Jewish influence on Islam:
The fact that these intermediary values, which are fundamentally different from the speech act of demanding, be it a commandment or a ban, are clearly defined and actually belong to the field of the doctrine of obligations, is sufficiently convincing of the fact that these laws burst all juristic frameworks, such that they tend to anticipate on an ethical level [â¦] This act of demanding [stemming from the Å¡ariÌÊ¿â aâs obligational morality] are themselves very often purely moral in character. And it is significant that, from a juristic perspective and even beyond cultural norms, the penal sanctions connected to the ban are not in human hands, but are, rather, subject to the power of God.82
In aÅ¡-Å Äá¹ibÄ«âs doctrine of obligation, ḥukm taklÄ«fÄ« (the prescriptive moral and legal norm) is a direct prompting act which can be located between doing and not doing. Yet, the jussive values of the various al-aḥkÄm at-taklÄ«fiyya are primarily oriented towards their relationships to maqÄá¹£id. Assuming a hermeneutic interpretation of aÅ¡-Å Äá¹ibÄ«âs terminology, one finds that the term ḥukm is a specific category of kalÄm or ḫitÄb Allah, namely the âspeechâ of God concerning the actions of the godly, which either commands or leaves free choice.
AÅ¡-Å Äá¹ibÄ«âs doctrine of norms unambiguously refers to the AÅ¡Ê¿â arite conception of the divine speech, in which the term ḥukm is defined as the expression of a speech act ascribed equally to two levels of the divine word, namely, in the sense of a text and in the sense of a consciousnessâ speech. A hermeneutic approach to aÅ¡-Å Äá¹ibÄ«s doctrine of obligations arises only, if one presupposes an AÅ¡Ê¿â arite connection, on the one hand, between ḥukm as the mental speech83 (in the sense of an intention) and as oral speech (ḫiá¹Äb), and, on the other hand, between intellectual discourse and speech acts as a postulate from which to proceed. This binary understanding of the concept of ḥukm is based on the following legal-theoretical definition: âIt is the intellectual discourse and the meaning (semantic content) of the command and the prohibition, the obligation and the forbidding.â84
This double definition integrates a hermeneutic dimension into a theological view of the term âdiscourseâ. However, what draws the attention of hermeneutics here is the close connection between the purely linguistic and non-purely linguistic vocabulary. In the first case, it is the term ḫiá¹Äb, which was later particularly interesting to the jurist AbÅ« l-BaqÄʾ al-KaffÄwÄ« (d. 1094/1683), who proposed a methodological bridge between the linguistic and the theological:
Speech describes the expression of an ethical convention with a fixed meaning as well as its intellectual contents arising in the soul. Discourse, however, corresponds either to the wording [of the speech] or the speech of the soul, which is directed to the others for the purpose of understanding. There arose a difference of opinions about Godâs speech in so far as one wondered whether one could characterize it as a discourse in the eternity preceding the existence of the addressed, as the sending down of that which will be first in place of that which should first be produced. For, one who says that discourse is speech aimed at understanding would also characterize speech in eternity as discourse because its general orientation is understanding. And, for those who say that Godâs speech helps those understand, who are capable of understanding, speech in eternity is not discourse. And the majority of the Sunni who have attributed to the sublime God a spiritual speech, have justified this by saying that there was already a commandment as well as a negated commandment in eternity, an assertive speech-act and some also include the question and the vocative statement. And the AÅ¡Ê¿â ariyya claimed that God had expressed his speech exclusively through a speech act, namely, that of the assertion.85
AÅ¡-Å Äá¹ibÄ« understands ḫiá¹Äb as speech (kalÄm), i.e., the expression characterized by conventional definition and its meaning which remains in the mind. This speech is either an oral or an intellectual discourse, addressed to the other to make something understandable, where aÅ¡-Å Äá¹ibÄ«âs definition again closely ties the linguistic and non-linguistic. Of course, hermeneuticians are more interested in the exact definition of speech than in the discourse directed to the others. Moreover, they are not necessarily interested in the distinction between the two discourses, which they see as a theological problem.86 Hermeneutically speaking, ḥukm Å¡arīʾi is the juristic interpretation of qurʾÄnic suras based on the legislatorâs intention. Incidentally, aÅ¡-Å Äá¹ibÄ« also makes this clear when he says that the moral and legal norms are derived from the QurʾÄn and the Sunna. However, if the intentionalist jurists equate ḥukm with ḫiá¹Äb, then, as the second definition of ḥukm as intention shows, they refer to ḫiá¹Äb nafsÄ« (speech of the soul), which is also the contents of ḫiá¹Äb lafáºÄ« (wording) and in turn, the expression for Godâs intention (or ḫitÄb nafsÄ«). Consequently, ḥukm as Godâs intention precedes ḫiá¹Äb lafáºÄ«. Thus, if ḥukm is derived from the holy scriptures and is the expression of kalÄm lafáºÄ«, which is at the same time its content, and this in turn an expression of the intention (ḫiá¹Äb nafsÄ«) or moral and legal norm, then the theological tradition has succeeded in constructing a marvellous hermeneutic circle, owing primarily to its search for the intransient intention of the legislator (qaá¹£d aÅ¡-Å¡arÄ«Ê¿i). The hermeneutic nature of aÅ¡-Å Äá¹ibÄ«âs approach stems directly from the fact that the moral and legal norm or intention is not a verbatim statement from (a passage of) the QurʾÄn. By furnishing something that is not literally written in the QurʾÄn with the words âqÄla AllÄhâ (God has said), theological hermeneutics goes so far regarding the two categories of kalÄm that, as the ultimate intention of the legislator, kalÄm nafsÄ« equals kalÄm.
By considering the division of kalÄm as that of the divine message as practiced by the theological tradition, theological hermeneutics allows for exegesis to distinguish between two levels of the discourse of revelation: on the one hand, the level of speech acts performance between the wordsâ author (God) and the speaker (prophet) and, on the other hand, the level of reception between listeners (humanity) and recipients (believers). AÅ¡-Å Äá¹ibÄ« often semantically connects the term al-kitab, which also corresponds to the transcript of the written word of the prophet in the transcendental sense and is regarded as a special kind of synonym for the QurʾÄn, to the legislatorâs intention in the context of lived reality, while al-kitab itself, however, stands before the original text, i.e., the well-preserved tablet (al-lawḥ al-maḥfÅ«áº).87
This view is understandable insofar as it simultaneously suggests that the QurʾÄn, in its written form (al-muṣḥaf),88 is more like a speech articulated in human language and in a historical context, which explains in more detail the eternal truth and the commandments of God also contained in earlier messages from God to mankind and makes them comprehensible in relation to the reality of their lives. This notion springs from the concept of abrogation, according to which God successively reveals Himself to humanity in history.
Traversed by the intention of divine common good ideals, the three monotheistic âheavenly messagesâ maintain an intertextual relationship oriented around the mutability of human reality. This implies that by choosing to speak to the Arabs in their language and thus ensuring that His discourse is immediately understandable to them, God has chosen, as He who pervades all creation, to renounce His right to legislate. Through the doctrine of obligation derived from the revelation, only the legislator appears, not God Himself, since Godâs message is far more comprehensive in its understanding of faith.
AÅ¡-Å Äá¹ibÄ« always employs this doctrine when there is a conflict between the human and the divine law. In the context of legislatorâs fundamental intentions, aÅ¡-Å Äá¹ibÄ« mentions revelationâs role in the understanding of the Å¡ariÌÊ¿â a, to which the linguistic cultural level belongs. In addition, the normative understanding of revelation requires a profound knowledge of the semiotic component of the language of revelation. Included are foreign words that found their way into the QurʾÄn from a different semiotic sphere. Access to moral judgment results from the QurʾÄnâs specific linguistic-cultural framework.
The hermeneutic levels of various types of speech in the QurʾÄn and their aspects of communication theory can be modelled based on aÅ¡-Å Äá¹ibÄ«âs intentionalist approach: just as God is not the speaker, but the author of the revelation, i.e. not the person responsible for the text, but the person responsible for the speech acts expressed in the text, so is the addressee not understood as a simple listener, but as a recipient, in the sense of contemporary discourse analysis, i.e. as the recipient of the speech act, who must fulfil certain conditions, such as judgment, belief, the ability to decrypt the semiotic coding of the language of revelation, etc. Accordingly, the listener and the receiver make moral judgments in different forms. The term mukallaf reveals the deontological significance of the recipient in Arabic theological discourse.
It is obvious that aÅ¡-Å Äá¹ibÄ«âs division of ḫiá¹Äb is closely related to the rhetoriciansâ division of kalÄm. Whereas rhetoricians subdivided kalÄm into informative statements (ḫabar) and non-informative statements (Ä¡ayr ḫabar), the jurists divide ḫiá¹Äb into á¹alab (demand, synonym for iqtiá¸Äʾ) and Ä¡ayr á¹alab (non-demanding statement). The replacement of kalÄm with ḫiá¹Äb and the focus on á¹alab instead of ḫabar underscores the hermeneutical and teleological character of this classification, which was adopted by intentionalist jurists especially. With close examination of different categories of moral and legal norms, it seems that every action is either a recommendation (nadb) or a rejection (karÄha), depending on whether it is an act (fiÊ¿l) or an abstention (tark), whether it is categorical (ǧÄzim) or non-categorical (Ä¡ayr ǧÄzim), and whether á¹alab is an obligation (īǧÄb) or prohibition (taḥrÄ«m). Just as rhetoricians generally referred to Ä¡ayr ḫabar as inÅ¡Äʾ and divided alabÄ« into non-jussive (Ä¡ayr á¹alabÄ«) and jussive (á¹alabÄ«) categories, ayr á¹alab is divided into taḫyÄ«r and assertion (iḫbÄr). In the first case, it is a permission (ibÄḥa), in the second case, it is not prescriptive, but rather only descriptive (waá¹£f); and, here, it is no longer a prescription, but a free choice. These five legislative speech acts form the above-mentioned aḥkÄm Å¡arÊ¿iyya, i.e., the five prescriptive legal and moral norms. Although aÅ¡-Å Äá¹ibÄ« has as many prescriptive aḥkÄm Å¡arÊ¿iyya as there are rhetorical types of á¹alab, one can see that only four constitute á¹alab and the fifth under taḫyÄ«r. TaḫyÄ«r, however, is nothing more than choosing between âdoingâ and ânot doingâ; such that taḫyÄ«r, and consequently mubÄḥ, are no less related to the other four aḥkÄm, although they are located on a different level than á¹alab which is logically divided into a square. To put it into specialized contemporary terms, the reciprocal merits of the negative (âdo not do â¦â) and positive (âdo â¦â) formulas balance each other out, as âthe interdiction leaves open the range of things that are not forbidden and in this way makes room for moral invention in the order of what is permitted; on its part, the positive commandment designates more clearly the motive of benevolence that prompts us to do something on behalf of our neighbor.â89
The deontological approach in aÅ¡-Å Äá¹ibÄ«âs theory of intentions is based on the fact that, from a linguistic perspective, the mechanism of legal interpretation of the QurʾÄn is a theory of the statement or, more precisely, of speech acts, and that, on this level, there is a close interaction between the foundations of jurisprudence (uṣūl al-fiqh) and the two components of rhetoric (al-balÄÄ¡a), known as Ê¿ilm al-maÊ¿â ÄnÄ« and Ê¿ilm al-bayÄn, and that the theological distinction between the two categories of kalÄm â namely kalÄm nafsÄ« and kalÄm lafzÄ« â can, linguistically, be reinterpreted as a distinction between the âauthorâ of the discourse and the âspeakerâ, thus opening the way to a polyphone and hermeneutical view of the qurʾÄnic text.
5.3.3.2 Ḥukm as the Core Moment of Moral Judgment: Obligational Morality in the Context of Moral Judgment (Å¡ariÌÊ¿â a Ê¿â arabiyya )
With recourse to the qurʾÄnic location of the divine message in the environment of its reception,90 aÅ¡-Å Äá¹ibÄ« emphasizes the moral character of the Å¡ariÌÊ¿â aâs obligations: âThis blessed Å¡ariÌÊ¿â a is of Arabic origin and free of non-Arabic language-dependent influences.â91 Accordingly, the idea gained acceptance among legal theorists that the QurʾÄn was semiotically and linguistically oriented towards the community of a particular linguistic region, which, according to aÅ¡-Å Äá¹ibÄ«, in no way contradicts the universal claim of the QurʾÄn to be a message for all of humanity. In doing so, he indirectly formulates the difference between the listener (sÄmiÊ¿) and the recipient (mukallaf). In contrast to the listener,92 the recipient is always compelled to be proficient in the Arabic language in order to properly understand the content of the message. This concerns not only language as means of communication, but rather as a semiotic, sociological and literary phenomenon. It is in this sense that one should understand aÅ¡-Å Äá¹ibÄ«âs assertion that â[t]he only object of consideration here should be the fact that the QurʾÄn in its entirety was sent down in the Arabic language [âas a system of signsâ]. Only in this way can one seek to understand it. And, whoever wants to understand it should do so from the perspective of the Arabic system of language. There is no way to seek an understanding of it other than this. This is the meaning of this matter.â93
From this point of view, the intentions of the legislator should be defined in terms of intellectual contents coded in the Arabic language system that are based on a specific linguistic intuition possessed by the native speaker (fiá¹ra):
According to the [Arabâs] linguistic intuition, a general statement is used in order to express an explicit meaning or a particular, specific contents, as well as, depending on the context, to express the meaning of the general and the specific. The general can mean the specific, just as the explicit can mean the implicit. And all this can be recognized either from the beginning or the middle or the end of a statement. The Arabs express themselves in statements, the beginnings of which build on their ends or the ends of which build on their beginnings. They express themselves through expressions that are recognizable either through their inherent meaning or through that to which they point. As generally known, the Arabs use different names for the same object, just as they refer to various things with one concept. And all these phenomena are so well-known amongst the Arabs that they are certain of them just as they are certain in their knowledge of their language. For, the QurʾÄn corresponds to this structure both in its meanings as well as in its stylistic structure.94
Therefore, the meaning of the QurʾÄn is culturally and morally encrypted in a language system and, in the broadest sense, the expression of the Arabic language. The fact that qurʾÄnic Arabic is not a particular vernacular or dialect is occasion for aÅ¡-Å Äá¹ibÄ« to repeatedly use the term lisÄn al-Ê¿â arab instead of luÄ¡at al-Ê¿â arab. The word lisÄn (linguistic system) is distinguished from the term luÄ¡at (linguistic usage) by its semiotic function as the cultural memory of a textual community, thus opening hermeneutic approaches to the unsaid.
By doing so, aÅ¡-Å Äá¹ibÄ« seeks to distance himself from the assertion that the Arabs have, throughout history, always considered their language to be the chosen language. For this reason, in his work al-MuwÄfaqÄt, he only speaks of âtheir languageâ when mentioning Arabs. For him, Arabs are Arabic-speaking people, those who had a certain level of proficiency in Arabic at the time of revelation. They are, thus, the main addressees and recipients of this revelation. Because of this broad definition of the recipient and its language, the QurʾÄn, as aÅ¡-Å Äá¹ibÄ« sees it, is addressed to all of humanity and Arabic is the language best able to spread its teachings because, translated in modern terms, it is the language of the universal transcendence.
The universality of the qurʾÄnic message to which aÅ¡-Å Äá¹ibÄ« lays claim reveals itself in the relationship of three concepts that decisively shaped his idea of moral normativityâs universal character. In three different passages of his essay on the purpose of the revelation, he refers to the term Å¡ariÌÊ¿â a as ummiyya (communally and morally oriented), as Ê¿â arabiyya (Arabic) and, finally, as kawniyya (universal). Access to aÅ¡-Å aÌtÌ£ibiÌâs understanding of Å¡ariÌÊ¿â aâs universal character, it can only be obtained if the terms ummiyya and Ê¿â arabiyya are freed from the cultural ties underlying them. AÅ¡-Å Äá¹ibÄ« cleverly does this by assigning ummiyya to the moral realm and Ê¿â arabiyya to the semiotic realm. For him, a moral theory is culturally bound and semiotically coded.95
This is highly reminiscent of the conclusion drawn by the contemporary philosopher Alasdair MacIntyre, according to whom a rational justification of morality is only possible in the context of traditions. An a priori rational justification of moral norms fails, not least of all, because a rationally formed consensus regarding ethical principles has repeatedly proven to be a utopia in terms of its theoretical foundations.96
AÅ¡-Å Äá¹ibÄ«âs interpretation of the universal character of revelation goes hand in hand with the general view of Islam as human beingâs devotion to the will of God. According to this qurʾÄnic idea, the term aslama is the monotheistic character common to all three religions of the book, the external expression of which is historically manifested in the conceptual contents of the word dÄ«n (religion/sense guilt). It is noteworthy, however, that in traditional Christian doctrine the semantic content of the word âfaithâ has a certain similarity to the concept of dÄ«n insofar as the original lexical meaning of both concepts (credit) resonates in its theological-terminological meaning. The historical concretization of faith through the proclamation of the Decalogue and Å¡ariÌÊ¿â a circumscribes, albeit imperfectly, the covenant between God and man in a prescriptive relation of command and obedience, which inevitably places limits on the casuistic interpretation. In all three monotheistic âworld religions,â Judaism, Christianity, and Islam, obedience to the ius divinum means acknowledging the meaning of life conveyed by the proclamation. Furthermore, the incomprehensible ambiguity of the term dÄ«n explains the understanding of a âsense-guiltâ connected to its lexical meaning, which results from all three heavenly religionsâ ideas of the law of creation.
The dual principle of determinacy to which aÅ¡-Å Äá¹ibÄ«âs dynamic concept of umma is subject, can be seen in the interpretative relationship of the qurʾÄnic message to earlier divine revelations. According to the QurʾÄn, the respective revelatory texts of the three religions of the book stand in as much of a mutual hermeneutic relationship with one another as they do with the so-called original text. In revelation, the ambiguous nature of the term umma manifests itself in the dynamic relationship between predisposition and obligation. Here, with the idea of createdness (fiá¹ra) as the linchpin of an originally monotheistic community, the dichotomy or division between the recipient community (umma al-istiǧÄba) and the audience (umma ad-daÊ¿wa) is raised.
Unlike the deterministic reading of rational theology which saw in createdness a counterpart to predestination, Ibn Ê¿â ÄÅ¡Å«r draws upon aÅ¡-Å Äá¹ibÄ«âs concept of maqÄá¹£id and points to the utterance of God, in which He proclaims created innocence as His plan for creation. Thus, one reads in Q 30:30: âSo set thy face to the religion, a man of pure faith â Godâs original upon which He originated mankind. There is no changing Godâs creation. That is the right religion; but most men know it not â â. Hence, it can be stated that the question of an eschatological multi-religious community of the saved is theology superfluous in terms of creation. Theologically, the concrete tripartite division of the term umma into Muslims, Jews and Christians, is a differentiation of the second degree which results only at the worldly level. Thus, in this interpretation, the term âcommunity of faithâ in the QurʾÄn inevitably implies diversity.
Since proclamation is a dynamic, ongoing communication process, subject to the principle of the organon, between messengers of God (or their narrators) and their fellow human beings, the community structure is always in a state of flux and evolving in the context of discursive interaction between the community of recipients (umma al-istiǧÄba), i.e. the community of those who have followed the message of the Prophet (saws) and the community of listeners (umma ad-daÊ¿wa) invited to accept the message. In the course of this unfinished communication process, the question of the event of salvation in the hereafter remains reserved for the hidden divine knowledge. Moreover, concerning this interactive process of communication, all of humankind, in the sense of theology of creation, is regarded as the community addressed, in which basically all partners participating in the communication process are included, be they Jews, Christians, or Muslims, or of any other faith.
However, since the concept of humanity â introduced as a concept to mediate the differences between persons â weakens and almost eliminates the otherness praised in the QurʾÄn, the qurʾÄnic message emphasizes universality with respect to the plurality of persons and delimits itself from the Jewish and Christian proclamations by the appeal to the original monotheism of Abraham (ḥanÄ«f). It is in this context, that one should understand the change in the direction of prayer from Jerusalem to the Kaaba in Mecca commanded in the QurʾÄn (Q 2:142).
Drawing on the work of Jan Assmann, the notion of intertextual community seems promising for the development of a multi-denominational concept of community. He uses the discussion to present the concept of the textual community in his draft of a âhistory of memoryâ as an epistemological framework for his critique of monotheism. While recourse to the written tradition of Abrahamic religions is helpful in developing a concept of intertextual community life, it raises many questions in terms of its feasibility. In a linguistically interactive sense, intertextuality does not simply mean juxtaposing different texts with highly binding and authoritative content in a sociolinguistic environment. Rather, an intertextual approach is about gaining insights into how the coexistence of textual communities progresses and changes as a result of the reciprocal effect in the network of the process of action and interpretation.97 This, however, presupposes communicative surroundings without any distinction from the other, which, despite the danger of relativizing theological concepts, still requires considerable theological interpretive work, as Blum has already explained.98
The theological framework for such a project is already prescribed in the QurʾÄn, according to which the scriptures of Muslims, Christians and Jews are all based on a single copy on the âwell-preserved tabletâ (Q 85:22). Rational theologians of AÅ¡Ê¿â arite character argue that the original text underlying all religions of the book have the form of a divine âspeech of the soulâ, characterized by its eternity and universality. The âpreserved tabletâ is, thus, to be understood as a consciousnessâ semantic content, which derives its polysemic character from its transcription into various variations of human language. The intertextual character is most clearly revealed in the QurʾÄn in the prophetic stories based on early biblical scenes in which the narratives only appear retrospectively in a very specific sense.
If one sees multi-confessional society, not in the extensive and enumerative sense of the sum of all religious communities, but principally in the sense of that which makes them worthy of respect, then the task of the peaceful coexistence concept is determining ethical orientation to virtue and common good shared by all religions of the book. According to an intertextual interpretation, the divinely ordained monotheistic community understands itself as polyphonic praise of the Creator. The intertextual relationship of Abrahamic religions of the book manifests itself in the linguistic peculiarity that expresses its revelatory character. According to Graf, religious symbolic languages have the property of being more fluid, more capable of variation, and more open to interpretation than postmodern, intercultural secular languages. The potential of monotheistic religions lies in promoting the âapprobation of diversityâ.99
Cf. Graf, Moses Vermächtnis, 23. Here, according to Friedrich W. Graf, fundamental similarities between religions can be discerned in the way they understand the divine law of creation. âIn particular because, in the three monotheistic world religions, in Judaism, Christianity and Islam, a millennia old motif-memory holds conceptions of a ius divinum which closely connect two religious structures of imagination using metaphors with a tremendous and to this day efficacious suggestive power: God as the creator and God as the legislatorâ (Moses Vermächtnis, 22). The Islamic idea of equating divine law (Å¡arÊ¿) with createdness (fiá¹ra) is more similar to Talmudic wisdom, which identifies the Torah as a divine normative doctrine with a nomos inscribed before existence by the God the creator (cf. Moses Vermächtnis, 22â25). In rabbinic Judaism, ḥalaḫa, like Å¡ariÌÊ¿â a, is seen as the path of guidance âby which divine revelation guides the human being in its actionsâ (cf. Amberg, Towards New Principles of Islamic Ethics, 33). Cf. Stefan Schreiner, Die jüdische Bibel in islamischer Auslegung, ed., Friedmann Eissler and Mathias Morgenstern (Tübingen, 2012).
See subchapter 2.1. on the justifiability of legal norms.
See, for example, YÅ«suf al-Qaraá¸ÄwÄ«âs critique of the rational interpretation of Naǧm ad-Din aá¹-ṬūfÄ«âs statement that the principle of the common good takes precedence over the textual proof. For, âconcerning what is effectively the common good [in the life] of believers, this can be [primarily] grasped by recourse to morals and reasonâ (YuÌsuf al-QaradÌ£aÌwiÌ, DiraÌsa fiÌ fiqh maqaÌsÌ£id aÅ¡-Å¡ariÌÊ¿â a, 4th ed. (Cairo, 2012), 109â111.; Cf. NagÌm ad-DiÌn atÌ£-TÌ£uÌfiÌ, at-TaÊ¿yiÌn fiÌ Å¡arhÌ£ al-arbaÊ¿iÌn, 246). In his innovative work on maqÄá¹£id theory, AllÄl al-FÄsÄ« offers a comprehensive account of the reception of aá¹-ṬūfÄ«âs hadith exegesis, when he advocates aá¹-ṬūfÄ«sâs position, according to which the common good is to be regarded as a universal legal proof, whose claim to validity regarding the derivation of norms should be superordinated to an ambiguous or weakly transmitted text source (See: Muḥammad Ê¿â AllÄl al-FÄsÄ«, MaqÄá¹£id aÅ¡-Å¡ariÌÊ¿â a al-islÄmiyya wa-makÄrimuhÄ (Fez/Rabat, 1993), 143f.)
In reality, the science of uṣūl al-fiqh evolved from an originally purely legal science, as was the case for aÅ¡-Å Äfiʾī, into a propaedeutic science for all of classical Islamâs religious sciences, much like logic in its binding character for all philosophical sciences (cf. MuhÌ£ammad Ê¿AÌbid al-GÌaÌbiriÌ, al-Ê¿â Aql al-ahÌ®laÌqiÌ al-Ê¿â arabiÌ (Beirut, 2012), 536f.).
From the 2nd/8th century on, Islamic law (fiqh) independently took effect in each of the major Muslim cities to such a degree that various positive legal systems were used in the center of the Muslim Empire, with every representative of these legal interpretations laying claim to be defending the only legitimate version. On the other hand, these jurists probably never saw the need to work out theories by which they could ethically substantiate their theory of obligation and defend it against possibly contradictory rational-theological theses. Although the local methods of fiqh had developed very independently of one another, their respective developments often had the common result of widening the gap between morality (duty) and ethics (orientation). Unable to find a connection to the ethical topics of the doctrine of virtue, such a great variety of fiqh theories, however, brought with it the danger of contributing to the fanatization of the various schools of thought (at-taÊ¿â aṣṣub al-maá¸habÄ«) and deeply dividing the community (see: Ar-RaḥmÄn, SuʿʾÄl al-aḫlÄq, 53).
On the relationship between Jewish and Islamic concepts of the law of creation, cf. Schreiner, Die jüdische Bibel in islamischer Auslegung, ed., Friedmann Eissler and Mathias Morgenstern (Tübingen, 2012).
But even more than the Å aÌfiÊ¿ite doctrine of the correctness of iǧtihÄd, the establishment of the science of uṣūl al-fiqh was aimed first and foremost at the facilitation of dialogue between representatives of the various doctrines. Speaking of the principles of legal judgment, establishing them in a critical manner and defining their methodology, requires that every lawyer (muǧtahid) be able at all times to prove his statement. Uṣūl al-fiqh demands lines of reasoning based on a doctrine that follows the principle of provability. And it was precisely this question that located the discussion about the justifiability of theological moral and legal norms between the disciplines of uṣūl al-fiqh, al-aḫlÄq and al-kalÄm (see: aÅ¡-Å Äá¹ibÄ«, al-MuwÄfaqÄt, vol. 4, 64â69 and 76â78).
Cf. ibid., vol. 1, 163; vol. 4, 70.
Two rather unstructured movements prevailed in the 3rd/9th century. First, âthe people of traditionâ (ahl al-ḥadīṯ), which was headed by MÄlik b. Anas (d. 179/795) and had its seat in Medina (the city of the Prophet (saws)) in ḤiǧÄz, and, secondly, the âfollowers of the ratioâ (aṣḥÄb ar-raʾy), led by AbÅ« ḤanÄ«fa (d. 150/767) and his two great companions AbÅ« l-YÅ«suf (d. 182/798) and aÅ¡-Å aybÄnÄ« (d. 189/805), whose school dominated in KÅ«fa (cf. Ar-RaysÅ«nÄ«, Naáºariyyat al-maqÄá¹£id Ê¿inda l-imÄm aÅ¡-Å aá¹ibÄ«, 238).
YÅ«suf al-Qaraá¸ÄwÄ« vehemently rejects this tendency on the grounds that it would lead to the rational interpretation of the maqÄá¹£id approach being pursued unrightfully and excessively (see: al-Qaraá¸ÄwÄ«, DirÄsa fÄ« fiqh maqÄá¹£id aÅ¡-Å¡ariÌÊ¿â a, 83â91).
For the term fiÊ¿l (action) in connection with will and power, see: Muḥammad Ê¿â Äbid al-ÄÄbirÄ«, Binyat al-Ê¿â aql al-Ê¿â arabÄ«, 196f. and 200.
Although in Kantian morality, the will occupies the place occupied by rational desire in Aristotelian ethics. Paul Ricoeur specifies this hermeneutically, when he writes that âdesire is recognized through its aim, will through its relation to the lawâ (Oneself as Another, 206).
Maria Schwartz also argues for a similar understanding of Kantâs concept of maxims in her article âErziehung zur Freiheit â Kants Methodenlehrenâ in Theologie und Philosophie 88/1 (2013): 26f.
Cf. aÅ¡-Å Äá¹ibÄ«, al-MuwÄfaqÄt, vol. 1, 135f. Moral situational judgment is dealt with here in detail in the section on the constitutive rules.
Cf. Norbert Fischer, âKants Verhältnis zum christlichen Glaubenâ, in Theologie und Glaube 102/1 1 (2012): 40f.
Unlike in Christian theology, in which the weakening of the will was caused by Adam and Eveâs original sin, which persists as hereditary sin in the human race (cf. Christoph Horn, Augustinus (GroÃe Denker) (Munich, 1995), 135f.), in the Islamic theological conception, various forms of the will are related to the selfâs (nafs) variable constitutions. This is considered part of the divine plan to test people in the battle of life (cf. Q 5:48; 6:165; 11:7; cf. al-GÌaÌbiriÌ, Binyat al-Ê¿â aql al-Ê¿â arabiÌ, 175 and 463f.).
Even for Kant, humansâ tendency towards evil influences the use of freedom, that is, the ability to act according to obligations or, in short, the capacity for autonomous existence. Incidentally, this unusual situation opens up, for religion, a space separate from that of morality. For, according to Kant, religionâs topic is nothing other than the renewal of freedom, that is, ârestoring to freedom the control over it of the good principleâ (Immanuel Kant, Religion within the Boundary of Pure Reason, trans. John W. Semple (Edinburgh, 1838); cf. Ricoeur, Oneself as Another, 216).
Cf. Alan Gewirth, Reason and Morality (Chicago, 1978), 171 and 190.
Cf. al-ǦuwaynÄ«, al-BurhÄn fÄ« uṣūl al-fiqh, vol. 2, 919 and 938.
Cf. aÅ¡-Å Äá¹ibÄ«, al-MuwÄfaqÄt, vol. 1, 106 and 246.
This is highly reminiscent of the idea of goodwill in the thought of Kant, who postulates in his Foundations of the Metaphysics of Morals that âThere is no possibility of thinking anything at all in the world, or even out of it, which can be regarded as good without qualification, except a good willâ (Grounding for the Metaphysics of Morals, 7). The difference to be emphasized here between the two just-mentioned ideas lies in the nature of the relation maintained by will and intention to action. While the will is the seat of the question, âWhat should I do?â, the intention, like hope, is expressed in speech acts of an optative character and thus grants the divine will the right to intervene.
On the relation of the constitution of the will to the ambiguous constitution of the self, see: AbÅ« Ê¿â AlÄ« b. al-Ḥusain b. AbdullÄh b. SÄ«nÄ, KitÄb aÅ¡-Å ifÄʾ, ed. Ê¿â Abd ar-RaḥmÄn BadawÄ« (Cairo, 1966), 285; Ibn SÄ«nÄ, KitÄb an-NaǧÄt, 222. According to Ibn SÄ«nÄ, selfhood can be subdivided into two types depending on its basic capacity: on the one hand, selfhood or the soul as a factual principle of movement, which helps the body to fulfill its actions and serves the bodyâs needs and its urge to move, and, on the other hand, as a dynamic principle of the acquisition of intellectual ability and knowledge: the spiritual soul (cf., al-GÌaÌbiriÌ, Binyat al-Ê¿â aql al-Ê¿â arabiÌ, 175 and 463f.)
This interpretation of moral behavior emphasizes the difference between ascription and attribution. Actions that do not emanate from a deliberate intention can be attributed to the actor just as little as those that emanate from him accidentally in the state of sleep or unconsciousness, Cf. aÅ¡-Å Äá¹ibÄ«, al-MuwÄfaqÄt, vol. 1, 118.
This comparison from Paul Ricoeurâs methodological reflections on moral theory is inspired by Immanuel Kant (see: Ricoeur, Soi-même comme un autre, 203f.)
In scholastic legal literature, three categories of the term ḥukm are distinguished: determination according to legal judgment (judicial decision), determination according to truth content (constitutive rules of the field of action and assessment) and finally determination according to moral status (prescriptive norms of behavior). The first two forms are applicable and can also be regarded as an index which ranges from the visible and intelligible to the non-present and which must be grasped deductively. Whether a scale or index, both categories of norms are undisputed. AÅ¡-Å Äá¹ibÄ«âs main interest was in the last two categories. For a comprehensive overview of the relationship between the a priori principles of logic and the ethical maxims of maqÄá¹£id, see: Ê¿â Abd as-SalÄm ar-RafÊ¿Ä«, Fiqh al-maqÄá¹£id wa aṯaruhu fÄ«-fikr an-nawÄzilÄ« (Casablanca, 2010), 264â80; Bernard G. Weiss, The Search for Godâs Law (Herndon, 2014), 107.
Cf. aÅ¡-Å Äá¹ibÄ«, al-MuwÄfaqÄt, vol. 1, 76.
The controversial discussion of the definition of the concept of ḥukm Å¡arÊ¿Ä«a will be discussed in detail in the next subchapter. Samuel A. Jacksonâs well-known definition of Islamic legal theory now accepted in European literature, reads, âThe ḥukm Å¡arÊ¿Ä« establishes in religious terms the status of specific human actions relative to specific things. It speaks not to the essence of things in particular but only to the propriety of specific human actions toward themâ (Jackson, Islamic Law and the State: The Constitutional Jurisprudence of Shihab al-Dine al-Qarafi, 116). This definition of Jacksonâs also includes purely legal terminology common in earlier Islamic studies, such as that used by Schacht, An Introduction to Islamic Law, 1â3; Nagel, Das Islamische Recht. Eine Einführung, 90â95; as well as those that emphasize the deontic aspect, as does Baber Johansen, Contingency in a Sacred Law (Leiden, 1998), 25f.
Cf. aÅ¡-Å Äá¹ibÄ«, al-MuwÄfaqÄt, vol. 2, 42.
The following statement of the second caliph âUmar is often cited in this context, âShow us your good deeds, because we [legal guardians] are obliged to judge the exterior. Knowledge of the hidden is reserved for Godâ (cf. MuhÌ£ammad b. Ê¿â AlÄ« aÅ¡-Å awkaÌniÌ, Nayl al-ʾawtÌ£aÌr, al-MatÌ£baÊ¿â a al-Ê¿uṯmaÌniyya al-misÌ£riyya (Cairo, 1938), vol. 1, 369). According to An-NisÄÊ¿Ä«, the dictum of judgment based on appearance goes back to a statement made by the Prophet in which there is an implicit call to judgment based on observable facts (cf. AbÅ« Ê¿â Abd ar-RaḥmÄn Aḥmad an-NasÄÊ¿Ä«, as-Sunan (Beirut: DÄr al-Kutub al-Ê¿Ilmiyya, n.d.), vol. 8, 233).
According to aÅ¡-Å Äá¹ibÄ«, the aḥkÄm are oriented towards the well-being of the mukallaf and not its punishment (cf. aÅ¡-Å Äá¹ibÄ«, al-MuwÄfaqÄt, vol. 2, 41). For criminal-law practice in the form of ḥudÅ«d in the sense of laying down norms of human social behavior, cf. MaḥmÅ«d Å altÅ«t, al-IslÄm Ê¿â aqÄ«da wa-Å¡ariÌÊ¿â a (Cairo/Beirut, 2001), 279â302.
Augustine (354â430 AD) had already similarly discussed the fact that the action-related value judgment is âstrungâ between law and reason. In his exegetical search for clues, Norbert Fischer refers to Augustineâs question, whether adultery is allowed as long as the âGolden Ruleâ is observed, namely, that one does not to another what one would not oneself like (see: Fischer, Kants Verhältnis zum christlichen Glauben, 41).
Cf. al-BuḫÄrÄ«, á¹¢aḥīḥ al-BuḫÄrÄ«, vol. 1, 2, 1.
Regarding this question, Thomas Amberg explains: âEvery religious community sees its forms of behavior and action as being placed in a fundamental relation to the theonomous statues and principles of actions of the texts of revelation. Human action is determined by actionsâ intentions and the interests of both groups and individuals. Values and norms transform as a social context changesâ (Auf dem Weg zu neuen Prinzipien islamischer Ethik, 29).
Cf. MuhÌ£ammad aÅ¡-Å ahÌ£ruÌr, NahÌ£wa usÌ£uÌl gÌadiÌda (Cairo, 2005), 103; Thomas Amberg: Auf dem Weg zu neuen Prinzipien islamischer Ethik, 190f.
Cf. Al-Qaraá¸ÄwÄ«, DirÄsa fÄ« fiqh maqÄá¹£id aÅ¡-Å ariÌÊ¿â a, 95. Regarding this debate in Christian theology, cf. Johannes Fischer: Theologische Ethik. Grundwissen und Orientierung, 32.
According to Fischer, this is also a special characteristic of Christian theological ethics (Theologische Ethik. Grundwissen und Orientierung, 35).
Christoph Zehetgruber, Islamisches Recht versus europäische Werteordnung (Vienna, 2010), 63. In traditional Islamic fiqh, prohibitions and commandments are seen more nuancedly. Commandments are referred to as required or obligatory (wÄǧib or fará¸). They are duties that every Muslim must perform, regardless of its personal quest for piety. Among these are, for example, interpersonal acts such as almsgiving, as well as practices of worship such as fasting in Ramadan or praying five times a day. Their neglect or omission should be punished, both in this world and in the hereafter. The prohibition (maḥáºÅ«r or ḥarÄm) generally concerns actions that secure membership in the religious community. Their execution is punished and refraining from them rewarded. For conservative scholars, calling one of these acts legitimate is evidence of apostasy (cf. YuÌsuf al-QaradÌ£aÌwiÌ, Erlaubtes und Verbotenes im Islam, trans. Ahmed von Denffer (München, 1989), 148f.).
Cf. aÅ¡-Å Äá¹ibÄ«, al-MuwÄfaqÄt, vol. 1, 106.
Cf. Ar-RaysÅ«nÄ«, Naáºariyyat al-maqÄá¹£id Ê¿inda l-imÄm aÅ¡-Å aá¹ibÄ«, 5th ed. (1995), 179.
The multiplicity of competing interpretive methods in fiqh is reflected in the fact that the four known legal schools arranged the five moral and legal regulations differently. The uniqueness of aÅ¡-Å Äá¹ibÄ«âs approach lies therein that his treatise on the five obligational norms does not follow any precedented classification. The first category of moral judgment aÅ¡-Å Äá¹ibÄ« discusses is the permitted; the four remaining categories are then analyzed equally in relation to the permitted as well as to each other. The order he adopts corresponds to his investigative method of analyzing the various obligational norms within the framework of a contrastive approach regarding their position towards maqÄá¹£id. This could be an interpretation of ar-RaysÅ«nÄ«âs question about this matter (NazÌ£ariyyat al-maqÄá¹£id Ê¿inda l-imaÌm aÅ¡-Å atÌ£ibiÌ, 182 f.). On the schematic representation of traditional classifications, see: Peter Antes et al. (ed.): Der Islam. Religion, Ethik und Politik (Stuttgart Berlin/Cologne: W. Kohlhammer, 1991), 67f.
Cf. aÅ¡-Å Äá¹ibÄ«, al-MuwÄfaqÄt, vol. 1, 94.
The literal interpretationâs moral-conservative conception of the commandment to marry is grounded on textual sources on sexuality and marriage. The anti-rationalist orthodox tradition has generally understood the Prophetâs (saws) statement on excessive asceticism differently. Thus, hadiths such as the following: âAccording to AbuÌ AyyuÌb: The Prophet (saws) said: the Messengerâs rules of behavior consist of four things: modesty, the use of perfumes, the toothpick and marriageâ (cf. Adel Theodor Khoury, Der HÌ£adiÌth. Urkunde der islamischen Tradition (Gütersloh, 2009), vol. 3, 20, Hadith no. 2902; YuÌsuf al-QaradÌ£aÌwiÌ, UmmatunaÌ bayna l-qarnayn (Cairo, 2002), 155â62). Modern scholars, on the other hand, differ in their assessment of the so-called sexual âperversionsâ associated with the forgoing of marriage, such as homosexuality or self-gratification (see: Antes et al., Der Islam. Religion, Ethik und Politik, ed., 78).
Through its differentiated view, aÅ¡-Å Äá¹ibÄ«âs approach offers an advantage compared to AbÅ« ǦarÄ«r aá¹-ṬabarÄ«âs (d. 310/923) interpretation of the marriage commandment by means of Q 5:89. Aá¹-ṬabarÄ« bases his interpretation on the following report by MuǧÄhid b. Ǧabrs: âSome people, among them Ê¿UṯmaÌn b. MaẓʿuÌn and Ê¿â AbdallaÌh b. Ê¿Umar, wanted to leave their wives, castrate themselves and wear coarse clothing. Then, this verse and the following verse were revealed.â (al-QaradÌ£aÌwiÌ, Erlaubtes und Verbotenes im Islam, 148f.).
Cf. aÅ¡-Å Äá¹ibÄ«, al-MuwÄfaqÄt, vol. 1, 94.
Cf. Antes, Der Islam. Religion, Ethik, Politik, 76.
Cf. al-QaradÌ£aÌwiÌ, Erlaubtes und Verbotenes im Islam, 173.
AbuÌ DaÌwuÌd, Sunan; cf. Khoury, Der HÌ£adiÌth. Urkunde der islamischen Tradition, vol. 3, 48, Hadith no. 3042.
Without going into concrete detail, aÅ¡-Å Äá¹ibÄ«âs interpretation of moral norms blurs all boundaries between men and women and makes the unequal of treatment of the sexes in marriage and inheritance law, of which Islam is accused, a minor matter. In all of this, it becomes clear that at the center of aÅ¡-Å Äá¹ibÄ«âs theological ethics stands the human being in its capacity, which characterizes its âergonâ in life, as a mukallaf (regarding the topic of equality between man and woman, cf. Zineb Miadi, âGleiche Rechte für Mann und Frauâ, in Menschenbilder Menschenrechte, ed., Stefan Batzli/Fridolin Kissling/Rudolf Zihlmann (Zurich, 1994): 89f.).
In the co-operation of faith and lawfulness in the pursuit of righteousness suggested by aÅ¡-Å Äá¹ibÄ«âs theological ethics, the antithesis of two traditions can be discerned: a Jewish tradition, in which justice is deontically characterized by the fulfillment of the divine law of creation, and a Christian Pauline tradition, in which righteous action, including, by the way, grace, springs from out of faith as a gift (cf. Erich Naab, âGerechtigkeit und Glaubeâ, in Theologie und Glaube 103/1 (2013): 1â3; Moses Vermächtnis, 23f.).
Q 84:6: âO Man! Thou art labouring unto thy Lord laboriously, and thou shalt encounter Him.â
In this context, the individualâs feeling of lack serves as an intermediate area between autonomy and heteronomy, which makes affectively clear the relationship between individual and community. Due to the feeling of lack, the selfâs responsibility towards the other cannot be justified in a purely deontic manner by the compulsion of the norm. From this process arises the individualâs obligation in Islam to care for the community and vice versa. The norm of care taking (takÄful), established in the Å¡ariÌÊ¿â a, goes hand in hand with the human beingâs original inclination to heteronomy. In the hadith, the innate dependence of humans on one another is the basic framework for cohesion. Thus, it is stated in one hadith that âBelievers are like solid masonry to one another, each part supports the otherâ (Al-BuḫÄrÄ«, á¹¢aḥīḥ al-BuḫÄrÄ«, vol. 3, 1232, Hadith no. 6095).
Cf. Ar-RaysÅ«nÄ«, Naáºariyyat al-maqÄṣīdÄ« Ê¿inda l-imÄm aÅ¡-Å aá¹ibÄ«, 181f.
Cf. TaqÄ« d-Din Aḥmad b. Taymiyya, MaǧmÅ« l-fatawÄ Ibn Taymiyya (Rabat, n.d.), vol. 20, 312f.; ibid., al-QawÄÊ¿id an-nÅ«rÄniyya, ed., Muḥmmad ibn Ê¿â Abd ar-RazÄq Ḥamza (Cairo, n.d.), 112f.; al-Qaraá¸ÄwÄ«, Erlaubtes und Verbotenes im Islam, 23f.
See also: Q 45:13 and Q 31:20.
Ibid., vol. 1, 104â5.
Cf. ibid., 89â92.
AÅ¡-Å Äá¹ibÄ« thus clearly rejects the positions of both the moral maximalists as well as the moral minimalists, shifting the discussion about the way in which the permitted is commanded to the level of a conceptual definition (ibid., 78â81).
This is a matter of a responsibility towards oneself located in the realm of human rights and the rights of God (cf. ibid., 81).
Marriage as a preventative against harlotry and fornication, which violated the maxims for the protection of the family (see: ibid., 82 and 91).
Cf. ibid, 90.
The umma only has a strong position vis-a-vis the individual as a fictional entity. Here, aÅ¡-Å Äá¹ibÄ« used a memorable phrase, according to which the omission of permitted acts is permissible on the part of the individual, but inadmissible on the part of the community: âif we assume that all individuals refrain from a permitted action, this would approximate refraining from a necessary obligationâ (ibid, 93). There are numerous points that speak against an interpretatively strict understanding of the law, according to which Islamic morality promotes the protection of the sphere of the individual less than it does the protection of the communityâs collective rights. (cf. Muhammad Fathi al-Dirini, âJustice in the Islamic shariÊ¿â aâ, in Justice and Human Rights in Islamic Law, ed., Gerald E. Lampe (Washington, 1977): 43f.).
Cf. aÅ¡-Å Äá¹ibÄ«, al-MuwÄfaqÄt, vol. 1, 81.
As Johannes Fischer writes, âIndividual ethics deals with the orientation of the individualâs life and action. This also includes the shared life and action of a community of individuals, in so far as the individual must also take responsibility for this. In contrast, social ethics reflects on the design of social structures in which humans live and actâ (Fischer, Theologische Ethik. Grundwissen und Orientierung, 57).
Ar-RaysÅ«nÄ«, NaáºariyyÄt al-maqÄṣīdÄ« Ê¿inda l-imÄm aÅ¡-Å aá¹ibÄ«, 90f.
Cf. Ibn Qayyimâs detailed treatise on this subject in his work: IÊ¿lÄm al-muwaqqÄ«Ê¿Ä«n an rabb al-Ê¿â ÄlamÄ«n, vol. 4, 535.
Here, according to aÅ¡-Å Äá¹ibÄ«, the permitted can also serve the realization of âa necessary, need-related or complementary ethical maximâ positively. (see: aÅ¡-Å Äá¹ibÄ«, al-MuwÄfaqÄt, vol. 1, 90).
AÅ¡-Å Äá¹ibÄ«âs approach forms the central thought of innovative impulses for the interpretation of some contemporary issues, such as the question of whether the use of media such as the internet, television or cinema is prohibited or permitted by the Islamic moral system or the extent to which one owes obedience to worldly authority, if it instrumentalizes divine prescriptions for its own ends. In Egypt, the following statement derived from the Islamic legal tradition, âAverting evil enjoys primacy over striving for the good,â was long considered a theological means of prohibiting popular revolts (cf. Nasr Hamid Abu Zaid, Islam und Politik. Kritik des religiösen Diskurses).
Cf. aÅ¡-Å Äá¹ibÄ«, al-MuwÄfaqÄt, vol. 1, 91f., though this thought appears in several places in his work, something which clearly points to an emphasis on the role of maqÄá¹£id in the formulation of aḥkÄm.
In this context, aÅ¡-Å Äá¹ibÄ« points to the meaning of divorceâs permissibility (see: ibid.).
Ibid., vol. 3, 173. For a detailed discussion of this topic, see: Mohammed Nekroumi, âKoraninterpretation im Kontext intentionalistischer Rechtstheorienâ, 166f.
AÅ¡-Å Äá¹ibÄ«, al-MuwÄfaqÄt, vol. 1, 93.
Cf. Q 2:256; Q 31:22.
Though it is true that Kant speaks of a fact only in relation to the consciousness one possesses of the capacity for self-legislation of the moral subject, this awareness is the only available access we have to the kind of synthetic relationship that autonomy establishes between freedom and the law. In this sense, the fact of reason is nothing other than our consciousness of this original connection, a consciousness that takes on the specific form of witnessing the âwhoâ in its moral dimension, in other words, the testimony of the practical status of the free will (cf. Paul Ricoeur, Soi-même comme un autre, 212).
Paul Ricoeur, Oneself as Another, 168.
A reminder: as explained in the first part of this study, self-respect refers to self-esteem from the perspective of its conformity to the norm, while self-esteem is understood as an ethical orientation of the self. In this study, self-esteem is subordinated to maqÄá¹£id and self-respect to aḥkÄm.
Cf. al-Ä azÄlÄ«, Islamische Ethik. Ãber Intention, reine Absicht und Wahrhaftigkeit, ed. and trans. Hans Bauer (Halle an der Saale: Verlag Max Niemeymer, 1916), 45â60. This statement is very reminiscent of the following well-known postulate of Kantâs in his Groundwork for the Metaphysics of Morals: âThere is no possibility of thinking anything at all in the world, or even out of it, which can be regarded as good without qualification, except a good willâ (Immanuel Kant, Grounding for the Metaphysics of Morals, 7).
Similar to: âThou shalt not kill,â âThou shalt not steal,â âThou shalt not lie,â âThou shalt not commit adultery,â etc.
Here, one should recall modern reflections on a concept of social action discursively related to the behavior of others and oriented towards it in its behavior (cf. Jürgen Kreft, âVom möglichen Umschlag sozialwissenschaftlicher Theorie in Praxis und Ontogenese. Ein Versuch über Kohlbergâ, in Kommunikation und Reflexion, ed., Wolfgang Kuhlmann and Dietrich Böhler (Frankfurt am Main: Suhrkamp, 1982), 574 and 563â90).
Under illocutionary act, the author of this book understands the evocative force of a statement that goes together with the intention of the speaker. The so-called illocutionary force can be directly or indirectly derived from the syntactic structure of a sentence. Nevertheless, the development of illocutionary force requires both linguistic and extra-linguistic factors relating to the context of the situation. âThe illocutionary act refers to the type of speech act that is being performed, this is, the function that the speaker intends to fulfill. The perlocutionary part, on the other hand, is the effect that an utterance could have on the hearer or addresseeâ (Yan Huang, Pragmatics (Oxford Textbook in Linguistics: 2014), 128). Cf. John Searle, Speech acts: an essay in the philosophy of language (Cambridge: Cambridge University Press, 1969).
Cf., on the theory of the speech act: John R. Searle, Speech Acts. An essay in the Philosophy of Language (Cambridge, 1969); for its application in Arabic, see: Mohammed Nekroumi, Interrogation, Polarité et Argumentation.
Robert Brunschvig proposes the term âvaleurs intermédiairesâ for these subcategories in order to designate prescriptive legal norms that can neither be fully integrated into the category of the prohibited nor the category of the permitted (cf. Brunschvig, Herméneutique normative dans le judaisme and dans lâIslam, 237â42).
Ibid., 237.
As an AÅ¡Ê¿â arite, aÅ¡-Å Äá¹ibÄ« held on to this definition.
Cf. AbÅ« l-BaqÄʾ al-KaffÄwÄ«, al-KulliyÄt. Muʿǧam fÄ« l-muá¹£á¹alaḥÄt wa-l-furÅ«q al-luÄ¡awiyya (Damascus, 1985), vol. 2, 220.
Ibid., vol. 2, 286. In AbÅ« l-BaqÄʾ al-KaffÄwÄ«âs encyclopaedia, one finds an obviously AÅ¡Ê¿â arite definition of ḫiá¹Äb, in which the concept of soul-speech plays a central role, while qaá¹£d is assigned a secondary role.
This distinction can, however, already be found in ancient philosophy. Porphyriosâ (d. 305 AD) theory of the tres orationes, or three types of discourse (written, oral and spiritual), was re-interpreted by uṣūl al-fiqh, which, however, understands writing (kitÄba) and, consequently, the text of ârevelationâ (kitÄb) as the expression of kalÄm lafáºÄ« (spoken word), which is, in turn, understood as the expression of kalÄm nafsÄ« (spiritual word) (cf. Pierre Larcher, âQuand en arabe, on parlait de lâarabe. III. Grammaire, Logique, Rhétorique, dans lâislam postclassiqueâ, in Arabica 39/3 (1992): 358â84). The particular meaning of recitation for the qurʾÄnic discourse cannot be compared to Porphyryâs quite normal oral speech.
AÅ¡-Å Äá¹ibÄ«âs statement equates the word kitÄb with the lawḥ maḥfūẠ(cf. aÅ¡-Å Äá¹ibÄ«, al-MuwÄfaqÄt, vol. 2, 61).
Cf. Mohammed Arkoun, Lectures du Coran (Paris, 1982), 27f.
Paul Ricoeur, Oneself as Another, 219.
At several points, the QurʾÄn indicates that it was revealed in Arabic (cf. Q 12:2; 13:37; 20:113; 42:7; 43:3; 44:12) and, above all, in a clear (mubÄ«n) Arabic (cf. Q 16:103; 39:195), so that the mukallafÅ«n (the obligated) could immediately understand the QurʾÄn (cf. Q 9:97; 41:3,44; 44:58). In this context, several contemporary works on this controversial topic of discussion may be mentioned, such as: Christoph Luxenberg, Die Syro-aramäische Lesart des Korans. Ein Beitrag zur Entschlüsselung der Koransprache (Berlin, 2000); Claude Gilliot, âZur Herkunft der Gewährmänner der Prophetenâ, in Die dunklen Anfänge. Neue Forschungen zur Entstehung und frühen Geschichte des Islam, ed., K.H. Ohlig/G.-R. Puin (Berlin, 2005): 148â78; ibid., âLes âinformateursâ juifs et chrétiens de MuhÌ£ammad. Reprise dâun problème traité par Aloys Sprenger et Theodor Nöldekeâ, in JSAI 84/22 (1998): 84â126; Rainer Voigt, âAkkadisch summa âwennâ und die Konditionalpartikeln des Westsemitischen. Vom Alten Orient zum Alten Testamentâ, in Festschrift für Wolfram Freiherrn von Soden, ed., M. Dietrich/W. Röllig (Neukirchen-Vluyn, 1995): 517â28; ibid.: âDie Präpositionen im Semitischen. Ãber Morphologisierungsprozesse im Semitischenâ, in Tradition and Innovation. Norm and Deviation in Arabic and Semitic Linguistics, ed., Lutz Edzard/Mohammed Nekroumi (Wiesbaden, 1999): 22â43. These have, however, hardly produced any further findings with regard to the linguistic phenomenon of loaned words in the qurʾÄnic language than those already formulated in the older works of Theodor Nöldecke (Zur Grammatik des klassischen Arabisch (Vienna, 1896); Alphonse Mingana:, âSyriac Influence on the Style of the QurʾÄnâ, in Bulletin of the John Rylands Library Manchester 11 (1927): 77â98). The simple reason for this is that modern Arabists and Semitists hardly let themselves be inspired by the new approaches to theories of linguistic transformation or naturalistic theories developed in linguistics since the beginning of the 19th century, from Roman Jakobson, La charpente phonique du langage (Paris, 1980), up to Wolfgang U. Wurzel (âAdaptionsregeln und heterogene Sprachsystemeâ, in Phonologica 1976 Akten der dritten Internationalen Phonologie-Tagung, ed., Wolfgang U. Dressler/Oskar E. Pfeiffer. (Vienna, 1976): 175â82; Robert-Alain Beaugrande and Wolfgang U. Dressler, Introduction to Textlinguistics (Tübingen, 1982).).
AÅ¡-Å Äá¹ibÄ«, al-MuwÄfaqÄt, vol. 2, 49.
Here, the term âhearerâ refers to anyone who perceives the QurʾÄn acoustically, regardless of whether they feel themselves addressed, as, for instance, Christians and Jews in the Meccan society at the time of the divine communicationâs being sent down.
Ibid., 49.
Ibid., 50.
Cf. ibid., 52f.
Alasdair MacIntyreâs argument is based on the idea that communities have always been trapped in traditions, such that rational consideration of moral issues in no way excludes a valueâs relation to tradition (After Virtue, 394).
Cf. Jan Assmann, âKollektives Gedächtnis und kulturelle Identitätâ, in Kultur und Gedächtnis, ed., ibid./Tonio Hölscher (Frankfurt, 1988): 9â19.
Cf. Matthias Blum, âVon der âVerwerfungâ Israels zur âbleibenden Erwählungâ? Aktuelle kontroverstheologische Sichtweisen zum Verhältnis Kirche und Israelâ, in Kirche und Umma. Glaubensgemeinschaft in Christentum und Islam, ed., Hansjörg Schmid et al. (Regensburg, 2014): 151â59.
Cf. Graf, Moses Vermächtnis, 23f.