1.1 Object of Study
1.1.1 Locating the Question of Ethics in Islamic Theology
Amidst the lively discussion surrounding Islamic ethics, one hardly finds studies that engage, either epistemologically or in terms of intellectual history, with the change in meaning of the normative concept of the šarīʿa throughout diverse epochs of Islamic intellectual history from a hermeneutic perspective. The modern debate about the meaning and concerns of the šarīʿa concept was triggered by the question of divine commandments’ and bans’ permanence and universal validity. Thus, since the beginning of the 20th century, the maqāṣid theory has been the object of increasing interest among Islamic theologians. The Arabic word maqāṣid means “goals” and, in this case, it refers explicitly to the goals of the šarīʿa or the intentions of the lawmaker, understood in rational theology as the comprehensible expression of the divine will.
The leading figures of the Islamic reform movement such as Muḥammad ʿAbduh, Muḥammad aṭ-Ṭāhir b. ʿĀšūr, or Muḥammad ʿAllāl al-Fāsī, to name just a few, were genuinely convinced that the Qurʾān’s ethical instructions, systematized by Islamic legal methods, represented a solid foundation for a theologically-grounded and modern interpretation of the šarīʿa’s sources.1 Up until now, the understanding of Islamic ethics in the context of post-modernity and in connection to moral-theological and social-ethical life questions has only been mentioned in scattered contributions that lack both scientific continuity and theological grounding. Noteworthy suggestions for an ethically oriented šarīʿa can be divided into two categories.
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a) Individual essays: these include, among others, studies by Kevin Reinhardt,2 Werner Zager3 and Norman Calder.4
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b) Monographs: these include the foundational studies by Muhammad Khalid Masud,5 Bernard G. Weiss,6 Wael B. Hallaq,7 Mohammed Arkoun,8 Ahmad ar-Raysuni9 and Nasr Hamid Abu Zaid.10
Older works about Islamic law such as those by Tilman Nagel,11 Joseph Schacht12 and Harald Motzki13 approach the subject matter in a more historical manner and offer a minimal theoretical and methodological framework concerning the main question of the Islamic way of life in light of revelation. Thus, despite the increasing interest in a modern definition of an Islamic ethos, there is no comprehensive study about Islamic ethics or moral theory with a persuasive methodology. Though legal theorists view ‘the orders of creation’ as the key concept of the šarīʿa and locate it immediately within the field of moral legality or communal order, only some aspects have been constructed thus far, of a theological ethics14 that poses fundamental questions about the essence and orientation of the lex dei (šarʿ Allāh) as the unifying locus of all justification of laws, from natural laws to logical laws to moral or ethical law-making.15 Contemporary studies about the essence and concerns of Islamic ethics as a central aspect of šarīʿa have been profoundly shaped by such definitional questions and the accompanying epistemological debates. What interests us most here is the categorization of moral norms and ethical value judgments. Understanding fiqh (the Islamic doctrine of norms) as the scientific discipline, “which has as its object the claims faith makes on what is moral life”,16 emphasizes the perpetual transformation of this discipline throughout its developmental history from a “doctrine of norms” to a “cognitive process”.
In the discussion about Islamic ethics, the proximity of law-making and moral value judgment remains a problem. For the Moroccan thinker Muḥammad ʿĀbid al-Ǧābirī, Greek-inspired “ethics” corresponded to the Islamic theological sub-discipline of ʿilm al-aḫlāq (the doctrine of virtues)17 which, despite the important works that engaged with it, was unable to establish itself as an independent discipline. ʿIlm uṣūl al-fiqh cannot be considered equivalent to ʿilm al-aḫlāq, because, since the 3rd/9th century, the latter has developed into a purely normative science whose main concern is working out ethical categories such as freedom, responsibility, and virtue in a fixed system of concrete legal definitions and norms.18
The question of the šarīʿa’s ethical implication and its rational justification remains both theologically as well as socio-ethically and socio-politically relevant to this day. Since the end of the 13th/19th century, the critique of the šarīʿa’s supposedly anachronistic penal and private law is part of the Islamic ethics debate, along with objections that ʿilm uṣūl al-fiqh leaves hardly any room for the basic principles of ʿilm al-aḫlāq and that the difference between the divine and the worldly or the sinful and that which is legally punishable cannot always be clearly discerned at a rational level. For this reason, al-Ǧābirī claims that the demand for a redefinition of the scope of the šarʿ Allāh’s and a reorientation of the moral-ethical interpretation of the Qurʾān could be justified from the perspective of a rational capacity for ordering.19
However, at least as far as the Islamic tradition is concerned, this question is not new. It can be found in the rational theology20 of the late-classical period, as al-Ǧābirī argues, which is why he characterizes ethics as an interdisciplinary field of study present in all theological fields, from exegesis to fiqh, philosophy and mysticism.
Islamic rational theology has tried to place moral-theological ideas in relation to rational thought in order to build hermeneutic bridges between faith and knowledge on the one hand and religious and worldly ethos on the other. While Islamic legal theory was aimed at ordering human activity by proceeding from the tenets of faith, both rational theology and mysticism contributed to a basic understanding of the relationship between faith and reason through their search for the “truly” good and the process of its interaction with ʿilm al-aḫlāq.21
According to al-Ǧābirī, since a proper knowledge of faith (ʿirfān) cannot forego reason (burhān), ʿilm uṣūl al-fiqh and ʿilm al-aḫlāq cannot replace one another, but can, rather, only complement each other. Thus, drawing upon the achievements of all theological disciplines, he calls for the development of an independent Islamic ethics that, in addition to the doctrine of virtues, would also encompass ʿilm uṣūl al-fiqh and the practical doctrine of norms while considering questions particular to modernity. This requires locating theological ethics in the context of rationality and science. According to al-Ǧābirī, such an attempt can only be successful if traditional rational theology is revived and burhān, which has been overshadowed by the more predominant concept of ʿirfān, thereby rehabilitated.
According to al-Ǧābirī, the culture at the age of Islamic Enlightenment was predominantly characterized by its rationality, especially during the time of Ibn Rušd (lat. Averroes, d. 595/1198), who ascribed it the function of ordering all theological reflection. Its argumentative potential came from the basic maxim of ethical judgment making that grasped the moral as a matter of knowledge and faith. When grappling with reason and revelation in the attempt to reach an ethical-theological conclusion, al-Ǧābirī saw Ibn Rušd’s ethical thought as the crowning achievement of a genealogical development of the philosophical reflection concerning the relationship between ʿirfān and burhān as well as the relationship between the situating and justification of the moral.22
Ethical judgment should, thus, be seen as the product of methodical consideration of the question of the truly good in which the process of self-explication, brought about by the synergy of belief and reason, is set in motion as the basic condition of ethical judgment. The central question of al-Ǧābirī’s epistemological project, which was also an important stimulus for this work, is: how can one historically and theologically explain why, after a certain point in time, ʿilm uṣūl al-fiqh distanced itself, as a belief-oriented understanding of morality, from ʿilm al-aḫlāq, as a rationally developed doctrine of virtues won from the sources of revelation, in such a manner that an insurmountable division arose between the two disciplines and a particular image of šarīʿa as a rigid normative doctrine, emphatically deontological and not theological in character, came to dominate discourse?
The following study wants to answer this question by trying to develop a concept of practical ethics oriented towards the intention of revelation from out of Islam’s overwhelming plethora of ethical approaches against the background of an interdisciplinary rereading of aš-Šāṭibī’s theory of maqāṣid, based on his monumental work al-Muwāfaqāt. Drawing on al-Ǧābirī and proceeding from late-Islamic legal theory using the example of aš-Šāṭibī’s theory of maqāṣid, this study presents categories of a theological ethics from the perspective of an Islamic doctrine of norms with the intention of bringing ʿilm uṣūl al-fiqh and ʿilm al-aḫlāq epistemologically closer to one another and us closer to an important goal of contemporary Islamic theology, namely, the foundation of Islamic theological ethics as an independent discipline.
1.1.2 Controversies in the Islamic Ethics Debate
There are two opposed tendencies in the current ethics debate within Islamic-theological discourse. On the one hand, a series of modern, rational-theologically oriented thinkers, including al-Ǧābirī and his work, al-ʿaql al-aḫlaqī l-ʿarabī, have made clear that, in contrast to other studies like grammar, morphology, rhetoric, normative doctrine and its methodology, as well as hadith studies and related disciplines of transmission criticism, logic and rational theology, Islamic ethics cannot be seen as independent in the system of Arabic-Islamic sciences and history.23 On the other hand, some contemporary scholars who active in the field of legal theory emphasize that the relationship between ethics and legal theory is distinguished by the proximity of the two, the influence of which is historically, genealogically and methodologically indispensable for a development of moral thought in Islam.24
As the representative of a rational theology with affinities to as Ašʿaritic thought, the contemporary Moroccan scholar Ṭaha ʿAbd ar-Raḥmān contradicts al-Ǧābirī’s claim that Islamic ethics cannot be subordinated as a sub-discipline to any of the traditional sciences. According to ʿAbd ar-Raḥmān, two facts suggest that a certain system of moral thought’s substantive foundations was already present in Islam in ʿilm uṣūl al-fiqh: firstly, the undisputed connection between šarīʿa and ʿilm al-aḫlāq and, secondly, the fact that Islamic ethics is particular in its form and derivation.25
According to ʿAbd ar-Raḥmān, the relationship between theological disciplines and ʿilm al-aḫlāq was charged and the latter sometimes overlapped with the former, especially with rational theology and the methodology of normative doctrine.26 This mixture, however, was advantageous for normative doctrine because it connected it to a practical, active philosophy and made it more than a mere object of theoretical reflection of value judgments. Ethics was connected to practical behavior, which is why there is neither a commandment nor a ban in the šarīʿa that does not profit the ethical. “The šarīʿa is charged with the task of completing, on the one hand, the doctrine of norms and, on the other hand, ethics.”27
Since the derivation and goal of a norm is nothing other than ethics itself, according to ʿAbd ar-Raḥmān, ʿilm uṣūl al-fiqh deserves to be referred to as a “methodology or theory of ethics” instead of a “methodology or normative doctrine or legal theory”. It is, he claims, undisputed that ethics is the crux of ʿilm uṣūl al-fiqh, which is why ethical categories from the focus of individual branches of practical judgment making are comprehensively involved in the process of deriving norms.28
However, Abd ar-Rahman’s point of view should not be understood as a counter argument to al-Ǧābirī’s thesis on the difficult relationship between ʿilm uṣūl al-fiqh and ʿilm al-aḫlāq. Rather, al-Ǧābirī had already suggested the idea of a methodological mixture or entanglement of šarīʿa and ʿilm al-aḫlāq in his early writings on ethics, in which he emphasized that virtue stands at the centre of the Qurʾān and that its core message is ethical:
I don’t think people back then differentiated between normative verses and virtuous verses. For, in the Qurʾān, everything is related to norms and everything is related to the virtues. This mixing, indeed, this unity of aḥkām and aḫlāq in the Qurʾān is probably the reason that moved the scholars to see in normative doctrine, the study of the hadith and in methodology a religious knowledge that encompassed moral norms and ethical principles. As a result, it was not necessary to deal separately with the discipline of ethics or, as it was called in later epochs, the ‘ethics of the Qurʾān’. In truth, the Qurʾān is a book of ethics.29
About 20 years later, al-Ǧābirī explained his view more precisely, differentiating two phases in the development of the relationship between ʿilm uṣūl al-fiqh and ʿilm al-aḫlāq, namely, a pre- and a post-textualization phase. According to al-Ǧābirī, after a change in moral principles with a certain relevance attributed to the power struggles and resource distribution during the Umayyad dynasty, a process began in which the moral norm detached from ethical orientation. This separation progressed quickly since the šarīʿa’s moral principles were not rooted in humans’ souls and thus incapable of functioning as the foundation for ethical identity.30
In contrast, ʿAbd ar-Raḥmān’s view regarding the acknowledgment of ʿilm uṣūl al-fiqh’s scientific-theoretical independence from ʿilm al-aḫlāq, is distinguished by a certain ambiguity, since, while this discipline’s thematic foci display a proximity to normative doctrine, it cannot avoid having the character of a general theoretical consideration of value judgments. ʿAbd ar-Raḥmān, nevertheless, stands by the hypothesis that, because ʿilm uṣūl al-fiqh and the šarīʿa’s normative system contain fundamental elements of ethical judgment making, they are the best candidates for the embodiment of a comprehensive ethics. Yet, certain questions remain. What is the reason for, what al-Ǧābirī refers to as the “emptiness” of traditional Islamic ethics, and to what extent can classical legal theory act as a source for deriving modern ethical reflection? The last question serves as a backdrop for this study and is among the reasons why aš-Šāṭibī’s maqāṣid theory, as a reception of traditional legal theory with a broader understanding of faith and reason, is given priority over other theological-ethical approaches.
1.1.3 The Ethics of Excellence and the Question of the Greek Legacy’s Interpretation
A study of ethics, as one can find in modern Latin or Anglo-Saxon sources, is, according to al-Ǧābirī, only rudimentarily present in the Islamic-theological legacy. Exceptions to this are writings by Miskawayh, Ibn Abī Uṣaybiʿa (d. 668/1270), Ibn Bāǧǧa, ar-Rāġib al-Iṣfahānī (d. after 409/1018), al-Māwardī (d. 450/1058), al-Ġazālī, and few others. Al-Ǧābirī argues that the Islamic reception of Greek ethics was, seen initially in Islam as the acquisition of foreign legacy, marred from the start since the traditional Islamic theology lacked a moral theory of its own, which was also a cause of a heated discussion.31
The Islamic rereading of Greek ethics as an “ethics of happiness”,32 which primarily took place in the sub-discipline of virtue theory, was constantly dominated by a universal discussion of values. As al-Ǧābirī sees it, the rereading is situated between a Persian legacy, representative of ethical obedience, an Arab legacy, representative of ethical virtues and a mystical legacy, representative of ethical transience, and it prevented the elaboration of ethics as an independent discipline. When it comes to the Islamic legacy originating from the Qurʾān, it had almost no effect on the formation of an Arab-Islamic theory of ethics during the classical age.
According to Al-Ǧābirī, the minimal influence of the Islamic tradition is reflected in the fact that ethics did not develop into an independent discipline in the methodology of practice-oriented fiqh-scholars who attributed to those parts of the šarīʿa occupied with ethical behavior only a superficial role, such that they were never included in normative doctrine. Characterized by their sparse contents, the ethical fields of early fiqh-studies were limited to psycho-social aspects and hardly systematized in the accompanying sub-disciplines. Fundamentally, the need to Islamize Greek ethics can be traced back to the challenges posed by various cultures’ coexistence in Islamic societies, which promoted the formation of a community of values and thus necessitated the development of Islamic ethics.
The confrontation with Greek ethics, which reached its highpoint with the translation of Aristotle’s monumental Nicomachean Ethics, is indented to al-Ǧābirī for the explication of some of its ethical concepts, including specialized terms such as “ethical conscience” (al-qalb), the roots of which can be traced back to the 3rd/9th century. Here, we should mention the theologian and mystic al-Ḥāriṯ al-Muḥāsibī (d. 243/857), who spoke of an “ethical feeling” and of the “heart” in the sense of conscience.33 The same is true for the so-called “theory of the middle”, which was widespread in the 5th/11th century, and which defined virtue as the middle between two evils. Calling upon Aristotle’s theory of mesotes, al-Ġazālī argued in Iḥyāʾ ʿulūm ad-dīn, that “[t]he praiseworthy lies in the middle and it the virtuous, while the edges are condemned depravity […] The middle is distinguished by the name of wisdom, the foundation of ethics, and its roots can be divided into four characteristics: wisdom, courage, rectitude and justice.”34
The impulse for practical rationality that arose from the tension between different value systems among Muslims, depending on their respective culture, led Muslim ethicists to draw upon the Greek tradition and especially Galen’s legacy, whose definition of ethics served as the foundation for almost all well-known Islamic works on ethics.35
For most Muslim ethicists, it is undisputed that an Islamic re-reading of Greek ethics took place, yet the use of Hellenistic concepts in Islamic categories has occasionally been the cause of heated controversies, like that surrounding the association of Greek ethics with the Islamic doctrine of virtues. This association contradicted the hierarchy of the general and the specific in so far as the Islamic doctrine of virtues occupied itself exclusively with those rules of moral behavior which, in contrast to the necessary norms of fiqh, were more optional in nature. Hence, for some time, the Islamic doctrine of virtues was dominated by the idea that ethical action was merely the performance of consummate or noble actions (faḍāʾil, sing. faḍīla). Nonetheless, if one follows the Greek understanding of the concept, namely that of an orientation towards the good life, the actual meaning of the concept of faḍīla which established itself through tradition in the sense of “noble or excellent behavior” reveals a theoretical paradox in the definition of ethics that has hardly been resolved. In the word faḍīla echoes the original semantic content of the word’s root, f-ḍ-l, meaning “excess” or “overflow”, which suggests that faḍīla was a matter of “excessive” or “extraordinary” behavior. As ʿAbd ar-Raḥmān has rightly noted about this, “[t]he praiseworthy lies in the middle and it the virtuous, while the edges are condemned depravity […] The middle is distinguished by the name of wisdom, the foundation of ethics, and its roots can be divided into four characteristics: wisdom, courage, rectitude and justice.”36 Yet, it is also clear that ethics is to be considered indispensable for human life.
Expressed here is a further central aspect of Islamic moral thought which had a significant influence on the focus of this study. The method of moral judgment making, often used by the fuqahāʾ (jurists) who supported the limitation of ʿilm al-aḫlāq to exemplary actions, was instrumental in the exclusion of legal theory from the ethics discourse. Nothing in the etymology of the term or in history demanded the differentiation between ʿilm uṣūl al-fiqh and ʿilm al-aḫlāq made by the fuqahāʾ. Moreover, the main questions of theological ethics were always a central part of legal theory and rational theology. Maqāṣid theory embodied the highpoint of collaboration between legal theory and moral philosophy, in which ethics’ principles became the standard for ethical orientation’s cornerstone in fiqh-studies, namely, the “common good”. To support this hypothesis, ʿAbd ar-Raḥmān invoked the Prophetic hadith: “I was sent, to consummate the virtues”,37 to elucidate that the Prophet (saws) was sent not only for the sake of completeness, which does not seem to be absolutely necessary, but rather for the essential matter of constructing the ethical self, one of šarīʿa’s essential goals.
The arguments for a necessary distinction between legal theory and ethics mentioned thus far are of great importance for the question at hand: the ambivalence of the concept of aḫlāq, the methodological incompleteness of the Islamic theory of ethics, the mixing of Arabic and Greek traditions, as well as the inclusion of ethical maxims in the teleology and deontology dialectics. Yet, these arguments do not negate the importance of bringing ethics and legal theory closer to one another. Rather, these counterarguments are only relevant for a limited understanding of legal theory, namely, one which reduces the task of ʿilm uṣūl al-fiqh to the derivation of normative obligations.
1.2 Basic Epistemological Questions
1.2.1 The Ethical Roots of Islamic Legal Theory: Its Origin in the Conflict of Interpretations
The discipline of uṣūl al-fiqh was originally developed as an introduction to the “science of differences of opinion regarding law” (fiqh al-ḫilāf), at the center of which stood the discussion of the relationship between the obligatory character and ethical orientation of revelation. The discipline of uṣūl al-fiqh was thus destined to further develop legal doctrine in individual legal schools in such a way that its role was often unjustly limited to orientating and directing interpretive differences in legal sources. However, at the beginning of the 5th/11th century, arose a “science of legal polemics or legal dialectics” (ʿilm al-ǧadal) which occupied itself, alongside the science of uṣūl al-fiqh, primarily with the discussion of controversial derivations of norms. Though ʿilm al-ǧadal discussed the same questions as ʿilm uṣūl al-fiqh, it did so only from a purely methodological perspective. Thus, the question of deriving norms was, on the one hand, approached from the perspective of dialectics and, on the other, from that of an argumentation without any connection to the community’s lived reality.
With its methodologically anchored recourse to a rhetorical understanding of the derivation of norms, which placed great value on paying attention to the context and situation when interpreting revelation, the science of uṣūl al-fiqh distinguished itself as a comprehensive specialized discipline, within the context of which ʿilm al-ǧadal tended to be assigned the role of an analytic apparatus.38 Ibn al-Qaṣṣār (d. 397/1006), for example, begins his work on fiqh al-ḫilāf with an introduction to ʿilm al-ǧadal, while al-Ǧuwaynī (d. 478/1085) devotes the majority of the results of his dialectical analysis of the processes of analogy and justification (taqāsīm al-ʿilalwa-iǧrāʾ al-aqyisa)39 in his treatise al-Qiyās, which is an important part of al-Burhān, to clarifying the relationship between textual interpretation and the context of day-to-day life.40
The confrontation with this analytic apparatus called forth a reflection about the truthfulness and moral value of action, which brought with it a theoretical examination of the relationship between intention and the cause of revelation.41
Thus, al-Ǧuwaynī outlined the innovative concept of a five-part categorization of the motives and intentions of revelation (ʿilal and maqāṣid)42 in which the criteria and borders of analogical conclusion when deriving theological norms are revealed. These considerations laid the cornerstone for including the ethical implication in moral-theological judgment making.
Between fiqh as positive theological law limited to questions of ritual practice, and ʿilm al-ǧadal as a purely methodological discipline focused primarily on questions of argumentation, beginning in the 4th/10th century, the science of uṣūl al-fiqh was located in the field of ethics, due to its ability to connect revelation and lived reality. Determining the relationship between text-based derivation of norms from the Qurʾān and hadiths as well as hermeneutic reflection about theological-ethical judgment making, only became the crux of uṣūl al-fiqh beginning in the 5th/11th century thanks to kalām studies’ influence on fiqh.
In the course of the discussion on the meaning of rational value judgments (good and evil) in the process of deriving norms from the Qurʾān, al-Ġazālī and aš-Širazi both drew upon the rational-theological treatises of the famed universal scholar al-Bāqillānī (d. 403/1013), thus leading elements of philosophical ethics to flow into theological-hermeneutic argumentation on morality and ethics, beginning in the early 5th/11th century.43
Although a convinced Ašʿarite, al-Bāqillānī was a supporter of the raʾy-approach, in which reason was given primacy over revelation.44 Hence, his treatises have a deep, hermeneutic and textually analytic character, in which neither theological ethical concepts, including the theory of intention, nor principles of practical morality are included.45 His linguistic competence and profound rhetoric added to his analyses of the Qurʾān a literary aspect, the influence of which lasted long beyond the 5th/11th century.
The reservations that rational theologians had when discussing concepts of practical morality can be due to the fact that the relationship between legal theory and rational theology was understood as an interdisciplinary one. The path taken by legal scholars (ṭarīqat al-fuqahāʾ) was characterized by a speculative understanding of reason, whereas in the approach of rational theologians (ṭarīqat al-mutakallimīn), reason was merely a methodological level of reflection.46
Although the connection between ʿilm uṣūl al-fiqh and fiqh was never debated, ʿilm uṣūl al-fiqh split into two traditions shortly after al-Bāqillānī’s death: on the one hand, jurists who used the contents of rational theology and philosophical ethics in order to define theoretical principles of ethical judgment making by way of recourse to reason and faith and, on the other hand, a practically oriented legal methodology, whose supporters began with the foundations of dogma in order to arrive at a contextual derivation of norms.
The latter, the fuqahāʾ, maintained the relationship between legal theory and positive law and could thus provide every theoretical principle with a purely legal explication. The argumentative power of this scientific definition of uṣūl al-fiqh in the 5th/11th century becomes understandable when one compares, for example, the Hanafite Abū l-Yusr al-Bazdawī’s (d. 493/1100) work Kitāb maʿrifat al-ḥuǧaǧ aš-šarʿiyya with al-Ġazālī’s work al-Mustaṣfā. It may be assumed that the founder of the “path of rational theologians” recognized ʿilm uṣūl al-fiqh’s important role in the field of qurʾānic studies and was successful in his attempt to expand the horizons of this discipline beyond the limits of legal and moral norms (al-aḥkām aš-šarʿiyya), when reflecting upon the theory of “principles of making legal decisions”. This was a matter of content-related, methodological, but also political motivations, since the establishment of the “way of rational theologians” was intended to weaken highly politically influential jurists. The ʿilm uṣūl al-fiqh and its teachings as such were means to ensure and strengthen the jurists’ rule over the community. Whoever was not a jurist (fuqahāʾ muǧtahidūn) was excluded from the group whose unanimous opinions about a given question were, thanks to iǧmāʿ’s status as a source, binding for all successive generations.
Rational theologians hoped that their use of ʿilm uṣūl al-fiqh would also grant them the powerful title of muǧtahidūn, which would allow them to be included into the group of the ahl al-ḥall wa-l-ʿaqd (the group of those who had the power to institutionally enforce a proposed law’s confirmation or a challenge to it).47 They were able to achieve this goal by calling the concrete fiqh practice by a muǧtahid absurd. As they understood it, a muǧtahid was a scholar who was particularly qualified because he used the scientific methods of uṣūl al-fiqh to justify legal principles in accordance with the text of the revelation and not to question the already completed derivation of a given norm. The rational theologians, for their part, wanted to know how one could confirm that a deep knowledge of the object of inquiry alone would allow a judgment about the quality of a muǧtahid. For, this would mean that rational judgment making (iǧtihad) was neither more nor less than the search for something already known, which, in turn, would contradict the true essence of rationally oriented moral judgment making. Consequently, for rational theologians it was impossible to have both the muǧtahidūn’s derivations, as well as fiqh knowledge in general as part of the “instrument of iǧtihād” (ālat al-iǧtihād). According to the postulates of rational theology, a methodologically conceivable definition of iǧtihād could only be possible if the methodology of ʿilm uṣūl al-fiqh was strictly distinguished from the fiqh’s normative doctrine in such a way as to ensure a critical approach to the cognitive framework of practical law and a rational confrontation with its theological-ethical foundations.
Even though Ibn Ḫaldūn depicted the “path of the jurist” and the “path of the rational theologian” as if they differed only in their approach, rational theologians were interested in restructuring and defining the discipline of normative doctrine. If rational theologians “unveiled” the form of fiqh’s questions, then they did so not to better formalize it, but rather to liberate ʿilm uṣūl al-fiqh from fiqh. Jurists, with good arguments and experience in dialectics, did not take long to respond.48
The division between jurists and rational theologians also spread to other parts of the discussion regarding uṣūl al-fiqh. However, jurists stuck to their traditional, text-bound theoretical principles and methods for understanding law and claimed universal validity of these principles even for the field of rational theology. The Ašʿarites also devoted considerable thought to this during the time of al-Bāqillānī when the border between rational and juristic patterns of thought was still fluid and attempts were made to justify the derivation of norms rationally, ethically, and theologically. Aware of the danger of absolutizing a context-bound system of norms derived by humans, al-Bāqillānī expressed his support for a rational justification of theological moral and legal norms, although his contemporaries viewed the development described with great concern. The main reason for such concerns was that jurists had begun, through the development of qurʾānic lexicology, to observe more frequently that legal concepts or “juristic termini” (al-asmāʾ aš-šarʿiyya) were ambiguous lexemes, the juristic meaning of which was derived from, on the one hand, their general theological usage in the Qurʾān and, on the other, their conventional linguistic meaning.
Two points clearly show the rational theologians’ intervention in the field of uṣūl al-fiqh. The first point is that they disliked the jurists’ dominance in this field because they found their application and method inadequate. Secondly, the topics that interested them in scientific discussions were by no means purely juristic in nature, something which led, in turn, to theological tensions. In this context, it is important to mention al-Ǧuwaynī’s al-Burhān once again, which leaves no doubt that the jurists’ way is false and that of the rational theologians right. Thus, his reaction to the Muʿtazilite al-Kaʿbi’s (d. 319/931) rejection of what is permitted by šarīʿa was that “Whoever does not perceive the role of [ethical] intention (maqāṣid) for [the derivation of] commandments and bans, cannot have a clear insight in questions of the šarīʿa.”49
The discussion between rational theologians and legal scholars concerning value judgments was based on the controversy surrounding the very concept of theological ethics, which raised the question of divine commandments’ rational justification. Because of this idea of a justification founded upon rationally discerned ethical maxims, al-Ǧuwaynī attempted to differentiate between rationally conceivable and profanely unjustifiable theological judgment-making (aḥkām) processes.50 He divided all laws and prescriptions of the šarīʿa according to their intention into five categories:51
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a) laws connected to fundamental and necessary goals (ḍarūrāt) – for example, the punishment of murderers (qiṣāṣ; lit. retaliation), which can be justified by the necessity to protect the lives of innocent third parties by means of deterrence (ḥifẓ ad-dimāʾ al-maʿṣūma).
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b) laws related to the common good (maṣlaḥa), which do not reach the level of a necessary goal, as, for instance, interpersonal relationships in the context of social interaction.52
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c) laws related neither to necessary nor to charitable matters, but rather connected to striving for good behavior, like ritual washing, keeping oneself clean, and rejecting what is bad.53
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d) laws related neither to a need nor a necessity, but rather to good deeds not expressly commanded in the šarīʿa i.e., the optional ones.54
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e) laws which have no justification in the šarīʿa, and which bear no recognizable ethical intention. However, since all šarīʿa laws must be assumed to have comprehensible ethical goals, this category is extremely limited, especially given that, according to šarīʿa, rituals and prayers can also be ascribed clear, ethical goals, such as the preservation of human decency (cf. Q 29:45). Thus, this category consists only of individual, detailed rules regarding rituals, such as the form of the movements and the number of times one kneels while praying (ṣalāt) as well as the establishment of Ramadan as the only month of fasting, which can hardly be categorized as serving a rational goal.55
Looking at these categories, it becomes clear that al-Ǧuwaynī’s understanding of the law-giver’s intention served as the theoretical foundation for the three categories of ethical intention later developed in legal theory, namely, ḍarūriyyāt (necessary ethical maxims), ḥāğiyyāt (need-related ethical maxims) and taḥsīniyyāt (welfare-oriented ethical maxims). Moreover, it was his concept of ad-ḍarūriyyāt al-kubra (fundamental ethical maxims) that served as the background for determining ethical judgment’s main goal, and which was considered indispensable for the process of deriving norms in post-classical legal theory. Thanks to al-Ġazālī’s al-Mustaṣfā in particular, the five ethical maxims (ad-ḍarūriyyāt al-ẖams)56 had, since the standardization phase, been considered a central part, i.e., the cornerstone of rationally oriented derivation of norms, as, for example, in the case of the ahl ar-raʾy (supporter’s [reason-based] opinion). The innovative character of al-Ġazālī’s work is not only a product of his exceptional attempt at systematization, but also reveals itself in the ethical-theological relationship created between maqāṣid and maṣāliḥ (human interests/common good; sing. maṣlaḥa). What is remarkable about this is al-Ġazālī’s classification of human interests according to their degree of importance or definiteness, which, based on their position in the tripartite list of priorities defined above, served as the background for the hierarchy of maṣāliḥ: necessary maxims (ḍarūriyyāt), need-related maxims (ḥāğiyyāt) and welfare-oriented maxims (taḥsīniyyāt).57
1.2.2 The Question of Ethics in Light of the Theory of maqāṣid: šarīʿa, fiqh, aḫlāq
Shaped by the spirit of the fruitful early-Islamic discussion between rational theologians and jurists about the essence of divine law, aš-Šāṭibī’s legacy can be seen as the crowning achievement of a tradition that made the daring attempt to bring the doctrine of norms and theological ethics closer to one another. One of the most important characteristics of aš-Šāṭibī’s theory of maqāṣid is the basic idea that the concept of šarīʿa can, in the most comprehensive sense of the term, be reread in the sense of ʿilm al-aḫlāq. This equivocation rests not only upon the rich Islamic tradition of teachings of virtue, but also upon the definition already worked out by the rational theology of the day, which stated that the concerns of theological ethics lie in its occupation “with the moral orientation of life and action of a particular human community [of faith].”58 In the šarīʿa, one can also identify the quality attributed by al-Ǧābirī to the term ʿilm al-aḫlāq, i.e., that of being a component within the framework of its public function in the rationally oriented discussion about moral and legal-ethical questions. According to the broadly defined concept of šarīʿa as “theological ethics”, al-aḫlāq could be regarded as a sub-discipline of the šarīʿa, whose field of responsibility could be described as general ethical orientation, especially since, according to al-Ǧābirī, ʿilm al-aḫlāq was not an independent field in the theological tradition.59
Up to al-Ġazālī’s death, Islamic jurists differed in how they defined the relationship between ʿilm al-aḫlāq and fiqh as moral theology within the šarīʿa and never reached a scientific systematization of the relationship between the moral norm and the ethical principle. Just how pathbreaking and innovative aš-Šāṭibīs’ work is in this matter can be seen in his ideas about the concerns and scope of the šarīʿa, in which the relationship between ethical orientation in the form of maqāṣid and moral norm in the form of aḥkām is systematized and hierarchically established as in almost no other legal-theoretical approach.
As already described at greater length in the preface, the three categories of ethical judgment’s objectives which aš-Šāṭibī attributed to šarīʿa ensure a balanced definition of the relationship between moral duty and virtue. While the so-called ḍarūriyyāt are focused on the regulation of moral behavior, the ḥāǧiyyāt are “need-related”, and the taḥsīniyyāt “welfare-oriented” maxims which should be seen as part of the field of virtues. According to aš-Šāṭibī, the ḥāǧiyyāt imply those normative aspects that may be used optionally to reduce the efforts associated with the implementation of duties and places them below the ḍarūriyyāt maxims in terms of their hierarchy. The taḥsīniyyāt maxims, which are intended to serve the well-being of the believers, are subordinated to the ḥāǧiyyāt maxims. Since the taḥsīniyyāt maxims are not directly related to the ḍarūriyyāt maxims, the lawfulness of ethical behavior even without their support is guaranteed.60 Examples of this are the recommendation to free slaves, the duty to practice generosity towards the poor and the guidelines for behavior in public places, as at the end of Luqmān’s will (waṣiyyat Luqmān): O my son, perform the prayer, and bid unto honour, and forbid dishonour. And bear patiently whatever may befall thee; surely that is true constancy. Turn not thy cheek away from men in scorn, and walk not in the earth exultantly; God loves not any man proud and boastful. Be modest in thy walk, and lower thy voice; the most hideous of voices is the ass’s. (Q 31:17–19)
That the šarīʿa is hardly imaginable without ethical implications is suggested by its very objective, that is, as defined by fiqh scholars, the regulation of the central areas of life and existence according to the will of God.61 Aš-Šāṭibī clarifies the claim to comprehensive validity which Islam’s divine world order makes in the following terms: “The definition of legality, however, serves humanity’s well-being, both for the present as well as the future”.62 “And, with ‘well-being’, I mean everything that is related to the ‘practice’ of human live and the consummateness of its, as well as the fact that it is empowered to use whatever helps him, without exception, in the pursuit of his spiritual and bodily needs, in order that it lead a fulfilled life.”63
With his theory of theological ethics’ goals, Aš-Šāṭibī reminds one that revelation first belonged to life before going off into the exile of scripture. Šarʿ (moral authority) means God’s entrance into the world through laws and regulations, with the aim of revealing a way (šarīʿa)64 to it. In the space between the earthly and the divine, the pursuit of correct understanding (fiqh)65 serves as a guide. The process of understanding adds to a mere rule of behavior the moral judgment it would otherwise lack, be it a prohibition or commandment. A correct moral judgment, however, presupposes a precise knowledge of God’s will in the realm of human life, being aware that the insights brought forth by the process of fiqh can only attain a relative degree of certainty when making a judgment.66
An independent interpretation of the sources thus presupposes the necessity of presuming knowledge.67 Moral action provides more certainty than knowledge which is imperfect, characterized by finiteness, and always only an attempt to anticipate the hidden aspects of an action’s objective.68 The judgment obtained (ḥukm) at the end of this process of faith-guided knowledge is reinforced by a recourse to the four foundations based on revelation (uṣūl) and is therefore truthful and morally valid.
The role played by reason in the derivation of legal norms is discernible in the hierarchy of normative sources as well as in the position of the human being with regard to revelation.69 In contrast to rational theology, which addressed the symmetry of the relationship between reason and revelation in cognitive processes, legal theorists limited their focus to reason’s function as a means of discerning God’s intention and as an authority for the assessment of earthly virtues.70 From then on, a growing number of jurists shared the opinion that “common sense” could recognize the moral quality of action in its context when making a worldly value judgement.71
1.2.3 The Faith-Oriented Way of Life in the Relationship between Constitution (fiṭra) and Reason (ʿaql)72
Since the šarīʿa is a divine world order, the sources of moral obligation are, when interpreted jussively, traditional demands not conceived by the mind, but rather revealed by the Qurʾān and collected and explained in the hadith tradition. According to aš-Šāṭibī, the unambiguous primacy of divine revelation over reason stems from the fact that, while man needs reliable knowledge to evaluate moral behavior with its complex entanglement in human reality, revelation is the crowning keystone that may legitimatize or override any chain of causal action.73 The knowledge of fiqh cannot, therefore, produce a priori reason because it only sees what fits its own model.74
Thus, a dialectical relationship between revelation and reason arises, which seems to be subjected to a double principle of certainty that brings fiqh’s interpretive process and the hermeneutic understanding of a discourse closer to one another through the interrelation of the part and the whole. The human being can only comprehend that part of the divine world order that God has enabled him to understand by “predisposition”. Nevertheless, the meaning of the relationship between predisposition and obligation only comes into view if the mutual entanglement of the individual’s moral responsibility and the meaningfulness of its existence is clarified. Here, with the help of a notion of appropriateness as the pivotal crux of ethical orientation, the “rupture” between revelation and reason is initially abolished. In contrast to the deterministic rational theology reading, which sees in human beings’ “created innocence” an antipode to predetermination, Ibn ʿĀšūr draws upon aš-Šāṭibī’s concept of maqāṣid and points to the statement in which God calls “created innocence” Its plan for creation.75
So set thy face to the religion, a man of pure faith – God’s original upon which he originated mankind. There is no changing God’s creation. That is the right religion; but most men know it not – turning to Him. And fear you Him, and perform the prayer, and be not of the idolaters, even of those who have divided up their religion, and become sects, each several party rejoicing in what is theirs. (Q 30:30)
Aš-Šāṭibīs concept of fiṭra is not the product of a fatalistic interpretation of the divine action in the world, but that of a dynamic idea, according to which every judgement is the result of a deliberative process, in which faith and reason are equally involved. Thus, despite his commitment to Ašʿariyya, it is very difficult to classify aš-Šāṭibī’s ethics into one of the known rational-theological currents of thought.76
According to advocates of the freedom of will in Islamic rational theology, such as al-Qāḍī ʿAbd al-Ǧabbār, humans have the ability (ahliyya) to accept God’s trust from the moment they are born.77 They possess this ability because God has given them, in so far as it is “sound of mind”, an instinctive reason and a conscience. If human sensibilities are touched upon in matters of moral knowledge, it is the individual’s duty to act according to his God-given moral conscience. If an adult is given the opportunity to act morally, then they should do so, not because they are demanded, but in accordance with the ethical responsibility they bear.
However, the philosopher Ibn Sīnā, distinguishes between instinctive and true predisposition, though it is only the latter to which he attributes the term fiṭra and with which he equates reason. True predisposition (fiṭra) manifests itself in, among other things, hypothetical and rationally verifiable intentions as well as proven and generally widespread ideas and wisdoms, the true content of which is attested to either by moral convention, such as the sentence “justice is beautiful!”, or by societal consensus.78 From the perspective of a maqāṣid-based approach, the “created innocent character” of the human being arises from an intentional act by God, which is performed according to the covenant concluded between God and His creature prior to existence (mīṯāq) and which finds its external expression in an original ḥanīfite monotheism.79
Together with social life contexts, the sources of the šarīʿa represent interpretive indicators which can serve as the background for rediscovering the fiṭra. Through its understanding of fiṭra, the intentionalist moral theory circumvented the rational theological conflict between the advocates of predestination and those of the freedom of will.80 The paradox, that reaching the original disposition is a goal in itself, despite the fact that, as the starting point of the act of creation, it pursues another goal from the very start, can be resolved, if the path of the believer is not necessarily understood as a movement forward (into an unknown future to whose mercy the human being seems helplessly subjected), but as a movement back towards its original state of faith.81
These two aspects can clearly be seen in the definition of fiṭra postulated by the early rational theologian Ġaylān ad-Dimašqī (d. 114/732), in which, as the primary and innate knowledge of God, it is distinguished from a “created innocence” mediated by the revelation.82 In Gaylān’s theological considerations, the mind plays a special role when investigating innate knowledge of God, a position which can also be found in later Muʿtazilite theology.83 In its equation of the fiṭra with the understanding as a means of recognizing the divine order of creation, the intentionalist interpretation of law bears a strong resemblance to Muʿtazilite views. Later legal theory, however, vehemently rejected the Muʿtazilite idea of a rational theology and natural ethics, since, in fiqh legal theory, the understanding is assigned only a rather nuanced function that restricts its main field of activity to the conceptual world of the revelatory message.84
According to Aš-Šāṭibī’s concept of ethics, the mind obeys God by itself, since it is the mind which turns the individual to God and only the mind through which the individual can perceive the speech God addresses to it.85 The border between human reason and the transcendental world of revelation arises from the facticity of the bodily and earthly constitution to which the human being is subject in the reality of its actions, as expressed in the following hadith: “Kullukum li-Ādam wa-Ādam min turāb” (All of you are descended from Adam, and Adam was born out of earth).86
According to aš-Šāṭibī’s Ašʿarite view, the human being disregards the duties of the šarīʿa not because of its rational thought, but because, following its own impulses, it misunderstands what God intends with Its work of creation and loses sight of the meaning of the divine order. But, by the believing realization that the instructions of the šarīʿa correspond to the will of God, the feeling of the burden connected with the implementation of the commandment disappears and the human being “lives again from its own natural predisposition to God”.87 The human being is, according to its nature, obligated to obey divine moral provisions and must, thus, using the reason given to it by God, take a stand on this matter and decide whether to comply with the obligation or to disregard it: “Whoso does righteousness, it is to his own gain, and whoso does evil, it is to his own loss. Thy Lord wrongs not His servants.” (Q 41:46)
The question of moral judgment in aš-Šāṭibī’s theory seems to cling to the recognition of the asymmetrical relationship between “good disposition”, as a “inclination to the good”, and “obligation”, both of which are fundamentally related to the necessary ethical maxim of the protection of the mind or intellectual capacity. Here lies a hermeneutic potential for interpretation, which would be of great use in the discussion about the role of reason in the emerging Islamic ethics.88
Although almost all Ašʿarite currents of thought assume that the human being was granted a free will regarding its respect for divine order in accordance with the covenant that God made with Adam’s offspring, the question of the interaction of natural disposition and obligation in the process of moral duties’ concrete implementation, on the one hand, and the associated ideals of the common good in the context of implementation, on the other hand, led to complex methodological controversies. This caused aš-Šāṭibī to attach particular value to the analytical concepts of “cause and effect” (sababwa-musabbab) and “blocking of means” (sadd aḏ-ḏarāʾiʿ) developed from the causal theory of action. A modern rereading of these terms in light of modern causal action theory has, unfortunately, yet to appear.89
1.2.4 Aš-Šāṭibī’s Ethics in the Relationship of Duty and Orientation
Through its reference to the early Islamic tradition in Medina, whose method of interpreting the sources of revelation made no distinction between norm and orientation, aš-Šāṭibī’s theory of maqāṣid introduced an ethical-discursive relationship between reason and revelation, which emphasized ʿilm uṣūl al-fiqh’s hermeneutic character.
This approach not only helped formulate, on the basis of a predominantly normative science, a comprehensive ethical theory which was able to juristically grasp social and temporal reality, but also created, through its intentionalist approach, an ethical concept which, proceeding from the discussions between mystics, rational theologians, and jurists, propelled an ethical reform based on a mutual relationship between concepts of philosophical ethics and the prescriptions of revelation with a view to a general concept of social care.90 The fact that aš-Šāṭibī defines the reasons for the šarīʿa’s existence based on the three categories of ethical maxims, ḍarūriyyāt, ḥāǧiyyāt and taḥsīniyyāt,91 does not, however, mean that he thought of creating a secular ethics in the current sense.92 Rather, his intention was to ensure that the interests of believers are properly preserved both here and now as well as in the afterlife and that God acts in the best interests of Its subjects. Reflection on the “true” divine purpose may help one to better assess the impact of an individual’s action on its fate in the afterlife and thus reveal the appropriate path to repentance and atonement in this world.
The central role played by the hereafter related aspect of maqāṣid in aš-Šāṭibī’s argument is revealed by the fact that his theory is not an ethics that is based on the dichotomy of “good vs. evil” which is popular with rational theologians. Rather, aš-Šāṭibī’s treatises on causal-action theory are more influenced by the Ašʿarite viewpoint, which ascribes to predicates, such as “good and evil”, a relational status93 which deprives them of all qualities of an entity. Ḍarūriyyāt designates those aspects of ethics that are absolutely essential in the context of a relational dynamic for the regulation of all aspects of earthly existence, with the aim of achieving bliss both in this world and (nota bene) in the hereafter.94 With the notion of a bliss beyond earthly life, the duality of body and soul, faith and reason, and the finite and the infinite are presented here as a continuum approaching the true idea of religion as a unity of the divine and the human.95
Inspired by the mystics of his time, aš-Šāṭibī uses such statements to warn against the application of knowledge based on a purely a-priori syllogism, the causal-action theory which loses sight of the human’s relationship to the totality of creation and the divine. Drawing on these considerations, which arose from the discussions led between legal scholars, and mystics and rational theologians, aš-Šāṭibī built up his fundamental framework of thought in which he developed a social theory in accordance with the idea of revelation. Thus, in his message to theologians, he announces the lack of justification for an unconditional connection of the Qurʾān to rational sciences such as logic, physics, and metaphysics. His scepticism regarding pure rationalism was indirectly aimed at the philosophical legacy of Ibn Rušd,96 whose commentaries on Aristotle’s concept of “being” removed from Islamic thought every dimension of transcendence and community.97
Beyond the paradox of subject versus object and real versus unreal, aš-Šāṭibī wanted to clarify the fundamental maxim of his ethics from a legal-theoretical stand by emphasizing that every cognition begins with an act of faith.98 The act and its law are merely external manifestations of faith. Through its doctrine of unity (tawḥīd), the Qurʾān introduces a philosophical principle of existence which could not be comprehended with the Aristotelian cognitive categories widespread in Andalusia at the time, such as that of “being” or that of the “fact.”99
Aš-Šāṭibī’s theory of law and ethics unequivocally refers, not to a theology of being, but to a theology of action in which the act of creation stands before an act of faith and all knowledge is preceded by faith. Since knowledge should aim for faith through action, there can be no duality between knowledge and action, nor between faith and law.100 Aš-Šāṭibī’s alternative to philosophical dichotomies was not to neutralize the function of reason in the derivation of norms, but to show that the object of rational consideration is not the essence of God. Rather, it is the recognition of the truth in divine revelation.
With his transcendental conception of man and society, called forth by the idea of intention, aš-Šāṭibī came very close to Ibn ʿArabī’s view of the “truth of God hidden in the well-kept table” (al-lawḥ al-maḥfūẓ).101 However, he criticized the total disappearance of a social character in mysticism, which leads to the alienation of a part of the community due to the excessive profundity implied in its ontological pantheism102 and hardly leaves any room within the social structure for the interpersonal dimension of fundamental religious matters such as “caring” and the “common good”.
Al-Gābirī also denounced the suppression of the concept of community in mystical ethics and equalized it with an elimination of the mind, which, in mystical ethics, is unconditionally associated with an individual’s behavior. However, Aš-Šāṭibī only distanced himself from the tendency in mysticism that makes the attainment of knowledge exclusively dependent on an individual experience expressed through concepts such as heart, conscience, yearning, desire, love, passion, attraction, transience, and unity. In his remarks on the concept of ʿaql in the chapter adilla aš-šarʿiyya, aš-Šāṭibī does not emphasize the distinction between the terms “heart” and “mind” as judgment, well-aware that the Qurʾān speaks in several places of the heart as a path of knowledge.103
1.3 The Question of Methodology
As explained in the introduction, this study does not attempt to merely describe or reproduce aš-Šāṭibī’s theory of maqāṣid. Rather, it is an attempt to hermeneutically examine the key concepts of this approach from a modern ethical-theological perspective, which thus presupposes a redefinition of classical analytical concepts and their position in modernity’s scientific-theoretical debate. Such a project brings with it certain challenges, because the translation of traditional Islamic theological concepts into a modern scientific language always involves the risk of being projected or misinterpreted. For this reason, this study focuses on clearly and precisely delineating the boundaries of fundamental concepts that play a decisive role in the methodological form of its overall analysis.
1.3.1 The Ethical Principle of Care as the Seat of Obligation’s Justification
In aš-Šāṭibī’s treatise on the subject and concerns of maqāṣid, two moral theological positions , which were competing at the time for recognition as the correct interpretation of ethical intentionality and which stand at the centre of the present work’s methodological structure, can be distinguished: the traditionalism represented by aš-Šāṭibī, which equates the analysis of intention with causal explanation, and the Ẓāhirite theory, which rejects any rationalization of the divine’s effects on the world.
At the centre of aš-Šāṭibī’s argument is ar-Rāzī’s hypothesis which states that the intentional character of the divine’s effects on the world should be linked to a corresponding type of causal explanation. In the relationship between God and the human being, preference is thus given to the teleological aspect over the deontological aspect. We will later methodologically clarify how the Ašʿarite ar-Rāzī could clearly advocate this Muʿtazilite idea, which vehemently refuses to attribute arbitrariness or rejection to divine action – a question to which aš-Šāṭibī devoted considerable time.
Another methodological hurdle that this work faces, lies in examining the fact that both proponents and opponents of justification theory invoke the same normative sources from the Qurʾān, which call revelation raḥma (mercy of God, Q. 16:89, 2:29 etc.), yusr (relief), and tasḫīr (procreation [creation]) whether expressly supporting or rejecting the so-called taʿlīl principle.
Seen from a modern theological perspective, the connection ar-Rāzī and aš-Šāṭibī created between maqāṣid and aḥkām based on the divine mercy, poses a methodological and theological challenge which can only be dealt with through a hermeneutical and theological reflection on the connections between deontology as an obligational dimension and rational theology as an objective of Islamic ethics. The fundamental goal of such an approach is the formulation of a definition of Islamic ethics that equally encompasses the intention of God’s plan for humanity, and the conditions of its realization. The central question of such a project is twofold. Firstly, it asks to what extent are God’s mercy and righteousness compatible as instruments of the common welfare in a coherent moral system? Secondly, it poses a question of what role concepts such as caring, the mercy of God, and causality play in the connection between maqāṣid and aḥkām?
If one adopts the Aristotelian definition of ethics as an “orientation towards a fulfilled life”, aš-Šāṭibī’s concept of maqāṣid can be classified as part of an Aristotelian philosophical tradition in which ethics is characterized by its teleological perspective.104 Nevertheless, in contrast to Aristotelian ethics, which assumes a “good for us” that is to be understood relatively, aš-Šāṭibī’s maqāṣid theory addresses the inexhaustible use of the predicate “good”. Here, a more differentiated concept of common welfare must be worked out, which represents the subject of the final part of our maqāṣid analysis.
Although Aš-Šāṭibī’s doctrine of goods is always governed by the maxim that the purpose of revelation is directed towards the well-being of the individual and the community here and in the afterlife,105 the peculiarity of the concept of well-being in both worlds, lies, according to aš-Šāṭibī, in its direct relationship to the concept of maṣlaḥa, which stands in a certain proximity to the concept of intention.106 This introduction of the term maṣlaḥa into the concept of qaṣd,107 however, necessitates a hermeneutical investigation of the relationship between the action’s goal and the intention of a demand, something which has, thus far, been performed only rudimentarily in rational theology. It is questionable whether modern action theory can offer more effective aid here.
1.3.2 The Question of Hierarchy and Organization in the Relationship between maqāṣid and aḥkām
This study’s ultimate question, i.e., the relationship between maqāṣid and aḥkām, pervades the structure of this work as a whole and significantly shapes its content. The distinction between maqāṣid and aḥkām, which serves as an organizational principle, is based on the view of the relationship between ethics and morality in modern hermeneutics, according to which ethics is reserved for the orientation toward a fulfilled life and morality for articulating that orientation in norms.108 This distinction serves the purpose of substantiating the primacy of ethical orientation in the form of maqāṣid, vis-à-vis the moral obligation, as well as in the form of aḥkām.
According to this line of thought, the theoretic-ethical orientation of the šarīʿa can, drawing on aš-Šāṭibīs theory of maqāṣid, can be defined in two ways: on the one hand, in its transcendental, faith-oriented pursuit of eschatological salvation, which is its main purpose, and, on the other hand, in its moral-ethical claim to offer Muslims practical orientation for their lives and actions. It is clear from aš-Šāṭibī’s maqāṣid-based approach that transcendence and immanence, both beyond and in this world, are permeated by the intention of the lawmaker and connected with one another. The thematic division of his work clearly shows that the aḥkām are to be reserved for the articulation of ethical principles in the form of practices, especially since the European term “morality”, like the concept of ḥukm, is defined deontologically by the obligatory nature of the norm. Aš-Šāṭibī expresses his methodological preferences by overtly allowing the aḥkām to be included in maqāṣid.109
From a hermeneutical point of view, the relation between maqāṣid and aḥkām is comparable to the relationship between the believer’s goals and the actual actions completed by the believer to achieve these goals. By suggesting that the deontic nature of aḥkām is subordinate to maqāṣid’s teleological perspective, aš-Šāṭibī brings wuǧūb (should) and wuǧūd (being) closer to one another and thus emphasises the necessity for a clear demarcation between description and prescription in revelation.
Hence, there are multiple ways to introduce a hermeneutical point of view within this approach. First, a kind of hermeneutic circle becomes apparent between the maqāṣid and the human being’s individual decisions in which, as with a text (in this case the Qurʾān), the whole and its parts are understood in relation to one another. The intentionalist approach adds to the mere idea of meaning for somebody, thereby encompassing aspects of faith such as caring and compassion as indispensable components of ethical orientation.
The maqāṣid theory unequivocally allows for the primacy of ethics over morality, i.e., of intention over the norm, insofar as moral norms are considered merely objective moments of ethical judgment which are to be subordinated to the process of rational reflection on revelation’s prescriptions.110 At the level of ethical orientation, the protection of the five necessary maxims mentioned above can only be guaranteed if they do not oppose one another, since, according to aš-Šāṭibī, they complement and interact with each other. Hence, the question of, how the relationships between the ethical maxims in need of protection are structured amidst the tension between secular and eschatological salvation, raises.
According to aš-Šāṭibī’s maqāṣid-based approach, ethical judgment making requires a hierarchy of the five ethical maxims mentioned above based on an organizational principle that equally takes into account the specific nature of each category of intention and its relation to the other categories. From a theological-hermeneutical point of view, an elaboration of Islamic-theological ethics based on aš-Šāṭibī’s maqāṣid-based approach, as suggested by some contemporary theologians, such as al-Ǧābirī, Abu Zaid, and Ṭaha ʿAbd ar-Raḥmān, would mean broadening the maxims’ sphere of validity to draw upon the features of a global ethic anchored in the Qurʾān and hadith.
Similar to the maxim regarding protection of the mind, which amounts to the idea of responsibility, the maxim regarding protection of self, for example, is not limited to the qurʾānic commandment generally emphasized by the fuqahā, “and that you slay not the soul God has forbidden, except by right” (Q 6:151). Rather, this maxim should be extended to a commandment which is subordinate to the general concept of care and self-overcoming, something which originates from, among others, the following commandment, “It is He who produced you from one living soul” (Q 6:98, 4:1). A rereading of aš-Šāṭibī’s concept of the self (nafs) inevitably brings with it a discussion of ethical selfhood in Islamic rational theology. Nevertheless, such a definition of nafs presupposes an epistemological reconstruction of the entire traditional way of thinking, which is precisely what the present study attempts to set in motion.
Cf. Mohammed Nekroumi, “Die theologisch-ethische Ausrichtung der Scharia zwischen Gottesrecht und menschlichem Gemeinwohl”, in Islam in Europa. Zum Verhältnis von Religion und Verfassung, ed. Friedmann Eißler and Michael Borchard (Berlin, 2013), 57–77.
A. Kevin Reinhart, “Islamic Law as Islamic Ethics”, Journal of Religious Ethics 11/2 (1983): 186–203.
Werner Zager, “Hingabe an Gottes Willen. Ethik im Islam”, in Ibid., Ethik in den Weltreligionen. Judentum – Christentum – Islam, ed. (Neukirchen-Vluyn 2002), 69–94.
Norman Calder, “Ikhtilāf and Ijmā ‘in Shāfiʾī’s Risālah”, Studia Islamica 58 (1983): 55–81.
Muhammad Khalid Masud, Islamic Legal Philosophy. A Study of Abū Isḥāq al-Shāṭibī’s Life and Thought (Islamabad, 1977).
Bernard G. Weiss, The Spirit of Islamic Law (Georgia: University of Georgia Press, 2003).
Wael B. Hallaq, An Introduction to Islamic Law (Cambridge, New York, 2009); ibid.: Shariʾa. Theory, Practice, Transformations (Cambridge, New York, 2009); ibid., The Origins and Evolution of Islamic Law (Cambridge, New York, 2005); ibid., Authority, Continuity, and Change in Islamic Law (Cambridge, New York, 2001).
Mohammed Arkoun, Rethinking Islam. Common Questions, Uncommon Answers (Boulder, 1994).
Aḥmad ar-Raysūnī, Naẓariyyat al-maqāṣīdī ʿinda l-imām aš-Šāṭibī, 5th ed. (Herndon, 1995).
Nasr Hamid Abu Zaid, Mafhūm an-naṣṣ. Dirāsa fīʿulūm al-Qurʾān (Beirut, Casablanca, 1990).
Tilman Nagel, Das islamische Recht. Eine Einführung (Westhofen, 2001).
Joseph Schacht, An Introduction to Islamic Law (Oxford 1966).
Harald Motzki, Die Anfänge der islamischen Jurisprudenz. Ihre Entwicklung in Mekka bis zur Mitte des 2./8. Jahrhunderts (Wiesbaden, 1991).
The term “theological ethics” is used in this work merely as an English equivalent for the comprehensive view of the discipline of the uṣūl al-fiqh adopted here, which serves as the methodological basis for the theory of maqāṣid. The ethical dimension of intentionalist Islamic legal theory emerges from the inherent proximity of the term qaṣd (intent/intention) to basic ethical categories such as conscience and responsibility. This translation can be justified in so far as, according to Johannes Fischer, in Christian theology “there are no fixed standards against which contributions to this discipline can be measured or need be proven.” Fischer leaves the subject-specific definition of “theological ethics” “more or less [up to] individual creativity” (cf. Johannes Fischer, Theologische Ethik. Grundwissen und Orientierung (Stuttgart, Berlin, Cologne, 2002), 8).
Cf., Friedrich W. Graf, Moses Vermächtnis (Munich 2006), 24.
Konrad Hilpert, “Moraltheologie”, in Lexikon für Theologie und Kirche, 3rd ed., vol. 7 (Freiburg, 1993–2001; 1998): 462–67.
For more on the term ʿilm al-aḫlāq, see Mohammed Arkoun, Der Islam. Annäherung einer Religion (Heidelberg, 1999), 235.
Cf. Muḥammad ‘Ābid al-Ǧābirī, al-ʿaql al-aḫlāqī l-ʿarabī (Beirut, 2012), 11–21.
Cf. ibid., 14.
The equivalent terms “rational theology” and “systematic theology” used in this study are approximate reproductions of the term ʿilm al-kalām. In this study, the former is mainly used.
The following works were regarded as groundbreaking for rational theology: Muḥammad b. ʿUmar az-Zamaḫšarī, al-Minhāǧ fī uṣūl ad-dīn, ed. Sabine Schmidtke (Stuttgart, 1997); Abū l-Ḥusayn al-Baṣrī, Taṣaffuḥ al-adilla, ed. Sabine Schmidtke and Wilfred Madelung (Wiesbaden, 2006); Faḫr ad-Dīn ar-Rāzī, Kitāb an-nafs wa-r-rūḥ wa-šarḥ quwāhumā, ed. Muḥammad Ṣaġīr Ḥasan al-Maʿṣūmī (Islamabad, 1968). In the field of mysticism, the late works of az-Zazālī and the treatises of Ibn ʿArabī (d. 638/1240) were mostly categorized as ethical works. In legal theory, the works of Miskawayh (d. 421/1030), Ibn al-Muqaffa (d. 139/756), and Ibn Sīnā (d. 428/1037), categorized exclusively as ethical works, were regarded as independent works and assigned more of a complementary function for the established theory of norms.
The reconciliation of revelation and reason in Ibn Rušd is modeled on al-Fārābī’s (d.339/950) theory of emanation and is a response to the skepticism regarding philosophy and the related natural ethics formulated in al-Ġazālī’s late theological thought. This conflict between rational knowledge and the knowledge of faith had been shaped by numerous Islamic philosophers. Al-Kindī (d. 259/873), for example, preferred the revelation of philosophy as a source of knowledge, whereas, according to Abū Bakr ar-Rāzī (d. 313/925), God created man with a mind, with which he could recognize the truth. Al-Fārābī saw revelation and philosophy, like the world of ideals and material reality in Plato’s thought, as two expressions of the same truth and thus arrived at the ethical concept of the ideal state (al-madīna al-fāḍila) as a general term for human ideals of the common good. By way of Ibn Bāǧǧa (lat. Avempace, d. 532/1138), al-Fārābī’s work on Plato and Aristotle made its way to Andalusia, once again raising the question of transcendence. Ibn Ṭufayl (d. 581/1185) set new standards for the establishment of ethical reasoning in his work, Ḥayy b. Yaqẓān, in which he tells the story of a child who grows up on a deserted island and, through his own intellectual efforts, discovers philosophy as a rational vision of God and then independently discerns the divine order of moral behavior (cf. Ṭaha ʿAbd ar-Raḥmān, Suʾāl al-aḫlāq, 5th ed. (Casablanca, 2013), 29–55).
According to ʿAbdallāh al-ʿArwī, this current of thought began with Muḥammad Abduh in early-20th-century Egypt. Other Islamic thinkers associated with this tendency include: Majid Fakhr, Ethical Theories in Islam (Leiden et al., 1991); Fazlur Rahman, “Some Key Ethical Concepts of the Qurʾan”, in Journal of Religious Ethics 11 (1989): 170–85; ʿAbdallāh al-ʿArwī, Mafhūm al-ʿaql (Beirut, 1996), 23–63; Khaled Abou El Fadl, Reasoning with God. Rationality and Thought in Islam (Oxford, 2002), 173.
This tendency can be divided into different currents. Exemplary authors include: Muḥammad ʿImmāra, al-Islām wa-ḥuqūq al-insān (Cairo: Ḍarūrāt lā ḥuqūq, 1989); Fazlur Rahman: “Some Key Ethical Concepts of the Qurʾan”, in Journal of Religious Ethics 11 (1989).
Cf. Ṭaha ʿAbd ar-Raḥmān, Taǧdīd al-manhaǧ fī taqwīm at-turāṯ (Casablanca, 2012), 93, 110.
Ibid., 386.
Ibid., 270.
Cf. ibid.: Suʾāl al-aḫlāq, 29–55.
Al-Ǧābirī, al-ʿaql al-aḫlāqī l-ʿarabī, 61.
Cf. ibid. passim.
Cf. ibid., 11–19.
Ibid., 12.
Cf. Abū Abdallāh al-Ḥāriṯ b. Asad al-Muḥāsibī, al-ʿaql wa fahm al-Qurʾān (Beirut, 1971), 272 f. (see also the German translation and analysis by Berenike Metzler, Den Koran verstehen. Das Kitāb Fahm al-Qurʾān des Ḥāriṯ b. Asad al-Muḥāsibī (Wiesbaden, 2016), 34).
Abū Ḥāmid al-Ġazālī, Iḥyāʾ ʿulūm ad-dīn, ed. Hans Bauer, 40 vols., Halle 1961, vol. 3: 54. According to al-Ǧābirī, in his treatise aḏ-Ḏarīʿa ilā makārim aš-šarīʿa, ar-Rāǧib al-Iṣfahānī made a similar argument before al-Ġazālī (cf. al-Ǧābirī, al-ʿAql al-aẖlāqī l-ʿarabī, 10).
Al-Ǧābirī emphasizes that some famous Muslim ethicists, such as al-Iṣfahānī, Miskawayh, and al-Ġazālī, explicitly rely on Galen’s definition, which characterizes ethics a state of the soul, “which calls upon man to do deeds without thinking and without having a choice” (cf. al-Ǧābirī, al-ʿaql al-aḫlāqī l-ʿarabī, 11, 322 f.).
Abd ar-Raḥmān, Suʾāl al-aḫlāq, 53. This meaning can also be found in Arabic grammar, in which the word fuḍla is understood as a free or dispensable verbal complementizer in contrast to umda, which is understood as a narrow or indispensable verbal complementizer (cf. Mohammed Nekroumi, Interrogation, Polarité et Argumentation, Vers une Théorie Structurale et Enonciative de la modalité en arabe Classique (Hamburg, 2003), 85–88).
Muḥammad b. Ismāʿīl al-Buḫārī, al-Adab al-mufrad, ed. Muḥmmad ʿAbd al-Qādir ʿAṭā (Beirut, 1990), 90.
Similarly, in his only work on legal theory, Ibn al-Ḥāǧib (d. 646/1248–9) distinguished between ʿilm uṣūl al-fiqh and ʿilm al-ǧadal. He used the same dialectical background to define the principles of so-called tarǧīḥ (weighting) when classifying kinds of intention. Even at this early stage, qurʾānic interpretation was given an official intentionalist-methodological framework.
Cf. ʿAbd al-Malik b. ʿAbdallah al-Ǧuwaynī, al-Burhān fī uṣūl al-fiqh, ed., ʿAbd al-Azim ad-Dib, 2nd ed. (Cairo, 1980), vol. 2, 923–64.
According to Aḥmad ad-Dīb, al-Ǧuwaynī’s approach represents one of the most important phases in the emergence of intention theory. Since the post-classical era, his main work, al-Burhān, had been legal scholars’ main source of juristic knowledge, as previously only aš-Šāfiʾī’s (d. 204/820) ar-Risāla had been in its function as a reference book for successive generations. Al-Ǧuwaynī’s father had already written a commentary on ar-Risāla, which, according to al-Ġazālī, represents a turning point in this work’s sphere of influence on the further development of legal theory. The fact that his work al-Burhān would accrue and exert so much influence on the later science of uṣūl al-fiqh is largely due to al-Ǧuwaynī’s student al-Ġazālī. The term maqāṣid can also be traced back to al-Ġazālī and al-Ǧuwaynī. Al-Ǧuwaynī was one of the first to use this term and some of its synonyms, such as aġrāḍ (goals), in a conscious and approximative manner in his analyses. According to al-Ǧuwaynī, the derivation of bans and commandments from the Qurʾān is hardly imaginable, if one does not consider the concept of maqāṣid (cf. al-Ǧuwaynī, al-Burhān, vol. 2, 294 f.)
As early as the end of the 3rd/9th century, al-Ḥakīm at-Tirmiḏī (d. 318/936) was already investigating the reasons and aims of šarīʿa’s rules and also arrived at the concept of maqāṣid, which is mentioned in two works: figuratively in al-Ḥaǧǧ wa-asrāruhu (The Pilgrimage and its Secrets) and in its literal sense in aṣ-Ṣalāt wa-maqāṣiduhā (The Prayer and its Purposes). At-Tirmiḏī, however, proceeds less hermeneutically and more mystically in his argument, relying primarily on intuition in his definition of ethical maxims. Thus, for example, he summarizes the rational goals that should form the background of ritual prayer as appearances of individual experience of God (cf. Abū Abdallah Muḥammad b. ʿAlī l-Ḥakīm at-Tirmiḏī, as-Ṣalāt wa-maqāṣiduhā, ed. Ḥusnī Naṣr Zaydān (Cairo, 1965), 12).
It seems that al-Ǧuwaynī is indeed the author of this five-part categorization of maqāṣid and the ʿilal šarīʿa (cf. Ar-Raysūnī, Naẓariyyat al-maqāṣid ʿinda l-imām aš-Šāṭibī, 49). This categorization will be later discussed in detail.
Al-Bāqillānī’s work at-Taqrīb wa-l-iršād fī tartīb ṭuruq al-iǧtihād is still considered a standard work on the relationship between rational theology and legal theory (cf. Abū Bakr Muḥammad b. aṭ-Ṭayyib al-Bāqillānī, at-Taqrīb wa-l-iršād aṣ-ṣaġīr, ed. ʿAbd al-Ḥamīd b. ʿAlī Abū Zunayd, 3 vols. (Beirut, 1993–1998)).
For a general consideration of his methodology, see Ǧalāl ad-Dīn as-Suyūṭī, al-Itqān fī ʿulūm al-Qurʾān (Beirut, reprint), n.d. (in the appendix Iʿǧāz al-Qurʾān by al-Bāqillānī).
However, like al-Qāḍī ʿAbd al-Ǧabbār (d. 415/1024), he was later accused of incorporating an unnecessary number of philosophical-ethical and linguistic-logical elements in his legal-theoretical essays, although neither a uṣūl scholar nor a faqīh could deny al-Bāqillānī’s contribution to the establishment of intention theory as an integral part of legal theory (cf. Muṣṭafā ʿAbd ar-Rāziq, Tamhīd li-tārīḫ al-falsafa al-islāmiyya (Cairo, 1966), 249).
Of the rational theologians, Ibn Ḫaldūn (d. 808/1406) mentions, first and foremost, the Ašʿarites al-Ğuwaynī and Abū Ḥāmid al-Ġazālī and the Muʿtazilites ʿAbd al-Ǧabbār and Abūl-Ḥusayn al-Baṣrī (d. 436/1044) as followers of the theory of taʿlīl. In their works, they distinguished between legal theory (ʿilm uṣūl al-fiqh) and positive law (fiqh). Here it becomes clear that there was no categorical separation between the schools of the ahl ar-raʾy and those of the ahl al-hadith, but that iǧtihād was practiced in both schools. Ibn Ḫaldūn, however, sees reason only as an instrument in the process of understanding tradition and thus clearly criticizes the Muʿtazilites’ a priori concept of reason (cf. Al-Muqaddima, ed. ʿAlī ʿAbd al-Wāḥid (Cairo, 1962), vol. 1, 350 ff., vol. 3, 992–1110 and vol. 3, 1035 ff.). Regarding the rational-theological approach to justification, see also Ibn ʿᾹšūr, at-Taḥrīr wa t-tanwīr (Tunis, 1984), vol. 1, 379–381, as well as Muḥammad ʿĀbid al-Ǧābirī, Binyat al-ʿaql al-ʿarabī (Casablanca/Beirut, 1993), 138 ff.
Cf. Muhammad ʿĀbid al-Ǧābirī, Binyat al-ʿaql al-ʿarabī, 134 and Bernhard G. Weiss: “Interpretation in Islamic Law: The Theory of Ijtihād”, in The American Journal of Comparative Law 26 (1978): 199–212.
Cf. Abū l-Ḥaǧǧāǧ Yūsuf b. Muḥammad al-Miklātī, Lubāb al-ʿuqūl fī r-radd ʿalā l-falāsifa fī’ ʿilm al-uṣūl, ed. Ahmed Alami-Hamedane (Fez: Faculty of Philosophy, 2012), 409.
Cf. al-Ǧuwaynī, al-Burhān, vol. 1, 295 (the Arabic original, p. 217); on the work of al-Ǧuwaynī, cf. also Tilman Nagel, Die Festung des Glaubens. Triumph und Scheitern des islamischen Rationalismus im 11. Jahrhundert (Munich, 1988).
This analysis comes from the chapter al-Qiyās (The Analogy). The distinction of the various maqāṣid and ʿilal was aimed at testing the analogy’s viability in legislation (cf. al-Ǧuwaynī, al-Burhān, vol. 2, 923–64).
The following list is based on Mohammed Nekroumi, “Koraninterpretation im Kontext internationalistischer Rechtstheorien. Zu argumentativen und kommunikationstheoretischen Aspekten göttlicher Offenbarung in Šāṭibīs (d. 780/1388) maqāṣid-Theorie”, in Mohammed Nekroumi and Jan Meise, Modern Controversies in Qurʾanic Studies, ed. (Berlin 2009): 153–96.
Cf. al-Ǧuwaynī, al-Burhān, vol. 2, 923–27.
Cf. ibid., 924–37.
Cf. ibid., 947.
Cf. ibid., 958.
These are the five maxims of legislation in Islam. According to this view, through the formulation of šarīʿa, the legislator seeks to protect and preserve the five foundations of worldly life: dīn (faith), nafs (soul/life), ʿaql (reason), nasl (offspring), and māl (property).
Al-Ġazālī placed special value on the subtle differences between these categories, always emphasizing that the formulation and classification of moral and legal norms (al-aḥkām aš-šarʿiyya) according to their priority is reserved for the scholar’s iǧtihād (independent judgment). The peculiarity of his approach, however, lies in the fact that he categorizes the intentions as part of the situational factors belonging to the text, thus bringing forth the conditions for the emergence of a new conception of legal derivation (cf. Abū Ḥāmid al-Ġazālī, al-Mustaṣfā min ʿilm al-uṣūl, 2 vols., Damascus n.d., vol. 1, 286–93, 325).
Johannes Fischer, Theologische Ethik, 78.
Cf. al-Ǧābirī, al-ʿaql al-aḫlāqī l-ʿarabī, 8; Johannes Fischer, Theologische Ethik, 78.
Cf. aš-Šāṭibī, al-Muwāfaqāt (Beirut, n.d.), vol. 2, 7.
Initially, which areas of life the šarīʿa was supposed to regulate was a point of controversy, but, over time, the legal concept of šarīʿa became an all-encompassing theory of ethics, as will be explained in our analysis. According to Nagel, the šarīʿa’s sphere of action is more broadly formulated in which the law of God “encompasses all possible matters of life, be they matters of faith or of ritual, those of relations [between people], administration […], politics, society, be it the different bonds between the individuals within the Muslim community or between the Muslim community and other peaceful or hostile communities. [The šarīʿa governs all of this] in a way that guarantees, in its highest ideal form, the solution of problems, the prevention of confusion and the elimination of difficulties and resistance on the right path” (Tilman Nagel, Das islamische Recht, 3).
Aš-Šāṭibī, al-Muwāfaqāt (Beirut, n.d.), vol. 2, 4.
Ibid., vol. 2, 20. The Arabic version, 217.
The original meaning of the word šarīʿa, namely “way to the potion”, still resonates in the technical term, however, šarīʿa is also understood here as the “way to salvation”.
According to Reinhardt, fiqh is generally understood as the process that leads to “understanding and knowledge” in a decision, deals with the derivation of legal norms from the textual sources when making a judgment, and is called ʿilm uṣūl al-fiqh, as well as “legal theory” or “fundamental science” (cf. A. Kevin Reinhart, “Islamic Law as Islamic Ethics”, in Journal of Religious Ethics 11/2 (1983): 186–203.)
An absolute certainty of what is hidden in things is, according to aš-Šāfiʿī, the sole prerogative of God (Calder, Ikhtilāf and Ijmā ‘in Shāfiʾi’s Risāla, 78).
“Knowledge”, in the theological tradition, refers to knowledge that, “transmitted from God to the people, is incontestably true” (Tilman Nagel, Das islamische Recht, 13). In his theological treatise, al-Wāḍiḥ, Ibn ʿAqīl (d. 513/1119) divides knowledge into three areas: “An area recognizable only through reason, an area recognizable only through revelation […] and an area that is equally recognizable through revelation and reason”. Abū l-Wafāʾ b. ʿAqīl, al-Wāḍiḥ fī uṣūl al-fiqh, 5 vols. (Beirut, 1999), vol. 1, 64.
Not all individuals are allowed to derive legal norms from source texts as they please. The underlying methodology is determined by the science of uṣūl al-fiqh, in the works of which the four main pillars of legal theory are explained, namely, the normative sources (al-adilla aš-šarʿiyya), the structure of legal norms (binyat al-ḥukm aš-šarʿī), the interpretative methodology for the derivation of laws (manhaǧ al-istiqrāʾ), and the independent determination of judgment (iǧtihād), all of which the faqīh should have mastered along with auxiliary sciences such as linguistics, logic and reasoning (cf. Norman Calder and M.B. Hooker, “Sharīʿa”, accessed February 16, 2017, http://referenceworks.brillonline.com/entries/encyclopaedia-of-islam-2/šarīʿa-COM_1040?s.num=185&s.start=180).
Cf., Birgit Krawietz, Hierarchie der Rechtsquellen im tradierten sunnitischen Islam (Berlin, 2002), 87 ff.
The question of if and to what extent a connection between reason and revelation is established, such that the divine order does not simply become a matter of individual faith, is fundamentally a question for theology. Cf., among others, George Makdisi, Religion, Law and Learning in Classical Islam (Hampshire/Brookfield, 1991), 62.
In the 3rd/9th century, Islamic scholars were divided into those who assumed that one could possess sufficient knowledge to judge moral behavior, and those who wanted to return to the actual sources, that is, the above-mentioned sources of Islamic jurisprudence. Two hardly structured movements prevailed in the 3rd/9th century. On the one hand, “the people of tradition” (ahl al-ḥadīṯ), who were led by Mālik b. Anas and had their seat in Medina, and, on the other hand, the “adherents of the ratio” (aṣḥāb ar-raʾy), led by Abū Ḥanīfa (d. 150/767) and his two great companions, Abū Yūsuf (d. 182/798) and aš-Šaybānī (d. 189/805), whose school dominated in Kufa. This division, however, remains schematic, since the emergence and development of the maqāṣid approach was more observable among those who were counted among the aṣḥāb as-sunna. Aš-Šāfiʿī changed the distinction of schools according to “local characteristics” into a distinction according to “personal characteristics”, for which reason the former were called the “followers of Mālik” and the latter the “followers of Abū Ḥanīfa”. Aš-Šāfiʿī’s establishment of the science of usūl al-fiqh was more about the way in which legal concepts competed with one another in this context and emerged from this conflictual situation. Cf., Birgit Krawietz, Hierarchie der Rechtsquellen im tradierten sunnitischen Islam, 64–69.
The basis for the considerations in this section is the essay by Mohammed Nekroumi, “Die theologisch-ethische Ausrichtung der Scharia zwischen Gottesrecht und Gemeinwohl”. The term fiṭra describes the human being’s good predisposition and is also interpreted as a propensity for good. It is in this sense that createdness is intended here.
The jurists’ clear commitment to the primacy of revelation over reason is often attributed to the skepticism and mistrust of the human mind that prevailed in the later stages of the oral tradition, which arose out of the fear of a speculative thought called forth by the weak chains of transmission (cf. al-Ǧābirī, al-ʿaql al-aḫlāqī l-ʿarabī, 11–13).
According to ʿAbd ar-Raḥmān, it is not the mind, but rather ethics that distinguishes the human being. It is innate to man and more formative than any cognitive understanding shared with animals. It is intransient. The mind is changing and cannot, therefore, be relied upon. Consequently, the mind is not independent. ʿAbd ar-Raḥmān’s objection concerns the scholars who see the mind as the bearer of responsibility, in contrast to those who make action responsible because they agreed with the theory of the philosophers who saw the mind as the only feature that distinguished the human being from beast in favor of the human being. He says, “Why can it not be that the human’s faculty of the mind is the same faculty of comprehension as that which animals possess, which leads them to their feeding place and helps them to distinguish between the useful and the harmful? Furthermore, it also shows them the shortest route to their sleeping place, even if they sometimes need more than one try. It is truly amazing that Muslim scholars emphasize only the mind as the human being distinctive feature”. Cf. Ṭaha ʿAbd ar-Raḥmān, Suʿāl al-aḫlāq (Casablanca, 2012), 80 f.
Cf. Ibn ʿĀšūr, Maqāṣid aš-šarīʿa al-islāmiyya, 54.
In his commentary on the Qurʾān, al-Kaššāf, az-Zamaḫšarī interprets the term fiṭra as an innate ability to surrender to the will of God (islām) and as a predisposition to monotheism which was already proclaimed by the earlier religions of the book, as follows from Q 42:13: “He has laid down for you as religion that He charged Noah with, and that We have revealed to thee, and that We charged Abraham with, Moses and Jesus: ‘Perform the religion, and scatter not regarding it.’ Very hateful is that for the idolaters, that thou callest them to. God chooses unto Himself whomsoever He will, and He guides to Himself whosever turns, penitent.”
Cf. ʿAbd al-Ǧabbār, Šarḥ al-uṣūl al-ḫamsa, ed. ʿAbd al-Karīm ʿUṯmān (Cairo: Wahba press, 2006), 88 ff. This edition is a critical paraphrasing by Aḥmad Mānkdīm Šašdīw of the work of ʿAbd al-Ǧabbār (d. ca. 425/1034).
Ibn Sīna, Kitāb an-Naǧāt, ed. Majid Fakhry (Beirut, 1985), 99. Fiṭra’s identifiability with the intellect was already emphasized by some theologians of the 3rd century. In this context, al-Ḥāriṯ al-Muḥāsibī (d. 243/857) emphasizes the creation-theological relationship between fiṭra and ʿaql, explaining that “He chose Adam and his offspring and accepted the covenant (mīṯāq) from them by creating for them a content mind” (see the German translation and analysis by Berenike Metzler, Den Koran verstehen, 25, and al-Muḥāsibī, al-ʿaql wa fahm al-Qurʾān, 264).
Van Ess points out that the theologian al-Ḥasan al-Baṣrī (d. 110/728) who was one of the first advocates of free will to equate the concept of fiṭra with an original monotheism in order to put an end to the predestinarian interpretation of Q 30:30, since human free will did not appear to be compatible with a pre-determined and created “good” nature (cf. Josef van Ess, Zwischen Hadith und Theologie, 106).
In order to avoid the question of how disbelief can be predestined, if the human being is by nature believing and good, predestinarian theologians such as aš-Šaybānī (d. 189/805) and Ibn al-Mubārak (d. 181/797) were forced to restrict fiṭra to a certain point in time (attainment of the age of reason) or a certain group (contemporaries of the prophet) (cf. ibid., 107 f.).
Thus, Islamic exegesis emphasizes, for example, that the prophetic stories told in the Qurʾān are to be understood retrospectively only in a certain sense. The events recorded seem only to have happened according to the perspective of the identified narrator. In the Qurʾān, among the stories narrated in the “quasi-past”, there are sketches, expectations and anticipations which help the narrative’s characters orient themselves towards their mortal future by following the so-called ʿibār (life maxims) (cf., Muḥammad Aḥmad Ḫalaf Allāh, al-Fann al-qaṣaṣī fī l-Qurʾān al-karīm (Cairo, 1999); Alan Jones, “Narrative Technique in the Qurʾan and Early Poetry”, in Journal of Arabic Literature 25/3 (1994): 185–91).
This would mean that the ambiguity of the fiṭra postulated by Ibn ʿAsākir (d. 571/1176; cf. ʿAlī b. al-Ḥasan b. ʿAsākir, at-Tārīḫ al-kabīr (Damascus, 1927), vol. 3, 177–79), would preclude a paraphrastic relationship between Q 30:30 and the famous hadith “Every child is born in the state of fiṭra; only its parents make him a Jew, Christian or magician” (Muḥammad b. Ismāʿīl al-Buḫārī, Ṣaḥīḥ al-Buḫārī (Vaduz, 2000), vol. 1, 254, no. 1274). Cf. Josef van Ess, Zwischen Hadith und Theologie, 106.
Cf., ʿAbd al-Babbār, Šarḥ al-uṣūl al-ḫamsa, 67 f.; az-Zamaḫšarī, al-Minhāǧ (1997), 17 f. and 27 f.
On the concept of reason, cf. aš-Šāṭibī, al-Muwāfaqāt, vol. 1, 55 and 61. This is discussed in detail in the analytical part of this study.
This could mean that the šarīʿa demands more than simply an act of confession by the believer and that it only applies to the believer by the power of faith. The path to God must, consequently, be directly or indirectly anchored in the mind (cf., Tilman Nagel, Das islamische Recht, 13–15).
Cf., Abū Dāwūd, Sunan Abī Dāwūd (Beirut, n.d), vol. 4, 492, no. 5118. The philosophical origins of this idea can already be found in Aristotle’s definition of human action as a mimèsis (imitation) subject to the compulsion of our being anchored the earth. Cf., Paul Ricoeur, Oneself as Another, trans. Kathleen Blame (Chicago, 1992), 150.
Nagel, Das islamische Recht, 12. The attempts to explain and translate the term fiṭra in German oriental studies are as diverse as the Islamic traditions which they call upon. While some use terms such as “disposition,” “childlike innocence,” and “created nature” (cf. van Ess, Zwischen Hadith und Theologie, 101–6), others prefer terms such as “Hingeschaffenheit” (createdness “towards”, cf. Nagel, Das islamische Recht, 12). We, however, are not interested in defining the term fiṭra, but rather in the relationship between intention theory and fiṭra.
Two basic tendencies are visible in article tradition. The first assumes that the human being must act morally due to its natural “disposition” and capacity for moral action, while the second believes that human beings must act morally based on an external “mission” or “obligation” imposed on them (taklīf) (cf., Ibn ʿAsākir, at-Tārīḫ al-kabīr, vol. 3, 176 f.).
Cf. Aš-Šāṭibī, al-Muwāfaqāt, vol. 4, 143f.
Ali Benmakhlouf, Averroes (Paris, 2004), 208; ibid., L’identité, une fable philosophique (Paris, 2011), 160.
These three categories form the raison d’être of moral theology and it is for this reason that their hierarchical order should remain untouched with regard to intervention in practical life (Cf., aš-Šāṭibī, al-Muwāfaqāt, vol. 2, 7f.).
Drawing upon the Aristotelian definition of so-called eupraxia (good action), philosophical convention tends to reserve the concept of ethics for the orientation towards a fulfilled life. Eupraxia is thus “itself an end”, whereas poiesis and the corresponding science of poetics “has an end other than itself” (Aristotle, Nicomachean Ethics vi, ed. Richard McKeon, intr. C.D.C. Reeve (New York, 2001), 1026). Wolfhart Pannenberg’s treatises (Grundfragen systematischer Theologie. Gesammelte Aufsätze (Göttingen, 1967)) brilliantly reflect the influence of Aristotle’s legacy on Christian theology. The work Ethical Theories in Islam by Majid Fakhry, in contrast, does not deal in detail with the comparison of Islamic and Greek sources.
The term “relational” status used in this work is based on the causal-theory thesis of the so-called “accidents”. Accident (ʿaraḍ) means any variable property of an otherwise constant carrier (“substance” or “essence”, Arabic: ǧawhar). From the Ašʿarite perspective, God uses the momentary state of the world as an occasion (occasio) to create the next state (cf., Dominik Perler and Ulrich Rudolph, Occasionalismus. Theorien der Kausalität im arabisch-islamischen und im europäischen Denken (Göttingen, 2000), 116). In addition to what Perler and Rudolph write, it should be mentioned that, with the idea of accidents, the Ašʿarites wanted to provide support for their assumption that God, though omnipotent, did not intervene in the internal causality of human actions, which, through their interactive entanglement with other actions, are responsible for the production of characteristics such as “good” or “evil” tendencies.
Cf., aš-Šāṭibī, al-Muwāfaqāt, vol. 2, 136.
This is a property which, according to Hegel, springs from the “unpolemic concept” of religion. Cf., Matthias Häussler, Der Religionsbegriff in Hegels Phänomenologie des Geistes (Munich, 2008), 116f.
Cf. Ibn Rušd, Tahāfut at-tahāfut, ed. Maurice Bouyges (Beirut, 1930), 519; Anke von Kügelgen, Averroes und die arabische Moderne. Ansätze zu einer Neubegründung des Rationalismus im Islam (Leiden, 1994). In the case of aš-Šāṭibī, there are indirect references to jurisprudence’s stance regarding philosophy (cf., al-Muwāfaqāt, vol. 3, 281).
In his doctrine of categories, Aristotle distinguishes ten modes of being: substance, which is primary, identity giving and expressive, i.e. self-being, and the nine accidents, which are secondary modes that need a carrier (substance) and are neither descriptive, nor expressive, nor self-sufficient. Drawing on the teachings of Aristotle, Ibn Rušd, who is mentioned by aš-Šāṭibī in only a few places in his work al-Muwāfaqāt, posits substance as the basic building block of being and thus consciously keeps his distance from transcendence. Corresponding to the division of sciences, Ibn Rušd also divides the object of cognition into five parts into which it can be broken down: “The object, its species, its accidents, the principles of substance and the postulates of the individual sciences” (cf., Max J.H. Horten, The Metaphysics of Averroes (Frankfurt am Main, 1960), 209.) From this follows that the definition of the term “being” is accompanied by predicates, which imply that it is to be understood neither univocally nor equivocally, but rather analogously and that it must overlap with the ordo logicus, the intellectual contents, and the ordo ontologicus. Thus, in order to define itself as such, the being must be both “the true (the being in the intellect) as well as that which exists outside the spirit (the logical and ontological being)” (cf., Horten, Die Metaphysik des Averroes, 9; al-Ǧābirī, al-ʿaql al-aḫlāqī l-ʿarabī, 257f. and 315).
Here we see a certain resemblance to Hegel’s criticism of the understanding’s dichotomous thought, which, according to Jean-Claude Wolf, leads to some interesting insights: “namely, a thought that not only separates faith and reason, the finite and the infinite, but also conceptually varies the relationship of these poles.” Wolf explains this idea as follows: “A dichotomy or (disjunction) [are the parentheses in the original? they seem unnecessary here] is a dichotomy in which the parts differentiated lose all relation to one another and come apart. A conceptual distinction becomes a conceptual separation. What remains as the relation of the separated concepts is the relation of the abstract negation, the paradox of the ‘relation of complete unrelatedness’”. Jean-Claude Wolf, “dass der Mensch durch Erkennen unsterblich ist – Hegels Deutung der Erzählung vom Sündenfall”, in Freiburger Zeitschrift für Philosophie und Theologie 58/2 (2011): 453–70.
Ibn Rušd, on the other hand, mediates between transcendence and the material world, which stand in a relationship of discontinuity with one another, in which motion is a timeless activity, which, however, manifests itself in the material world in a temporal form (cf. Mohammed Nekroumi, “Die Frage des Seienden im Horizont von Ibn Rušds (Averroes’) Vernunftbegriff”, in Islamische Gelehrte neu gelesen, ed., Milad Karimi and Mouhanad Khorchide (Freiburg, 2015), 127–48).
See: Q 15:29, 32:9, (cf. aš-Šāṭibī: al-Muwāfaqāt, vol. 1, p. 31).
Here, one is reminded of Ibn ʿArabī’s (d. 638/1240) mystical thought proceeding from an ethical God as a special stage of the hidden world principle. Cf., Mahmūd Ġurāb, Šarḥ kalimāt aṣ-ṣūfiyya min kalām aš-šayḫ al-akbar Muḥyī d-Din b. al-ʿArabī (Damascus, 1982); William Chittick, Imaginal Worlds. Ibn al-ʿArabī and the Problem of Religious Diversity (Albany, 1994).
The term implies the entry of the self into the sphere of the divine.
While ʿAbd ar-Raḥmān argues along similar lines as Ibn Qayyim, al-Ǧābirī points out that the concept of conscience, which is based on the concept of the heart, was derived from Gnosticism and that it found its way into Arab-Islamic culture thanks to the translation of Greek logic at the time of the ʿAbbasids during the reign of Maʾmuns (cf., Ṭaha ʿAbd ar-Raḥmān, Rūḥ ad-dīn, 3rd ed. (Beirut/Casablanca, 2013), 294; al-Ǧābirī, al-ʿaql al-aḫlāqī l-ʿarabī, 11).
Cf. Aristotle, Nicomachean Ethics, 30f.
Cf. aš-Šāṭibī, al-Muwāfaqāt, vol. 2, 4.
Cf. ibid., 29.
Qaṣd is the singular form of maqāṣid.
Cf., Paul Ricoeur, Oneself as Another, 170.
Cf., aš-Šāṭibī, al-Muwāfaqāt, vol. 1, 106.
There is a similar line of argumentation in contemporary Christian theology. According to Heinz E. Tödt, ethical reflection consists in the process of methodically ordered reflection on moral judgments with which one tries to clarify and control one’s own behavior. Heinz E. Tödt, Perspektiven theologischer Ethik (Munich, 1988), 22.