1 Introduction: The Controversial Place of Maṣlaḥa (Well-Being) and Maqāṣid (Purposiveness) in Contemporary Islamic Law Scholarship and Muslim Thought

Maá¹£laḥa, and its closely related concept, maqāṣid, seem to be all the rage, with all manner of would-be reformers of Islamic law pointing to this doctrine as the key to overcoming Islamic law’s alleged rigidity, and the means by which Muslims, finally, will be able to assume a proper place in modern civilization.¹ The late Malcolm Kerr (d. 1984), for example, emphasized the central role that maá¹£laḥa played in the modernist thought of Muḥammad Ê¿Abduh (d. 1323/1905) and RashÄ«d Riḍā (d. 1354/1935), going so far as to suggest that by giving maá¹£laḥa a central place in their theology and jurisprudence, they were resurrecting long-forgotten heretical doctrines associated with the MuÊ¿tazilÄ«s (Kerr 1966). Other modernists, perhaps to avoid association with the MuÊ¿tazilÄ«s, have latched on to the theory of the five universals of the law, maqāṣid al-sharÄ«Ê¿a, now most closely associated with the eighth/fourteenth century AndalusÄ« MālikÄ« jurist, AbÅ« Isḥāq IbrāhÄ«m b. MÅ«sā al-ShāṭibÄ« (d. 790/1388) (al-ShāṭibÄ« n.d.; Masud 1997), but whose roots can be found in earlier AshÊ¿arÄ« theologians, such as Imām al-Ḥaramayn al-JuwaynÄ« (d. 478/1085), AbÅ« Ḥāmid al-GhazālÄ« (d. 555/1111) and Fakhr al-DÄ«n al-RāzÄ« (d. 606/1209) (Opwis 2010, 41–58, 65–131). Indeed, there is evidence that discussions of the rationality of the law in terms of its orientation toward the well-being of humans seem to have originated at least a century prior to the generation of al-JuwaynÄ« (El Shamsy 2014).

In any case, however, there is no doubt that many Muslim modernists deploy conceptions of maṣlaḥa and maqāṣid, either to call for restricting the scope of historical legal doctrines, suspending their application, or repealing them in their entirety. This effort has not gone without a response, with more conservative scholars – such as the late Saʿīd Ramaḍān al-Būṭī (d. 1435/2013) – affirming the close connection between the revealed law of the Sharīʿa and maṣlaḥa but rejecting the notion that the latter can be used to revise the positive rules of the former. Rather, he argued that because it is the rules of the Sharīʿa that constitute well-being, it would be absurd to use a free-standing notion of maṣlaḥa to change the rules of the Sharīʿa, much less repeal them (Opwis 2005, 213–220). Some modern scholars of Islamic law, such as Wael Hallaq, have also been dismissive of modernist appeals to maṣlaḥa, suggesting that they have taken an otherwise marginal doctrine in Islamic jurisprudence and given it pride of place, with the result being a kind of religious utilitarianism (Hallaq 2009, 511).

This article seeks to respond to the commonly held view among modern scholars of Islamic law that theories of maá¹£laḥa and the law’s purposiveness were marginal to the pre-modern Islamic legal tradition. Part 2 introduces pre-modern debates about the accessibility of the law’s wisdom to human reason and makes a distinction between the theological dimension of this question and its political dimension. It argues that regardless of the different theological stances Muslims took toward the relationship between maá¹£laḥa and divine law, Muslim jurists adopted, as an indispensable practical postulate, the notion that the law’s wisdom was accessible to human reason. Part 3 seeks to demonstrate the ubiquity of the assumption of the accessibility of the law’s wisdom to human reason, and the means-end, purposive reasoning that jurists adopt in order to make the law’s wisdom effective, by drawing on specific examples of legal reasoning from Islamic substantive law. In analyzing these examples, I show that the coherence of the solutions offered by the jurists depends on the rationality of the means-end reasoning that they apply, the logic of which depends on the assumption that the law’s wisdom is accessible to human reason. After providing examples of specific rules taken from the fiqh of different schools of law demonstrating the ubiquity of means-end reasoning in legal practice, I apply the framework of purposivism in Parts 4 and 5 to understand the rules of the caliphate and public office more generally. Here, I argue, contrary to prevailing views (Fadel 2014, 94–97;² Anjum 2012³) that the law governing public life is not discontinuous from the same kind of purposivism that characterizes “ordinary” Islamic law. Indeed, jurists deploy the very same framework of purposiveness that they assumed ordered the internal structure of the rules of positive law in quotidian topics of the law, e.g., marriage, divorce and transactions generally, to determine both the ideal law governing public officials, including the caliph, and the appropriate remedies for when those ideals are not satisfied. Part 6 builds on the arguments set out in Parts 4 and 5 to ask, “If the law of the caliphate is purposive, meaning, that

it seeks to establish a certain ideal of political well-being, what are some of the features of that ideal?” Part 6 attempts to answer this question by considering the implications of the detailed legal rules the jurists provided to regulate the caliphate and other public offices in Islamic law for the kind of state that they believed Islamic law aimed to establish. Part 7 builds on the answer given in Part 6 about the nature of the ideal Islamic regime to ask what we can learn from the rules of Islamic law about the virtues that it seeks to inculcate in both rulers and the ruled. The article then concludes with some thoughts on the political ideals of Sunnism as set out in historical doctrines of Islamic law.

2 Historical Debates on Well-Being (Maṣlaḥa) and Purposiveness (Maqāṣid) in Historical Islamic Legal Thought: The Political/Juridical Perspective

The idea of the revealed law’s purposiveness, and human reason’s ability to access its purposiveness, while not unknown in the pre-modern period, was controversial. While the law’s wisdom was taken for granted, whether its purposes and wisdom were evident to human reasoning was a matter of great controversy. While we are familiar with such debates in the theological realm, we are less attuned to how views of the law’s wisdom and purposiveness structured the immanent practices of the jurists, and ultimately, the political and social dimensions of the law. By “immanent practices,” I simply mean the structure of their practical arguments and the kinds of assumptions that must be assumed to be true about the law and the world in order for juristic practice to be rationally coherent. From the perspective of juristic practice, unencumbered by theological debates, we can speak of purposiveness as a political theory of the law insofar as juristic practice focused on solving the problems that face human beings as social beings, and as we shall see, in light of the common ends they pursue as members of the Muslim community. I contrast this political understanding of purposiveness to other perspectives on the law’s purposiveness and wisdom, such as from the perspective of epistemology which might, or might not, be skeptical of human beings’ capacity to ascertain the law’s purposes, much less ascertain the ideal means to achieve those ends, or from the perspective of theology which might, or might not, question the appropriateness of attributing purposes to a divine being whose perfection renders it free of ends. These latter approaches toward well-being and purposiveness were predominant theology (kalām) and jurisprudential theory (uṣūl al-fiqh) while, as I will argue in this chapter, the “political” approach predominated in Islamic law at the level of legal rules (fiqh) (al-ShāṭibÄ« n.d., 2:6).⁴

Quṭb al-Dīn al-Qasṭallānī (d. 686/1287) is sensitive to the political dimension of the debate surrounding the law’s wisdom and its purposiveness when he contrasts the approach of fideists who affirm the law’s purposiveness and its wisdom, while denying that its wisdom and its ends are accessible to human, to scholars who argue that the law’s wisdom and purposes are accessible to human reason:

The scholars and the imams have differed on this question [i.e., whether the wisdom of the law and its purposes are accessible to human reason]: one group said, “Faith is nothing but blind deference (al-īmān maḥḍ taqlīd) because it is faith in the unseen and there is no way to have knowledge about the unseen. Accordingly, the divine law, all of it, is based on pure deference (jamīʿ al-sharīʿa taqlīd). It is obligatory to believe in everything that it entails without investigating its foundational principles, its causes, its consequences, and its wisdom. Insofar as it affirmed the truth of the Lawgiver, it is obligatory to accept and rely on what he brought to us with regard to what he deemed to be beneficial without investigating his aims. It might be the case that whoever tries to seek out such things will be mistaken regarding the apparent cause of the rule which he believes to be the rule’s origin.” This is the argument of those who reject analogy. “In this case [i.e., of a mistaken explanation of the law’s cause], he will have committed a transgression and exposed himself [to the risk of punishment] for seeking something out in respect of which he had no need, nor was there any pressing necessity calling him [to answer this question].” This is a method that a group of traditionists adhered to. Formulating this principle in this fashion led them to interpret the words of revelation based solely on their apparent sense, without any interpretation, leading to grave disorder and sinful consequences…. The second group rejected that view and said, “The messengers of God, even though they were transmitting [God’s words] and informing God’s servants of His commands and prohibitions [and so they should be simply believed], it is the case that the deeds of the law’s subjects emanate from [their understanding] the purposiveness [of the law], and their intentions. And when it is the case that the wisdom of the [law’s] purposes are known, those of high ambition race to act in accordance with it, and their discernment and faith increase, as well as the law’s wisdom [in their hearts] and effectiveness [in their actions]. Mere belief in the truthfulness [of the Lawgiver] is insufficient to achieve the goal of perfect submission to the law. It is rather the case that understanding the law’s secrets is one of those things that increases enlightenment and eases the burden of compliance with the law’s demands.” … The master scholars, the heads of the virtuous and those with understanding, hail from the second group (al-Qasṭallānī 1995, 29–30).

Al-Qasṭallānī did not attempt to resolve the controversy about the knowability of the law’s wisdom and its purposiveness from a theological or epistemological perspective. Rather, he appealed to the political perspective of the law’s subject in affirming the accessibility of the law’s wisdom to human reason: the fideist position leads to “grave disorder (mafāsid ʿaẓīma)” and “sinful consequences (mawārid athīma),” while the assumption of the law’s accessibility to reason leads to superior compliance with the law. Here it is important to see that the purposiveness of the law may be explored from perspectives other than theology and epistemology, namely, from the political context of the law, or more broadly, from the perspective of the law’s subjects who assume that the law’s wisdom is rationally accessible because only by making that assumption can obedience to the law become a means for their own flourishing – their maṣlaḥa.

This approach to the law, one that assumes the intelligibility of the law’s ends, is the view that I argue predominated in legal practice, even if the normative role of maá¹£laḥa in theology and theoretical jurisprudence remained highly controversial. It is indisputable that many of the major figures who wrote important works of theoretical jurisprudence (uṣūl al-fiqh) refused to consider maá¹£laḥa to be a source of the law. Al-GhazālÄ«, for example, considers it, along with istiḥsān, to be a pseudo source of law – min al-uṣūl al-mawhÅ«ma – in contrast to the genuine sources of the law, namely, the Qurʾān, the Sunna (normative Prophetic practice), Ijmāʿ (consensus), and the Proof of Reason (istiṣḥāb al-Ê¿aql or dalÄ«l al-Ê¿aql) (al-GhazālÄ« 1993, 171, 173). We make a mistake, however, when we assume that the role maá¹£laḥa plays in the classical fiqh as a practical matter is determined solely by the theological questions that arise out of the assumption that maá¹£laḥa is integrally connected to the SharÄ«Ê¿a. Because the causal relationship of maá¹£laḥa to the law’s commands, from a theological and epistemological perspective, is contentious, or at best unsettled, we are predisposed to conclude that it must have been a marginal concept to the practice of law. Our disappointment as moderns that pre-modern Muslim theology and epistemology did not recognize the possibility that maá¹£laḥa (or some other rational concept) could repeal revelation, further buttresses our conclusion that maá¹£laḥa must have been a marginal concept in pre-modern Muslim jurisprudence. But the disappointment moderns experience is not evidence that for pre-modern jurists maá¹£laḥa was a marginal legal concept.⁵

I contend that maá¹£laḥa (well-being), and purposiveness, despite their contentious status within Muslim theology and epistemology, were taken for granted in the ordinary practice of jurisprudence. Indeed, the assumption that the law aimed for human well-being in a fashion accessible to the human intellect was an indispensable condition to rendering the classical Muslim juristic enterprise plausible. Without the common belief among Muslim jurists that the law, as an objective matter, furthered the true good of human beings, in this life and the next, and that it did so in a fashion that was generally accessible to the human intellect (al-ShāṭibÄ« n.d., 2:8, 37 and 39–41),⁶ jurists would not have been justified in applying the tools of practical reason to the texts of revelation to develop a legal system in the first place.

The practical assumption of the jurists that the law aimed for human well- being is a function of the political function of the law and its role in ordering society. From that perspective, for the reasons al-Qasá¹­allānÄ« identified, it was crucial that the law be understood as rationally purposive and wise from the perspective of its subjects. Only when subjects approached the law from that perspective could it function as a tool for ordering social relations. What this meant was that whether one believed that God was obliged to do only good toward His creation, or believed that good and evil had rational essences, as the MuÊ¿tazilÄ«s postulated, or took the opposite position, as the AshÊ¿arÄ«s generally did, all or virtually all, Muslim jurists believed that the rules of God as revealed in the divine law given to the Prophet Muḥammad furthered, as an empirical matter, the objective good of human beings, as human beings, by securing for them the satisfaction of fundamental goods (al-ShāṭibÄ« n.d., 2:6–7).⁷

In other words, even though, on the Ashʿarī account, good and evil were not rational essences, we could nevertheless recognize the law the Prophet Muḥammad brought as good for us, as striving to secure our well-being in this life and the next. While Ashʿarīs argued that this feature of the law was not incumbent on God, and thus only the result of the graciousness (talaṭṭuf) of our Creator, it was nevertheless, according to the classical Muslim jurists at least, an indisputable feature of the Islamic Sharīʿa that its rules were wise, and that as a general matter, and particularly with respect to its rules that govern social life (al-ʿawāʾid wa-l-ʿādāt), the wisdom of its rules were apparent to all reasonable persons (ʿuqalāʾ), simply by virtue of their reason. Accordingly, the law’s interpretation and application required jurists, as a practical matter, to take cognizance of this fundamental fact about the nature of the law, and so to assume that the law’s rules were purposive and rationally sought to further human well-being (Vasalou 2015).

3 Well-Being (Maṣāliḥ) and Purposivism (Maqāṣid) as Constitutive of the Law

Part 3 of this chapter seeks to demonstrate, through examples taken from substantive Islamic law (fiqh), that jurists shared an understanding of the Sharīʿa that its rules were rationally purposive, that they could identify what those purposes were, and accordingly, they were authorized to make new rules, unstated in revelation, based on their understanding of the law’s rational ends. Indeed, without this shared sense of the Sharīʿa’s purposiveness, the entire enterprise of fiqh would have been impossible. This chapter consists of two subparts, the first an introduction to the general role of purposivism in legal practice, and the second a discussion of examples drawn from pre-modern law confirming the ubiquity of purposive legal interpretation in legal practice.

4 Purposive Reasoning in the Caliphate and the Imamate

The same teleological reasoning is found in the law of the caliphate. Despite the paucity of textual sources that can be deployed to justify the institution itself, to say nothing of the detailed rules the jurists gave for its various offices, the jurists successfully – at least from the perspective of an ideal theory – gave an account for a public order based in law. They could only do this to the extent they believed, implicitly or explicitly, that the rules of the Sharīʿa had a teleological character that strove for the well-being of the Muslim community. Indeed, al-Ghazālī states in his discussion of the Imamate in al-Iqtiṣād fī l-Iʿtiqād (“The Succinct Articulation of Dogma”) that the premise that God desires the good order of religion, niẓām al-dīn, is something that is known with certainty (al-Ghazālī 1988, 127). This was even true of the Imāmī Shīʿīs, who developed a rationalist argument in favor of the necessity of an infallible Imām after the Prophet Muḥammad. They argued that an infallible post-Prophetic guide was rationally necessary for the Muslim community’s well-being (ṣalāḥ). When that claim is combined with their theological doctrine that God is obliged to do right by His creatures (wujūb istiṣlāḥ al-khalq), it follows that God must have provided for such an infallible leader after the Prophet’s death (Abdulsater 2017, 154). Both Sunnīs and Shīʿīs, then, despite all their disagreements, are united in believing that the Sharīʿa must provide the means for the good order of the Muslim community after the Prophet’s death.

And despite broad agreement in the details of what a well-ordered Muslim community would look like, their disagreement on the means to establish that end makes all the difference in the world in the place the political occupies in the thought of each of these respective Muslim traditions. For the Shīʿīs, the assumption of a kind of super-human figure as the condition for good order makes politics redundant: when such a figure is recognized, humans are naturally inclined to follow him, and when he is absent, politics is doomed to fail. Because Sunnīs rejected the premise of the Shīʿī position and argued instead that the good-order of the community could be attained without the presence of a leader with special, divinely-granted characteristics that distinguished him from the rest of the community, the question of how to achieve this became pressing for Sunnīs in a way that it did not for the Shīʿīs.

The puzzle facing the Sunnīs was essentially this: in the absence of a divinely-ordained charismatic leader, the community had no choice but to select its own rulers in the post-Prophetic age in order to ensure the well- orderedness of the community. As al-Ghazālī argued in the Iqtiṣād, although the duty to establish the imamate or the caliphate is, from a theological perspective, derived from the consensus of the Companions, it is indisputable that their consensus was based on their social knowledge, ultimately derived from experience, that in the absence of a political order, strife will threaten any community, including the Muslim community. They therefore acted decisively to put an end to this potential threat by selecting Abū Bakr (r. 11–13/632–632) to succeed the Prophet, even deferring the Prophet’s burial to attend to the political crises caused by the Prophet’s sudden death.

One can of course question the historical record of the Muslim community’s memory of the events that transpired at Saqīfat Banī Sāʿida but what is clear from the disputes that were transmitted to us was that there was not a conflict over the necessity of political leadership, but rather the different factions were divided regarding who those leaders should be, and why. Accordingly, one finds Abū Bakr pleading with the Medinese Anṣār that it is unrealistic to expect the Arabs to submit to them: they will only be willing to submit to the authority of Medina if it were led by someone from Quraysh (al-Ṭabarī 1962, 3:205–206). And while the later tradition might emphasize the Prophetic ḥadīth, al-aʾimma min Quraysh, the historical record establishes clearly – assuming the accuracy of the report – that such a statement was based on the immanent logic of politics: the well-being, the maṣlaḥa, of the political is only manifested if it can deploy power effectively over those whom it rules. This in turn requires the subjects of the order to accept its legitimacy. Accordingly, it would be futile – politically, not morally – to insist that the community be headed up by someone of the Anṣār – no matter how great his virtue, and there was no dispute regarding Saʿd b. ʿUbāda’s (d. 14/635) virtue – if the generality of the populace, in this case the Arabs, would be unwilling to recognize him as their ruler. This argument, however, is compelling only if one accepts the telos of a universal community as opposed to a conception of the religious community made up of numerous, local sovereignties. In other words, it was the combination of a particular moral ideal of the polity – one that included all Muslims – along with purposivist reasoning – which candidate is best situated to achieve that aim – which explains the law’s outcome: the selection of Abū Bakr as successor to the Prophet Muḥammad.

Because the rules regarding the selection of the caliph and his qualifications, and the powers and responsibilities of the electors are presented dogmatically in a work like Abū l-Ḥasan al-Māwardī’s (d. 450/1058) al-Aḥkām al-Sulṭāniyya (“The Ordinances of Public Offices”), the purposive character of these rules is not obvious at first glance. Upon closer inspection, however, it is easy to understand the doctrines he presents as internal to the idea of what constitutes the well-being of the Muslim community, viewed from the political perspective (al-Māwardī 1983, 6–7). The ruler should have a sufficient degree of virtue that he can be entrusted with following the law himself and exercising his powers in accordance with the law, but he need not be perfect. This is the virtue of ʿadāla in contrast to ʿiṣma. The ruler should be personally virtuous, fāḍil, but need not be the most virtuous, afḍal. While it is possible to read this requirement simply as a justification for the history of the Muslim community, or as an implicit swipe at the Shīʿīs, it is also plausibly read, and therefore perhaps ought to be so read, as an expression of the notion that what is required for the good order of the polity is no more than that the ruler and other public officials possess an adequate degree of virtue. To demand unsurpassed virtue might undermine the goal of good order inasmuch as people, while they are very likely to disagree over who is the most virtuous among them, are much more likely to agree that one or more persons among them are, in fact, virtuous, and therefore, recognize in them the capacity to perform the tasks entrusted to them.

In any case, it is not a terribly challenging task to go through al-Māwardī’s laundry list of qualities required in the caliph to understand that he is equating what the Sharīʿa demands of a good leader with what practical reason would counsel. The rationality involved then is not a question of interpreting revealed texts so much as it is an attempt to make explicit the rational means required to achieve the sharʿī obligation of maintaining the well-orderedness of the community following the death of the Prophet. In that way, the idea of the well-being, the flourishing of the political community – maṣlaḥa – is constitutive of the entire project of the fiqh of the caliphate. Without the assumption that the Sharīʿa is purposive, striving toward our well-being in this world and the next, it would simply be impossible to have developed a law of the caliphate. While this might not be true for all areas of the law, it is certainly true for the law regarding the state, as well as many other chapters of the fiqh for which there is sparse revealed guidance: it is only the practical assumption that the Sharīʿa strives for our well-being that allows jurists to complete the revealed law through ijtihād.

The teleological character of Islamic politics – that it seeks the well-being of the political community – was observed by the fourth/tenth century Muslim philosopher, Abū l-Ḥasan al-ʿĀmirī (d. 382/992), who distinguished between the Imamate, the Islamic model of politics, and the ordinary state, which he described as a state based on domination, taghallub. While no polity can escape the use of the sword, the use of the sword can be just when it is used to produce the happiness of the subjects. Otherwise, if used to subdue the population and render them subject to the ruler’s domination, it is unjust. The Imamate uses the sword, according to al-ʿĀmirī, to secure the virtue of the people, and their happiness in this world and the next, while the taghallub state uses the sword solely for the ruler’s happiness (al-ʿĀmirī 1988, 154, 158).

This is not just an empty rhetorical claim, al-ʿĀmirī asserts. One can look at the difference between life under “the blessed state” (al-dawla al-maymūna) (al-ʿĀmirī 1988, 154, 176) ushered in by Islam, and the Zoroastrian state that preceded it. Whereas the Islamic state encouraged everyone to develop their rational faculties – a virtue found in no other religious communities according to al-ʿĀmirī, as evidenced by the zealousness with which Muslim theologians attempted to formulate rational proofs for their religious doctrines in contrast to other religions (al-ʿĀmirī 1988, 128) – the Zoroastrian religion did not strive for rationality, much less establish a rational foundation for its beliefs. As a result, the Zoroastrian religion prohibited the masses from the study of theology and philosophy and forced them to take their religion purely through blind-obedience (taqlīd). The pre-Islamic Iranians’ hierarchical priestly religion was reflected in the political structure of the Zoroastrian state, which was based on a rigid and impermeable class hierarchy based on descent. Because the politics of the Imamate strove for the happiness of its subjects, it liberated the Persians from the arbitrary limitations imposed upon them by the theological-political structure of the Zoroastrian state (al-ʿĀmirī 1988, 174–176).

5 The Teleological Character of Purposivism: The Internal Logic Tying Primary, Secondary and Tertiary Goods in Sunnī Legal and Political Thought

Purposivism in pre-modern Islamic legal thought was always tethered to a particular conception of flourishing or well-being, leading to a teleological understanding of the law. This is equally true of the law of the caliphate as it is in other domains of the law. While the teleological aims of politics are obscured in legal works like al-Aḥkām al-Sulṭāniyya, they take a more prominent place in theological works like that of al-Juwaynī’s Ghiyāth al-Umam (“The Deliverer of the Nations”) and al-Ghazālī’s Faḍāʾiḥ al-Bāṭiniyya (“The Scandals of the Esotericists”). It is helpful here to review briefly al-Ghazālī’s arguments in Faḍāʾiḥ al-Bāṭiniyya as to the legitimacy of the ʿAbbāsid caliph’s claim to be the rightful Imam according to the Sunnī understanding of the caliphate. On the one hand, it would be very easy to conclude that the ʿAbbāsid caliph in Baghdad, according to Sunnī doctrine, lacked the requisite qualifications to be caliph. Indeed, that might even be the most obvious conclusion to reach. Al-Ghazālī resists this reading, however, by reinterpreting the requirements from non-delegable personal characteristics into qualities that can be satisfied in coalition with, and through the cooperation of, others. Accordingly, it doesn’t matter that the actual caliph himself lacks sophisticated legal knowledge, is personally incapable of leading armies against the enemy, or cannot formulate effective internal policies. What is important, however, is that he has the support of a critical mass of those holding effective military power, effective legal knowledge, and effective bureaucratic skill so that, in coalition with them, the caliphal state has effective power and in the aggregate, fulfills all the functions required of it under the doctrine of the caliphate (al-Ghazālī 1964, 181–195). Al-Ghazālī’s transformation of the law governing the qualities required in the caliph from individual qualities to corporate ones is justified by appeal, ultimately, to the teleology of the law that distinguishes among primary, secondary and tertiary goods. Al-Ghazālī argues that it would be irrational to undermine the legitimacy of a political order that secures the fundamental aims of the law with respect to political ordering, albeit through cooperative action among a broad coalition of actors, because some or all of the individuals in that coalition lack some of the individual virtues ideal theory demands.

One does not, for example, appoint as a general an incompetent but pious man when a competent but impious candidate is available because in the case of leading armies, the most important requirement is military competence, not personal piety. The personal piety of a military leader, although desirable when possible, is not a necessary requirement, and the general’s piety would certainly not make up for his military incompetence. A teleological understanding of the law therefore effectively transforms what at first glance is a requirement into a supererogatory demand that can be dispensed with when impractical. Indeed, as al-Shāṭibī will explain, it must be dispensed with if the pious candidate cannot fulfill the more fundamental requirement of military competency, which, from a teleological perspective, is logically prior to the requirement of piety.

While this might seem to be nothing more than al-Ghazālī turning lemons into lemonade, al-Shāṭibī argues that this is a basic feature of the Sharīʿa’s teleology: the primary, ḍarūrī, is the foundation and condition precedent of the secondary (ḥājī), and the secondary is the foundation and condition precedent of the tertiary (taḥsīnī) (al-Shāṭibī n.d., 2:16). Accordingly, the primary is present in all of the rules of the Sharīʿa and it is through the primary that the secondary and tertiary aims of the law derive their respective existence. Indeed, in explaining why secondary and tertiary rules are dependent on the primary, he cites al-Ghazālī’s argument in the Faḍāʾiḥ regarding the legitimacy of al-Mustaẓhir’s (r. 487–512/1094–1118) caliphate as the paradigmatic case illustrating the conceptual relationships that bind the primary, secondary and tertiary rules into a coherent body of law (al-Shāṭibī n.d., 2:16).

Secondary and tertiary rules are not independent legal commands, but are rather conditioned on the assumption that a prior, foundational obligation (aá¹£l) has been fulfilled (al-ShāṭibÄ« n.d., 2:13). The relationship of the secondary to the primary, and the tertiary to the secondary is “like the relationship of an attribute (á¹£ifa) to a thing (mawṣūf), and it is inconceivable to imagine the continued existence of the attribute if the thing itself no longer exists” (al-ShāṭibÄ« n.d., 2:16).¹² Therefore, the requirements of probity (Ê¿adāla) and independent knowledge of the law (ijtihād) are secondary to the requirement of might (shawka) because without the latter, there is no ruler at all, be he just or unjust, learned or ignorant. Only when a ruler is present, which comes into existence by virtue of his possession of sufficient effective might, can we then speak of whether the additional qualifications of justice and knowledge of the law are met.

On the other hand, it would be absurd to speak of a just, knowledgeable person, who lacks all pretensions of holding any might whatsoever, as being a just or knowledgeable ruler. This principle is not just a pragmatic concession to what is perhaps a depressing political reality but is reflective of the law’s teleological structure in general. Accordingly, when the law proscribes prayer after the performance of the ʿAṣr afternoon prayer, it also proscribes its constituent elements, such as prostration, because prostration, as al-Shāṭibī understands it, is an element that perfects and beautifies prayer. Accordingly, it follows that a prohibition against performance of supererogatory prayers in the period preceding sunset necessarily entails a prohibition against performing, independently of a supererogatory prayer, a prostration that might result, for example, from recitation of a verse in the Qurʾān commanding the listener to prostrate (al-Shāṭibī n.d., 2:18).

For al-ShāṭibÄ«, however, the idea of maá¹£laḥa (well-being and flourishing) and maqāṣid (purposivism) is not limited to adjudicating conflicts between competing legal values by determining, on a rational basis, which legal value – peace, for example, or justice – is more important. He should not be read, for example, as declaring that might is more important than justice. Rather, the idea is that might (shawka) is a condition for the existence of justice. But it is also more than that: building on al-Shāṭibī’s theory of purposivism, one might say that the demand for justice exists within the political idea of might because the proper purpose of might, from the political perspective, is to secure justice. Because the law is teleological, al-ShāṭibÄ« argues that it contains an internal logic by which it proceeds from the primary, to the secondary, and concludes with the tertiary, as though impelled by an internal force that compels it to seek out the perfection of its own immanent values (al-ShāṭibÄ« n.d., 2:24).¹³ In other words, although the purpose of God in revealing the SharÄ«Ê¿a is to secure the primary goods of religion, life, property, progeny and reason, these goods are best secured when they do not exist in the primitive form of the primary, but rather when they have been perfected through manifestation and entrenchment of the secondary and tertiary goods that derive from the inner logic of the primary good. The manifestation and effectiveness of the secondary and tertiary goods, in turn, secure the existence of the primary goods from which they originate, the protection of which are the Lawgiver’s highest purposes. In other words, the flourishing that the law seeks, and which is represented in its tertiary rules (al-maṣāliḥ al-taḥsÄ«niyya), is necessary to secure the law’s most basic interests (al-maṣāliḥ al-ḍarÅ«riyya) (al-ShāṭibÄ« n.d., 2:21–22).

6 What Does Political Flourishing Entail in Sunnī Legal and Political Thought?

In the domain of the political, then, although might is the essential pre- condition of any political order, one may properly speak of the law having the desire to secure the political order through manifesting secondary and tertiary values that place the primary good achieved by the political – peace and security – on firmer grounds. But what is the well-being, the maṣlaḥa, of the political, viewed from the perspective of Sunnī political theory? I would argue that it is a conception of politics rooted in the idea of friendship – wilāya – the equal and reciprocal friendship of the believers in virtue that is expressed in verses of the Qurʾān such as in Q 9:71, which declares “The believing men and the believing women are friends to one another – commanding the right, enjoining the wicked, establishing regular prayer, giving of their wealth, and obeying God and His messenger.” The relationship of mutual-friendship in virtue is the Sunnī answer to the dilemma of political ordering among equals under God that the seventh/thirteenth century Shāfiʿī jurist ʿIzz al-Dīn Ibn ʿAbd al-Salām (d. 660/1262) identifies, namely, that belief in an all-powerful God who has created humanity, is responsible for their continued existence, and holds them accountable in the next life for their actions in this life, entails the belief that no human being has a natural claim to the obedience of his fellows. Indeed, in some circumstances, obedience to another human being might be blasphemous, e.g., if it is motivated by the false theological belief that other human beings have the effective power to harm or benefit. God, however, has permitted us to obey other human beings in a limited set of natural relationships within the household, such as the child to his parents, a wife to her husband, and a slave to his master. God has also permitted obedience that arises out of certain private contractual arrangements, such as the case of an employee to his employer. God has also permitted obedience to lawful rulers, but not to ignorant kings and princes (jahalat al-mulūk wa-l-umarāʾ). Formulating the distinction between lawful rulers, to whom obedience is legitimately owed, and “ignorant kings and princes,” is precisely the function of the law of the caliphate and its ancillary rules (Fadel 2017, 51–52).

The caliphate is distinct from monarchy because it is based on wilāya, not domination, mulk. Accordingly, the ruler of the community in the language of the jurists and theologians is called, alternatively, khalīfa, imām, sulṭān, wālī or walī al-amr, but he is not called “king” (Fadel 2009). Whereas a king dominates the ruled, and in a literal sense, is their proprietor, the head of the Muslim community exists in a mutual relationship of friendship that is constitutive of wilāya. Wilāya might be superficially confused with dominion, mulk, insofar as each requires effective power. But the difference is that in a relationship of wilāya, the powerholder, whatever his formal title may be, is required to exercise whatever power is afforded to him, for the exclusive benefit of the person or group under his authority, and in accordance with the norms of the Sharīʿa. In turn, those under the care of the ruler are under an obligation to obey him because the ruler is acting for their own good. As the sixth/twelfth century Ḥanafī jurist al-Kāsānī (d. 587/1191) puts it, the caliph is nothing more than the community’s messenger, he acts pursuant to the wilāya of the Muslim community, not his own authority, and the powers he exercises are only those necessary for the rational good of the Muslim community (Fadel 2017, 66–67). Where, on the other hand, the ruler acts in a fashion that is inconsistent with the requirements of wilāya, no duty of obedience arises, because in such a case, the order or the action is the equivalent of an order or action of an ordinary, private person, who under no circumstances is entitled to anyone’s obedience (Fadel 2017, 72–74).

The legal requirement that legitimate rule is limited to purposive actions taken for the benefit of the ruled is akin to the theological assumption of the Sharīʿa that God’s legislative command is for the purpose of improving (iṣlāḥ) the lot of humanity, not to impose upon it arbitrary and burdensome requirements. Unsurprisingly, God describes himself in the Qurʾān as the “friend of the believers,” – Allāhu waliyyu l-ladhīna āmanū (Q 2:257). Likewise, the word rabb is a relational term, one that implies care and concern for the object under its control. Believers in the Qurʾān, al-Shāṭibī points out, call out to God not with His proper name of Allāh, but with the term rabb, the title that assumes concern for a very specific object, marbūb, in this case, humanity (al-Shāṭibī n.d., 2:104). The Qurʾān also describes the believers as those who place their trust in God, making Him their agent in all their affairs. One of the most ubiquitous popular prayers among Muslims is the statement: God suffices me, and He is the best agent (ḥasbiya Allāhu wa-niʿma l-wakīl). The claim of this prayer is that God is the perfect agent who can be reliably trusted to do what is best for the supplicant in all circumstances, and accordingly the supplicant need do no more than display steely reliance on God to set his affairs aright.

It should not be surprising, then, that Sunnī public law came to be based directly both on principles of agency law – in cases of consensual political relationships – and fiduciary relationships – in cases of political relationships arising out of necessity. In ideal theory, of course, the caliph is designated pursuant to an elective procedure rooted in deliberation and consent. In non-ideal theory, when the ruler is a usurper, for example, he too can only gain legitimacy ex-post by assuming the duties of a legitimate ruler, i.e., by becoming, after the fact, a “friend” of the community (Fadel 2017, 58). The important point, however, is that only the lawful acts of the ruler, whether de jure or de facto, are given legal effect by virtue of the legal principle “no obedience in sin (lā ṭāʿata li-makhlūq fī maʿṣiyat al-Khāliq).”

The textual authority in revelation for this political theory of friendship is not explicit, or at least, not at first sight. The textual duty of persons in authority over others was said to derive, analogously, from the duties attaching to the guardian of the orphan. These duties were set out in several verses, including, Q 2:220, which states, “They ask you about orphans. Tell them, oh Muḥammad, ‘Improving their lot is the best course (iṣlāḥ lahum khayr),’ and if you comingle their property with yours, they are your brothers, and God knows those who seek corruption from those who seek to do right (wa-Llāhu yaʿlamu l-mufsid mina l-muṣliḥ)”; in Q 6:152, “Do not approach the orphan’s property except in the fairest manner (illā bi-llatī hiya aḥsan), until such time as he reaches the age of majority”; and, in Q 4:6, “When orphans reach the age of marriage, test them, and if you find them upright, deliver over to them their properties.” The 7th/13th century Egyptian Mālikī jurist, and student of the aforementioned ʿIzz al-Dīn Ibn ʿAbd al-Salām, Shihāb al-Dīn al-Qarāfī (d. 684/1285), takes this verse as conclusive evidence that the obligation to act “in the fairest manner” applies to all public officials, a fortiori, insofar as public officials with responsibility over more than a single orphan have the capacity to do much greater harm (fasād) than the guardian of a single orphan (Fadel 2017, 70–71).

Classical Muslim jurists used the legitimating principles of fiduciary duties implicit in the idea of wilāya to provide important limitations on the authority of public officials: by subjecting the actions of public officials to this ideal standard, unlawful actions were treated as legal nullities, and public officials bore personal responsibility for plainly illegal actions. For pre-modern Muslim jurists, the ideal of wilāya meant that the maṣlaḥa of the political involved both procedural considerations of rightful appointment and exercise of authority only within the terms of that appointment, and substantive considerations of conformity with law and the rational exercise of lawful discretion in furtherance of the interest of those being governed (Fadel 2017, 81–82).

7 The Virtues of the Ruler and the Virtues of the Governed

What, however, constitutes the well-being of the governed, and what is the role of the ruler in securing the well-being of the governed? We might investigate the Qurʾān’s regulation of the guardian to the orphan to get some clues. First, the guardian must strive to care for the orphan’s property in the same way that he cares for his own. Second, he should not consume any of it except if he lacks other resources, and in that case, only to the extent necessary to defray his expenses. Third, he must faithfully deliver it to his ward when the ward is able to handle his own affairs responsibly. Implicitly, he is obliged to take all reasonable steps to assure that his ward has the capacity to exercise his rights in the future, i.e., attains maturity having sound judgment. The guardian exercises the rights of the orphan on the orphan’s behalf for the benefit of the orphan and only until such time as the orphan can do so for himself or herself. There is a telos that structures the relationship between the guardian and the orphan under his care: that the orphan successfully reach adulthood in possession of as much of his property as reasonable given the passage of time, and even more crucially, that he be given sufficient education to act independently and responsibly upon coming of age. A good guardian therefore is not only good at managing the orphan’s property, scrupulous in managing it, and accepts only reasonable compensation for his troubles, but he also takes care to ensure that the orphan will receive sufficient education so that he can exercise his own rights for himself when the time to do so comes.

The relationship of the guardian to an orphan is not the only instance of a relationship of wilāya that includes the telos of securing the autonomy of the person subject to the authority of another. The same holds true in the case of a father with his minor children, particularly in the context of contracting marriages in their minority. Ê¿Izz al-DÄ«n Ibn Ê¿Abd al-Salām notes that in principle, interference in a person’s independent determination of his own interests is a legal injury that is impermissible: ḥajr al-marʾ Ê¿an al-istiqlāl bi-manāfiÊ¿ nafsihi mafsada. Despite this general principle of Islamic law, an exception was made in the case of minor girls, given the difficulty in securing matches with suitable grooms (Ibn Ê¿Abd al-Salām n.d., 1:89).¹⁴ Here, the law balances the autonomy interest of the child and the importance of a good marriage for the future happiness of the child, and concludes that the importance of securing a good match for the life prospects of the minor justifies what would otherwise be an unjustifiable intrusion into the child’s future autonomy. In other words, the law permits this exceptional act on the part of the guardian because it believes that the minor’s future self, when it attains majority, will look back at the father’s decision and affirm it as the very decision the now-mature person would have made had she been in a position to act for herself at that time.

This, of course, is not the only rule in classical Islamic law that illustrates the importance of what a liberal theorist such as Rawls might describe as “political autonomy” in Islamic law. Indeed, one of the most salient features of what constituted the body of pre-modern Sunnī constitutional law was precisely its respect for the autonomy of individuals as expressed through the notion that private rights may only be exercised by those who possess them, even if they choose to exercise those rights in a manner that a third party might view as foolish, at least in the absence of compelling evidence that the foolish exercise of private rights actually amounts to evidence of lack of contractual capacity (safah). This suggests another attribute of politics that is a maṣlaḥa: subjects who enjoy robust protection of their rights, whose autonomous choices are protected, and when interferences in those rights take place, they are justified by extraordinary circumstances.

There is, therefore, a clear telos between the power necessary to establish any state – and which is therefore a primary interest of the law – and its perfection in achieving a political society consisting of individual rights’ bearers who are in an effective position to act securely in the exercise of those rights. In other words, the Islamic substantive value of wilāya structures the exercise of power toward the particular end of securing the rights of individuals who come under its protection, not to secure the power of the ruler for its own sake. This is what distinguishes the strongman (dhū shawka) from a legitimate ruler (sulṭān). Accordingly, a ruler who runs roughshod over the rights of the people is not a maṣlaḥa but is rather a mafsada. Jurists preserve the primary legal interest in maintaining the existence of a source of coercive power over the territory, while preserving the telos of the political by refusing to recognize the legitimacy of a ruler’s illegal actions.

Establishing a government which consistently and reliably respects the rights of citizens might be understood as a tertiary goal, but it is the logical culmination and perfection of the rational exercise of political power because it best secures and realizes the primary interest at stake in politics: stable peace. When the ultimate end of the primary good is secured, the primary good itself – in this case the power of the state – is also best achieved. It is when a state cannot establish itself beyond the mere fact of domination (shawka) that its stability is most at risk, and in legal terms, we are perilously close to a state of nature, where instead of legal rules governing relations, necessity performs the justificatory work of politics. It is not surprising, therefore, that jurists sometimes describe the territory of war, dār al-ḥarb, with the alternative designation of dār al-ibāḥa because a state that rests only on power is perilously close to not being a state at all and is at any moment vulnerable to collapse into the state of war characteristic of dār al-ḥarb where the only recourse is self-help (al-Sarakhsī 1997, 5:130).

If the maṣlaḥa of the political consists in having a polity grounded in ideals of reciprocal friendship, in which power is exercised exclusively for the benefit of the governed, one may conclude that at a minimum, those in authority must respect the rights of the governed (al-Shāṭibī n.d., 2:178). Just as the orphan’s guardian may not use the orphan’s property unless he is investing it for the orphan’s benefit, so too, public officials cannot appropriate the rights of the people to further their own ends.

But what about the ruler using his discretion to improve the people’s virtue? Certainly, making the people more virtuous, from an Islamic perspective, is a good thing. In fact, one might say that the reciprocal relationship of wilāya described in the Qurʾān is only possible if a certain degree of virtue is present in the populace. From that perspective, it would seem that the maṣlaḥa of an Islamic public order implies that a properly motivated ruler must be allowed to use his discretion to improve the people’s virtue, for example, by rewarding citizens with sufficient or outstanding Islamic virtue, and punishing those who lack these virtues in one sense or another.

How can the demand to produce virtuous citizens be reconciled with the simultaneous demand to respect the autonomy of the citizens? Al-Shāṭibī attempts to answer this question by two lines of analysis: the first is from the perspective of the ruler, and the second is from the perspective of the law. In answering these questions, however, he seems to be motivated by his theological premise that God intends human beings to follow the law out of their own choice – ikhtiyāran – rather than out of compulsion (al-Shāṭibī n.d., 2:168). This principle places limits both on the way the law can be publicly administered, and its substantive demands. As to the first point, he quotes an anecdote attributed to ʿUmar b. ʿAbd al-ʿAzīz (r. 99–101/717–720), the Umayyad caliph widely admired for his piety and justice, in which his son is reported to be surprised at what seems to the son to be his father’s lax approach to enforcing divine law. The son allegedly boasts to his father that were he in his father’s positions, he would be indifferent if the boiling kettles overflowed, so long as they did so on account of justice and truth, ḥaqq. ʿUmar b. ʿAbd al-ʿAzīz asked his son to be patient and defended his policies on the grounds that God condemned wine in the Qurʾān twice before prohibiting it. Accordingly, were he to attempt to compel the entirety of the law’s demands on the people at one time, they would likely reject it in its entirety, resulting thereby in great disorder (al-Shāṭibī n.d., 2:93–94).

Al-Shāṭibī uses this anecdote to explain the importance of the law’s subjects internalizing its norms as a condition for the law to work its desirable effect on the public. In so doing, he is essentially agreeing what al-Qasṭallānī observed: that the legal subject’s rational apprehension of the law’s purposes is a requirement to secure “perfect submission” to the law’s demands. This is a gradual process, however, one that is akin to domestication of what would otherwise be a wild beast: the Qurʾān’s piecemeal revelation over the course of twenty-three years fulfilled the well-being of the community because it allowed ample opportunity for the “domestication (taʾnīs)” of the law to take place. Because obligations were imposed only gradually, and only in accordance with the ability of legal subjects to accept the law as familiar (istaʾnasat bihi nafs al-mukallaf), the earliest Muslim community was able to undertake the obligations of the Sharīʿa freely (al-Shāṭibī n.d., 2:94).

There is a limit to the ability of law to win the free adherence of subjects because the median human being who is the subject of the law is by his or her nature necessarily preoccupied with the business of ordinary life and is therefore unaccustomed to the burdens of obligation. Scholars are particularly prone to overburdening the public and imposing on them unrealistic demands: having spent the entirety of their lives subject to the burdens of study and the discipline of reason, they take for granted the ability of human beings to undertake obligations (al-ShāṭibÄ« n.d., 2:93). Unreasonably demanding claims on the median person, in the name of truth, therefore, can only lead to strife, and therefore restraint in applying the demands of the law – even when the law by hypothesis is just – is a necessary part of the maá¹£laḥa of the political. This value is reflected in the juristic maxim mā lā yudrak kulluhu lā yutrak julluhu – that which may be attained in substantial part is not to be set aside because one cannot attain it in its entirety.¹⁵ In popular English parlance, one is not, in the political domain, to make the perfect the enemy of the good.

At the same time that al-Shāṭibī argues that the maṣlaḥa of the political requires the restrained pursuit of virtue, the Sharīʿa, according to al-Shāṭibī, also attacks this problem on the “demand” side, so to speak, by structuring its obligations in a fashion that affords ample opportunity for legal subjects to pursue their private ends – ḥuẓūẓ or aghrāḍ – in a way that either promotes the positive virtues required by the law or at least does not undermine them. By incorporating the private desires of individuals into its positive demands, the Sharīʿa strikes an appropriate balance between desire and virtue so that obligation – which is naturally difficult for human beings – is made realistic (al-Shāṭibī n.d., 2:172). In that observation, we can say where the ultimate maṣlaḥa of politics lies: the reconciliation of public virtue with private desire so that we can freely pursue our private ends without undermining the public virtues necessary to sustain the public order over time. The virtuous ruler therefore applies the commands of the Sharīʿa in the form of positive law in accordance with what the people can reasonably bear so they can, as subjects of the law, undertake its demands freely.

8 Conclusion

This chapter argues that maṣlaḥa, understood as a state of flourishing, far from being a marginal concept in the classical fiqh, is constitutive of the very project of fiqh. To see this clearly, however, one must reorient oneself to the practical, political dimension of fiqh as manifested in the social life of the community. In addition to theological and jurisprudential discussions of maṣlaḥa and maqāṣid, we also need to focus our attention on the kinds of arguments that jurists make in their ordinary practice of elucidating the rules of a particular area of law. When one does so, one discovers that jurists ubiquitously appeal to purposive reasoning in their attempts to systematize the law and extend it to new cases. Their purposive reasoning in turn assumes a certain substantive ideal of well-being or flourishing that structures their purposive reasoning. Appeals to maṣlaḥa and maqāṣid are therefore internal to the practices of the jurists, even if the theological understanding of this feature of the law remained controversial and unresolved. Our understanding of the place of maṣlaḥa and maqāṣid in pre-modern Islamic law cannot be complete if limited to theological and jurisprudential debates about the place of maṣlaḥa in the law without simultaneously considering the practices of the jurists.

Unlike most scholars who treat the Sunnī law of the caliphate as being discontinuous with “ordinary” Islamic law, insofar as it is presumed to be a domain where interest triumphed over principle, I have tried to show how a substantive idea of political flourishing with an obvious connection to revelation as well as practical reason informed the legal doctrines that regulated public offices in Sunnī jurisprudence. Moreover, these legal doctrines reflected the same embrace of purposive reasoning that jurists used in connection with other topics of the law. This purposive view of the law meant that the law dynamically strove toward the perfection of the substantive values implicit in the relevant legal concept itself. From this perspective, purposivism is the recognition that legal rules are rationally structured to achieve the state of flourishing that is appropriate for the domain being regulated. This notion of maṣlaḥa is clearly productive of law, and not merely a tautological affirmation that whatever God commands is a maṣlaḥa, as someone like al-Būṭī claimed.

In the political context, the relationship of wilāya, while it begins with the notion of effective power, also entails, necessarily, that power be deployed in a certain, other regarding, way that seeks the benefit of those under the ruler’s protection, not the good of the ruler himself. Implicit in this ideal is the requirement that the ruler respect the rights of the ruled and that obedience is limited to commands consistent with the moral ideals inherent in the idea of wilāya. Viewed from this perspective, the flourishing, the maṣlaḥa, that Islamic law seeks in the political realm is of a rights-regarding order in which both the rulers and the governed have sufficient virtues to sustain that order over time, with virtues beyond that minimum required for that task lying outside the jurisdiction of the ruler. This is a far-cry from the stereotyped understanding of Sunnī pre-modern Islamic law’s approach to the political as interested only in ratifying the status quo or producing religiously perfected subjects.