Professional Documents
Culture Documents
Edited by
A. Kevin Reinhart and Robert Gleave
With an Appreciation by
Peter Sluglett
LEIDENBOSTON
2014
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CONTENTS
PART ONE
LAW AND REASON
PART TWO
LAW AND RELIGION
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vi contents
Sins, Expiation and Non-rationality in anaf and Shfi fiqh ........ 143
Christian Lange
PART THREE
LAW AND LANGUAGE
PART FOUR
LAW: DIVERSITY AND AUTHORITY
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PART ONE
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THE WISDOM OF GODS LAW: TWO THEORIES
Ahmed El Shamsy
I.Introduction
Montesquieu begins his De lesprit des lois with the assertion that laws, in
their most general signification, are the necessary relations arising from
the nature of things. In this sense all beings have their laws: the Deity His
laws, the material world its laws, the intelligences superior to man their
laws, the beasts their laws, man his laws.1 In Montesquieus view, God is
constrained by rules that necessarily spring from His wisdom and power,
while human beings construct their laws against a background of natu-
ral justice. This dictates certain primitive laws, such as the obligation
to thank ones benefactor and to provide retaliation for an injured party.
Such rules exist objectively and are independent of the man-made posi-
tive laws that may give expression to them. Montesquieu thus vehemently
opposes ethical subjectivism, claiming that to say that there is nothing
just or unjust but what is commanded or forbidden by positive laws, is
the same as saying that before the describing of a circle all the radii were
not equal.2
Roughly eight centuries before Montesquieu, the Mutazil concep-
tion of the spirit of the law was based on very similar premises of natural
justice.3 The Mutazils, too, believed in the existence of objective and
rationally graspable ethical principles that applied to both human and
divine actions; they, too, considered the imperative of gratitude to the
benefactor (shukr al-munim) to represent one such principle. The ques-
tion that this paper explores is whether and how these Mutazil ethics
influenced the theorization of Islamic law and the development of con-
ceptual tools for legal reasoning. I focus on a group of Shfi scholars who
1I would like to thank Gregor Schwarb for his helpful comments on a draft of this
paper. Montesquieu, The Spirit of Laws (De lesprit des lois), 1:1.
2Montesquieu, The Spirit of Laws, 1:2.
3For a succinct overview of the pre-Islamic history of the natural law concept, see
Frank Griffel, The Harmony of Natural Law and Shara, 3942.
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20 ahmed el shamsy
lived in the early tenth century c.e. (late third and early fourth Hijr cen-
tury). Kevin Reinhart has shown that a subsection of the Shfi school in
this period had evidently adopted a Mutazil theological outlook, giving
rise to what he calls speculative Shfiism.4 Secondary sources indicate
that these Mutazil-inclined scholars produced some of the earliest works
on legal theory (ul al-fiqh) to be written after al-Shfis (d. 204/820)
Rislah. Of these, no major works seem to have survived. However, by
piecing together evidence from two newly available sources, most impor-
tantly a short but complete legal-theoretical text from the first half of the
tenth century, we are able to reconstruct in some detail a coherent legal
theory that reveals the role played by rationalist theology in tenth-century
Shfi law.
An analysis of these sources reveals that at least one prominent strand
of Shfi legal theory in this period was not merely influenced by, but
indeed fundamentally embedded in, rationalist theology. George Makdisi
has claimed that for al-Shfi legal theory represented an alternative to
theology;5 but it seems clear that by the fourth/tenth century, many of
al-Shfis successors considered it part and parcel of a broad theological
system. Within this system, the proposition that the sacred law promotes
human benefit (malaah) occupied a central position: it served to jus-
tify both the overall rationality of the law and the practice of analogi-
cal reasoning (qiys). However, for tenth-century Shfis the concept of
malaah remained a theoretical construct and was not employed as a
practical tool of legal reasoning. Counterintuitively, the systematic utiliza-
tion of malaah as a device in analogical rule derivation seems to have
begun among Shfis after the decline of Mutazil ethics and with the rise
of Ashar ethical subjectivism.
Al-Shfi was intensely critical of the kalm theology of his day, both form
and content.6 His condemnation did not, however, deter his students
from taking up positions on the heated debates of the third/ninth cen-
tury. Ab Yaqb al-Buway (d. 231/846), Ab Al al-Karbs (d. 248/862),
Isml b. Yay al-Muzan (d. 264/877), and Ab Abd al-Ramn al-Shfi
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the wisdom of gods law: two theories 21
(d. after 230/845) all appear to have voiced opinions regarding the con-
troversial Mutazil thesis of the createdness of the Quran. Al-Buway
unequivocally rejected the thesis,7 while al-Karbs and al-Muzan
endorsed an intermediate position according to which only the utterance
(laf) of the Quran was created.8 Ab Abd al-Ramn, in contrast, not only
affirmed the createdness doctrine wholeheartedly, but became an open
Mutazil and acted as the right-hand man of the imperial grand judge Ibn
Ab Duwd (in office probably 218237/833851 or 852) in enforcing the
Quranic inquisition (minah),9 an occupation that caused much embar-
rassment among the Shfis both at the time and afterwards.10 But the
opprobrium heaped upon Ab Abd al-Ramn should not be interpreted
as evidence that Mutazil ideas in general were considered anathema by
the Shfis in the period that followed the inquisition. Particularly in the
realm of legal theory, the opposite appears to be the case.
A preliminary indication of this is provided by the remarkable dearth
of extant works on Shfi legal theory from this period. We know of a
number of works on legal-theoretical topics that were composed before
the mid-tenth century,11 but already al-Zarkash (d. 794/1392) had diffi-
culty in finding anything beyond single copies of a handful of these texts
for his encyclopedic work on Shfi ul al-fiqh.12 The most likely reason
for the disappearance of these works lies in the theological attitudes that
they displayedattitudes rooted in Mutazil ethics, which came to be
considered unacceptable by later generations of Shfi jurists. This theory
is supported by the fact that the only hitherto found fragments of legal-
theoretical writings from the early period have survived as part of works
on positive law. Ibn Surayjs (d. 306/918) al-Wadi li-man al-shari, a
work primarily concerned with the recitation of uncontroversial points of
law, contains a small addendum on legal theory; however, this is silent on
the contentious theological issues that are the subject of this study.13
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22 ahmed el shamsy
My analysis here draws on two primary sources that have thus far
received little or no attention, but which offer an unparalleled insight into
early Shfi legal theory. These sources are al-Aqsm wa-l-khil by Ab
Bakr Amad b. Umar b. Ysuf al-Khafff, and the recently edited Masin
al-sharah by al-Qaffl al-Shsh.14 While al-Qaffl is a well-known mid-
tenth-century Shfi jurist (he died in 365/976), very little is known about
al-Khafff. He is said to have belonged to the generation of Ibn Surayjs
students and to have been a contemporary of Ibn al-addd (d. 345/956
or 957), so he probably lived a few decades earlier than al-Qaffl.15 He
is also widely recognized as the author of a work titled al-Aqsm wa-l-
khil.16 This short work exists in the Chester Beatty Library in Dublin as
a single water-damaged manuscript that the catalog mistakenly attributes
to Ibn Surayj.17 Al-Aqsm wa-l-khil is a book of fiqh, but it is prefaced
by a remarkable 3,000-word introduction, Muqaddimah, which contains
a concise but complete exposition on legal theory. The Muqaddimah
represents, to my knowledge, the oldest extant work of this kind after
al-Shfis Rislah and al-Buways abridgement of the Rislah. It dis-
cusses explicitly, under the rubric of ul al-fiqh, many of the core topics
of mature legal theory that are missing from the Rislah, such as the d-
tawtur distinction, types of ijm and qiys, the nature of the imperative
(amr), ambiguous expressions (mujmal), previous divine laws (shari
man kna qablan), legality in the absence of revelation (al-ashy qabla
maj al-shar ), and legal conformism or taqld.
What is most striking about the Muqaddimah is the fact that it places
legal theory squarely within a theological framework. Al-Khafff begins
the text with the thesis that the permissible and the impermissible are
recognized from two angles, one of them reason, the other revelation
14For another discussion of the value of the Masin, see Kevin Reinharts paper in
this volume.
15This information is contained in a single-sentence entry in al-Shrzs abaqt
al-fuqah, 114. Subsequent biographers all drew on this source; see, for example, al-Isnaw,
abaqt al-shfiiyyah, 1:464465. Ferdinand Wstenfeld seems to have had access to a fur-
ther manuscript of al-Isnaw that describes al-Khafff as a contemporary of Ibn al-addd;
see Wstenfeld, Der Imm el-Schfi, 19. jj Khalfah mistakes the anaf jurist al-Khaf
for al-Khafff, and attributes to the latter al-Khafs death year of 261/874; see jj
Khalfah, Kashf al-unn, 2:1416.
16See, for example, al-Zarkash, al-Bar al-mu, 5:42, and the works mentioned in the
previous note.
17Al-Khafff s name is recognizable on the first page of the manuscript. Also, classical
Muslim authors cite the work and attribute it to al-Khafff; see previous note. I am in the
process of editing the Muqaddimah for publication.
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the wisdom of gods law: two theories 23
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24 ahmed el shamsy
22Josef van Ess has found some evidence that usage of the term illah to denote causal-
ity in law predates al-Shfi; see van Ess, The Logical Structure of Islamic Theology. On
al-Shfis use of man, see Lowry, Early Islamic Legal Theory, 150152.
23al-Qaffl al-Shsh, Masin al-sharah, 27.
24al-Qaffl, Masin al-sharah, 25. The term virtuous governance (al-siysah
al-filah) is unusual in legal discussions and indicates that al-Qaffls argument tran-
scends the purely legal realm, an issue that is investigated below.
25al-Rz, al-Mal, 5:175177. See also al-akm al-Tirmidh, Ithbt al-ilal, 69.
26See, for example, al-Ashar, Maqlt al-islmyyn, 575.
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the wisdom of gods law: two theories 25
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26 ahmed el shamsy
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the wisdom of gods law: two theories 27
35Muammad Zhid al-Kawthar (d. 1952) already argued that the concept of malaah
among the Mutazils served a theological rather than a practical legal purpose in Athar
al-urf wa-l-malaah, 239243.
36al-Qaffl, Masin al-sharah, 261. The edited text reads taqruba/tuqarriba al, but
I have changed the preposition based on a manuscript of the Masin that was not used
by the editor (Yale University, Beinecke Rare Book and Manuscript Library, MS Landberg
614, fol. 72b). I am grateful to Kevin Reinhart for allowing me to consult his copy of this
manuscript.
37al-Qaffl, Masin al-sharah, 27.
38al-Qaffl, Masin al-sharah, 540.
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28 ahmed el shamsy
benefit could be used in the actual determination of legal causes for the
purpose of analogy.
Al-Qaffls theory of benefit bears a strong resemblance to that devel-
oped by his contemporary anaf legal theorist Ab Bakr al-Ja
(d. 370/980). Al-Ja distinguished between causes of benefit (ilal
al-mali) and causes of the rule (ilal al-ukm).39 Like al-Qaffl, al-Ja
deduced the beneficiality of the law in general from Gods attribute of
wisdom. The benefits of the details of the law, however, could not be
deciphered through reasoning. It was enough to know that they neces-
sarily had to exist, flowing from the premise of a wise God. Al-Jas
teacher, Ab al-asan al-Karkh (d. 340/952), put forth a similar distinc-
tion between what he called the causes of a rule (ilal al-ukm) and the
wisdom of a rule (ikmat al-ukm), emphasizing that the wisdom of a rule
could not be used to establish its cause.40
The distinction between, on the one hand, the specific cause of a legal
ruling and, on the other, the overall purpose served by the ruling reveals
a particular understanding of the nature of legal causes. This sign model
of the cause treats legal causes as arbitrary signs, set by God, that are
not ontologically connected to the underlying reasons of the divine law,
like names lacking an inherent connection to their referents. The func-
tion of such causes is to act as markers that enable the jurist to general-
ize the known ruling in one case to other, similar cases that share the
same salient feature, i.e. the same cause. Knowing that the law in general
serves human welfare, the jurist can also speculate about the nature of the
broader benefit provided to humankind by the ruling. However, this
unlike the determination of the legal causeis mere conjecture. Within
the sign model, considerations of benefit can thus have no practical role
in the identification of legal causes and the practice of analogy.41
The sign model of the cause was by no means universally held by early
Shfis: Ab Al b. Ab Hurayrah (d. 345/956), for example, is reported
to have adhered to the alternative motive model,42 according to which
legal causes correspond in a direct and often intelligible way to the overall
policies served by legal rulings. Nonetheless, we know that the sign model
was adopted by at least some prominent Shfi scholars in this period.
In particular, Ab Bakr al-ayraf, one of the most influential speculative
Shfis of the early tenth century, is reported to have adhered explicitly to
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the wisdom of gods law: two theories 29
the sign model,43 which indicates that for him, too, the practice of analogy
could not utilize considerations of benefit. Although al-Qaffl was more
willing to speculate on the underlying benefits of the law than al-Ja
and al-Karkh, he stressed the speculative nature of these interpretations
and the polemical project that they served as a justification of the law
against antinomian threats.44 Whether or not al-Qaffl also endorsed the
sign model (the fact that he adhered to al-ayrafs legal theory suggests
that he did),45 this certainly indicates that he did not view the principle of
benefit as representing a useable element in the methodology of analogy.
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30 ahmed el shamsy
While juristic jadal provides the framework for disputes on any source
of the law, in actual practice the most discussed topic was the process
of analogy and especially the verification of the legal cause. By the very
nature of the method of jadal, the verification process was formalistic.
The primary way of arguing for a legal cause was to demonstrate its con-
sistency (ard, i.e. whenever the cause is present, the legal qualification
is present) and convertibility (aks, i.e. whenever the cause is absent, the
legal qualification is absent).50 The legal cause used for the tests of con-
sistency and convertibility thus had nothing to do with the presumptive
benefit provided by the rule in question.
It is plausible that the Shfis adoption of the formalistic method of
jadal is connected to the terminological shift, mentioned above, from
underlying reason (man) in al-Shfis Rislah to legal cause (illah) a
century later. As Aron Zysow has already pointed out, the fascination of
early Shfis with consistency and convertibility in the ascertainment
of legal causes springs from the application of the standards of rational
causes to legal ones.51 It seems that the introduction of the term illah
into Shfi legal theory went hand in hand with a new view of the basic
unit of analogical reasoning: if it was a cause, rather than a more nebulous
meaning (man), then it could be verified the way that natural causes
were verified, namely through formalistic means. The method par excel-
lence for such a procedure was jadal.
In contrast to the apparent non-use of the principle of benefit in veri-
fying legal causes, there is therefore extensive evidence that early Shfis
used the formalistic method of jadal as the basis of analogical reasoning.
This adoption of a theological method into law lends further support to
the thesis that tenth-century Shfis integrated law both substantially and
methodologically into a theological system.
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the wisdom of gods law: two theories 31
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32 ahmed el shamsy
maximum deterrent effect, murder carried out with any type of weapon
would be subject to the death penalty, with deference to the anaf posi-
tion according to which only murder committed with a lethal weapon
merits this punishment.55
The Mutazil understanding of benefit in law was rationalist in the
sense that it was derived from higher principles postulated to be directly
dictated by reason. Al-Ghazls theory, on the other hand, was quasi-
empiricist: its basis in Ashar voluntarism necessarily precluded the
assumption of a priori structure or aims within the law, but it left open
the possibility of discovering such a structure through observation of the
law itself.
It is tempting to link this empiricist turn in al-Ghazls thought to his
engagement with the work of Galen of Pergamum (d. around 216 c.e.),
particularly the latters De usu partium (On the usefulness of the parts
of the body, in Arabic Manfi al-a), which enumerates the benefits
of each part of the human body and the harmony in which they inter-
act.56 This work was translated into Arabic already by the late ninth
century,57 and it enjoyed enormous popularity in al-Ghazls time. Abd
al-Ramn b. Ab diq al-Naysbr (alive in 459/1067) wrote a commen-
tary on Galens book,58 and Ab ayyn al-Tawd (d. 414/1023) praised
its genius which he attributed to divine inspiration.59 Al-Ghazl, in al-
Munqidh min al-all, refers directly to Galens work: in a discussion on
the ancient natural philosophers, he explains that the benefit of the study
of anatomy lies precisely in the discovery of this usefulness of the body
parts (manfi al-a), which in turn illuminates to the scholar Gods
wisdom (ikmah) and the purposes (maqid) of His actions.60
The overlap between al-Ghazls terminology and that of legal theory
is evident and becomes clearer still in al-Ghazls al-ikmah f makhlqt
Allh,61 which is dedicated to elucidating the divine wisdom behind the
creation of the planets, the elements, animals and plants, as well as the
human body. Already the introduction indicates an empiricist approach,
as al-Ghazl justifies his work in terms of the Quranic injunction to
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the wisdom of gods law: two theories 33
What this study has shown is that the integration of rationalist ethics and
legal theory in the work of early tenth-century Shfi jurists did not lead
to a de-scripturalization in favor of legal reasoning based on notions of
natural law, as it had in the work of Montesquieu. Rather, reason was
employed as an apologetic tool for justifying the overall thrust of the law
as necessary and the details as possible ways of virtuous divine lawmak-
ing. Meanwhile, the actual process of legal reasoning for individual rules
took place according to the formalistic method of juridical dialectics. The
idea of a rational sacred law was upheld but radically altered in the work
of Ashars such as al-Ghazl. While Ashar ethical subjectivism rejected
the notion that God is bound by rational obligation, al-Ghazl argued for
a bottom-up rationality of the law that was justified empirically: through
induction, an intelligible structure could be discerned in the law, and
this structure could then be utilized for the analogical extension of rules
through the test of appropriateness.
We thus arrive at the counterintuitive conclusion that the Ashar de-
coupling of ethics from law coincided with the transformation of benefit
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34 ahmed el shamsy
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36 ahmed el shamsy
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