By Mohammad A. Abderrazzaq
Primary Source book:
Princeton collection version of Vol. 4 of Shāṭibī, Ibrahīm ibn Mūsa. al-Juzʼ al-awwal [-al-rābiʿ] min kitāb al-muwāfaqāt. Tūnis: Maṭbaʻat al-Dawlah al-Tūnisiyyah, 1302 [1884].
It is housed under the Princeton University Arabic collection, cn. 9402587.01.; Princeton University Arabic collection., Phase II.
https://babel.hathitrust.org/cgi/pt?id=njp.32101076413028;view=1up;seq=28
Area: Maqāṣid
Topic: The Role of Maqāṣid in Ijtihād
Article 1 (p. 1): Al-Shāṭibī (d. 790/1388) on legal scholars’ not employing maqāṣid methodology in their ijtihād
Article 2 (p. 3): Al-Shāṭibī (d. 790/1388) on legal procedure and the ramifications of isolating particulars from universals
Article 3 (p. 4): A practical application of maqāṣid and maṣlaḥa in ijtihād: al-Shāṭibī (d.790/1388), Abū Saʿīd ibn Lubb (d. 782/1381), and Abū ʿUmar ibn Manẓūr (d. 887/1482) on the imposition of a tax on the populace
Article 4 (p. 6): Al-Shāṭibī on the duties of the mujtahid
Article 1
Al-Shāṭibī (d. 790/1388) on legal scholars’ not employing maqāṣid methodology in their ijtihād
Al-Shāṭibī’s well-formulated and ingenious maqāṣid theory would have its most significant and far-reaching impact in the area of ijtihād. He conceived the process of ijtihād to be tightly bound to thinking about maqāṣid and maṣlaḥa, a shift from the status quo that had generally occupied the ijtihādī scene prior to and up to his time, invariably constrained by legal formalism and a lack of purposefulness. Al-Shāṭibī sought more than just a theoretical framework that would alienate practical considerations. Rather, he intended his maqāṣid theory to directly address pressing practical issues confronting the medieval world of his time, especially unprecedented political, economic, legal, religious, and social developments that were impeding upon a successful outcome for fourteenth-century Muslim Granada.
Al-Shāṭibī sought to revolutionize the epistemological underpinnings of ijtihād. For centuries, the uṣūl al-fiqh community had designated numerous conditions, many of which intricate, for the qualification of a mujtahid. Though al-Shāṭibī did not aim to dilute the knowledge-base of the institution of ijtihād, he did deem many of its conditions to be ineffectual, misplaced, or rather unnecessary. Elaborating on this point al-Shāṭibī states:
If the employment of ijtihād is exclusively linked to and dependent upon understanding and deciphering text, then expertise in the Arabic language is undoubtedly required. However, if the employment of ijtihād is concerned with identifying and weighing benefit and harm, and deciphering text is not at issue, or the deciphering has already been determined by a mujtahid and agreed upon [by the scholars], then what is required is knowledge of the objectives of the law, and not necessarily expertise in Arabic.[1]
Al-Shāṭibī believed that knowledge of the maqāṣid must be the backbone of ijtihād, and that the first and foremost qualification of a mujtahid should be to understand both the maqāṣid and their application within a given context.[2] By reassessing the longstanding qualifications of the mujtahid, shortening the list of requirements and putting at the fore one fundamentally important requisite of knowing the maqāṣid and their application, al-Shāṭibī had in effect opened wide the gate of ijtihād, streamlining the process of becoming a mujtahid and of producing ijtihād. He held that: “if one arrives at a point where he is able to understand the Lawgiver’s aim as it pertains to every question of the Law and every area thereof, he will have attained a level which qualifies him to serve as the Prophet’s vicegerent in matters of instruction and in issuing legal decisions and rulings concerning what God wills.”[3] Al-Shāṭibī had thus pioneered the central role of maqāṣid in the realm of ijtihād, and had altered the course of Islamic law for future generations.
Al-Shāṭibī is quite explicit in his rebuke of those scholars who failed to incorporate the maqāṣid in their ijtihād, maintaining that the neglect of the maqāṣid in the endeavor of ijtihād would likely lead to erroneous and futile outcomes. He states: “Errors committed by scholars most frequently occur when they fail to take account of the objectives of the Law as they pertain to the particular situation to which they are applying independent reasoning.”[4] What was worse for al-Shāṭibī was that such scholars had the audacity to think they were well-qualified to be performing ijtihād or spewing out fatāwā without any recourse to the maqāṣid. And the ramifications of this were deep; the wholesale distortion of Islamic tradition. Al-Shāṭibī speaks specifically here to the practice of engaging with the particulars of the primary source content in isolation of the universals and the greater objectives that underlie them. He points out that the most overt perpetrators of this approach are the Khawārij, a group that wreaked havoc in early Islam.[5] It is this non-holistic and piecemeal approach to legal thinking that al-Shāṭibī believed was creating the fissures in the legal community and that could inevitably bring to ruin Islamic law.
Article 2
Al-Shāṭibī (d. 790/1388) on legal procedure and the ramifications of isolating particulars from universals
For Al-Shāṭibī, those who engage only in the particulars while neglecting universals and the higher objectives that underlie them are like those referred to in Qur’an verse 3:7 who engage in the mutashābihāt or multivalent verses, overlooking the muḥkamāt or the verses that are clear in meaning, while heedless of the overarching principles and wisdoms of the Sharīʿa. In contrast to them are “those firmly rooted in knowledge” (of which Qur’ān 3:7 speaks of), who al-Shāṭibī identifies as those who “approach evidence by treating the Law as an integrated whole based on its established universals, with its particulars being ordered in accordance therewith.”[6] The former, preoccupied with the mutashābihāt, are prone to fall into gross error, while the latter have a discerning and comprehensive understanding of the revealed sources such that their ijtihād is truly capable of treating the most complex of issues. These are the people who should be most relevant to the masses in confronting the conditions and challenges of their time.
Al-Shāṭibī rehashes in several places of his al-Muwāfaqāt the contrast and relationship between particulars and universals, and specifically, that a myopic or literal reading of a particular textual ruling without reflection on its underlying cause (ʿilla) and reference to the universal maqāṣid can lead to the procurement of harm rather than benefit. Moreover, just as one should not engage with the particulars without reference to the maqāṣid, likewise he admonishes that one cannot apply the maqāṣid without reference to the particulars, including all of its related contextual elements.[7] This symbiotic relationship between the two is part and parcel to any formulation of sound ijtihād. He further adds that concern for human interests that are not explicitly manifest in the primary sources can and should serve as a premise in the process of ijtihād, provided that such human interests are arrived at genuinely and are in accordance with the maqāṣid al-Sharīʿa.[8] These human interests that extend beyond explicit textual references in the primary sources, otherwise referred to as unspecified or unrestricted interests (al-maṣālīḥ al-mursala), are given priority over the output of other reason-based uṣūlī principles such as qiyās, or analogical deduction for the great benefit or removal of harm that they procure. The term that essentially defines this notion of overriding a qiyāsī determinant with that which is deemed to procure more benefit or to remove more harm is known as istiḥsān. Al-Shāṭibī’s justification, moreover, for allowing unrestricted interests to trump qiyās is simply that unrestricted interests are essentially rooted in the maqāṣid al-Sharīʿa, and as the maqāṣid are universal, they should naturally be the ultimate guide to any particular reason-based principle including one which is directly tied to the primary sources such as qiyās (where qiyās in itself is not certain but speculative and a means to an end rather than an end).[9]
Article 3
A practical application of maqāṣid and maṣlaḥa in ijtihād: al-Shāṭibī (d. 790/1388), Abū Saʿīd ibn Lubb (d. 782/1381), and Abū ʿUmar ibn Manẓūr (d. 887/1482) on the imposition of a tax on the populace
A good practical example of al-Shāṭibī’s theory on maqāṣid and maṣlaḥa being applied in a real case ijtihād and where maqāṣid and maṣlaḥa override an established particular ruling is his fatwā which renders permissible the otherwise impermissible imposition of a tax on the populace. The gist of al-Shāṭibī’s reasoning is that if the state is unable to provide for the needs of the populace through the zakat based state treasury, then this could lead to harm. And the imposition of a tax that could offset that harm and procure a needed maṣlaḥa for the populace is therefore justifiable and in keeping with the higher objectives of the Sharīʿa.[10]
Though al-Shāṭibī’s recourse to maṣlaḥa here is within the framework of the higher objectives (maqāṣid) and appears to provide an authentically authoritative, just, and logical basis to circumvent an established particular ruling from the foundational texts, this procedure nevertheless exposes itself to all sorts of contortion, contrivance, and subterfuge, otherwise understood in Islamic legal parlance as ḥiyal, or legal stratagems of the inadmissible type. It is as such that al-Shāṭibī’s own shaykh Abū Saʿīd ibn Lubb[11] (d. 782/1381) sternly opposed his fatwā in what became a well-publicized disagreement.[12] For al-Shāṭibī, however, as long as the modus operandi of such devices was within the confines of the higher objectives of the Sharīʿa, they were necessarily admissible.[13]
But what would prevent a ruler, for instance, from coopting or colluding with a mujtahid to disingenuously use this procedure and seek additional revenue for the state in the name of the higher objectives and the public good? Al-Shāṭibī’s fatwā and the foreseen drawbacks associated with it would later be redressed by a contemporary of his, the Andalusian muftī Abū ʿUmar ibn Manẓūr (d. 887/1482).[14] Ibn Manẓūr, who accepts al-Shāṭibī’s fatwā in principle, goes on to expound upon it in detail, providing several stringent conditions that are intended to repel any potential ḥiyal of the inadmissible type, and that must be met in order to justify the imposition of a tax on a populace. He states:
…such a tax may only be levied under the following conditions. (1) There must be a genuine need. Hence, if there are sufficient funds in the state treasury for it to fulfill the aforementioned functions, it is not permitted to impose anything on the people in keeping with the words of the Prophet, “No poll tax shall be levied upon Muslims,” and, “No one who has levied taxes will enter Paradise,” which applies to the unjust imposition of duties or taxes. (2) The state must dispose of the proceeds justly; hence, it is unacceptable for the state treasury to keep the money for itself rather than distributing it among its Muslim subjects, nor may it spend the money wastefully, give it to those who do not truly deserve it, or give anyone more than he deserves. (3) The funds must be disbursed in accordance with existing needs, not with an aim to achieving some purpose of its own. (4) Taxes may only be levied on those who are able to pay them without suffering harm or injustice as a result. As for those who have little or nothing, no taxes may be required of them. (5) The state treasury must monitor its financial status at all times, since there may come a time when it no longer needs to increase its available funds.[15]
The full account of Ibn Manẓūr’s fatwā can be found in al-Wansharīsī’s[16] (d. 914/1509) Miʿyār, wherein it demonstrates instances which would validate the evasion of a particular established ruling through the application of maṣlaḥa.
Article 4
Al-Shāṭibī on the duties of the mujtahid
Among the attributes that distinguished al-Shāṭibī from other jurists was his relentless commitment to surveying the entire possible field of variables and contextual elements that could inform his ijtihād, as well as his exceptional ability to discern the consequences of the ijtihād. In this vein, he vigilantly held to the principle that ‘rulings are inseparable from their objectives.’ This notion of keeping a perspicacious eye on what one’s ruling or ijtihād would reap was for al-Shāṭibī often found missing in the practice of the professed mujtahidīn and muftis of his time. He felt that they merely thought their task was but to provide a legal ruling, nothing more. Reemphasizing some of the fundamental duties of the qualified mujtahid, al-Shāṭibī states:
Heeding the outcomes of actions is consistent with the higher objectives of the Law, whether the actions concerned are in accordance with the Law or in violation thereof. Therefore, the person engaging in ijtihād is not to judge a human action, be it one of commission or omission, until after he has given careful thought to the consequences to which the said action will lead.[17]
Thus for al-Shāṭibī, the one who is unable to do this is an incompetent mujtahid who has utterly failed the office of the mujtahid as well as those who have sought to receive and apply his ijtihād. They negligently deliver their ijtihād or fatwā to their audience without being attuned to its effect or consideration of its consequences. They fail to consider such factors as time, place and people which inform thinking about the consequences of an ijtihād or fatwā. Moreover, they have abandoned the practice of the Prophet and the Companions in the consideration of outcomes. The fate of such a self-proclaimed mujtahid should be to be deposed from the practice and ranks of ijtihād.
Al-Shāṭibī further gives discussion to the contrast between an ijtihād which may apply generally to the masses and an ijtihād which may apply specifically to an individual. The latter type of ijtihād serves the unique circumstances of an individual and requires the mujtahid to possess certain distinct capabilities that go beyond mere knowledge of the traditionally learned scholastic sciences typically associated with the field of Islamic law and the ranks of the mujtahid. Al-Shāṭibī characterized this type of mujtahid as “someone endowed with a divine light by means of which he knows people’s souls and recognizes their aspirations, their disparate levels of understanding, their ability, or lack thereof, to tolerate the Law’s requirements and bear its burdens, and the importance, or lack thereof, which they attach to earthly satisfactions.”[18] Al-Shāṭibī is essentially speaking of what this author would term ‘differentiated ijtihād’, wherein each individual is recognized as possessing their own unique and distinct peculiarities, and wherein the mujtahid takes on a holistic approach in formulating a particularized ijtihād for an individual. This type of ijtihād includes inter alia consideration of such matters as an individual’s environmental, emotional, psychological, social, and spiritual state.
Al-Shāṭibī is under no illusion in thinking that with the mujtahid having fulfilled these conditions, their resulting ijtihād will automatically procure absolute infallibility. Rather, and in this vein, he cites the well-known ḥadīth in which the Prophet Muḥammad articulated that the mujtahid may not necessarily ascertain the absolute correct ijtihād, but wherein they would still merit a reward for their genuine effort in applying the appropriate means to achieving it, while if they did ascertain the proper ijtihād, they are rewarded twofold. The upshot is not to encourage complacent mediocrity in ijtihād, but rather to encourage both the endeavor of ijtihād and the endeavor for its successful outcome. For al-Shāṭibī, the conditions he has put forth for the mujtahid, which include knowledge of maqāṣid and those matters already mentioned that extend beyond the traditional scholastic sciences associated with ijtihād—otherwise the tools to produce differentiated ijtihād—give increase to achieving the most successful outcome for an ijtihād.
The notion of differentiated ijtihād thus calls for the mujtahid to recognize that no matter what perceived similarities are found between case to case, each case should be approached anew and with the presumption that there lay within them peculiarities—no matter how subtle—to formulate an original and distinct ijtihād. Even if the resulting ijtihād turns out to mirror a precedential one, the mujtahid can at least feel at ease for having striven to exhaust the opportunities to arrive at the soundest ijtihād. And in so doing, the mujtahid has done his part to gain the two-fold reward promised in the ḥadīth, and more importantly, the pleasure of God for the intellectual struggle along the way.
Notes:
[1] Ibrahīm ibn Mūsa al-Shāṭibī, al-Juzʼ al-awwal [-al-rābiʿ] min kitāb al-muwāfaqāt (Tūnis: Maṭbaʻat al-Dawla al-Tūnisiyya, 1884), 4:79-80; Ibrahīm ibn Mūsa al-Shāṭibī, al-Muwāfaqāt (Beirut: Dār al-Maʿrifah, n.d.), 4:162.
[2] Al-Shāṭibī, Kitāb al-muwāfaqāt, 4:49-50; al-Shāṭibī, al-Muwāfaqāt, 4:105-106.
[3] Al-Shāṭibī, Kitāb al-muwāfaqāt, 4:50; al-Shāṭibī, al-Muwāfaqāt, 4:106-107.
[4] Al-Shāṭibī, Kitāb al-muwāfaqāt, 4:84; al-Shāṭibī, al-Muwāfaqāt, 4:170; Aḥmad al-Raysūnī, Imam Al-Shatibi’s Theory of the Higher Objectives and Intents of Islamic Law (London: International Institute of Islamic Thought, 2005), 332.
[5] Al-Shāṭibī, Kitāb al-muwāfaqāt, 4:86-89; al-Shāṭibī, al-Muwāfaqāt, 4:174-179. For more on the Khawārij, see Mohammad Abderrazzaq, “Khawarij and Ibadiyya,” in The Oxford Encyclopedia of the Modern World, ed. Peter N. Stearns (Oxford University Press: 2009).
[6] Ibrahīm ibn Mūsa al-Shāṭibī, al-ʿItiṣām (Maktabat al-Riyāḍ al-Ḥadītha, n.d.), 1:244-245; Al-Raysūnī, 333.
[7] Al-Shāṭibī, al-Muwāfaqāt, 3:5-15.
[8] Ibid., 4:206.
[9] Ibid.
[10] Al-Iʿtiṣām, 2:121-123; Also see Abū al-ʿAbbās al-Wansharīsī, al-Miʿyār al-muʿrab wa al-jāmiʿ al-mughrab ʿan fatāwā ahl Īfrīqiya wa al-Andalus wa al-Maghrib (Moroccan Ministry of Religious Endowments, 1981), 11: 127-128; Nayl al-Ibtihāj, pp. 49-50; al-Raysūnī, 356.
[11] Abū Saʿīd Faraj ibn Lubb was the muftī of Granada.
[12] Al-Miʿyār, 11:131; Nayl al-ibtihāj, pp. 49-50; al-Iʿtiṣām, 2:121-123; al-Raysūnī, 356.
[13] Though all kinds of ḥiyal were widely rejected especially within the Shafiʿī and Ḥanbalī schools, a more moderate and nuanced position eventually arose across all the schools. For instance, the fourteenth-century Ḥanbalī scholar Ibn Qayyim al-Jawziyya distinguished between three types of ḥiyal, (1) clearly inadmissible, (2) clearly admissible and (3) of doubtful admissibility, wherein the higher objectives of the law informed admissibility. The Ḥanafī school has long approved—going back to Abū Ḥanifā—certain types of ḥyal. In fact, a substantial literature on ḥiyal can be found in the Ḥanafī school. See for example Kitāb al-maḥārij fī l-ḥiyal by Muḥammad al-Shaybānī (d. 189/805).
[14] ʿUthmān ibn Muḥammad ibn Manẓūr, commonly known as al-Qaḍī Abū ʿUmar ibn Manẓūr, was a prominent Andalusian judge and muftī. Many of his fatāwā are cited by al-Wansharīsī in his al-Miʿyār.
[15] Al-Miʿyār, 11:127-128; al-Raysūnī, 357-358.
[16] Abū al-ʿAbbās Aḥmad ibn Yaḥya al-Wansharīsī was a prominent North African theologian and jurist of the Mālikī school and a leading authority on issues pertaining to Iberian Muslims living under Christian rule after the Christian Reconquista of Islamic al-Andalus. He is best known for his work al-Miʿyār al-muʿrib, a multivolume compilation of North African and Andalusian legal opinions (fatāwā). It became part of the educational curriculum in North Africa by the sixteenth century, and it is still studied today as an important source of information on the cultural, economic, juridical, religious and social practices of medieval al-Andalus and North Africa.
[17] Al-Muwāfaqāt, 3:196; Al-Raysūnī, 358-359.
[18] Al-Muwāfaqāt, 4:98; Al-Raysūnī, 361.