Al-qawāʿid al-fiqhiyya – Islamic legal maxims – have received limited attention in the plethora of works on Islamic law and legal theory published in the last two to three decades. With the aim of further advancing the study of Islamic legal maxims, the Exeter-based LAWALISI (LAW, Authority and Learning in Imami Shiʿite Islam) project convened a two-day workshop in order to critically read and analyze some key texts composed on this topic. The event, taking place on the 2nd and 3rd December 2019, attracted established and emerging scholars from different universities and research institutes. This text-reading workshop engaged in the deliberation of pertinent questions concerning al-qawāʿid al-fiqhiyya from both Shiʿi and Sunni Islamic legal traditions.
As convener, I opened the workshop with a passage from Ibn Qutayba’s Adab al-kātib (composed a little before 236/850) in which the author states that a careful understanding and memorization of the legal maxims expressed in the traditions of the Prophet would relieve the would be-scribe from the long-winded discussions of the jurists. Ibn Qutayba’s statement, I argued, implies that the application of maxims is not the sole prerogative of the jurists. This is particularly true in the Shiʿi conceptualization of legal maxims where a clear distinction is made between al-qawāʿid al-fiqhiyya and al-qawāʿid al-uṣūliyya. The latter examine the authoritativeness of different hermeneutical tools for legal interpretation, and are understood to fall exclusively under the purview of a jurist. Al-qawāʿid al-fiqhiyya, though, equip muqallids with over-arching principles enabling them to apply them in all the relevant personal circumstances without needing to consult a jurist. This distinction generated a debate at the workshop concerning how this might work within the Shiʿi legal framework and whether it proves useful in a Sunni context that assigns this role of application to second-tier muftis.
Mariam Sheibani (Harvard Law School) read from al-Furūq of al-Qarāfī (d. 684/1285), a collection of Mālikī distinctions. At these workshops, the primary focus of the lead-reader is to elucidate the text, and in this case lay out the author’s theory on the purpose of legal maxims and distinctions (qawāʿid and furūq). Sheibani deliberated on some ‘rare insights concerning the role of maxims in consolidating legal doctrine, amending existing doctrine, and extending the law to new cases.’ The section that highlighted the distinction between the maxims of ‘Those permitted to issue legal opinions’ and ‘Those not permitted to issue legal opinions’ was chosen as a case study to gain insight into al-Qarāfī’s methodology and approach when describing these distinctions.
After having deliberated on the ambit and remit of maxims and distinctions in al-Qarāfī’s theorization, texts began to delve deeper into specific maxims in order to decipher their role and function in Islamic legal traditions. Ahmad Arbaboun (Universiteit Leiden) presented a section from a widely read Shiʿi legal text entitled al-Makāsib of al-Shaykh al-Anṣārī (d. 1281/1864). The selected passages examined the maxim ‘transactions are essentially binding’. Explaining the theological and legal framework on which al-Anṣārī’s ideas were built, Arbaboun argued that the author’s theorization of certainty implied a shift of authority from the Imam to legal method that is placed, epistemologically speaking, below the authority of the Imam. Next, the group examined the section in Ibn Taymiyya’s (d. 728/1328) work, al-Qawāʿid al-nurāniyya al-fiqhiyya concerning the ritual purity and impurity of various substances. Abdullah Sliti (formerly of Heythrop College and now an independent researcher), led a critical analysis of this text providing insights into the respective approaches of the schools and scholars of ahl al-ḥadīth, ahl al-Kūfa, and ahl al-Madīna to applying this maxim.
The remaining two contributions to the workshop examined the maxims concerning hardship (mashaqqa) and harm (ḍarar) in Sunni and Shiʿi texts. Selected passages of al-Ashbāh wa-l-naẓāʾir of Ibn al-Nujaym (d. 970/1563) was read by Sohail Hanif (Cambridge Muslim College) who illustrated the types of hardships that call for ease and relaxation in legal rulings. The text reasserted the idea that although legal maxims facilitate the understanding of a large amount of individual rules (furūʿ), the jurist-consult (or a muqallid, in the Shiʿi context) has to examine various categories of the subject-matter of the maxim before applying it to potential cases. Alex Hainy-Khaleeli (University of Exeter) scrutinized the maxim extrapolated from the Prophetic tradition that states ‘harm may neither be inflicted nor reciprocated’ as discussed in al-Qawāʿid wa-l-fawāʾid of al-Shahīd al-Awwal (d. 786/1386). This work, essentially a collection of various maxims related to grammar, theology, legal theory and law, is arguably the first Shiʿi work on legal maxims. It is clear that the author was familiar with Sunni writings on al-qawāʿid and that he reformulated them based on the demands of the Shiʿi legal tradition. This conclusion corroborates Devin Stewart’s findings on the participation of Shiʿite scholars in the discourses of broader Islamic jurisprudence and that they were influenced by Sunni legal traditions. A closer reading of this text will shed further light on how Shiʿi scholars participated in the growing trend of Sunni qawāʿid works of thirteenth and fourteenth centuries and how this act of participation was informed by broader Sunni-Shiʿi scholarly exchanges in the pre-Akhbari period. In the Akhbari period (and in the post-Akhbari period of the nineteenth and twentieth centuries) Shiʿi law and legal theory was more isolated from its Sunni counterpart. One of the fundamental aims of the LAWALISI project, according to its Principal Investigator, Robert Gleave, is to read Sunni and Shiʿi legal texts side by side to further capture the nuances of the arrangement, presentation, contextualization, and appropriation of the material developed by both of these variegated legal traditions.
The workshop ended leaving me with more questions than I had started with. But there was a substantial difference: my questions were now more polished, thought-out, and articulated in technical language. Let me summarize my observations in three points. First, after having devoted a substantial amount of time to discussing the contours that define the field of legal maxims, the demarcation of al-qawāʿid al-fiqhiyya as against other areas of Islamic legal theory remains blurred. What makes legal maxims fundamentally distinct from other disciplines of Islamic legal tradition, apart from being relatively applicable to personal circumstances in the Shiʿi tradition, is a critical question that merits further investigation. Second, the function and role of legal texts composed under the rubric of furūq, ashbāh wa naẓāʾir, ʿanāwīn, ḍawābiṭ (among other titles) closely resemble al-qawāʿid al-fiqhiyya: Like qawāʿid, they attempt to enlist general principles that govern many particular cases. What do their differences, if any, tell us about the various attempts to simplify law for lower-ranking jurists and non-jurist muqallids? Third, the study of al-qawāʿid is, partly, tied with the maqāṣidī framework for understanding the Sharīʿa – they offer broad statements akin to meta-Islamic fundamental values. Should not then maxims be introduced as ‘objectives of law’ as opposed to ‘interpretive principles of laws’? While text-reading workshops spare academics from articulating their working hypotheses in the usual academic language and structure, they participate in the ambitious venture of decoding what the text is trying to communicate and more importantly what it chooses to be silent about. This collective enterprise is indeed laborious but the frequent interventions of colleagues make it an enjoyable exercise. Participants spend the sessions suggesting alternative translations of specific words or phrases, reminding the reader to correct grammatical errors, disagreeing on the reference of object-pronouns, asking for further elaboration and summarizing the arguments of the author in non-specialist language. It is reminiscent of the seminary-style approach to the reading classical texts!
This workshop on al-qawāʿid al-fiqhiyya appears to be the first collective attempt of its kind in an English-speaking academic setting, and it will hopefully result in further contributions in the form of panels, conferences, and publications. My thanks are due to Professor Robert Gleave of the Institute of Arab and Islamic Studies at the University of Exeter who not only sponsored this memorable event through his European Research Council funded LAWALISI project but also contributed his insightful remarks, critical interventions, and sharp observations during the course of two days of the workshop. A full list of participants and the texts studied for both this and previous LAWALISI workshops can be found at: http://www.lawalisi.eu/workshops/.