Professional Documents
Culture Documents
TABLE OF CONTENTS
INTRODUCTION .........................................................................................1469
I. LITERALISM, JURISTIC EMPIRICISM, AND JURISTIC INDUCTION .........1471
II. JURISTIC INDUCTION AND THE MAQÂSID AL-SHARÎ’AH ......................1476
III. PRESERVATION OF REASON (HIFZ AL-’AQL): ONE OF THE MAQÂSID AL-
SHARÎ’AH ............................................................................................1478
IV. AL-’AQL: BEYOND FALSE UNIVERSALS.............................................1480
V. CONCRETIZING HIFZ AL’AQL IN THE MODERN WORLD .....................1482
CONCLUSION ............................................................................................1486
INTRODUCTION
It was in the nineteenth century that the “scientific” study of Islam ap-
proached maturity in the West. This was also the period during which the
hegemonic rise of the hard sciences and “higher criticism” in religious stud-
ies opened a new chapter in the age-old conflict between “reason” and reve-
lation. Among the most important by-products of this development was the
rise of religious Fundamentalism, in which Christian—more specifically
Protestant—scholars and theologians moved to erect a dike of literalism
around the Bible to stave off doctrinal erosion and compromise.1 To their
* Professor of Arabic and Islamic Studies, Visiting Professor of Law, The Univer-
sity of Michigan. Ph.D., University of Pennsylvania; M.A. University of Pennsylvania;
B.A., University of Pennsylvania.
1. The term “Fundamentalism” is taken from a twelve-volume series entitled, The
Fundamentals, published by a group of conservative Protestant scholars and theologians
between 1909 and 1919, financed by two brothers, Wyman and Milton Stewart, in response
to liberal re-interpretations of Christianity. There were five main fundamentals: (1) the inspi-
ration and infallibility of Christian Scripture; (2) the deity of Jesus (including his virgin
birth); (3) the substitutionary atonement of Jesus’ death; (4) the literal resurrection of Jesus;
and (5) the literal second coming of Jesus. For a good introduction to fundamentalism, see
ED DOBSON ET AL., THE FUNDAMENTALIST PHENOMENON 48-49 (2d ed. 1986).
1470 Michigan State Law Review [Vol. 2006:1469
meaning of a statement, for example, “The thief, male and female, cut off
their hands,” was as contingent upon prior notions about the “character” of
God as it was upon the words themselves. In this light, he wanted to ensure
that the primordial presuppositions of the Arabs, or more properly the Ara-
bians, continued to reign supreme. Otherwise, a command to amputate the
hands of thieves might be interpreted away by those whose inherited notions
of God preempted the possibility that He might actually sanction literal am-
putation.
The reaction to al-Shâfi’î, however, was ultimately to reject his thesis
in favor of an interpretive theory that was grounded in linguistic formalism,
according to which meaning was restricted, mutatis mutandis, to the observ-
able features of language (morphology, syntax, grammar). This was the
beginning of what Prof. Bernard Weiss referred to as “exotericism” in Is-
lamic law, according to which all biases, hunches, and presuppositions were
to be extracted from the realm of subjective consciousness, packaged in the
guise of objective language, and presented as the plain dictates of revelatory
speech.8 The implication here was that all presuppositions—Arabian and
non-Arabian alike—were equally suspect and equally threatening to the
integrity of scripture.9 As such, legal arguments were to be judged solely on
the basis of their linguistic fidelity to sources and heuristic methods located
in the public domain, where they could be assumed to be equidistant from
and equally accessible to everyone. This trend, which came to dominate
usûl al-fiqh, had the ultimate (and in my view plainly intended) effect of
leveling the playing field between those who began versus those who ended
their genealogy as Arabs.
In this context, the main thrust of classical usûl al-fiqh came to consti-
tute a consciously-maintained form of the above-cited juristic empiricism.
Indeed, Islam developed not simply into a nomocratic civilization, but into
what might be termed, to borrow W.W. Bartley’s nomenclature, a “justifica-
tionist” one.10 In this culture, all assertions of legal doctrine, legal rights,
and legal obligations had to be justified or authenticated on the basis of ob-
jective legal proofs.
In the same work, Ibn Hazm expands this when dealing specifically
with the topic of literal verses’ metaphorical meaning (haqîqah wa majâz).
Here he denounces those who deny the use of metaphorical language in the
Qur’ân and insists that:
Whenever we have certainty, based on a univocal text (nass), a Unanimous
Consensus (ijmâ’) or natural reason (tabî’ah), that a word has been diverted
11. See, e.g., N.J. COULSON, A HISTORY OF ISLAMIC LAW 71 (1964); N. Calder, Law,
in 2 THE OXFORD ENCYCLOPEDIA OF THE MODERN ISLAMIC WORLD 450 (John L. Esposito ed.,
1995); KHALED ABOU EL FADL, SPEAKING IN GOD’S NAME: ISLAMIC LAW, AUTHORITY AND
WOMEN 309 (2001); WAEL B. HALLAQ, A HISTORY OF ISLAMIC LEGAL THEORIES 207 (1999).
12. See, e.g., IBN HAZM, 8 AL-IHKÂM FÎ USÛL AL-AHKÂM 2-123 (A.M. Shâkir ed.,
Dâr al-Afâq al-Jadîdah, 1403/1983) [hereinafter AL-IHKÂM FÎ USÛL AL-AHKÂM].
13. See, e.g., 2 AL-IHKÂM FÎ USÛL AL-AHKÂM, supra note 12, at 12-21.
14. Devin Stewart has extracted parts of a Zâhirite work by the son of the founder of
Zâhirism from the writings of the Ismâ’îlî jurist, al-Qâdî Nu’mân (d. 363/974). However,
these parts do not appear to include treatment of such topics as literal versus figurative mean-
ing. See Devin Stewart, Muhammad b. Dâ’ûd al-Zâhiri’s Manual of Jurisprudence: Al-
Wusûl ilâ Ma’rifat al-Usûl, in STUDIES IN ISLAMIC LEGAL THEORY 99-158 (B. Weiss ed.,
2002).
15. 3 AL-IHKÂM FÎ USÛL AL-AHKÂM, supra note 12, at 41 (translated by author).
Special] Literalism, Empiricism, and Induction 1475
from the meaning it was coined to have in the language to another meaning, we
must interpret it thus (wajaba al-wuqûf ‘indah).16
This is quite standard among the schools of law. All begin with a prima
facie deference to literal meaning, only agreeing to set it aside on the basis
of other textual or non-textual justifications. In this regard, Zâhirism was
right in step with the mainstream. Where Zâhirism departed from the main-
stream was in its rejection of analogy and Unanimous Consensus. But this
was related not to literalism but to its more emphatic and uncompromising
commitment to juristic empiricism. In other words, the whole point of re-
jecting these synthetic accoutrements was to promote and preserve the pri-
macy of scripture by insulating it from any and all potential competitors,
explicit or implied, subversive or well-meaning.17
Meanwhile, mainstream, classical legal theory’s acceptance of qiyâs
and ijmâ’ was essentially an attempt in the same direction. This was aimed
at curbing the speculative, a priori forays of the jurists, binding them to
deductions from scripture. In other words, even the reaction to Zâhirism
reflected a shared, prima facie commitment to the principle that knowledge
of the law was (ideally) limited to the locutionary dictates of texts and could
go little beyond this.18
All this leads to a conclusion of far-reaching implications for modern
Muslim legal discourse: contrary to popular belief, Islamic law neither pro-
duced nor recognized a literalist canon of the Western Fundamentalist
genre. Muslim jurists only produced an empiricist canon. The confusion,
however, between these two modalities is a major impediment to the pro-
duction and acceptance of modern interpretations that purportedly recline
upon the maqâsid al-sharî’ah. This is because literalism is essentially a
false problem in whose resolution the real challenge, juristic empiricism,
remains in full effect. On this oversight, interpretations that transcend liter-
alism via reliance upon the maqâsid al-sharî’ah leave in place the require-
16. Id. at 28. For example, he notes that the verse, The Holy Qur’an, Sura al-Isra
17:24, “wa’ khfad lahumâ janâh al-dhulli min al-rahmah,” can only be taken to mean that
we must incline in humble mercy to our parents, not that humility literally has a wing. See 3
AL-IHKÂM FÎ USÛL AL-AHKÂM, supra note 12, at 29.
17. As far back as 1883, even without the benefit of Ibn Hazm’s al-Ihkâm, the cele-
brated Hungarian Islamicist Ignaz Goldziher was able to discern that Zâhirism was not at all
about literalism but constituted an attempt to combat ra’y, that is, “what the individual in-
sight of a legist or judge, in real or apparent dependance [sic] on those indisputable sources,
recognizes as truth emanating from their spirit.” See DR. IGNAZ GOLDZIHER, THE ZÂHIRÎS:
THEIR DOCTRINE AND THEIR HISTORY 3 (Wolfgang Behn trans., 1971).
18. This is not to deny that such interpretive instruments as dalîl al-khitâb (disjunc-
tive inference), fahwâ al-khitâb (a fortiori inference), and even al-’âmm yurâdu bihi al-
khusûs (general expressions used for restricted referents) invest in the illocutionary force of
words. But these are quite limited by the range of what the conventional use of Arabic lan-
guage allows, as a means of controlling how much can be invested in a purely figurative
interpretation.
1476 Michigan State Law Review [Vol. 2006:1469
19. However, as M.H. Kamali observed, none of these attempts are convincing, for
clearly istihsân is not a form of analogy but a reaction to it. Juristic empiricism could only
accommodate methods that were sufficiently bound to the a posteriori dictates of scripture
and thus sought, through a tortuous logic to cast istihsân as such a move. See MOHAMMAD
HASHIM KAMALI, PRINCIPLES OF ISLAMIC JURISPRUDENCE 344 (3d ed. 2003).
20. (Cairo: al-Mu’assasah al-Arabîyah li al-Tibâ’ah wa al-Nashr, 1381/1961).
21. RISÂLAH FÎ RI’ÂYAT AL-MASLAHAH (Cairo: Dâr al-Misrîyah al-Lubnânîyah,
1413/1993).
22. 1 QAWÂ’ID AL-AHKÂM FÎ MASÂLIH AL-ANÂM 23 (T.A. Sa’d ed., Dâr al-Jîl,
1400/1980).
23. This is confirmed by the modern jurist Ibn ‘Âshûr. See IBN ‘ÂSHÛR, 2 MAQÂSID
AL-SHARÎ’AH AL-ISLÂMÎYAHV 119 (M. T. al-Mîsâwî ed., Ammân: Dâr al-Nafâ’is, 1420/1999).
Special] Literalism, Empiricism, and Induction 1477
X’s (and only X’s) are binding; Y is an X; Y (and only what can be validly
considered Y) is therefore binding (where X represents Qur’ân and Sunna
and Y represents individual texts of these). For al-Shâtibî, a text’s weight
was to be based neither on its substance nor its authenticity alone but on its
relationship to a universe of meanings and values that were inductively ex-
trapolated from an aggregate of texts. On this understanding, legal matters
were to be resolved by reference to inductively-established values and prin-
ciples, even in the absence of explicit texts.24
We should note, however, that it was not al-Shâtibî’s aim to execute
an act of “epistemicide,” whereby juristic empiricism would be denied all
validity. On the contrary, he readily recognized that juristic empiricism was
integral to the very process of juristic induction itself, for it was through a
straightforward reading of an undetermined quantity of actual texts that the
broader aims and objectives of sharî’ah were to be inductively established.25
In other words, al-Shâtibî’s primary commitment remained to a text-driven,
as opposed to a purely speculative, approach. His aim was simply to vindi-
cate juristic induction or istiqrâ’ as a valid legal epistemology, such that
juristic empiricism, as a particular way of reading texts, would not be the
only basis for arriving at or judging legal conclusions.
Through this process of juristic induction or istiqrâ’, pre-modern ju-
rists (al-Shâtibî being simply among the most emphatic) extracted and vin-
dicated the so-called maqâsid al-sharî’ah. Al-Ghazâlî, for example, makes
a point of clarifying that the maqâsid are known “not on the basis of any
single proof-text (dalîl) nor on the basis of any specific principle but on the
cumulative strength of proofs too many to enumerate.”26 In a similar vein,
al-Shâtibî declares that
The entire Community agrees, nay all religious communities agree, that the reli-
gious law was instituted for the protection of the five absolute necessities: religion,
life, progeny, property and reason.
This Community (i.e., the Muslim Community) has unassailable (darûrî) knowl-
edge of this. But this has not been established on the basis of any specific proof-
text nor confirmed by any specific principle that we could isolate and invoke.
Rather, its appropriateness to the religious law is simply known on the basis of an
aggregate of proofs too numerous to count.27
24. IBRAHIM IBN MUSÁ SHATIBI ET AL., 1 AL-MUWÂFAQÂT FI USUL AL-AHKAM 36-40
(1388) [hereinafter AL-MUWÂFAQÂT].
25. This is almost certainly the point behind al-Shâtibî’s banning anyone who had
not mastered traditional fiqh and legal theory from reading his work. See 1 AL-MUWÂFAQÂT,
supra note 24, at 87.
26. AL-GHAZÂLÎ ET AL., 1 AL-MUSTASFÂ MIN ‘ILM AL-USÛL 295, 311, 313, passim
(Bûlâq: Amîrîyah Press, 1322/1904). Indeed, al-Ghazâlî’s whole point in this section is to
vindicate inductive reasoning from the grip of judgments and criteria of validation that are
grounded in juristic empiricism.
27. 1 AL-MUWÂFAQÂT, supra note 24, at 38.
1478 Michigan State Law Review [Vol. 2006:1469
28. AHMAD IBN IDRIS QARAFI ET AL., SHARH TANQIH AL-FUSUL FI IKHTISAR AL-
MAHSUL FI AL-USUL 392 (1306).
29. Id.
30. SHIHÂB AL-DÎN AL-QARÂFÎ, 4 NAFÂ’IS AL-USÛL FÎ SHARH AL-MAHSÛL 166 (M. A.
‘Atâ ed., Beirut: Dâr al-Kutub al-’Ilmîyah, 1421/2000).
31. 1 AL-MUSTASFÂ, supra note 26, at 287.
32. The ‘illah of the prohibition on consuming intoxicants would be that the latter
intoxicate. The hikmah would speak to the underlying wisdom behind this, that is, why
intoxication itself is bad.
Special] Literalism, Empiricism, and Induction 1479
Tâhir Ibn ‘Âshûr (d. 1393/1973), spelled out the practical implications of
hifz al-’aql as a maqsad in the following terms:
The meaning of preservation of reason (hifz al-’aql) is to prevent damage from be-
falling the minds of people. For damage befalling the minds of people leads to
great corruption, in the form of their losing control over their actions. Damage be-
falling the minds of individuals leads to micro-cosmic corruption, while damage
befalling the minds of groups and nations is greater still. Thus it is as necessary to
prevent individuals from becoming intoxicated as it is necessary to prevent intoxi-
cation from spreading among nations. Likewise, it is necessary to prevent the
spread of such corrupting agents as hashish, opium, morphine, cocaine, heroin and
similar substances whose use has become wide-spread in the 20th century.33
meet the eye. Typically, rather than negate perspective, claims to universal-
ism tend only to disguise it. Elsewhere, I have referred to this conflation as
the problem of the false universal, according to which only those who share
one’s specific concretions of “justice,” “reason,” “beauty,” etc., are justified
in laying any claims to these.35 The false universal conceals itself in the
habit of speaking as if the shape that one’s values assume in concrete social,
political, or interpersonal contexts is not grounded in cultural, historical, or
even ideological perspectives but is reflective of a natural order that is obvi-
ous to all, save the stupid, the primitive, or morally depraved.
Several modern critiques, from Afrocentrism to Feminism to post-
modernism, have succeeded in exposing the false universalism in the hege-
monic claims of the modern West.36 Less apparent is how Muslim articula-
tions of such constructs as maqâsid al-sharî’ah are also prone to this ten-
dency. This is precisely what is reflected, however, in the tendency toward
a uniform application of hifz al-’aql, despite the racial, ethnic, cultural, and
historical differences separating modern Muslims from one another and
their past. Such unanimity reflects a belief in the irrelevance of history or
perspective and suggests the propriety of subsuming the massive diversity
of the modern Muslim community under a single application of the princi-
ple, “preservation of reason.”
As an alternative, I propose a position already marked out by the Han-
balite jurist, Ibn Taymîyah, according to whom abstract universals, qua uni-
versals, exist only in the mind and that the only meaningful manifestation or
application of a concept, value, or principle is in the concrete.37 On this
understanding, taking Ibn ‘Âshûr’s “preventing damage from befalling the
mind”38 as our abstract universal whose status and validity is grounded in
induction (which means that its purpose must reach beyond the prohibitions
and exhortations of specific texts), this principle’s actual concrete applica-
tion must assume different modalities, qualities, and characteristics for dif-
ferent times, places, and peoples.
35. See, e.g., Sherman Jackson, Islam(s) East and West: Pluralism Between No-
Frills and Designer Fundamentalism, in SEPTEMBER 11 IN HISTORY: A WATERSHED
MOMENT? 113 (Mary L. Dudziak ed., 2003).
36. See, e.g., MOLEFI KETE ASANTE, AFROCENTRICITY (1988); LINDA ALCOFF &
ELIZABETH POTTER, FEMINIST EPISTEMOLOGIES (1993).
37. On this point, see WAEL B. HALLAQ, IBN TAYMÎYYA AGAINST THE GREEK LO-
GICIANS xxii-xxiii (1993).
38. IBN ‘ÂSHÛR, 2 MAQÂSID 184.
Special] Literalism, Empiricism, and Induction 1481
synthesis. Ibn ‘Âshir’s (d. 1040/1630) standard mnemonic text on the ba-
sics of Islamic law and jurisprudence, al-Murshid al-Mu’în ‘alâ al-Darûrî
min ‘Ulûm al-Dîn, provides a classic example:
*A rational judgment (hukmnâ al-’aqlî) is one *Whose validity is confirmed by
neither custom nor convention.39
39. MATN IBN ‘ASHIR AL-MUSAMMÂ BI AL-MURSHID AL-MU’ÎN ALÂ AL-DARÛRÎ MIN
‘ULÛM AL-DÎN 3 (Beirut: Dâr al-Fikr, 1416/1996).
40. HÂSHÎYAT AL’ALLÂMAH ABÎ ‘ABD ALLAH MUHAMMAD B. AL-TÂLIB ‘ALÂ SHARH
AL-’ALLÂMAH MUHAMMAD B. AHMAD AL-FÂSÎ (Cairo: Mustafâ Bâbî al-Halabî, N.d), 1:17-18.
41. See, e.g., The Holy Qur’an, Sura al-Maeda 5:90-91.
42. The Holy Qur’an, Sura al-Hujurat 49:4.
43. The Holy Qur’an, Sura al-Maeda 5:103.
1482 Michigan State Law Review [Vol. 2006:1469
52. “If you ask them, ‘Who created you?’ they will exclaim, ‘God!’ How, then, are
they given to lies?” The Holy Qur’an, Sura al-Zukhruf 43:87. “Say [O Muhammad]: Who
provides you with sustenance from the heavens and the earth? Is it He who dispenses hear-
ing and sight? And who draws life out of the dead and death out of the living? And who
orders the affairs (of the universe)? They will say, ‘God.’ Will they not, then, be God-
conscious?” The Holy Qur’an, Sura Younus 10:30-31. “If you ask them, ‘Who sent down
rain from the sky through which the earth is brought to life after death?.’ They will say,
‘God.’ Say, ‘Praise be to God.’ But most of them do not reason (ya’qilûn).” The Holy
Qur’an, Sura al-’Ankaboot 29:63.
53. GEORGE ORWELL, NINETEEN EIGHTY-FOUR 253 (1949).
Special] Literalism, Empiricism, and Induction 1485
CONCLUSION