Daniel Zylberkan MUHAMMAD 'ABDUH AND RASHID RIDA TAQLID, THE NEW IJTIHAD AND ISLAMIC REFORM The

role of Islamic reformers like Jamal-al-Din al-Afghani, Muhammad 'Abduh and Rashid Rida in reviving late 19th and early 20th century Islam that was perceived to be in decline and subjected to European colonialism is undeniable. Wael Hallaq goes in-depth and at length in part III of his book Shariah: Theory, Practice and Transformations1 into the epistemological, hermeneutic, methodological, societal and institutional harm that the colonialist and orientalist enterprises did to the sharia and to usul al-fiqh. It is important to note the weight that European writers such as H.A.R Gibb, Henri Laoust and Joseph Schacht have in the methodological and historiographical discussions that the scholarship has to deal with in creating a realistic vision of Islam, Muslims as well as their beliefs and especially relevant in this case their legal practices. In following this paradigm scholars of Islamic law have taken fabrications or half-truths to be the case, such as the case of the so-called closed gate of ijtihad. Muhammad 'Abduh and Rashid Rida took an innovative view of ijtihadic activity as such that were eschewed by jurists in their adherence to taqlid. They did this by elevating concepts of maslaha, darura and the general use of talfiq as they saw fit in rendering legal opinions. Secondly, as has become obvious from an intensive semester of study the importance of the connections between what could be called the separate disciplines of philosophy, theology and law all serve in one way to undergird their respective projects. For the purposes of this paper, the relationship of the second two, theology and law, and their importance in the creation of a coherent methodology of usul al-fiqh by Mohammad Abduh. Muhammad Abduh's theological thought is readily available in his famous book The Theology of Unity, where his thought on
1 Hallaq, Wael B. 2009. Sharia: theory, practice, transformations. Cambridge, UK: Cambridge University Press.

predestination, good, evil, pain and pleasure as well as a discussion of the human faculties goes a long way in explaining his legal thought as will be shown by analyzing the Transvaal Fatwa. Rashid Rida's legal thought can be explored through his willingness to use the doctrines of medieval scholars such as the seventh/thirteenth century Hanbalites Ibn Taymiyyah and his disciple Qayyim al-Jawiziyya. Rashid Rida thought the only way to move Islam out of its malaise was by rejecting taqlid and by reintroducing usuli concepts that would move Islam from its current state by any means necessary such as the use of talfiq, maslaha and the reintroduction of the ijma of the companions and to elevate ijtihad to its necessarily high status.

The Controversy of the Closed Gate of Ijtihad Madhabs, Mujtahids, Muqallids and Juristic Activity The role that discussing the importance of the controversy surrounding the closed gate of ijtihad in the scholarship of the field of Islamic law gives an important background to how radical 'Abduh's and Rida's project was in trying to reassert the role of ijtihad in usul al-fiqh. First a definition of ijtihad as given by Hallaq as by employed by the ahl al-ra'y as the exertion of mental energy for the sake of arriving, through reasoning, at a considered opinion2 Joseph Schacht in his An Introduction to Islamic law argues that by the early Abbasid period came the end of the formative period of Islamic law and that there were several developments that contributed to the closing of the gates of ijtihad.3 Schacht claims that the creation of the madhabs themselves would lead to the end of ijtihad, as through the creation of the law schools the main legal questions had been elaborated, that law was permeated with what Schacht calls the religious and ethical standards proper to Islam, and that the so-called infallibility of the
2 Hallaq, p.49-50 3 Schacht, Joseph. 1964. An introduction to Islamic law. Oxford: Clarendon Press. p.69

'ijma of legal scholars led toward a progressive narrowing and hardening of doctrine. 4 Schacht argues that the introduction of the hadith as a source of law along with the move by the madhab in the 4th/10th centuries that all essential questions had been thoroughly discussed and finally settled, and the conclusion that only the eponymous heads of the madhabs were qualified to practice ijtihad. 5 Which ipso facto was a demand for jurists to follow taqlid, which Schacht formulated as a doctrine where rulings must not be derived independently from Koran, sunna, and 'ijma, but it must be accepted as it is being taught by one of the recognized schools which are, of course, themselves covered by consensus.6 Schacht is arguing that the presence of madhabs and that the pressures exerted by these law schools is what caused the so-called gate to be shut. Wael Hallaq in his article Was the Gate of Ijtihad Closed?7 gives a very different view for the reasons that ijtihadic activity have concluded for two reasons, first the existence or extinction of mujtahids based on this hadith8 and the jurist's 'ijma on the extinction of mujtahids.9 Hallaq says that up to the end of the fifth/eleventh and beginning of the sixth/twelfth centuries there was no controversy surrounding the gate of ijtihad and the presence of mujtahids, the first one to bring up this issue was the Hanbali jurist Ibn 'Aqil who wrote that there must be a mujtahid in every generation because it is the only way to validate 'ijma and to be able to give ifta' (issuing fatwas) to less qualified jurists. 10 Ibn 'Aqil's claim that if there were mujtahids in a certain age and that the lack of mujtahids makes it impossible to reach 'ijma on a certain issue
4 Ibid. 5 Schacht, pp.70-71 6 Schacht, p, 71 7 Hallaq, Wael B. 1984. "Was the Gate of Ijtihad Closed?" International Journal of Middle East Studies. 16 (1): 341. 8"God does not remove knowledge suddenly from mankind (while alive) but removes it when scholars pass away. And when all scholars perish, there will remain only ignorant leaders, who when asked to decide cases, will give judgments without having (the necessary) knowledge, thereby falling in error and leading others astray." 9 Hallaq, Gate, p.21 10 Hallaq, pp. 21-22

leaves the gate of ijtihad open for there is no way to prove that is open or closed. Hallaq uses medieval sources and controversies to verify if the gate was open or closed and also proves that regardless there was much ijtihadic activity even if a metaphorical gate was closed. The closing of the gate of ijtihad according to Schacht, mandated the use of taqlid and effectively made the positions, opinions, doctrines and most relevant to this case methodologies of the madhabs rigid. But this imposition of taqlid, did not impede the development of the field of fiqh as is explicated by the classifications of the different types of muqallids, by Islamic scholars in the era of taqlid Hallaq cites a typology of muqallids given by the Damascene Shafite Abu Amr Uthman Ibn al-Salah, where he cites four different types of muqallid as defined by their familiarity with: Quranic exegesis, Hadith criticism, the theory of abrogation, language, and the methods of exploiting the revealed texts and of deriving rulings therefrom. They are also knowledgeable in the realms of positive law (having mastered its difficult and precedent-setting cases), the science of disagreement (khilaf ) and arithmetic.11 Which are the same qualifications of an absolute mujtahid in Ibn al-Salah's typology the only difference is that this first type of muqallid, chooses to follow the doctrines of the school's eponymous founder and that he subscribes to, and believes in, the soundness of the eponym's form of ijtihad.
12

The second type of mujtahid is the limited, this jurist knows law, legal theory, detailed methods of legal reasoning, legal analysis as well as takhrij and deducing the law from its sources, but are marred in some sense by not having the full knowledge of either Arabic or of the hadith.13 This is an important distinction, as Hallaq explains, limited mujtahid must be able to give rulings on unprecedented cases according on the same basis as the school's founding
11 Hallaq, Wael B. 2001. Authority, continuity, and change in Islamic law. Cambridge, UK: Cambridge University Press. p.8 12 Hallaq, Authority, p.9 13 Hallaq, p.10

imam did and may even venture to conduct their own ijtihad.14 Further, the limited mujtahid must not in any way contradict his imam's rulings if a ruling has already been rendered.15 The third type of jurist is what Ibn al-Salah called jurists who articulated the wujuh and turuq these have knowledge by heart of the imam's doctrines and is an expert in the madhab's methods and ways. 16 This type of mufti confirms, defends, refines, clarifies, reenacts and makes preponderant, the doctrines and methods of his own law school even though they didn't know, the authoritative law of the madhab, methods of legal reasoning for the derivation of rulings, usul al-fiqh and the tools needed to practice ijtihad..17 The fourth type of jurist does nothing more than merely transmit the authoritative doctrine of the school as elaborated by the imam and his associates who are themselves mujtahids operating within the boundaries of their school.18 For they are weak at establishing legal reasoning and textual evidence although they can analogical and deductive reasoning of other cases within their own law school to cases they must render opinions on.19 Hallaq is arguing through Ibn al-Salah's typology that the simple dichotomies such as ijtihad/taqlid, mujtahid/muqallid laid out by Schacht clearly do not apply especially to Ibn alSalah's second kind of type of mujtahid, that in effect has as much power to create new laws and give new opinions as the founding imam of the school did, although within predetermined madhabic boundaries. Hallaq puts it this way: taqlid, may at times border on the juristic activity associated with ijtihad and yet at others constitutes nothing more than the mere reproduction of the predecessors doctrine. But in the majority of cases, the activity of taqlidd\ may be located between these two extremes. At both ends of the spectrum, and at each point in between, taqlid
14 Ibid. 15 Hallaq, p.11 16 Ibid. 17 Ibid. 18 Hallaq, p.12 19 Ibid.

represented a juristic function and was dictated by a purpose.20 As we can see the closing of the gate of ijtihad did little to hamper the creative activity of muftis, although they were following the imam's and the madhabs laws, methodologies and rationales in the strict sense. The dichotomies set up between the open and closed gate, ijtihad and taqlid, mujtahids and muqallids is at least useless and at the most harmful. Schacht is implying that the closing of the gate effectively stopped all original juristic activity within Islam, although he qualifies this by citing that Ibn Taymiyyah and his disciple Ibn Qayyim al-Jawiziyya, rejected taqlid in an attempt to move away from blindly following other men and in reasserting the power of the Qur'an, but he only seems to do this as an anti-Wahhabi invective21 While Hallaq tries to make a case that the gate was never closed as there was no clear 'ijma on the topic and that even if it was, limited mujtahids were still taking part in ijtihadic activity within the confines of their madhabs. The limited mujtahids were doing much of the same scriptural and legal ijtihadic heavy lifting as the madhab's eponymous founders. This is important to this paper as it will be argued that Muhammad 'Abduh and Rashid Rida did not reopen the gates of ijtihad, as such, but only created a new legal methodology based on a new epistemology which they used to answer questions that had become relevant in their day by rejecting taqlid. This was done by basing rulings on the respective maqasid al-sharia and by elevating lesser or subordinate sources of law such as maslaha (al-mursala), talfiq and darura in creating a new ijtihad equipped for modern legal problems.

20 Hallaq, p.88 21 Schacht, pp.72-73

Muhammad Abduh's Risalat al-Tawhid- Theological Basis for Legal Methodologies. Presuppositions about the relationship of human beings to God and the faculties, capabilities, positives, negatives and the spiritual, psychological disposition of humans are all theological questions. Specially if it is assumed that God is the creator and that he endowed humans with certain predispositions for good, evil, pleasure and pain and the like. Another primary theological discussion that is pertinent to the figuring of law is that of free will and predestination. Mohammad 'Abduh wrote his book the Risalah al-Tawhid or The Theology of

Unity where he explains his theological thought and his thoughts on Islamic reform, revival and rationalism. The Risalah may be used in lieu of other sources to ascertain 'Abduh's legal thought and its requisite source from theological sources Abduh also adds that the Qur'an unlike any other holy book before used reason to prove itself, and that is the most appropriate place to start this discussion. Abduh starts off with a prologemena on the topic of tawhid and of the nature of the discipline of theology and its relation to the Qur'an. 'Abduh claims that the Qur'an asserted its case for holiness by claiming that first it took religion by a new road, untrodden by the previous Scriptures, a road appropriate and feasible alike to the contemporaries of the revelation and to their successors.22 By this 'Abduh means that the Qur'an gives logical proofs for its claims and that it offers arguments and evidence and that it carried its attacks to the opposing schools with spirited substantiation and spoke to the rational mind and alerted the intelligence.23 'Abduh claims that God created the universe according to invariable laws citing Suras 48:23, 30:30 and 13:124 which claim that the God is above all a creator of the universe and
22 Abduh, Muhammad, Kenneth Cragg, and Ishaq Musa'ad. 1966. The Theology of unity. London: Allen & Unwin Ltd. p.30 23 Ibid. 24 48:23: Such is GOD's system throughout history, and you will find that GOD's system is unchangeable. 30:30: Therefore, you shall devote yourself to the religion of strict monotheism. Such is the natural instinct placed

that he did so according to certain unchangeable rules that guide the universe and set up certain infallible rules that cannot be broken. In doing this 'Abduh elevated reason within the Qur'an by claiming that reason was an indispensable part of the Qur'an and thus of Islam itself, citing that unlike any other holy book or religion before it the Quran's esteem for the rational judgment, together with the use of parables in the allegorical or ambiguous passages in the revealed text, gave great scope to alert intelligences, the more so inasmuch as the appeal of the religion to reason in the study of created things was in no way limited or hedged about with conditions.25 The Qur'an becomes for 'Abduh a transcendent form of revelation that can be used at any time to solve the problems of the day. Especially as he sets up the caliphates of Abu Bakr and Umar as a time of no disagreement and that any disagreement, mainly legal ones were settled by a strict adherence to the literal meaning of the words.26 'Abduh continues and claims that Islam went into decline when ignorant rulers patronized purveyors of bidah that led to period of educational decadence where people lost contact with what 'Abduh calls the pristine sources of the faith, and evicted intellect from its rightful place and dealt arbitrarily with the false and valid in thinking.27 Which led scholars to come to highly flawed conclusions about morality and doctrines as well as their mistaken vision that Islam was an enemy of reason.28 Here 'Abduh sees that by Muslims moving towards bid'ah and taqlid and away from the Qur'an and its emphasis on reason led the ummah on the path away from the true religion. Besides 'Abduh's emphasis on the role of reason as it was revealed in the Qur'an and that it enjoined Muslims to act in accordance to this revelation and to the build the fundamentals of
into the people by GOD. Such creation of GOD will never change. This is the perfect religion, but most people do not know. 13:11:Thus, GOD does not change the condition of any people unless they themselves make the decision to change. If GOD wills any hardship for any people, no force can stop it. For they have none beside Him as Lord and Master. 25 Abduh, pp.31-32 26 Abduh, p.32 27 Abduh, p.39 28 Ibid.

religion based on the Qur'an and its reasoned laws of the universe and creation. Other topics such as free will, good and evil, pleasure and pain, are also very important in the construction of religion and its associate sciences most importantly in this cases law. 'Abduh says of free will, and how it comes about in man and animals; the giver of existence has endowed the various kinds and types in accordance with what they are and humans are one of these types that God has endowed with the capacity for thought and his ability to choose his actions in line with his thinking.29 And although God is omniscient and has the power to know what and when human beings perform actions and rewards or punishes them accordingly there is nothing in (Divine) knowledge [which] dispossesses man of his option-taking in 'acquisition' (kasb)30According free will to human beings, and the power to God to either reward or punish men for their deeds. Which is a rather Mu'tazilite vision of God, free will and reward and punishment in the after life. Malcolm Kerr notes that although kasb was seen in Abduh's time as sign of Asharite conservatism many of the Mu'tazila used it to denote the acquisition of the power of transitive action, which leaves in the Risalah an ambiguity between Asharite orthodoxy and a renaissance of Mu'tazilite theology.31 Abduh continues on the human dimensions of theology and gives an extended explanation of his view on good, evil, beauty, ugliness, pain and pleasure and their relation to human faculties of memory, imagination and reflective thought. 'Abduh says that humans have the capacity to distinguish between what is ugly and what is beautiful and that although people may have personal tastes and may disagree on what is beautiful and ugly but he says emphatically Tastes may differ- but thing are either beautiful or ugly.32 He also claims that
29 Abduh, p.65 30 Ibid. 31 Kerr, Malcolm H. 1966. Islamic reform; the political and legal theories of Muhammad Abduh and Rashid Rida. Berkeley: University of California Press. p.111 32 Abduh, Risalah, p.67

things that are ostensibly ugly may become beautiful and vice versa, although myrrh is bitter its positive qualities in treating disease may make it beautiful or on the other hand the foulness of what is sweet for its harmful effects.33 Another view of good and evil taken by 'Abduh is if the action brings pleasure or pain, so he claims people see eating and drinking as good and blows and any human actions that may inflict pain as bad.34 While on the other hand 'Abduh gives exclusivity to man in discriminating between actions with reference to the benefit that accrues from them or from the harm they entail.35 Especially in the case of good, pleasurable things that may cause pain and negative consequences or in situations where suffering ultimately leads to good results. In the case of the first excess in food and drink, perpetual listening to music and free rein in the indulgence of passions. which 'Abduh claims are deleterious to health, waste the intellect and dissipate wealth, bringing on feebleness and ignominy.36 While on the other hand, we put up with the toilsomeness in our labours for the sake of the livelihood we acquire and the ensuring of our need in times of weakness. To strive against lusts and to endure hardness from time to time in abstaining from pleasure conserves our powers of body and mind for their proper enjoyment of proportioned pleasures in a fashion that will be free from vacillation and trouble.37 'Abduh puts warfare and the work of scientific discovery with in the second category of things that may be toilsome and unpleasing to mankind but ultimately gives a greater benefit to mankind than the suffering involved.38 'Abduh claims that voluntary actions are good or bad in themselves or by reference to their particular or general consequence.39 And that balance of these two actions are connected to human happiness and misery in this world and are variable

33 34 35 36 37 38 39

Abduh, p.68 Ibid. Abduh, p.69 Ibid. Ibid. Abduh, pp..69-70 Abduh, p.70

with the strength, weakness, greatness or perversion of nations and the order and disruption of civilization.40 'Abduh sees the broad topic of good and evil as both an absolute idea, with his above quote that despite tastes people know what is beautiful and in more relative terms by claiming that although there are things that maybe painful their benefits outweigh the costs, these ideas give a basis for 'Abduh's ideas of maslaha in his legal theory. 'Abduh says that man has three facilities which makes him different from the animals, memory, imagination and reflective thought. Of the first he says, that it keeps in human minds pictures from the past that may be made less clear by the preoccupations of the present and that memories are brought about, by similarity or difference of the present situation to the one being remembered.41 Of the second and third faculties, imagination and reflective thought 'Abduh gives this description that imagination acts on memory and gives shapes to these recollections and to their attendant circumstances, with a sort of present immediacy, and evokes a pattern of future pleasure or pain from precedents of the past, and urges the spirit to seek or to evade it, the means to which are found by turning to the third endowment of man, namely reflective thought He concludes by saying that these upper faculties given to humans by God are ultimately what determines well-being and evil deeds, along with temperament, atmosphere and personal environment of family and friends.42 'Abduh puts a lot of weight on human faculties of discerning good and evil, right and wrong and how to maximize the amount of good that man may do to his fellow-man with his God-given faculties

40 Ibid. 41 Abduh, p.72 42 Abduh, p.73

The Medieval Bases of Rashid Rida's Reformist Usul al-Fiqh The Thought of the Hanbalites Ibn Qayyim al-Jawiziyya and Ibn Taymiyyah Charles C. Adams,43Jakob Skovgaard-Peterson44 and Malcolm Kerr45 discuss thinkers that influenced Rashid Rida and other reformists' concepts of the bases for usul al-fiqh. As would be expected, Rashid Rida and the other reformers, chose thinkers that raised the importance of the Qur'an and the hadith, while rejecting taqlid and valuing their brand of ijtihad. The Hanbalite scholar Ibn Taymiyyah his disciple Ibn Qayyim al-Jawiziyya lean heavily as would be expected on a more literalistic view of the sources of usul al-fiqh and equate the exercise of qiyas with that of ijtihad in finding 'ilal for legal decisions. Rashid Rida's book Muhawarat al-Muslih wa al-Muqallid (Debates Between the Reformer and the Muqallid) elicited a response called An Answer to an Enemy of Islam,46where the author copiously cites Rida's arguments from the Muhawarat in order to refute them. So although this is not a primary source as such, it can function as one by being able to find Rida's arguments written in somebody else's pen. Rida's goal in writing the Muhawarat was to advocate for eschewing taqlid, reviving ijtihad and to allow for the use of talfiq. Talfiq is the practice of picking and choosing the methods and decisions from more than one madhab in coming to legal decisions. The use of talfiq can be said to be another species of ijtihadic activity as it rejects the use of taqlid in allowing muftis the freedom to conduct their juristic activity outside the confines of one madhab. It is also apparent that Rashid Rida was advocating for

43 Adams, Charles C. 1968. Islam and modernism in Egypt: a study of the modern reform movement inaugurated
by Muhammad Abduh. New York: Russell & Russell. p.203 44 Skovgaard-Petersen, Jakob. 1997. Defining Islam for the Egyptian state: muftis and fatwas of the Dar al-Ifta. Leiden: Brill. p.75-77 45 See Kerr, Islamic Reform, p.193 46 Answer to an enemy of Islam: this is a refutation of the lies and slanders which the la-madhhabi Rashid Rida of Egypt, who appeared in the disguise of a religious man, wrote against the scholars of Islam in his book Muhawarat. 2002. Istanbul: Hakikat Kitabevi.

talfiq directly in placing his confidence in Hanbalite and Zahirite authors that served his purposes. In the Muhawarat's first dialogue the reformer says: in order to make Muslims attain happiness, wants to rescue them from the nuisance of taqlid, which appeared later, and to help them follow the Book, the Sunna and the path of the Salaf. In the first century of Islam even shepherds used to get their religious knowledge directly from the Book and the Sunna.47 Rashid Rida's statement is typically Salafi, where he argues for a rejection of taqlid and for Muslims to return to the original sources of Islam, much as the Salaf did in their age. Rida himself says that he based his arguments against taqlid on the writings of Ibn Qayyim and that he based the Muhawarat on it.48 It is important to note when investigating Ibn Qayyim and his theories on ijtihad and taqlid the milieu of his legal thought as a that of a Hanbalite and a disciple of the Syrian theologian and jurist Taqi ad-Din Ahmad ibn Taymiyyah. What was attractive to Rida in basing himself in ibn Hanbal's legal school as opposed to more mainstream one is the emphasis on the use of scripture and of the traditions in ferreting out legal rulings a position congenial to supporting a Salafi usul al-fiqh. Wael Hallaq describes both Ahmad ibn Hanbal and Dawud Ibn Khalaf al-Zahiri, as dominating the legal scene during the third/ninth century that come with drastic shift to traditionalism, both imams asserted the centrality of scripture and debased the role of human reason in law, with al-Zahiri completely abandoning the use of qiyas.49 The Hanbalite madhab's strict scripturalism was tempered by the intervention of Ibn Qayyim's mentor ibn Taymiyyah, who insists that qiyas is an acceptable source of law. Which follows in Imam Shafi's claim that ijtihad and qiyas are two terms with the same meaning as

47 Answer, p. 18 48 An answer, p.17 49 Hallaq, A history, p.32

Shafi himself said if there is a decision, it should be followed; if there is no decision, the indication as to the right answer should be sought by ijtihad, and ijtihad is qiyas.50 Ibn Taymiyyah seems to take a position similar to Shafi's in claiming the use of qiyas (ijtihad) as a valid source of law and one that rejected the blind use of taqlid, Ibn Taymiyyah's support for the use of qiyas/ijtihad was formed by a belief that the exercise of ijtihad could be extended to matters of mu'amalat and siyasa shar'iyya making the case that maslaha al-mursala could be applied in decisions as long as they did not conflict with the words of the revealed texts.51 Although Ibn Taymiyyah allowed for the use of maslaha almursala in ruling he subordinated it to all other sources of law especially the revealed sources.52 Ibn Taymiyyah goes on to say: The method of maslaha al-mursala is that a mujtahid considers a particular action to bring about a preponderant benefit with the Law disallowing it. This method is notoriously contested. Some jurists call it unattested maslaha, some call it arbitrary opinion (ra'y) while others associate it with juristic preference (istihsan). Although some people specify unattested maslahas to be preserving the souls, properties, honors, intellects and religions. It is not so. Rather, unattested maslahas consists in attaining benefits and averting harms53 Ibn Taymiyyah goes on to say that this principle of unattested maslaha can be used to secure benefits in matters of mu'amalat, while differing significantly from al-Ghazali's position that the maqasid al-sharia are the only reasons to turn to maslaha al-mursala. Ibn Taymiyyah views maslaha as subordinate source of law citing that a maslaha may not go against the word of revelation or established law.54 Ibn Taymiyyah lays out an ijtihadic paradigm that allows for the use of maslaha while still retaining a distinctly Hanbalite character of elevating the revealed sources as the most definitive source of law. Ibn Taymiyyah in creating a middle space between
50 Kerr, p.76-77 51 Johnston, p.251 52 Opwis, Felicitas Meta Maria. 2001. Maslaha: an intellectual history of a core concept in Islamic legal theory. Thesis (Ph. D.)--Yale University, 2001. n.32 p.168 53 Ibid. 54 Opwis, p.169-171

unfettered ra'y and stagnant taqlid opened up a niche in using qiyas and maslaha al-mursala to find the best possible rationes legis in giving legal opinions and in creating positive law that maximizes the amount of benefit the law can do and minimizes the amount of harm as long as the 'illa do not violate the law or revelation. Ibn Qayyim's legal doctrine also puts much weight on the role of maslaha to impart benefit to society and how the Salaf's example in using ijtihad was a method to be followed in current legal circles, so it is obvious why the reformists would base many of their ideas on that of ibn Qayyim's. Ibn Qayyim saw ijtihad as being a key tool in the mujtahid's toolbox saying that in many cases no two cases were exactly the same and that if new evidence is discovered or there are extenuating circumstances the mufti could revisit his ruling and give a new ijtihad, Ibn Qayyim based this on a statement taken from 'Umar.55 'Umar in his risalat is reported to have said the following: if you pass a judgment yesterday, and upon reconsideration are guided to a better one, you can revoke the first and enforce the revised one, for truth is eternal nothing can make it null and void, and return to it is better than persistence in falsehood.56 This states Ibn Qayyim's belief in ijtihad as an example of a practice of one of the Salaf and as such it should be followed. As a Hanbalite the Traditions of the Prophet, his companions and followers are an important part of Ibn Qayyim's usul al-fiqh as these customs were passed down through nonProphetic Sunna and were compiled as hadith by Ibn Hanbal and his contemporaries. For ibn Qayyim the use of qiyas was the largest part of exercising ijtihad, which again was advocated for in 'Umar's risalat, where it is claimed that the Caliph foresaw the problem of muftis and qadis in having to reach varied decisions and the need for systematic methodology

55 Nurbain, Nawir Yuslem. 1995. Ibn Qayyim's reformulation of the fatwa. Thesis (M.A.)--McGill University, 1995. p. 71 56 Ibid, taken from Ibn Qayyim's I'lam al-Muwaqqin vol. 1 p.110.

in understanding the content of the revealed sources.57 Along with the explicit instruction from one of the sahaba that the use of qiyas was necessary Ibn Qayyim undertakes a survey of the Qur'an and finds three different forms of qiyas with a Qur'anic basis qiyas al-illa, qiyas aldalala and qiyas al-shabah. The first form is identified with the case's 'illa in that both cases share the same cause.58 Qiyas al-dalala is designated as similar because they are indicated by a common 'illa, ibn Qayyim points by pointing to Q 41:39,59 as a proof that God can bring the dead back from life.60 Finally, Ibn Qayyim brings up qiyas al-shabah which is based on the similarity of the form between two cases although their contents are very different and there is no clear 'illa. Ibn Qayyim cites the case of sale and that of usury, although they are similar in their accidental forms their essences are very different thus making this kind of qiyas null and void.61 The companions applied the 'ilal that they found in the Qur'an and the Sunna and applied them to cases that came before them with the belief that the sharia was an eternal guideline that aimed to preserve the maslaha of human beings.62 By couching both 'illa and maslaha in the revealed sources a situation was created where the line of reasoning by qiyas and by itislah was blurred and made human beings (the Salaf) able to discern the rationes legis behind the sharia and made maslaha and its goals into objective truths.63 Ibn Qayyim in making qiyas and 'illa divine attributes that can be understood through the Qur'an and by making maslaha a virtue that can be culled from the legal sources blurs the line between qiyas and maslaha. Which is demonstrated in this statement that is often cited in modern usul al-fiqh manuals:
57 Nurbain, p.73 58 Nurbain, p.77 see Q 3:137, Q 6:6 59And of His signs is that you see the earth stilled, but when We send down upon it rain, it quivers and grows. Indeed, He who has given it life is the Giver of Life to the dead. Indeed, He is over all things competent. 60 Ibid. 61 Nurbain, p.77-78 62 Nurbain, p. 83 63 Johnston, pp.251-252

The shari'a is built upon the foundation of wisdom [hikam] and people's welfare [masalih] in this world and the next. It is entirely justice and mercy, entirely welfare [masalih] and wisdom. Any ruling which moves from justice to tyranny, mercy to its opposite, benefit to harm, wisdom to futility did not issue from the shari'a, even by allegorical Interpretation [bi' l-ta'wil]. This approach to qiyas and itislah is very useful in finding 'ilal that fits a particular vision of sharia that is predicated on the idea the idea that human find can discern right and wrong, holds a vision of the Qur'an as a rational source and wants to find the most benefit possible in both the law's sources and its purposes. This hermeneutic shift by these medieval scholar that both elevated the place of ijtihad in finding the ruling's ratio legis while firmly placing these constructs within the frame of revealed sources and the opinions and practices of the Salaf are a strategy that Islamic reformers of the late 19th and early 20th century will use to locate their rulings and legal methodology. Making the distinction between taqlid and ijtihad a difficult one; although the rulings are based on unchangeable revelation and the Salaf's 'ijma could be seen as being the strategy of a muqallid the process of adapting these sources to modern circumstances through the use of maqasid alsharia, maslaha and darura makes men such as 'Abduh and Rida into true mujtahids reforming Islam's legal landscape.

Towards a New Legal Methodology: Itislah, Maqasid al-Sharia and the New Ijtihad The Transvaal Fatwa and the Reformist Usul al-Fiqh The importance of the shift in 'Abduh's thought towards a Mu'tazilite paradigm which advocated for free will and moved away from the Asharite orthodoxy and gave human beings the epistemological authority to distinguish between good and evil in the broad sense, as things that either engender general benefit or general harm. These two theoretical moves by 'Abduh allow

him to reassert ijtihad by reemphasizing the epistemological role of man and secondly to elevate maslaha to a new level among the sources of usul al-fiqh, as it become grounded in the nass. Although the Mu'tazilite tendencies are plain to see, it is important to not overstate them, especially as the reformers owe an enormous debt to the Hanbalites Ibn Taymiyyah and his disciple Ibn Qayyim in formulating a theory of ijtihad and maslaha compatible with the aims of the reformers. That is to say making the Qur'an and the Traditions of the Salaf into a divine and unassailable epistemological fortress of the sources of law while on the other hand giving the weapons to break down its walls. The use of ijtihad and qiyas in finding in the Qur'an and Traditions 'ilal that may be used to support the use of itislah generally and of al-masalih almursala specifically. These unattested maslahas maybe used as long as they are suitable and relevant to a universal principle of the law or to a specific piece of textual evidence.64 While both Hallaq and Opwis say that maslaha may be used in protecting any one of the elements in al-Ghazali's typology of legal aims of protecting life, private property, mind, religion and offspring.65 Maslaha may also be used by jurists to find in their rulings the spirit or aims of the sharia (maqasid al-sharia).66 David Johnston conceives of 'Abduh's theology as a shift towards what he calls a maqasidi (purposeful) strategy to Islamic legal theory: They start with the purposes or aims of the divine law and move from the general to the specific, using not only public interest (benefit or welfare, maslaha) and necessity (darura) as guiding tools, but also ethical imperatives such as justice, and increasingly, peacebuilding and re-conciliation.67 In an issue of Rashid Rida's journal al-Manar,, 'Abduh sets out to explain his legal theory and its basis on practicality as well as the use of ijtihad and ra'y in legislating mu'amalat (human
64 Hallaq, Wael B. 1997. A history of Islamic legal theories: an introduction to Sunni usul al-fiqh. Cambridge: Cambridge University Press. p. 112 65Hallaq, A history p.112; Opwis, Felicitas. 2005. "Maslaha in Contemporary Islamic Legal Theory". Islamic Law and Society. 12 (2): 182-223. p.188 66 David Johnston, "A Turn in the Epistemology and Hermeneutics of Twentieth Century Ul al-Fiqh," Islamic Law and Society, 11, no. 2 (2004): 233-282, p.234 67 Johnston, Epistemology , p.255

behavior) and not to legislate in matters of worship ('ibadat) or that of usul al-din.68 Which reasserted free will and the epistemological precedent of right and wrong to man and his faculties this allowed for what Johnston called a turn in epistemology of usul al-fiqh towards the use of human reason thus allowing for the use of ijtihad and the maqasidi approach to maslaha.

The Transvaal Fatwa. When Muhammad 'Abduh was Grand Mufti of Egypt he received three questions from a Muslim living in the Transvaal in South Africa, 'Abduh responded to these questions and rendered a fatwa which was published in the Egyptian newspaper Al-Zahir.69 The questions asked to 'Abduh were: (1) There are Muslims in this country who wear the hat in order to carry on their business and secure the return of profits to themselves. Is this permissible or not? (2) The manner in which (Christians) slaughter animals intended for food differs (from the manner prescribed for Muslims) because they strike cows with an axe and after that they slaughter without repeating the basmalah; and small cattle they also slaughter without repeating the basmalah. Is this permissible or not?70 While the third questions concerns with a matter of 'ibadat and does not concern this paper directly, especially as the first two questions are both questions of mu'amalat where 'Abduh's legal theory in its liberal application of ijtihad and maslaha in finding the law's actual purpose. (maqasid). The first question is about the wearing of the hat, by which the man that asked the question must mean a hat with a brim, because devout Muslims only wear hats without brims as it is easier to practice all of the movements requisite of salat (Especially touching the head to the ground when wearing a brimless hat). To this 'Abduh asserts that as long as the Muslim is
68 Johnston, p.256 69 Macdonald, Duncan Black. 1968. The Macdonald presentation volume; a tribute to Duncan Black Macdonald, consisting of articles by former students, presented to him on his seventieth birthday, April 9, 1933. Freeport, N.Y.: Books for Libraries Press. Adams, Charles C., Muhammad 'Abduh and the Transvaal Fatwa, p.11-29 70 Adams, p.16

wearing a hat only to fit the outward appearance and does not have the intention of leaving the religion it is fine71 In light of this questions entirely economic and social aspects it is only reasonable that in keeping with the legal methodology that 'Abduh has created for himself would allow for the Muslim man in South Africa to wear a hat as it is for his greater benefit. Otherwise he would not be able to any money and to not be able to support himself financially. Which would go against al-Ghazali's five maqasid al-sharia of protecting life, property, mind, religion and offspring. The other question brings up the question of eating non-halal meat, to this 'Abduh rules in his fatwa: As for the slaughtered animals, my opinion is that the Muslims in those distant parts should follow the Book of Allah, where says: and the food of those who have been given the Book is lawful for you (Sura 5:5); and that they should rely upon the what the illustrious Imam Abu Bakr ibn al-Arabi the Malikite has said, namely, that the chief point to be considered is that what is slaughtered should be intended to be eaten by Christians, both clergy and laity, and should be regarded as food for the whole body of them. For, if it is their custom to take the life of an animal, in whatsoever manner it may be done, and after the slaughtering the chiefs of their religion are accustomed to eat of it, it is permissible for the Muslims to eat of it, because it is then called 'the food of the People of the Book (Ahl al-Kitab).72 Much like the case above the maqasidi opinion is preponderant in 'Abduh's legal reasoning. Starting first with the claim that Muslim living in distant parts is dictated by necessity or in usuli terms darura. But unlike the first part of this fatwa 'Abduh gives both Quranic support and that of another mufti the Malikite ibn Arabi who substantiated the Quranic report with what one would believe was his own fatwa on the matter. Ayat 5:5, gives a clear ratio legis,the food of the People of the Book is lawful to you as is your food is lawful for them.73 In an uncharacteristic move of eschewing ijtihad, Abduh cites ibn al-Arabi's tafsir as the basis for his

71 Adams, p.19 72 Adams, p.17 73 Abdel Haleem, M. A. 2004. The Quran. Oxford: Oxford University Press.

allowing for Muslims to eat meat slaughtered by one of the ahl al-kitab. In his tafsir al-Arabi gives a far-reaching concession made in Malikite fiqh of the slaughtering of animals to allow for meat to be slaughtered by Christians. and furthermore this an issue where there is established 'ijma across all four madhabs.74 'Abduh's ruling in this fatwa shows the inner workings of his juristic activities. In finding the maqasid of these rulings he either completely avoids the issue of textual evidence, in the case of wearing of the hat, as a conclusion for the ruling could be ascertained by exploring questions of the intentions of the wearer of the hat and of the sociocultural context of the Transvaal. Which used maslaha as the basis for reaching the answer that the wearing of a hat is allowed. While in the case of the second question, the Qur'an in its unadulterated revelation is called upon to give the opinion's 'illa. Where it is deduced that the laws of the Qur'an are unchanging and what was correct at that the time of revelation remains correct. Further, there appears to be 'ijma on this question and in a moment of taqlid, the absolute mujtahid of renewal accepted ibn al-Arabi's conclusion as it was the same as 'Abduh's. The maqasidi approach taken by 'Abduh here leans heavily on al-Ghazali's concept of maqasid al-sharia as it hedges on the side of protecting Muslim's lives and livelihoods over imposing overly harsh religious laws for the sake of taqlid.

Conclusion While Joseph Schacht claimed that by the third/ninth century the gate of ijtihad was closed Wael Hallaq makes a point to say that many contemporary scholars disagreed with that view as they either claimed to be mujtahids themselves or claimed that there was no 'ijma on the extinction of mujtahids, both key to proving if the so-called was closed. Second even within the

74Tsafrir, N. 2005. The attitude of Sunni Islam toward Jews and Christians as reflected in some legal issues. AlQantara (Madrid) 26, no. 2, (accessed December 07, 2011). pp. 326-327

confines of the madhabs and the regime of taqlid, certain jurists claimed that there was a hierarchy of muqallids and mujtahids and that certain activity although within madhabic boundaries still basically maintained the simple basis of doing ijtihad. Muhammad 'Abduh's Risalat al-Tawhid although a theological work shifted certain epistemological discussions in directions that allowed for a reassessing of the role of the Qur'an as book that is based on rational proofs and set up certain unchangeable natural laws that made both the book and revelation logical. Second, Abduh's discussion of free will and the role of man in assessing right and wrong moves the burden of proving those natural divine laws into human minds and as such allows for man to exercise ijtihad and to rule by using itislah. Rashid Rida's use of talfiq and of accepting the thought of Ibn Qayyim al-Jawiziyya and his master Ibn Taymiyyah accords a suitably high place for the Qur'an and the Traditions of the Salaf as both of these men were Hanbalites. While also acknowledging that within the bounds of the Qur'an and of the Traditions of the Salaf there is much latitude in using qiyas to find the 'ilal of both fatwas and of the revealed sources themselves. Both men also allowed for reasoning through itislah and if not contradicting the literal word of revealed sources or of the established sharia even the use of al-masalih al-mursala. The Mu'tazilite strand of Muhammad 'Abduh's theology combined with the literalistic but libertarian usul al-fiqh of the seventh/thirteenth century Hanbalites scholars came to meet with a conception of Islamic law that compels men to look at the maqasid al-sharia, the purposes of the law, in finding legal rulings, which often involved maximizing maslaha. This new maqasidi approach to usul al-fiqh is applied to the Transvaal Fatwa where considerations of maqasid alsharia and of imparting maslaha are the most important factors in 'Abduh's ruling.