Does the boy have religion?

It may appear that the five axioms arrived at by the boy are in line with the five major axioms of Islamic jurisprudence (al-qawa'id al-fiqhiyya al-kubra):¹ the tradition ‘to wish for one’s breth­ren what one wishes for oneself’, appearing in the sayings of Muhammad;² the uniqueness, unity and absoluteness of God, being the attestation of the Muslim belief; the legal philoso­phy that ‘the objectives behind the law are of greater consequence than the laws themselves’, being a formulation of the spirit of Islamic law.

In legal terms, the revelation of the Qur'an is remembered by the community as a piece­meal affair: verses appeared in the context of situations.³ Qur'anic laws did not constitute a system, but pointed to the elaboration of a basic legal structure.⁴ The Qur'an often spoke of law as basically being constituted of the imperative of justice. With the lack of a set canon, the imperatives of 'adl (justice) and qist (equity) were mentioned without being defined. The audience of the Qur'an was assumed to be naturally familiar with these terms without the need of having defining texts.

Indeed, the legal philosopher Ibn Rushd (d.595/1198) makes an observation that scholars of Islam are in wide agreement that the main tenants of belief, such as belief in God, can rest on rational deduction. Thus, he posits, why should it be the case that for other categories, such as law, one must shy away from reason? Indeed, Ibn Tufayl (d.581/1185) attempted to demonstrate with the story of Hay ibn Yaqzan that the human mind could, without any theological or intellectual instruction, attain truth.⁵

Why was the boy marooned on the island?

In our story, the boy held that his nature was poised to gain maximally from the nature of the absolute being.

What of the Islamic source material on this question of ‘why God created the world’? The chapter now turns to the opinions voiced by interpreters of the Qur'an on this topic.

Reading through the Qur'an sixty-two interspersed verses comment on the area.⁶ The key terms used in the Qur'an are: to make apparent through circumstance (yabtali), to deter­mine or purify (tamhis), to reward (li-yajzi), to know (li-yalam), God’s blessing (ni'mat Allah), and God’s method (sunnat Allah). I will summarize my view of these here before producing the views of the literature held on this topic.

The crux of the verses appear to revolve around God creating humankind to have the op­portunity to live a life that is both in line with what they already know to be good and right. They will experience circumstances that allow them to choose between good and bad (67:2; 3:186; 6:165; 21:35), and in doing so they will come to know, for themselves, whether they are true to what they hold to be innately good and rightful (33:24; 39:9; 3:140, 142, 166; 9:16; 29:2; 47:31; 3:141). Each circumstance will be within each person’s capacity (2:286), and each of these circumstances is integral to life going on (2:251; 22:40). Through these decisions, individuals will attain characteristics that match their choices (91:9). The highest virtue in life is given as that of witnessing, knowing and worshipping God (51:56; 2:21; 5:97) in a world created in truth (6:32; 44:38; 46:3) with rights — such as the virtue ofjustice and abhorrence of murder (7:29, 33; 6:151—152; 55:9). In His mercy, God sent prophets to humankind so as to remind them of such (6:90; 25:56) and everyone will be rewarded fairly for their choices (53:31; 35:30; 39:35).

The chapter will now consider the main schools of thought found in the interpretation (tafTsTr) literature of these verses.

The chapter’s methodology in considering and presenting the interpretations has been to use all the interpretations (tafdsTr) referred to in this footnote for each of the verses,⁸ but only to quote from those interpretations (tafdsTr) that present a unique ‘added value’ to their peers, one that adds to the discussion — especially given that much of the tafsdr literature is at times repetitive.

Why create an island?

When the early Muslims had completed their Hajj, Q. 5:3 was revealed, indicating that God completed His blessing and grace. This has been interpreted as the completion of the tenants of Islam, both their ordinary commands (‘azT'im) and dispensations (rukhas)⁹ — its laws.¹⁰ As such, the legal rulings (ahkdm) were seen as effectively one that brought a purification (tazkiya) and ease (yusr) — in line with the narration that the ‘Religion (DTn) of Allah is ease (yusr)’¹¹ and the narration ‘I was sent with the hanafiyya al-samha’, ¹² one that is in accordance with Q. 21:107 indicating that the essence of the message and its laws was one of mercy to all humans — given that the phrase ‘to the worlds’ (li-l ‘TlamTn) refers in the verse to the word mercy (rahma).¹³

The Qur'an often uses the term yabtalT and yabtaldyakum to refer to a reason for creating humankind. The two terms have often been presented within tafsTr literature as ‘He tests’ and ‘So that He may test you’. As the main schools of Islamic theology held that God has the foreknowledge of what will occur, many interpreters understood these two terms to mean that God creates a circumstance whereby it appears as if He is testing a group of people.¹⁴ Some interpreters have further said that in doing so it allows for God to establish proof for or against the person (qiydm al-hujja) and that such allows for actions, which in becoming realized, qualify for reward or punishment.

The second way of interpreting these two phrases, yabtalT and yabtaliyakum, was given as: ‘[He] makes apparent’ and ‘[He] makes apparent to you’, in which difficult circumstances that one goes through are to allow a person to witness for themselves their own nature so that they may gain from such otherwise hidden knowledge. This interpretation rooted itself in the early usage of the terms, whereby these terms are ‘borrowed (musta‘Tra) to make apparent something that is hidden’, ¹⁹ and in commenting on Q. 6:165, to indicate that it refers to ‘the manifestation of the measure of the intellect in their making use of God’s gifts. Since God already knows the spiritual levels of people, the phrase balwa was used, as it (a person’s inner level) does not appear to individuals except after it is acted out’. Indeed, the term al-bala has been defined as coming to the essence and purity of gold by melting it down to remove impurities, and the term ’ibtila ’, also has been defined as istikhraj ma 'ind al mubtalT (making apparent what is within the person undergoing the circumstance). Such knowledge of oneself has been tied, especially in the more spiritually inclined tafasir such as Ibn 'Ajiba’s (d.

Both interpretations do, however, come to the same conclusion that the outcome is for the benefit of the person and not for God’s own benefit, as God is believed to be omnipotent, without need, and prescient.

It may also be of note that nowhere in the Qur’an is ibtila' used to refer to legal rulings (ahkam). The term ibtila' does not seem to appear in the recorded Sunnah in reference to law or law making. Rather, the term is often used to refer to testing situations that happen to humans, such as being afflicted with illness or hardship, or even in receiving good (21:35).²² This appears to point to an ontology of Islamic law, as one that does not intend to ‘test’ its subjects, but facilitates ease and grace for them.

Although the boy came to this conclusion on ‘his being in the cosmos’, a number of ways of expressing this have been documented in books on Islamic theology. To these the chapter next turns.

The island in Muslim theological literature

While the boy in the story viewed his own nature as being the opposite to the Absolute’s, along with his ability to recognize an element of Good and Bad as an indication of a ‘bless­ing’, the chapter now turns to four schools of thought that emerged in early Muslim history on the question of why God created humanity.

The four schools of thought that this chapter shall consider are the Ash' ari, Maturidi, Athari and Mu'tazili. Each attempted its own reasoning (ijtihad) on the topic.

All of these schools held that God created humankind through His Will, and that God is not in need of creation. They had different views on the question of what ‘motivated’ God to create, or put differently, the ultimate reason for God creating (al-'illa al-gha'iyya).

The Ash'aris believed that it was purely God’s Will, with no reason of any kind behind it, although they held that there was a concordance between God’s Will, grace and wisdom, as will be detailed further on in the chapter. They held that it was not theologically sound to attribute a reason to any of God’s acts. The Maturidi and Athari schools believed it was God’s Will and that He created the world out ofwisdom and grace (tafaddul ).²³ The Mu'tazila, however, while believing it to be God’s Will and an expression of His Wisdom like the Ma- turidis and Atharis, believed that such wisdom was not out of choice but rather that God was compelled to act in this manner.²⁴

Each school expressed its reasons for taking these views, and in taking these views, they then had a premise from which to build a theory of the reason for law and law making. While a detailed account of these reasons can be found in the literature, this chapter, by virtue of its area, will focus on the legal element.

It is of note that the answer to the question on ‘the reason for God acting’ then went on to inform how each school considered the notion of ibtila’ (to test/to make apparent). Given the view of the Maturidis and Atharis, namely that God created due to wisdom and grace, they then took the stance that humans were sent messages and rulings from God for their own benefit. The Maturidis held that ibtila' was in reality used as a metaphor for when some­thing is made apparent and observable. Furthermore, they held that God did not command creation in order to bring benefit to Himself, nor to repel harm from Himself; rather, He commanded them for manafi' (benefits) for humankind, and so that the consequences become apparent to the person, not apparent to God.²⁵

Whereas with the Ash'ari view, that God did not create based on a reason — messages and rulings from God could not be said to be due to God wanting benefit for humankind. Rather, humankind was in a position of taklif (responsibility) for which they would be rewarded or punished.²⁶ However, Ash'ari scholars did accept a concordance between ben­efit, wisdom and God’s rulings, as will be discussed further on. Mu'tazilis further viewed taklif as required in order for the believer to gain reward or punishment for carrying out acts (imtihan).²⁷

The chapter next considers the ontological authority of reason, being central to a discus­sion on natural law and Islam.²⁸

The good and the bad in living on the island

When the boy, using his axiom, began to discern between acts that he would wish on others and acts he would not, and termed the former ‘Good’ and the latter ‘Bad’, he began to define an ontology that has its parallels in Islamic theology.

The Mu'tazili, Maturidi and Athari schools all accepted that one could, to a degree, dis­cern between good and bad without scripture. The degree to which one could discern was a point of discussion between them. The technical terms used to describe qualifications were husn (pleasantness) and qubh (unpleasantness).

For the Mu'tazilis, Maturidis and Atharis, acts are either hasan (pleasant) or qabih (unpleas­ant) either in and of themselves, or due to an inseparable characteristic, or due to other con­siderations. For the Mu'tazilis, textual revelation is solely to make clear those characteristics of hasan (pleasant) and qabih (unpleasant). This view was also taken up by the Karamiyya and a number of Shi'a and Yazidiyya. It is often attributed to Jahm b. Safwan (d. 128/746), who opined that elements of knowledge (ma 'arif) can be known with the 'aql (intellect) before revealed texts appear (the Shar'), that the intellect is able to discern ‘good’ from ‘bad’, and husn (pleasantness) from qubh (unpleasantness) without revelation. The Ash'aris, on the other hand, took the position that nothing is inherently good or bad. God only makes things fall into either category based on His Will and not because anything necessitates such alloca­tion.²⁹ They believed that the 'aql (intellect) does not indicate the husn nor qubh of anything. Thus, for example, to the Ash'aris, being unfair is not inherently definable as bad or good but only has the label of being ‘bad’ after God revealed that qualification to His Prophet. Legally, they held that there was nothing that obliged humans to anything without revelation.

The Atharis and Maturidis took the position that human reason had an ability to discern husn (pleasantness) and qubh (unpleasantness), however, they also held that people cannot be judged according to this distinction until revelation had its say on the matter.

This distinction has a bearing on law. Acts that are considered hasan (pleasant) or qabih (unpleasant) have the capacity of causing benefit (maslaha) or harm (mafsada) respectively, upon which legal determinations can be made. If one were to include in this legal determination the view of the Atharis and Maturidis, that the reason for creation was ultimately for wis­dom and humankind’s own benefit, one arrives at a perception of what law and law making is — one that is distinct from the view that no such reason and no determination of benefit (maslaha) or harm (mafsada) are possible by humankind.

In the next section, the chapter considers the question of what indeed is required for law, and how natural law concepts began to manifest in the Islamic legal tradition.

What makes for law on the island?

To the boy in the story, the axioms he arrived at appeared to go hand in hand with what was revealed to him. This affirmation, of the non-conflict of reason and revelation, is a consistent theme within legal and theological discourses in the Muslim tradition.

Principles seen in the Qur'an (17:15; 53:39; 5:1; 2:188; 4:28, 58; 17:34; 2:283, 173) all posit what appear as universal principles ofjustice without legally defining them.

As the Prophet migrated to Medinah, verses and hadith specific in their rulings appeared in the context of situations, sometimes in response to Muhammad seeking guidance. Yet these rulings often maintained, within the same texts, that their intention and objective were to maintain the reasonableness, justice, and prosperity that stem from these universal principles.

As an example of a form of contextual ruling, the Prophet had asked the people of Medina not to keep meat for more than three days after the Eid, but to donate what remained. The Companions in later years asked the Prophet if such a ruling still stood, to which the Prophet replied that the initial command was due to the presence of people in need at the time in Medina, and that their absence meant that the Companions could now store meat for them­selves after the Eid and beyond three days.³⁰ With the change of context and public interest came the change of the ruling, yet the universal principle of maslaha (benefit/well-being) remained. Companions of the Prophet such as 'Umar, 'Uthman and 'Ali appeared to have employed this methodology. They would at times avoid applying a textual ruling found in the Qur'an or Sunnah because the context had changed. Applying the literal meaning of the text would, to them, have resulted in a loss in the objectives of the text. Numerous cases have been cited from the time of the Companions that appear to indicate such an approach was accepted and practised early on: Abu Bakr’s inclusion of the category of ‘grandfather’ instead of that of the ‘siblings’ in inheritance; the reclassification of some inheritance shares by 'Umar; the selling of lost camels by 'Uthman b. 'Affan (whereby proceeds would go to the treasury); 'Uthman allowing the Companion Tamdur al-Asadiyya to inherit from her ex-husband — who had divorced her on his death bed; the guarantee that 'Ali b. Abi Talib ordered craftsmen to abide by. These are all cited examples of practice that went against source texts.³¹ To them, the change they enacted allowed the law to remain true to principles of equity and justice, all such indicating that a qualification of these principles was possible.

Shihab al-Din al-Qarafi (d. 684/1285), a 13th-century jurist, took to differentiating between what the Prophet said depending on context (maqdmdt al-khitdb al-nabawd) — differentiating between what the Prophet said as a human being, what he said as a leader, what he said as a judge, and what he said as a Prophet — all such differentiations having legal implications.³²

Indeed, a nature of Prophethood appears to indicate that legislation to what is just and equitable is something that is to a degree innate. A hadith in this regard that may provide an indication of a framing of law and how law is expected to be is reported in the Muwatta’ of Malik, which stating that the Prophet said that he ‘was only sent to complete good character’, indicating that ‘good character’, in principle, was already present pre-revelation. This may also be considered with the statement of the Qur'an describing itself as a ‘reminder for the worlds’. Such positioning of Prophethood may begin to form an indication that the prophetic mission was more corrective and descriptive than prescriptive.

It may be that given the fluid nature in which societies and contexts change and evolve, the Prophet avoided recording all the Hadith sayings. This was different to the collection of the Qur'an, where verses were written down by companions on parchments at the time of the Prophet, as well as being committed to memory and passed on in full form. Much of the Hadith remained committed to memory.

The view that early law relied on reasoning that was anchored in a few principles that were ‘natural’ and universal, such as the prohibition of oppression and injustice, appears early in the historical record of law making. Arriving at rulings (ahkdm) based on scrip­ture in the first and second centuries of Islam was not primarily a matter of textual inter­pretation, but rather, of interrogating good judgement, local precedents, the practices of prior Muslims, and a limited body of revealed injunctions in order to address specific legal problems.³³

According to Khaled Abou El Fadl, justice and equity, as ultimate goals, tend to endow the agent with a considerable amount of discretion.³⁴ The acceptance of disagreement on ahkdm (rulings) has been attributed to the Prophet, which may imply that revelation also lent itself to individual reasoning and discretion.

The use of pure logical reasoning developed thereafter to form a school of thought known as that of reasoned opinion (ahl al-ra'i). The school also considered its method to be in line with what was practised by the scholar Companions of the Prophet 'Abdullah b. Ma'sud and 'Umar b. al-Khattab, among others. This form of reasoning also manifested itself in a specific method for arriving at law, a method that became known as istihsdn (juristic preference). It was driven by reasonableness, fairness, common sense³⁵ and maslaha (benefit), set as deriving the most good and mitigating the most harm, both of which involved reasoning that did not appear to be directly based on revealed texts.³⁶ The school then evolved into the Hanafi school for the most part, although it also found itself — albeit in smaller portion — within the Maliki and Hanbali schools. It offered a methodology of understanding the texts. Especially as the ahl al-ra'i were accepting of the Hadith.

In considering the Hanafi school specifically, one comes across istihsan as a method for reaching legal rulings. The mechanism appeared early in the Hanafi school. Indeed istihsan appears to have originally represented independent human judgement of expediency or public utility; and has come to be regarded by some as vestiges of the ra'i which survived in classical theory. Wael Hallaq sees it as being employed as a method of equity, driven by reasonableness, fairness and commonsense.³⁷ Ibn Rushd defined istihsan as being, in most cases, an attention to human interest and justice, one in favour of considerations of equity and justice, or in favour of a doctrine which might have been formally less systematic, but more practicable and appealing to commonsense.³⁸

Thus one arrives at what appears as a theory of law, fluid and flexible, based on a number of universal principles. However, a second school, the School of the Texts (ahl al-athar), began to develop another method, one based more on the Qur'an and Sunnah in their fullest capacity — one that also included the full record of memorized and written records of the Sunnah.

The ahl al-athar and an effect on the character of law

The ahl al-athar or ashdb al-hadith, as they also were known, were proponents of entirely scrip­tural authority in theology and law. Their focus was often on the literal meaning of the texts, whereas the school of ra'i often focused on reasoning in order to arrive at a ruling that was in

line with the spirit of the principles of revelation. For example, the charity given just before Eid, zakat al-fitr, is described in the source texts as being of a number of categories, such as dates and wheat. The ahl al-athar limited what could be given in charity on this occasion to these categories, whereas the ahl al-ra’i school allowed for other categories including money to be given in charity instead, seeing the reason behind such a ruling as one of provision to those who are in need.

A second illustrative example of how the two schools approached a text can be seen in a discourse on the juridical considerations of the hadith: ‘A judge must refrain from judging when in a state of anger (ghadbdn).’ The rationally inclined school notes that the reasoning is clear from the text, namely distraction, thus they allow judges to perform their duties in a state of anger so long as that anger is little enough so as not to be a distraction. Hence, they manoeuvre the texts based on the principal reasoning as they see it.³⁹

If one contrasts this with the textually based school, whereby the mind (' aql) is supposedly solely to manoeuvre within the texts, they argue that the conclusion ‘little anger does not qualify’ actually comes from the text itself, having used the formfa'ldn, which implies ‘filled with anger’. The reasoning for this epistemology was that if the premise is set in reverse, whereby the intellect is given precedence over the text, then the Shari 'ah, in their view, would be utterly dismissible based on the decisions of a jurist’s reasoning. Thus they formu­lated the position that ‘the text must lead the intellect’ (al-nass yasbiq al- 'aql).⁴⁰

It has been suggested that, given the debate in the third/ninth century with 'Isa b. Aban (d. 221/836) and Abu al-Hasan al-Karkhi (d. 340/952) and his student Abu Bakr al-Jassas (d. 370/981), a method to stem and constrain reasoning in maslaha (benefit) to tie it to the text was needed by the ahl al-athar camp. This materialized in part with the rebuttals by al-Shafi'i (d. 204/820) that laid a foundation to constrain what fell outside of qiyds (textual analogy) and ijmd ' (consensus) — two methods used by the ahl al-athar to arrive at rulings (ahkdm). This foundation went on to give rise to maqdsid (textually based objectives of law).⁴¹ The ahl al- athar and its followers began to formalize all aspects of law, setting up usdl al-fiqh (principles of jurisprudence for arriving at legal rules) that essentially tied all legal thought and legal derivation to the source texts.

Where no texts existed on a matter, and no analogy or use of consensus could be made, the theory of maqdsid delineated an approach by this school of thought in order to arrive at legal rulings. In Abu Hamid al-Ghazali’s (d. 505/111) deliberation on benefit (maslaha), he restricts it to ‘the upkeep of the intention (maqsUd) of the law-maker’.⁴² Further, in his delib­eration on unrestricted benefit (al-mursala), he comments,

thus any maslaha that does not ultimately protect an intention of the Qur’an, Sunnah and ijmd ', and is of the odd masdlih that are not consistent with the ways of the law, [then in such a case, the maslaha] is considered false and disqualified. Whereas any maslaha that ultimately protects a shard (textually based) intention, then [it becomes the case that] this then affords us the knowledge that it is [indeed] an intention of the Book, Sunnah, and ijmd‘ — and is [thus] not outside these usul (principles). However, it is not termed ‘an analogy’ rather a ‘maslaha mursala’. Indeed if we interpret maslaha to mean the protection of the objective of the law-maker, then there is no reason for a disagreement in following it, rather one must accept definitively that it is indeed a proof.⁴³

Of note, however, is his careful choice of words in distinguishing benefit (maslaha) as the protection of the objectives of the shar' (textual sources) and not the acquisition of benefit and mitigation of harm based on reasoning.

In the development of maqdsid (textually based objectives of law) was an attempt to prior­itize, and rank, rulings (ahkdm) from the vantage of the Shari'ah itself. Rulings were catego­rized in a three-tier system where the maqsad al-darun, or al-mundsib al-darun (necessity) takes precedent over the maqsad hajjT (need) followed by the tahsini (luxuries).⁴⁴

The theory on maqasid was further developed by al-Shatibi (d. 790/1388). He elaborated a mechanic within usul (principles ofjurisprudence) using the maqasid frame of reference. On the concept of the three-tier categorization mentioned earlier, al-Shatibi opined that these were kulliyydt (overall principles), and thus any juz'iyydt (subsidiaries) should be considered in light of these. In particular, as the kulliyydt are among the necessities, thus it cannot be the case that a juz' (subsidiary) goes against these. Should this appear to occur, then al-Shatibi holds that there must be a way to reconcile between the two because a juz' (subsidiary) does not appear except with an inherent protection of these qawa 'id (axioms).⁴⁵

The theory of maqdsid formally set that the objectives of Islamic law were to protect one or more of the following: the intellect, religion, honour, wealth and lineage. Yet maqdsid in this textualist formulation may be said to have come from a negative reading of the texts, in that, to some jurists, such as al-Ghazali, sanctions given in the source texts against acts such as murder and libel meant that the law’s objective was to protect life and honour.

This textual formulation, it has been argued, was, in part, a method employed to restrict the open reasoning on the spirit of the law used by the ahl al-rad, which did not restrict in its practical deliberations the spirit of the law to a set.

As the chapter next shall consider, the ahl al-athar were to have a profound and marked effect on the portrayal of the school of the ahl al-ra'i.

Influence of the ahl al-athar on the late ra’i school

As it came to pass, the more pronounced the authority of the ahl al-athar became, the less freedom jurists had in expounding discretionary opinion. It was framed by the ahl al-athar as being antithetical to the notion of Prophetic authority, and ra'i inevitably acquired negative connotations. The textually based approach started to leave less room for human discretion, since its very existence appeared to demand that a choice be made between human and Prophetic authority. Despite the appeal to rationale, ra'i during the first century after the Prophet’s death was increasingly challenged by traditionalism, represented in the prolifera­tion and gradual acceptance of a notion of Prophetic Sunnah expressed in the narrative of the hadith. Between the end of the second/eighth century and roughly the middle of the third/ ninth century, this traditionalism was to gain the upper hand, to be tempered in turn by the acceptance of a restrained form of rationalism.⁴⁶

It may be argued that the spread of the athar school was so influential that later Hanafi texts began to claim that the Hanafis of the early period actually ascribed to the now commonly held position of orthodoxy, namely of placing the sources before one’s own reasoning on rulings. Some also claimed that the methodology of Abu Hanifa (d. 150/767) was misunder­stood and largely based on a number of misunderstood definitions.⁴⁷

Many still take the view that the difference between the two schools was at heart very minor and that the Hanafi school only took the approach it did due to the lack of source material, the prevalence of fabricators in its geographical proximity, and the new societies they met.

The ahl al-athar, in their derivation of rulings from the revealed sources of the Qur’an and Sunnah, relied heavily on analogy. Thus they allowed rulings for certain cases to be extended to new similar cases that had no precedent in the Qur’an and Sunnah.⁴⁸ This being the case, istihsdn (juristic preference) was re-characterized as being the method by which a source text from which an analogy can be drawn exists, yet is dismissed for another analogy based on another source text. Thus the process was presented as a form of qiyds (analogy), ⁴⁹ one in line with the ahl al-athar school of thought.

Along these lines, al-Jassas (d. 370/980) mentions that istihsan materializes in two situa­tions, the first being a case that is drawn to two different principles (yatajddhabuhu aslan), with one of the principles being more worthy of the case than the other. As such, it is preferred (yustahsan) to draw the analogy from the less worthy principle rather than the more worthy principle. Thus he defines it as leaving qiyas (analogy) for a qiyas that is more fitting.⁵⁰ The second situation is where a ruling is not implemented because the case is to be considered one that is specific to that context and thus draws uniqueness (takhsis), even if the ‘illa (cause) for the ruling still persists. Al-Amidi (d. 631/1233) also joins the ranks of those late jurists who consider istihsan as little more than a form of qiyas.⁵¹

Indeed, the proliferation of this definition has led John Makdisi to the view that both early and late jurists understood it the same way, namely as a determination of a solution based on either a direct provision in the Qur'an, Sunnah or consensus, or reasoning by analogy from one of these two sources. However, this preference, according to Makdisi, is determined by the Qur'an and Sunnah and not by appeal to conscience for which he gives examples using Bazdawi (d. 482/1086) and Sarakhsi (d. 483/1087).⁵²

Thus, the ahl al-ra’i, in their most characteristic method for arriving at laws, are presented by later jurists as enacting the same principles as the ahl al-athar.

l-Vas the later characterization of the ahl al-ra i accurate?

The chapter turns to the question of why there was such vehement opposition to ahl al-ra’i and its formulations (such as istihsan), if indeed it was a school that used a similar methodology to the ahl al-athar.

When considering the early polemics on this topic, it can be seen that there is a great amount of opposition to the method of istihsan, to the general method employed by Abu Hanifa, and the school’s modus operandi. Indeed, the school of ra’i had become the target of vociferous attacks by scholars ascribed to the ahl al-athar. The scholars of ra’i were often met with skepticism by the majority of jurists as represented by the ahl al-athar.⁵³ This was, in part, due to the method being devoid of direct textual reference from the viewpoint of the athari school.⁵⁴

The main reason given in the historical record for the opposition of the ahl al-ra’i by the ahl al-athar is that they were accused of placing ‘opinion’ before source texts. In considering the level of the attacks made on the early Hanafi school, one finds, for example, al-Qadi 'Iyad (d. 544/1149) in his Tartib al-Madarik stating that ‘Abu Hanifa would put analogy and opinion (i’tibdr) before the sunan and athar, and [in doing so] has forfeited the principle texts, and taken to reason (‘uqul), choosing ra’i, analogy and istihsdn (juristic preference). Thereaf­ter, he placed istihsdn before analogy and [in doing so] has gone far [from what is proper].’⁵⁵ To substantiate the claim that Abu Hanifa forgoes the Sunnah, a whole chapter (kitadb) listing these occurrences is made by Ibn Abi Shayba (d. 233/849). In addition, Abu Hanifa was also attributed with believing in the tahsin of the ‘aql (declaring something pleasant by virtue of the intellect alone).⁵⁶

The more literalist jurists, Ibn Dawud (d. 297/910) and the Zahiris, also rejected is­tihsdn.⁵⁷ They thought it rendered licit what God declared forbidden. Istihsdn was also generally rejected by the Shafi'is. Al-Shafi'i wrote a book Ibtal al-istihsan (Annulling Juristic Preference) and is the author of the quote ‘man isthsana fa-qad sharra (he who adopts istihsdn has legislated)’, equating it with heretical usurpation of God’s role as the sole determiner of the law.⁵⁸

This opposition by al-Shafii poses a question. Had istihsan been a simple matter of qiyas (analogy), why was there a heavy backlash against it? Indeed, some of the ahl al-athar even claimed that later jurists deliberately reformed the original definition of istihsan to something more in line with the athard school of thought. Abu Is-haq al-Shirazi (d. 476/1083) launches his polemic by stating that istihsan is falsehood because it is leaving qiyds for that which a human prefers based on their own opinion without evidence. He then claims that later members of the school of Abu Hanifa differed among themselves, each defining it differently. However, he concludes by mentioning al-Shafii and Bishr al-Marisi (d. 219/833) as having judged it as de­parting from qiyds by way of human preference without any evidence. Al-Shirazi then makes the claim that such was their actual school of thought.⁵⁹

Makdisi, as mentioned previously, stated that al-Amidi supported a view that istihsdn was never more than a form of qiyds.⁶⁰ Yet in returning to the source text for this translation, al­Amidi lists istihsdn as retracting a ruling due to the presence of a source text, consensus, or other means. Al-Amidi does not mention what the term ‘other’ refers to.

Had istihsdn been as straightforward as qiyds, as has been claimed, the question may be asked, why did the early ra’i school avoid a straightforward definition? Indeed, recorded defi­nitions of istihsdn given previously (p. 52 onwards) seem to indicate a departure from the qiyds it has been attributed to. Also of note are the opinions expressed by al-Hattab (d. 954/1547) of the Maliki school who indeed mentions that the best definition that has been given of istihsan is that it is ‘an evidence that comes to the mind of the mujtahid and finds itself well received but difficult to express’. He quotes Ibn al-Hajib (d. 646/1249) as saying that this definition is what is mamul (officially sanctioned) itifaqan (by agreement).

Even the claim that few sources existed at the time and location of the early school has been countered by the fact that Iraq was one of the regions most populated with Companions of the Prophet. Most of the Companions had lived in or visited Kufa and Basra. Kufa had no fewer than seven of the leading scholar Companions.⁶¹ Furthermore, it is recorded that within the geography of the ahl al-athar, such as Medina, there emerged some of the leading scholars who used ra'i such as Rabi'a (d. 136/754) and Malik (d. 179/795).

Yet with ra'i being seen as an expression of rationalist and utilitarian tendencies, it was wholly expunged by those opposed to this form of reasoning, and hence, al-Shafii’s over­whelming opposition to istihsdn.⁶²

TaqbTh and tahsTn in law - its relation to natural law

It may be suggested that irrespective of whether istihsdn (juristic preference) is simply a qi­yds (analogy) or otherwise, it still does not appear to answer the question, how does a jurist decide that one qiyds is more appropriate than another without actually reasoning on the outcome? What is it that makes a jurist sway away from one qiyds to another? If it were the text that made the jurist sway, then arguably the jurist would not have enacted the first qiyds. Furthermore, istihsdn in its later formulation is said to be enacted after the outcome of the first qiyds seems out of place, wrong, or incongruent to the jurist. How would this be possible without a degree of qualification of the outcome, a degree of tahsdn and taqbdh (considering an element pleasant or unpleasant), in the mind of the jurist?

It appears, whether directly or indirectly, that a jurist here is enacting a tahsdn and taqbdh on the outcome of the hukm (ruling) before deciding to seek an alternative qiyds. It also assumes the jurist is able to qualitatively and quantitatively characterize what is expected of revelation on minor rulings.

The best answer to give to this question may be to say that jurist is seeking the objectives of Islamic law (maqdsid). The problem with this answer is that according to the promoters of the ahl al-athar, including al-Ghazali, the maqdsid are not to be used to negate or dismiss a text; the maqasid are only to be used when no source text exists at all. If one were not to allow a text to be used because of the jurist’s view of maqasid, then he/she would be enact­ing a methodological error by qualifying the outcome of a text in light of the maqasid, and thereby dismissing the text or enacting it. It is no surprise that al-Shafi'i saw in istihsdn a form of legislating without the source texts — a form of natural law.

Furthermore, maqdsid, in the ahl al-athar school, are not to be used to establish the mandt (applicability) of a text. The school rather takes the position that it is the role of the text to establish the maqdsid and not the reverse. Thus, in allowing a jurist to consider the outcome, they are inherently suggesting that, like the ahl al-ra’i did, there is a spirit of law that super­sedes and overrides the source texts.

It may be of note that this observation applies to the later definition of istihsdn, one that reframes it only as a form of analogy (qiyds). The earlier definition of istihsdn was even more audacious whereby a text is not enacted due to a subjective assessment of the jurist that seeks an outcome that is more reasonable than is suggested by a literal framing of a text. Perhaps this is why the early ahl al-athar exhibited such opposition to the concept at hand.

Such an opposition also appears to be in line with the accusations made of Abu Hanifa as having leanings towards tahsdn (declaring something pleasant).⁶³ Indeed, a narration attributed to him, ‘Ignorance is not an excuse for not believing in God due to what the person sees in the creation of the heavens and earth, and in the creation of themselves’, appears to be in line with part of the Mutazali view that did not require the presence of a prophet for responsibil­ity. Although, late Hanafis tried in a number of ways to re-interpret this away from that con­sequence. The effects of this alleged form of tahsdn (declaring something pleasant) may also be said to be present in his ta'ldl (reasoning) in a number of acts of worship — acts normally con­sidered by even the Malikis who practised maqdsid extensively — to be out of the scope of ta'ldl by virtue of them (the acts of worship) being taabbudd (simple commands to be carried out without rationalization). Abu Hanifa also undertook ta'ldl in the masd’il (issues) of zakat and expiations, setting them in terms of ‘value’ instead of ‘specific types mentioned in the texts’.⁶⁴

It appears that the early form of istihsdn lent itself to a form of natural law, whereby the jurist sought that which brings about equity and justice despite what some of the source texts said on the matter. This form of law making appeared anchored in principles ofjustice, compassion and equity, principles that the Qur’an also appears to see as innate to humankind.

However, as Bernard Weiss posits, from an historical vantage point, istihsdn was eventually assimilated into the textual sources and was thereby deprived of its independent status. In fact, reason, custom, equity or public interest became concepts fettered and limited by the juristic method.⁶⁵ Accordingly, istihsdn was eventually considered to belong to the category of tarjdh (the acceptance of one of two conflicting rules as ‘weightier’ than the other).⁶⁶

The Mutazili school had its own effects on fiqh and usul — given their acceptance of an objective and discernible ‘good’ and ‘bad’ within nature. This was seen to permeate their dis­cussions of law, for example, in the definitions of the five categories of responsibility (oblig­atory, recommended, indifferent, disapproved and forbidden), the definition of obligatory (wajib) included the term ''aqlan (by virtue of the intellect), ⁶⁷ where the Ash'aris only used the term shar'an (by virtue of the texts).⁶⁸ The distinctions found their way into practical consid­erations, for example, the difference of opinion between these schools on ‘God commanding that which cannot be humanly carried out’ (takldf ma la yutdk) had a direct implication on the question of the ‘actions of one who is compelled by force to act against their will’ (takldf al- mukrah), such as one being forced to inflict pain on others by a third party at pain of death or serious injury.⁶⁹ Another example is that of the ‘status of a person to whom revelation has not reached’. The Maturidis held they are responsible (mukallaf) for believing in God (dmdn) and not attributing to God what is repulsive. Whereas the Ash'aris held that no such responsibil­ity exists whatsoever. The Mu'tazilis differed by stating that they are responsible (mukallaf) for believing in God and responsible for every act that the mind can independently reach.⁷⁰ Thus, in their formulation, they held that acts could be accounted for without recourse to revelation, an articulation of a form of natural law in their deliberations.

Does the logic of law making require a fixed methodology in order to work?

Considering the nature of how the two different schools of ahl al-ra'i and ahl al-athar ap­proached law and law making, the question could be asked, is it humanly possible, within the cognitive mapping of the human mind, to suspend one’s evaluative judgement on fairness, purpose and reason behind law, given that many cognitive studies have determined that the perception of fairness and teleological reasoning appear in humans from an early age to be applied in their environment?⁷¹

In theorizing on law, it may be possible to draw dogmatic or ideological stances that may not necessarily meet these requirements. Although, when these said stances come to interact with the real world, changes are bound to face them. Law would either have to adapt or it may, in this regard, not be applicable. In this regard several opinions within the four Madhabs arrived at notably similar conclusions to that of the ahl al-ra'i.

Theological investments, legal quagmires and human nature

The ahl al-athar school realized that not all law could be based on the few occurrences found in the source texts, the Qur’an and Sunnah. Therefore, they needed to devise methods by which rules could be drawn but only from the sources.

While these jurists, and indeed later jurists, had the theological point of order that the mind cannot undertake tahsdn or taqbdh (to declare something pleasant or unpleasant), that ‘good’ and ‘bad’ do not inherently exist, and that God created humanity as a result of a command — one with no specific reason behind it, one may ask the question, how were new laws going to be tied in to the original laws?

While the Ash'aris believed that it was false to say that ‘the reason ahkdm (rulings) were legislated by God was to benefit humankind’, they noticed that there was, in general, an iqti- rdn (concordance) between the ahkdm and masdlih (benefits) that they brought to humankind. This concordance was one that came out of the experience of ahkdm but not one necessitated by the intellect. To the Ash'aris, the intellect had no say as to whether such masadlih were compulsory, or even allowed.⁷² Thus they afforded a form of ta'ldl (reasoning) for rulings by expressing that such benefits were ‘what was customarily expected of rules’ (ja 'at bihd al- 'add). Yet, they held that it was not the case that one necessitated the other. With this they then came to view that the rulings were in accordance with benefits to humankind, and that this concordance was a grace from God.⁷³ Although, they maintained that ‘grace’ was not ‘the reason’ for God ordaining rulings.

Thus, even though they opposed the principle of ta'ldl, they found that it was needed for law to function, and for legislating new laws for new contexts. The Maturidis, Atharis, and Mu'tazilis did not face this issue due to their theology, which had the position that reasons (' ilal) were inherent in rules (ahkdm) and their locus was inevitably benefit (masalih) to humankind.

Further, in the determination made by the schools of jurisprudence that emanated from the ahl al-athar school, the place of maslaha was also found to be in need of an avenue of expression even when the sources were available, though they had initially held that such maslaha cannot be considered when source texts are available. This circumstance is probably best witnessed when they faced the question ‘what course of action is to be taken when a benefit goes against the source texts?’

They categorized the source texts (nusus) to be of two types: specific (khass), such as the pro­hibition of asking for a woman’s hand in marriage after she has become engaged; and general ( 'dmm), such as the rule not allowing the sale of an unspecified item. Furthermore, they looked at these texts as having one of two characters: one that is definitive (qat '1) in its meaning and its authenticity, and one of doubtfulness (zannt) in either its meaning or authenticity.

If a benefit (maslaha) were to contradict a non-definitive text (nass), be it in meaning or au­thenticity, then according to the Shafi'is (those who were most opposed to ra'i), if application of the nass causes a temporary harm (darar 'arid), then the benefit is permitted out of necessity, and the lesser of two evils. While in the Hanbali school, the ashdb of Ahmad b. Hanbal held that benefit could act to specify (tukhassis) a text (nass) if there is a contradiction between the benefit and the text. That is, the benefit becomes a special case not covered by the text, i.e. an exception. This also is the case for the Maliki and Hanafi schools.

In terms of scope, the Maliki school held that all general texts (nusus) of the Qur’an and Sunnah are considered as not being definitive in meaning.⁷⁴ Examples where this has been applied are in not requiring a person to undertake taklif / a qasam (to take an oath) when there is an unsubstantiated counter claim to their property. Furthermore, within the school, certain ongoing customs (al- 'urf al- 'amalt) can act to specify a general text as well as restrict a general source text (nass).⁷⁵

The later Hanafi school also allowed such exceptions to the Qur’an and Sunnah due to benefit (maslaha),⁷⁶ such as bearing testimony based on ‘hearing’ in certain cases.⁷⁷ Another example is of the sale of seasonal produce ahead of its fruition where the crop is one that gives an indication of an expected produce, despite source texts prohibiting gharar (ambiguity in contractual obligations) and the sale of what one does not have.

The Malikis used a term known as qiyas khaft (subtle analogy) in those situations in which normal application of analogy (qiyas) appeared to produce an improper outcome. They used this in order to put forward a maslaha juz'iyya (partial interest).⁷⁸

Where a ‘custom’ goes against the text, the later Hanafis have specified allowances whereby what is customarily known in a society is considered instead of the text on the issue. An example they use is that of the conditions of a contract (shurut), such as the ‘sale of keeping promise (alwafa’) as it was a customarily known, type of contract despite it being an inadmissi­ble condition (shartfdsid).⁷⁹ Such also applied to similar cases involving forms of interest (riba) in certain food stuffs.⁸⁰

In time, according to Mustafa al-Zarqa, analogy (qiyas) itself began suffering from an ex­cess of use, leading the Malikis towards relying on other forms of deduction.⁸¹

Thus it appears that in setting formalized structures that did not quite fit the nature of the original character of law and law making of the early period, the ahl al-athar schools resorted to exceptions and further qualifications to try to release themselves from the quagmire that they had set up. It appears that while the ahl al-athar set out with a number of ideological and theological commitments, they found that eventually they required fine tuning in order to arrive at a more workable outcome. One that was in all possibility attainable with ra’i.

Ahl al-ra’i and a means to natural law

The early formulations of the school of ra'i, as previously described, granted a degree of onto­logical authority to reason by virtue of the reasoning process required of the mind in order to come to law that is just, equitable, and fair. Furthermore, as the principles ofjustice, equity, and fairness were recognized by the Qur’an, giving the impression that these are expectedly innate, it may be argued that this ontological authority is much more comprehensive than has been granted to Islamic legal theory. It may be stated that with both the principles and contex­tual rulings that came to afford and promote justice and fairness, the expectancy that human reasoning is a must within the ra ’i-based school may be seen as, at times, a form of natural law that places innate principles as central, with law making around them as fluid. Any legal rulings of the text can thus be seen as, at times, contextual demonstrations of these principles that must be continually reconsidered in light of them, but not despite them.

It appears thus that the ra'i view oflaw and law making allows for a more dynamic and less dogmatically restricted characterization of the legal process and law making. Furthermore, it also appears to promote a view of law that allows for the preservation of arguable universal principles common to all humankind — principles that cannot be overridden for political or ideological expediency.