2 Law, the Path to Salvation, and the Order of Society
In tracing the semantic transformation of maslaha from an otherworldly to a mundane benefit and its impact on conceptions of the ratio legis, the study highlighted the importance of theological commitments that delineate the interpretive space in which jurisprudents work.
While the materials surveyed here were largely of a theoretical nature, the legal theory as articulated by these five jurists reflects different visions of the relationship between God and His creatures and assigns different roles to the religious Law in society.The Muttazili confidence in a continuous moral universe translates in tAbd al-Jabbar’s and al-Basri’s work on legal theory into their trust in human ability to understand the revealed Law. In their legal theory, the function of Revelation is to show the path to salvation through obedience to God’s impositions laid down in Scripture and those incidents that are analogous to them. Human insecurity about the correctness of their actions is minimized by the shared rationality of God and humankind. Counter-intuitively, the confidence in an objective uniformity of the universe and in the ability to know God and His legislative intent also makes for a rigid understanding of the Law. The knowledge that God’s laws are good also implies that following them (blindly) is sufficient for one’s otherworldly destiny. With less emphasis on the relativity of ethico-legal norms, there also is less flexibility to address the changing needs and different circumstances of individuals and society. In the areas covered by the revealed Law, little wiggle room remains for dispensations and alternative readings. Yet, what is not addressed by Revelation is part of the revealed legislative intent only to the extent to which there are signs that the incident falls under the revealed rulings and should be ruled in analogy.
For instances that fall outside of the language of the revealed Law, rational reflection can determine the best course of action in light of mundane consequences and in terms of rights. Such actions, however, are outside of people’s religious culpability (taklf). In a Muttazili approach, the religious Law is complementary to laws arrived at by reason in shaping the order of society. This leaves room for non-religious laws to order legal questions that Scripture does not cover by a clear semantic or concomitant ratio legis that allows analogizing to the revealed laws. Solutions for such cases, however, are not the exclusive prerogative of the religious scholars, the culama,, but the concern of other groups in society.The Maturidi worldview of al-Dabbusi, while emphasizing the rationality of God’s wise design, nevertheless reflects that Revelation is the dominant criterion to order society. Since Scripture more fully than the intellect informs about God's legislative intent, the religious Law is dominant in shaping the order of society. To be on the safe side, God's directives should be taken into consideration in all but the few instances that, based on people's knowledge of the wise order of the world, have a stable assessment on account of their inherent lexical meaning, such as injustice. Al-Dabbusi's approach to legal language, which allows for circumstantial relativity, empowers the ordinary Muslim to draw on their innate language abilities to understand from Scripture what they should and should not do. While the religious Law dominates the way society is ordered in a god-pleasing manner, al-Dabbusi's common-sense approach to the language of Revelation leaves room for finding solutions to legal questions based on people's considerations of how to attain a societal order that conforms with the divine wisdom and leads to salvation.
Our Ashhrijurists argue for a universally applicable divine Law. The religious Law is primary for ordering society.
The objective of interpreting Revelation is to avert punishment from the believer in the Afterlife. Since human reason cannot be relied upon, the language of Revelation serves as sole guide. Yet, we see in al-Shirazi's and al-Juwayni's work different ways of dealing with human insecurity about their otherworldly fate. Al-Shirazi displays a common-sense approach to language, fairly similar to al-Dabbusi. He limits those actions that incur punishment by restricting divine command and prohibition to their grammatical form of imperative and negative imperative. While there is little choice in obeying God's commands and prohibitions, the rest of people's actions are largely up to their own estimation of what is good in the eyes of the Master. Al-Juwayni, by contrast, seeks to alleviate insecurity about one's otherworldly destiny by broadening the possible application of the divine word. In order to minimize the risk of otherworldly punishment, he expands what counts as commanded and, thus, obligatory to do. When it comes to the individual believer's ability to understand God's Law, we find opposing tendencies in al-Juwayni's articulation. On the one hand, he shifts the semantic meaning of maslaha toward mundane consequences and thereby enhances people's recognition of God's legislative intent. On the other hand, his fluid linguistic and contextualized approach lessens their ability to correctly interpret the divine word. Revelation has to be analyzed in such a comprehensive manner that only those highly-skilled in scriptural hermeneutics are able to determine what actions are covered by a divine command. The ordinary Muslim is dependent on the interpretive abilities of the religious experts, the culama,, for her religious and mundane well-being.Despite their differences, both al-Shirazi and al-Juwayni elevate the role of the religious scholars in society. Even when al-Shirazi allows for decisions independent of the Law, for example in matters concerning war or agriculture,[821] [822] [823] this would fall under the executive powers of the ruler, not the legality of waging war or agricultural contracts in the first place.
Al-Juwayni similarly permits, for example, that the political power holder appropriates inheritance from people leaving no heir, yet, how the funds are spent, which, he says, are earmarked for providing maslahas, is determined by the religious scholars.π In the Ashtari world view, Islamic Law becomes universal and constitutional for the order of society and the rulcιmcτ^ indispensable for determining the constitutionality of laws that regulate human behavior.There is no mono-causal explanation for the success of Maturidism and Ashtarism against MuTazili alternative visions of the divine Law. Yet, it is undeniable that a Maturidi and Ashtari approach to theology and Law takes the event of Revelation as the focal point of history and the pinpoint of an Islamic society. Only with the advent of Islam do people have ethical knowledge?2 Furthermore, it elevates the interpreters of Scripture, the culama,, as the ones to define how society should be ordered in a god-pleasing manner, taking away this prerogative from other segments of society, in particular political authorities. The sphere of law is that of the religious scholars, not of legal-minded government administrators.
The competition between the political authorities and the culama, over religious authority has a long history. While the political forces, in particular the caliph, had lost the battle for supreme religious authority already by the middle of the 3rd/9th century in the wake of the mihna, the culama, as a group slowly but surely became more and more relevant for ordering society as the de facto power and religious prestige of the caliphate declined. In a time period that was characterized by political instability - the coming and going of Buyid power, Fatimid encroachments, and the rise of new military dynasties like the Ghaznavids and the Saljuqs, stability in form of the Islamic religious leaders, the culama,, proved to be key for the upkeep of society and the continuity of an Islamic order.
Their leadership served the population but also the political authorities, which had no religious pedigree for their claim to legitimate rule.How the political realities of the time affected Muslim thought is well documented in the changing requirements for leadership of the community as well as the discussions over the existence of mujtahids and the role of taqlld.[824] The 5th∕11th century, one may say, sees the ascendance of those visions of Islamic Law that were able to simultaneously provide legal stability and uniformity, keep some check on the whims of political authorities and retain independence from them, and, at the same time, allow for flexibility in the application of the Law that serves the needs of those subject to it, which at that point in time was the majority of the population living under Muslim rule. The Ashtari and Maturidi thought systems with their focus on this world as the arena of legal interpretation favors an all-encompassing Islamic Law and the authority of its human interpreters. The this-worldly consequentialist perspective of our Maturidi and Ashtari jurists provides solutions for unprecedented cases that, conceptually, are based on the divine legislative intent, and, thus, beyond the whims of individuals. This purpose is defined by God in His Revelation, not by human considerations, making religion the supreme criterion of normativity in this world. Yet, in its Maturidi and Ashtari form, it is a normativity that is relative to the circumstances in which people live. The contextual relativity that al-Dabbusi, al-Shirazi, and al-Juwayni exhibit in interpreting Scripture and extending the Law to new circumstances allows for a flexible, adjustable Law. When a ruling no longer achieves its purpose, it can be suspended or changed. Despite or perhaps because of the commitment to God's omnipotence, the inscrutability of the realm of the unseen largely leaves the interpretation of the divine legal intent to the jurists' subjective estimation of what serves the interests God's Law protects for His creatures in this world.
The ethical turn in legal reasoning paved the way for the dominance of a Sunni Islamic view of the world, in which religion and its interpreters determine the legal order of society. For the political authorities, aligning themselves with the religious Law and its practitioners offers the political legitimacy required for outside conquerors and the legal uniformity and stability needed in societies that bythat point in time overwhelmingly identified as Muslim.[825] [826] The winners of this development were the Sunnijurists who were indispensable to the process of determining what was good and right. They determined the mundane ethical content of God's revealed order for society, and perpetuated and reproduced their vision through educational institutions (madrasas) and practices that were characterized by a tradition-oriented isnad-system that connected them to the event of Revelation itself,15 the purpose of which was understood to be human salvation and mundane maslahas as defined by the Law.