Substantive Rules

Generally speaking, all regulations of material law can be interpreted in light of the intention to find just solutions. However, we have to remind ourselves of the already mentioned complexity of legal exercises of order and the changing pre­conceptions.

One key element of justice is the question of which goods and interests need the protection of legislation and also deserve it. This question has only been dealt with by a few important scholars, but plays an important role in the daily practice of applying the law. When it comes to legal theory and the inter­pretation of norms, this question becomes essential: It demands the reflection of the interpretation of legal norms. Those who interpret the norms have to clar­ify whether the norm is applicable to everyone at any place and at all times, or whether it is restricted to certain persons, to particular places or in time. This key question usually cannot be answered when looking at the respective norm alone. Instead, it is more promising to apply the well-established and revived theory of the higher goals (maqasid) of Sharia.

Other than the regulations of religious ritual practice, which are mostly con­sidered to be immutable, the law has to serve the common interest (maslaha) first and foremost, which is accessible to human perception.^[227]

Classical references like Ibn Qayyim al-Jawziyya (1292 -1350), al-Shatibi^{[228] [229] [230]} (d. 1388), as well as some other prominent scholar¹ are frequently referred to in this context. In nuce, the core of this theory can already be found in the works of the eminent scholar al-Ghazali (d. 1111)?²

Abu Ishaq al-Shatibi, who is the most prominent and most cited representa­tive of this school of thought, concretises the higher purposes of Sharia in a benchmark setting way.⁸³ He defines these by five general and universally recog­nised goods (‘necessities’, Arabic.

The Sharia-based actions were not aims in themselves: If the objective con­ditions for any action under Sharia were given, but did not realise the purpose protected under Sharia, their application would be wrong and contradict the norm in fact, since it has only been established for a certain purpose?⁵ Whoever states that these purposes could not be discerned and understood — which he accuses the religious philosophical school of the batiniyya8⁶ of pretending — would in fact destroy the Sharia?⁷ The norms (adilla, ‘signs’, in Arabic) of the Sharia cannot contradict reason, since the prerequisite for the norm’s validity and applicability in concreto (Arabic taklif) is its potential to be understood it on a rational basis?8

Only ritual obligations (‘ibadatj stood above human-rational understanding, while all other norms were accessible to human ratio?⁹ The fact that the revela­tion of the Qur’n and the life of Muhammad took place in the 7th century CE

83 Al-Shatibi, al-Muwafaqat fi usul al-sharia, 2/8, 39 and more often; see on this Raysuni, Imam al-Shatibi’s Theory of the Higher Objectives and Intents of Islamic Law, especially 137ff.; Kamali, Principles ofIslamic Jurisprudence, esp. 400ff. For it’s contemporary reception, see Masud, Sha- tibi’s Philosophy of Islamic Law, 108 ff.; Mohamed Ibrahim, Maqasid al sari a: Islamische saria versus Menschenrechte? (Darmstadt: Averroes Institut fur wissenschaftliche Islamforschung, AWIS, 2007), 6ff.; ‘Abd al-'Aziz Ibn ‘Abd al-Rahman, ‘Ilm maqasid al-shari'a (Riyadh: n.p., 2002); Johnston, ‘Maqasid al Shari‘a’, 149ff.,157ff.

84 Al-Shatibi, al-Muwafaqat fi usul al-sharia, 3/77.

85 Ibid., 2/285.

86 This is what specifically the Shi‘i Ismailis were called, but also more generally those who opposed an literal understanding of the text in favour of the inner meaning (Arabic batin); cf. M.G.S. Hodgson, ‘Batiniyya’, in Gibb; Kramers; Levi-Provenςal; Schacht; Lewis, Encyclopaedia of Islam.

87 Al-Shatibi, al-Muwafaqat fi usul al-sharia, 2/291.

88 Ibid., 3/16.

89 Ibid., 2/294 and others. A good summary of the main standpoints is provided by Raysuni, Imam al-Shatibi’s Theory of the Higher Objectives and Intents of Islamic Law, 317 ff. opens broad space for a far-reaching new interpretation of Islamic law by taking the respective historical circumstances into account.^{[231] [232] [233] [234] [235] [236]}

In a considerable number of particular legal questions, the principle of pro­portionality is recognised as an important element of justice: The draconic pun­ishment for sariqa (Qur’anic theft), which is amputation of a hand or a foot ac­cording to traditional penal law, is inter alia linked to a sizeable minimum value of the stolen goods (nisab).9¹ Taxation has to be based on the financial capability of the taxable person (even though this did and does not hold true in reality)?² Furthermore, Islamic law contains the universal rule of ‘necessity knows no law’. Necessity (darura) in this sense e. g. allows minor theft of food in case of need, or self-defence?³.

Islamic contract and economic law is furthermore coined by the fundamen­tal concern to bring together chances of profit and risks of loss, as well as to pre­vent the exploitation of ignorance or the plights of others. This is achieved by procedural rules as well as through material regulations, which for instance for­bid contractual stipulations that enable any one-sided allocation of chances of profit or shifting of risks as well as by prohibiting usury?⁴