XI THE PRIMACY OF THE QUR’AN IN SHATIBT’S LEGAL THEORY

Other u$ulists seem to lay very little stress on such requirements, satisfying themselves with the general assumption that any part of speech must, in order to be properly construed, be viewed within its own context, a context determined by what they coined as qara^in al-ahwal}* Though qara^in al-ahwal include, among other things, the circumstances under which a particular verse was revealed and the currently surrounding social and linguistic conventions, these usulists clearly fail to articulate the exact ingredients which go into the making of any hermeneutical act. That ShafibT did articulate such ingredients in the framework of his theory^[311] is, as we shall see later, quite significant.

A thorough familiarity with the circumstantial context of reve­lation and the linguistic conventions prevalent in that context merely guarantees a sound understanding of the apparent meaning ($dhir) of the Qur³anic language. Hermeneutically, this is already a step in the right direction, for to establish the outward meaning of a text in accordance with the accepted rules of linguistic and literary usages constitutes a prerequisite for any attempt at a deeper level of interpretation. By seeking this deeper level, the bafin, one transcends the immediate and perhaps superficial meaning of the text in order to reach the real intent, maqsud, of the Lawgiver.

74 completion of Islamic revelation, the batin meaning is to note the approaching death of the Prophet. After all, he was sent to deliver a message, and once the task was completed, he had no reason to stay. The fact that the Prophet departed from this world eighty-one days after the final revelation confirms, Shafibi insists, the validity of this interpretation.^[312]

But this deeper level of exegesis is, in ShatibT’s thought, imbued with a pietistic element. To understand the intent of God is one thing, to be wholeheartedly convinced of it is another. The knowledge of the bafin is both. It is on such interpretative grounds that ShafibT spurns legal stratagems which are intended to circumvent the divinely prescribed law. Only those who have not perfectly understood the intent of the Lawgiver try to, and indeed do, resort to the manipulation of the law by means of such stratagems;^[313] the more one penetrates the batin of the text, the more guided and pious he is deemed.^[314]

ShapbT is quick to dissociate this notion of batin from other sectarian notions,^[315] arguing that what is interpreted on the basis of his notion of batin to be the intent of God is not open to doubt.^[316] To ensure that a far-fetched interpretation, like that of the Isma^lTs, is avoided, the standard rules of the Arabic language and grammar must be closely adhered to, and no meaning beyond what the language dictates should be inferred. Furthermore, any interpretation of the batin must not only find corroboration from other textual citations, but must not run counter to another accepted interpretation.^[317] With all these safeguards, and with the absence of such hermeneutical principles from other u$ul al-fiqh works, ShafibT is clearly at pains in trying to pin down a set of criteria for what is a novel u$ult system of linguistic interpretation. While pressing for a particular interpretational approach—which will yield, to be sure, the results he is seeking—and adducing an unusual number of examples^[318] illustrating instances of faulty (i.e., sectarian) interpretation, ShatibT is especially cautious not to transgress the hermeneutical ways of orthodoxy.

The much spurned interpretational extremities are the result not only of the lack of strict application of linguistic rules and conventions prevalent during the time of revelation, but also of the absence of a comprehensive approach to the larger context of the Qur³anic passage in question. Extremist interpretations for ShatibT stand opposite to reasonable, moderate, and middle-of-the-road inter­pretations. The latter, being the ultimate aim of our jurist, may be achieved by examining the meaning of the Qur’anic passage under consideration in light of the general theme of the verses which precede and follow it. Referring to the commonly accepted view in the field of Qur³anic commentary that the Qur°an often deals with an issue or a set of related issues in more than one place, ShatibT argues the need for reviewing all the relevant verses when extracting a legal ruling from the text. It is often the case, he says, that one or more verses explicate an otherwise vague verse. If an adequate understanding of one part depends on another part, then the Qur³an is interrelated in a number of ways; a part may introduce, confirm, clarify, or complement another.^[319]

That the Qur°anic text represents a closely interrelated and complete whole^[320] means that for a particular verse to be properly understood it must be viewed not only in light of its general textual context but also mainly with reference to the verses which precede it in time. The later parts in the text must thus be explained in terms of the earlier parts, just as the entire Medinese revelation must, to be properly understood, be viewed in light of the Meccan Qur³anic phase. And within the Medinese phase—and for that matter the Meccan—the latter verses are to be interpreted only after a full consideration of what came down earlier.^[321] The Meccan Sura of the Cattle illustrates this general principle. On the basis of this Sura, wherein the foundations of faith and religion were laid down, the theologians elaborated their system, beginning with the affirmation of the Necessary Existent down to the last issue ordinarily discussed by them, the Imama. Similarly, the Sura provides the general foundations (kulliyydt) of the law. Setting aside any relevant part of it

76 may demolish one of these foundations or even damage the entirety of the legal system (ni^am al-shan^ca).^[322] Now, when the Prophet emi­grated to Medina, the Sura of the Cow was revealed in order to lay down the details and to explicate the general principles in the Sura of the Cattle. Though some of these details appeared elsewhere, here are found the specific laws of rituals, diet, crime, commercial trans­actions, marriage, etc. The universal principles (usul kulliyya) estab­lished in the Cattle concerning the preservation of one’s religion, life, mind, offspring and property are all confirmed in the Sura of the Cow. Thus what is revealed in Medina subsequent to the latter, must be viewed in its light. The importance of chronology here can hardly be exaggerated.^[323]

Ill

Most usulists are willing to subscribe to little of what ShatibT has so far asserted, and when they do, it is only with many qualifications. As far as I know, no other usulist placed such heavy emphasis on the chronological sequence and interrelatedness of verses in Qur³anic hermeneutics. But while this may not constitute the most serious difference between ShatibT and these usuhsts, the implications which the former drew from it and the thesis which he advanced on the grounds of these implications certainly drive a sizable wedge between his theory and theirs.

That the later Suras and verses explain what precedes them in revelation leads to a certain hierarchy in the Qur³an with the very early Suras being the most comprehensive. Even if a Medinese verse appears to be universal or general, there must always exist a more universal verse revealed earlier in time. And even if it were indeed universal, it would only be a supplement to earlier universal verses.^[324] The ultimate reference would then be the Meccan revelation, the earliest in point of time.^[325]

As might be expected, the implications of this view are dramatic, and ShatibT does not hesitate to state them boldly. Within the limits of the Qur°an, the general rule is that the verses revealed at the outset of the Prophet’s career lay down the most general and universal legal principles—i.e., protection of the right to religion, life, mind, progeny and property. Later revelations may complement these principles, but in the main they provide explanations and details of preceding revelations. It is for this reason that the Medinese Suras are, in relation to the Meccan, less universal, often providing legal rulings concerning points of detail.

Whether all the details were provided in the Qur’an or not, God perfected for Muslims their religion once the entirety of the Qur’anic subject matter was revealed. Citing the verse “Today I have perfected your Religion for you,” ShatibT argues that the Qur’an contains all the fundaments of faith, spiritual and practical; it encompasses all things, and, conversely, nothing needed in religion stands outside its teaching.^[326] The logical conclusion of this premise represents no less than a complete relegation of the Prophetic Sunna to a secondary status, and ShatibT, to be sure, does reach this very conclusion. But though the Qur’an lays the foundations of law and religion, no rulings ought to be extracted from it without consulting the Sunna, because the latter, just like the Medinese revelations, provides explanations and details for the Qur’an. Nonetheless, ShatibT affirms the completeness and self-sufficiency of the latter and, in consequence, rejects the view that the Sunna offers any substantive addition to the Qur’an.^[327]

The roles that ShatibT assigns to the Qur’an and the Sunna, and their hierarchy in his system, have, insofar as I know, no precedent in usul al-Jiqh. He does agree with other jurists that God made it an obligation upon Muslims to consider as authoritative and binding the words of the Prophet.^[328] But this is different from arguing that there is essentially nothing in the Sunna that is not found in the Qur’an—a view unacceptable to the great majority, if not all, scholars.^[329] Undoubtedly, this is an immensely important position, having considerable ramifications for virtually all other arguments in ShatibT’s theory. No less important than the dimensions of these effects is the defense and justification of this position. How he justified

78 it will be our concern in the remaining part of this section. Why, on the other hand, did he hold such a position and what was its significance to his overall agenda are questions to be addressed in the final section.

Before proceeding with his argument for the primacy of the Qur³an over the Sunna, Shajibi asserts the more basic point that in the mujtahid's legal reasoning about individual legal cases the Qur³an merits attention before the Sunna. That the Sunna should be demoted to a second position is the result of the higher degree of certitude the Qur³an enjoys. Insofar as authenticity enters into the criteria determining the epistemological status of the two sources, the entirety of the Qur³an as a text, as well as its individual verses, is deemed certain; but whereas it is true that the Sunna as a source of law is on the whole certain, the great majority of prophetic traditions are probable.^[330] From the perspective of certitude the Qur³an thus provides the first and most solid basis for legal reasoning. Further­more, even if one grants that the Sunna contains material not within the compass of the Qur³an, the mujtahid must, at any rate, first look in the Qur³an in order to ascertain that it indeed provides no answer. But since in reality the Sunna merely explains the Qur³an, one must examine the text before examining the “commentary” on it; without the commentary a text remains viable, but without the text, the commentary is meaningless if not impossible.^[331] Further to bolster his argument ShafibT marshals a number of traditions to the effect that the Qur³an reigns supreme.^[332]

As this position is not merely a marginal novelty but rather signifies a total departure from the view of the great majority of scholars on this matter, ShafibT obviously cannot content himself with such a relatively simple refutation: The arguments of this majority must be confuted one by one, and in detail.

According to the great majority of scholars, when the Qur³an is ambiguous on a particular matter, the Sunna, with its highly detailed content, intervenes to determine the specific intent of the Lawgiver. The Sunna functions in a similar manner whenever the Qur³an fails to address any problem with exactitude and clarity. A case in point is the Qur³anic injunction to cut off the hand of thieves. The Sunna delimited the Qur^Danic meaning by decreeing that this punishment should be meted out only when there is break and entry and the value of the stolen goods exceeds a certain prescribed amount. Likewise, the unconditional Qur°anic permission for matrimony was narrowed in scope by precluding the marriage of the maternal and paternal aunt of one’s wife. A good number of rules related to prayers, alms-tax, fasting, ablution, pilgrimage, hunting, and other liturgic and mun­dane matters have also been legislated by the Sunna on the basis of the Qur³an. While the Qur³an made it, in succinct terms, a duty upon Muslims to perform prayer, the Sunna set forth the times of prayer each day, the manner of their performance, and other minute but nonetheless substantive specifications.^[333] ShatibT does accept the authority of the Sunna, but only insofar as it complements the Qur³an. The Sunna, he argues, merely expresses and articulates the intention of the Qur³an; for after all, God, addressing his Prophet, has said: “We have sent down to you the Remembrance that you may explain to mankind what had been revealed for them” (S. XVL44). Thus, when the Sunna qualifies the Qur³an in such matters as the thief’s punishment it is simply stating what the Qur³an meant to say. If a jurist establishes the exact meaning of a verse, we cannot say, ShatibT analogically argues, that the ruling based on that verse stems from the authority of the jurist himself.^[334] He, like the Sunna, functions only as an interpreter of what is ultimately the very word of God.

When the two sources present the jurist with two different or contradictory pieces of evidence, and when one piece enjoys the same degree of certainty as the other, thus precluding the possibility of one repealing another, the common practice has been to choose the evidence that is more agreeable (ashal, aqrab}, even though it may not be Qur°anic. In this practice ShatibT sees no problem, because the evidence in the Sunna represents, in the final analysis, an explanation or reformulation of a general Qur°anic injunction. Put differently, the evidential competition is not between the Qur³an and the Sunna, but ultimately between two different or seemingly contradictory statements within the Qur³an.^[335]

This argument further underscores ShatibT’s underlying assump­tion that the Qur³an contains the essence of the Shari^ca, and that anything else represents, so to speak, a footnote to the self-sufficient Book. The hypothetical opponents of this view adduce a number of

80 verses to the effect that the Prophet’s Sunna constitutes a source of authority equal to that of the Qur'an. Sura IV:59, for example, states: “O believers, obey God, and obey the Messenger and those in authority amongst you. If you should quarrel on anything, refer it to God and the Messenger, if you believe in God and the Last Day”; and Sura V:92 reasserts: “Obey God and obey the Messenger, and beware!” The tenor of enjoining obedience to the Prophet would be pointless, the opponents say, should the Prophet’s statements and commands be mere repetitions of those in the Qur'an. The specific directive to bow to the Prophet’s authority clearly indicates that the Prophet did introduce injunctions unspecified by the Qur'an. Such directives as those in S. LIX:7: “Whatever the Messenger gives you, take; and whatever he forbids you, give up,” empower the Prophet to decide in matters that expand on the Word of God and, ipso facto, add to it.^[336] Needless to say, the traditions fully corroborate the Qur'an on this score and add the prophetic condemnation of those who make the Book their sole reference.^[337]

Facing no choice but to admit the foregoing textual evidence, ShatibI concedes that the validity of the texts adduced cannot be disputed, though he does not see how this evidence confutes his position. When the Sunna renders clear a verse pertaining to a legal ruling, the said ruling would be ultimately grounded in the Qur'an, not the Sunna. Both God and his Messenger presumably bestowed on the case a certain authority. In conforming to, or violating the established ruling, the Muslim individual would be, respectively, obeying or disobeying God as well as the Prophet. Distinguishing between the two sanctioning authorities does not entail differentiat­ing between two different rulings.^[338] In other words, when the Qur'an calls upon the believers to obey God and the Prophet, the import of the command relates to their authority as two distinct sanctioning powers, although the Prophet’s authority derives, in the final analysis, from that of God. Since, ShatibT argues, the separation of these two authorities does not necessarily involve distinguishing between two different rulings belonging to a single case, then there would be no proof that the Sunna contains material not within the compass of the Qur'an.

Having introduced traditions in condemnation of those who set aside the Sunna, ShafibT’s hypothetical opponents assert that the interpretation of the Qur³an without reference to the explicative Sunna not only leads to heretical doctrines but such interpretative approach has also been specifically forbidden by the Qur³an itself. Far from enjoining the rejection of traditions whose legal import is not found in the Qur³an, God has ordered Muslims to adhere to the Prophet and take him as the highest example. In fact, the opponents say, there is nothing in God’s Book to give us reason to think that even traditions different from the Qur³an are to be avoided. Now, while ShatibT admits that abandoning the Sunna altogether is conducive to heresy, he rejects individual traditions which agree neither with the Qur³an nor with the overall body of the Sunna;^[339] the reasoning here being that since the Sunna cannot conceivably contradict the Qur³an, no individual tradition may be accepted unless it is in agreement with this primary source. And if it is in agreement, there would be nothing in the Sunna which is not approved by, and thus accounted for in the Qur³an.

All these arguments and counter-arguments are launched on such a general level that they address none of the positive legal cases whose rulings, the opponents say, derive exclusively from the Sunna. The prohibition on marrying the paternal and maternal aunt of one’s wife; the prohibition on eating the meat of donkeys and certain kinds of predatory animals; the ruling that capital punishment must not be meted out to a Muslim who kills a non-Muslim, etc., are all examples of laws provided for by the Sunna alone.^[340]

Analogous to the mujtahid who must often choose between two pieces of legal evidence relevant to the case in hand, the Sunna preponderates one Qur³anic injunction over another when applying its judgment to a particular legal case not specifically stated in the Qur³an. In the latter, for example, God permitted in general terms the consumption of good foods and forbade the putrid ones, without, however, defining the status of many kinds of them. The Sunna then came to decide each kind in accordance with the principles regulated in the Qur³an. In other words, the Sunna subsumed certain foods under one Qur³anic legal norm or the other. Among these were the prohibitions concerning the consumption of the meat of donkeys and certain predatory animals. Similarly, God prohibited inebriants and permitted other non-alcoholic beverages such as milk. The rationale behind the prohibition was the effect of alcohol on the mind in that it distracts the Muslim from the worship of his Lord, let alone its negative social effects. Again, the Sunna interfered here to determine to which of the two categories date-wine and other semi-intoxicating beverages belong. On the basis of the principle extracted from the Qur³an, all beverages, whether containing high or significantly low percentage of alcohol, were prohibited. And on these grounds, the Sunna articulated the classic dictum that any beverage which inebriates when consumed in large quantities is prohibited even in small quantities.^[341] Although the Sunna does provide specific rules and even some legal maxims, this should not mean, ShatibT insists, that these have less grounding in the Qur³an. In fact, their roots ultimately lay there.

Another category of prophetic rules which supply the detail for laconic Qur³anic injunctions appears to be inferred by means of qiyas. ShatibT argues that it matters little to us whether the Prophet in fact arrived at these rules through revelation or intellectual reflection and qiyas, because insofar as we humans can perceive, he seems to have resorted to the latter. The law pertaining to the marriage of the aunt of one’s wife represents an excellent case in point. The Qur³an prohibited the marriage of the woman together with her daughter as a second wife, even if the husband divorces the mother before concluding the marriage of the daughter. The marriage of two sisters was prohibited as well. Analogically, the Prophet rendered the marriage of a woman together with her maternal or paternal aunt forbidden. The Prophet’s statement which he made upon deciding in this type of marriage—namely, “If you do so [viz·, marry your wives’ aunts] you shall put an end to your own offspring”—is reminiscent, ShatibT says, of the mode of legal reasoning used in qiyas.^[342] The admission of oaths as evidence in the law of procedure is another product of prophetic qiyas. Sura 11:282 states: “And call to witness, from among your men, two witnesses; and if the two be not men, then a man and two women.” In spite of the fact that women are inferior to men, he says, the acceptance of their testimony in the Qur³an clearly indicates that when a male witness is not available, a substitute would be admissible. Like women, oaths can supplement the testimony of one male witness when other male witnesses are not to be found.^[343]

83 SHATIBI’S LEGAL THEORY

In line with this analogical procedure the Sunna determined the punishment of a Muslim who kills a non-Muslim. On the basis of S. IV: 141, “God will not grant the unbelievers any way over the believers,” and, to a lesser extent, S. LIX:20, “Not equal are the inhabitants of the Fire and the inhabitants of Paradise,” the status of Muslims is known to be decidedly higher than that of non-Muslims, and therefore the Muslim’s punishment for killing a non-Muslim should be less than death.^[344]

Having accounted for cases presumed by his opponents to be significant material additions to the Qur³an, ShajibT moves on to a higher level of analysis. On this level he not only attempts to enhance further the thesis that the Qur³an encompasses, among other things, all matters of legal obligation, but also alludes to some of the reasons underlying the formulation of this thesis.

The Sunna may, it is true, contain some legal subject matter which is found neither in a laconic Qur°anic statement nor even in an ambiguous or indirect one. Such subject matter, nonetheless, has its origins in the Qur°an. It is Shapbi’s fundamental assumption that each Qur°anic verse or statement possesses multifaceted meanings, some direct and others indirect. While a verse may exist in its own particular context and may appear to have an immediate, obvious meaning, this very verse may, at the same time, manifest another meaning which is identical to meanings found in other verses. To put it differently, a group of verses in the Qur°an may all have in common one theme which happens to be subsidiary to the main meaning in each verse. The inductive corroboration of one verse by the others lends the common theme a certain authority which could reach the degree of certitude.^[345] Whereas this theme remains hidden in the linguistic terrains of the Qur°an, the Sunna unfolds it in the form of a prophetic tradition.^[346] The result of one such case of corroboration in the Qur³an is the prophetic report “No injury and no counter-injury in Islam.”^[347]

As a general rule, however, the Qur°an provides what ShafibT

characterizes as the most important foundation of the Shari^ca; namely, the principle governing the interests of people. For after all, the entire enterprise of the Shari^ca was instituted in the interests of Muslims, whether these interests pertain to this life or to life in the hereafter.^[348] In order to safeguard these interests the Shari^ca seeks to achieve three goals (maqasidy. namely, that which is indispensable {daruriyyat), necessary (hdjiyydf) and beneficial (jahsiniyyat). Without the first category, which presupposes the protection of one’s religion, life, offspring, property and mind, secular as well as religious existence can never be orderly, and at worst, it is impossible. The other two categories, on the other hand, make the implementation of the law possible by mitigating harsh requirements and reducing legal demands. The SharFa, ShapbT relentlessly asserts, rests squarely on these three general principles,^[349] principles stipulated in the Qur’an and articulated in the Sunna.

Any particular detail found only in the Sunna is nothing but an extension of an all-embracing Qur’anic principle; the contrast here is between the Qur’anic /a’jfZ, laying down the foundations, and tafsil, the explication of the foundations by extending their law to particular cases.^[350] All five sub-categories of daruriyydt are prescribed by the Qur’an and then further expounded by the Sunna. The Qur’an enjoins belief in Islam, threatens those who reject it, prescribes jihad against them, etc. The legislation with regard to marriage, pro­creation, subsistence, and other similar matters is designed to protect life and its continuity. So are the laws regarding fornication, the validating conditions of marriage, divorce and other forms of marital dissolution. Laws dealing with crime, hunting and diet are also intended for the maintenance of orderly life. Similarly, the Qur’an provided general legal principles aiming at the protection of prop­erty. However, the last sub-category, the mind, though briefly taken into consideration in the Qur’an, is subject to no general principles. The laws governing this area are left for the mujtahid to articulate. The Sunna, on the other hand, follows suit in neglecting to establish laws relative to the mind—a fact which ShafibT finds quite convenient for making the point that the Sunna leaves out whatever the Qur’an omits. In the same vein, the principles governing the other two categories of hajiyyat and tahsiniyyat and their sub-categories are stated in the Qur’an, with their minute details found in the Sunna.^[351]

IV

Shatibi’s insistence on the primacy of the Qur³an over the Sunna—a stance heralding a departure from the established usul al-jiqh theory— must be explained in light of the results which his theory proposes to achieve. ShapbT, however, makes no effort at drawing any con­clusions from his thesis on the Qur^an. Nor does he speak of the significance or ultimate purpose of the views he propounds. He establishes the place of the Qur³an in relation to Sunna and moves on to treat other issues not necessarily of direct relevance to what he has just finished expounding. But the clues to understanding the significance of ShafibT’s peculiar hierarchization of the material sources of Shan ^ca are found in the earlier parts of the book, where he lays down the epistemological and juridical principles of his theory.

The two most important components of this theory are the juridical principle of public good and the logical method of induction. Public good represents the end of Shafibi’s theoretical enterprise, and induction, its means. ShafibT considered the purpose of the Shan^ca to be primarily the protection of the five sub-categories of daruriyyat^ as well as the promotion of hdjiyydt and tahsiniyyat. The admission in law of the ^caraya contract^[352] which involves risk, and the reduction of ritual obligations under circumstances of hardship and illness, are two examples of relaxing the law when the need to accommodate reality arises. These mitigated laws are absolutely needed (hdjiyyat) in order to make life and legal practice of Muslims tolerable. The recom­mendations to free slaves, to perform ablution before prayer, to be charitable to the poor, etc., are not needed to such an extent that without them the law becomes inoperable—as is the case in the first two categories, the daruriyyat and hajiyyat—but they certainly improve (hence the term tahsiniyyat) the character of the Shari^ca.^[353]

The authoritativeness (hujjiyya) of the principles of public good has no basis in any single conclusive (qafi) statement in the Qur³an or the Sunna, but rather derives from an inductive survey of revelation. In fact, a number of jurisprudential institutions, such as consensus, qiyas and istihsdn, were proven to be authoritative by means of such induction.^[354] For example, there exists no explicit Qur°anic verse or a highly reliable tradition (khabar mutawatir} that explicitly states the infallibility of the Muslim Community. Alternatively, the authori­tativeness of consensus had to be founded upon verses, traditions and other circumstantial evidence which were individually inconclusive but which have in common the indubitable theme of the inerrancy of the Muslim community.^[355] In other words, Shatibl argues that the Sharl^ca consists of universal principles (kulliyydt) whose authority is based on a multitude of probable instances or particular statements (juz^iyydi) which corroborate one another to the degree of absolute certainty.

The three universals of daruriyydt, hdjiyydt and tahsiniyydt, for the realization of which the SharFa was decreed, are all grounded in their perfect form [^zald al-kamdl} in the Qur’an.^[356] “Perfect form” does not necessarily imply a single, explicit Qur’anic passage defining and enjoining in precise and specific terms the three maqdsid. Rather, a sufficient number of Qur’anic verses are found by induction to possess in common one ma^cnd, namely, that these are the aims for the attainment of which God revealed his law. Once these principles (ma^cani} have been established as kulliyydt, they acquire, on account of their certitude, the status of irrevocability,^[357] and thus become a regulating force in Shari^ca. Given that God would not reveal contradictory kulliyydt, as this would render the Shari^ca paradoxical, let alone absurd, the problem that arises is the relation between a kulliyya and a non-conforming particular (jttcT).

Since a conclusive universal cannot be reached without the enumeration of all the members (particulars) belonging to its class, there can be no particular instance which is relevant, yet at the same time contrary, to the universal. For if it were relevant and were not taken into consideration in inductive enumeration, then the universal is merely a pseudo-universal, and therefore revocable.^[358] But what if a diverging particular surfaces only after a universal has been established on the basis of a multitude of other supporting partic­ulars? One might argue that in legal matters it is normative to establish general principles on the basis of the great majority, but not necessarily all, of the extractable legal evidence. And once the five sub-categories of daruriyydt are established as universals according to which all law must be interpreted, then any particular, hitherto not considered, must be either subsumed under the five daruriyyat or, if it is a non-conforming particular, must be left out. ShatibT generally accepts this methodology but finds that it is of crucial importance to account for non-conforming particulars. The assumptions on which the ^cardyd contract is based, for example, stand in sharp contrast to the standard contractual principles of Shari^ca, and yet it is deemed a valid form of contract. This exception, as one of a great many, constitutes in fact another kulliyya which is the second category of masdlih, the hdjiyydt. For, after all, the function of this last universal category is to mitigate the harshness of the first. The emergence of a kulliyya, it will be noted, is the result of the existence of a number of exceptions sufficient to produce another kulliyya. Thus, failing to account, both qualitatively and quantitatively, for exceptions will lead to the obliteration of the second as well as the third of the Shar^cT kulliyydt.⁶¹ Setting aside the particulars which do not conform to a kulliyya, particularly when they are numerous, will neither serve the interests of man, nor be faithful to the intent of the law, for the Lawgiver could not have decreed them in vain.

Having endorsed these as kulliyydt, ShatibT is willing to reject any particular which contradicts them. But how does this assertion square with his previous argument that non-conforming particulars should be accounted for? The three kulliyydt, ShatibT reasserts, represent, after all, the raison d'etre of the law, and therefore there should be no particular which stands in opposition to them. If there appears to be a particular contravening a given kulliyya then the particular must have been revealed to protect another general legal principle or to undergird another aspect of the same kulliyya. Capital punishment, a particular, surely contradicts the sub-category of daruriyyat which calls for the protection of life. Although killing the murderer is in and by itself an act violating this principle, it is at once necessary to maintain that very principle; a soul is killed in order to protect another. ShatibT insists that no isolated particular can undermine the Shar°T kulliyydt, particularly the daruriyyat, hdjiyydt and tahsmiyydt.™ “In SharT^ca” he says, “the great majority of particulars [constituting a kulliyya] are considered tantamount to a conclusive general, since the instances diverging from a kulliyya cannot constitute another kulliyya which can then compete with the first established kulliyya.”™ ^{[359] [360] [361] They cannot constitute another kulliyya because they can only be isolated exceptions. His assertive and frequent statements concerning the conclusiveness and irrevocability of kulliyydt, and the total inability of non-conforming juz^iyyat to alter them,[362] clearly indicate that for ShatibT only universals count.}

By adopting this epistemology ShatibT’s purpose in relegating the Sunna to a mere elaborate footnote to the Qur°an becomes easier to understand. His insistence upon the all-inclusiveness of the Qur³an, especially the comprehensive legal character of the early Meccan Suras, is intended to argue that the Qur³an alone provides the kulliyydt of SharT^ca, and since the Sunna only interprets the Qur°an and provides details that are not specified in the Book, everything in the Sunna represents mere particulars that must correspond with the Qur’anic kulliyydt. This is precisely why he rejects all traditions not in harmony with the Qur³an.^[363]

The unqualified certitude of the Qur°anic text in general and the individual verses in particular present yet another argument in favor of ShatibT’s theory. The uncertainty surrounding the solitary pro­phetic traditions, and the virtual absence of the mutawatir traditions,^[364] render the Sunna epistemologically inferior to the Qur°an. When a tradition, assumed by ShatibT to be a juz\ contradicts a Qur°anic kulliyya it is immediately dismissed. Conversely, if a tradition is upheld it would be by virtue of its support of a Qur°anic statement, either by way of clarifying an ambiguity or by stipulating the details of a categorical Qur³anic command.

It is the Meccan text then that contains the kulliyydt of Shari^ca, and in effect the indisputable crux of the law.^[365] In a separate discussion, ShafibT demonstrates that the Meccan verses are almost exclusively concerned with both obedience to God and human welfare under His guidance.^[366] Thus the reduction of the substantive sources of Shari^ca to the Qur³an—nay, to the Meccan revelation—gives ShafibT an edge over the established legal theory in propounding an idea of Shari^ca based on the most solid textual foundations in Islam, while at once advocating the interests of man as no less worthy than the interests of the Lord.^{[367] [368] [369] The link that Shafi bl forged between the highest type of textual certitude and the idea of “humanistic” law—expressed in his theory of maqd$id—is of crucial importance for his enterprise. The emphasis on human exigency as the perfect counterpart of spiritual obedience represents a risky departure from mainstream legal Sunnism and therefore requires the most incisive backing. When ShafibT demonstrates, within the framework of a highly structured theory of legal induction, that the Meccan revelation with its conclusive and irrefutable universals upholds the interests of man, the opponents cannot but stand disarmed.}

Furthermore, in espousing a theory of law that stresses the mundane interests of society while maintaining a strong link with the divine decree, Shatibi was attempting to address what he seems to have considered a problematic issue of his day. Throughout his writings he advocates the simplification of the law and relentlessly battles the intricate formulations and abstractions of the then existing legal theory.^[370] The prevalence of this abstract, highly theological theory appears to be causally linked with a serious problem which Shatibi thought to have plagued his Andalusian society. His two surviving works repeatedly testify to his staunch and elaborate opposition to the legal practices of this society, a society that, to his mind, unperturbedly evaded and manipulated God’s law.^[371] The practice of hiyal, of arbitrary eclecticism of the four schools’ positive legal doctrines, as well as the virtual abandonment of the law is seen as an outcome not only of the abstract character of legal theory, but also of its highly theological, non-humanistic outlook.^[372] In other words,

90 the failure of the existing theory to develop an understanding of the law’s protection of worldly matters, and the abstractionist discourse that the jurists employed in expounding their jurisprudence has alienated Muslims from the Shari^ca. This is precisely why Shatibi stresses, time and again, that Islam and Islamic law are no different from their founder who was a nabiyyun ummiyyun, an unlettered Prophet.^[373] The fundamental legal obligations incumbent upon all Muslims, as well as their rights are, as set forth in the Meccan Suras, comprehensible to people of every walk of life.^[374] By assigning to these Suras, which allot to the wordly existence its fair share of rights and privileges, a major role in his theory, Shatibi was bidding his fellow Muslims to return to the proper practice of God’s law, a law that is heedful of human need and welfare.

That the worldliness underlying Shatibi’s theory was responsible for a unique attitude towards the role of the Qur³an in legal theory poses an even more important question than the fact that Shatibi increased the substantive legal contribution of the Qur^Dan at the expense of the Sunna. Such a novel view of the Qur°an is bound to effect, within a highly structured theory, a set of doctrines which are as peculiar to Shafibi as they are different from those of other jurists. The sum total of these views comes, in the final analysis, to no less than a theory that appropriates as its own a given set of motives, starting points as well as an individuating system that regulates its own mode of discourse. By its very theoretical nature, this discourse serves to dissociate the theory from the particular reality that produced it, a reality that may well present itself on an epistemo­logical, theological, social or simply material level. To what extent can the theory reveal its own worldliness, or the worldliness reveal the intricacies of the formality of legal discourse are questions whose answers must be sought in the dialectical relationship between the text and the author’s world. Without bringing the latter into close scrutiny, this relationship, which is indispensable for a more adequate understanding of Islamic legal theory, can have no existence.