reynolds-the-quran-in-its-historical-context-2

74 Nasr Abu ZaydMuslim jurists,fitqahii ', tried their best to deduce the implicit out of the explicit inthe Qur'an by developing certain concepts, such as maslaba (pl. ma.yiilib; "thecommunity interest"), istibsiin and isti.yliib ("preference" or "advantage"). 62 But tobuild a legal theory they also turned to other legal sources, e.g. the prophetic tradition(sunna ), ijmii' (consensus of the first Muslim_generation, the .yabiiba, and the scholarsof the following generations, the 'ulamii ), as well as ijtihiid ("independentreasoning"). The first construction of the Islamic legal theory was accomplished byai-Shiifi'I (d. 204/820) in hisRisiila andKitiib al-Umm. 63 AI-Shiifi'I is believed to bethe first jurist who systematically established qiyiis ("analogical reasoning") as theonly methodological means by which ijtihiid is to be performed; thus he limited thescope of ijtihiidby excluding istibsiin, isti#iib and ray ("sound opinion"). 64 ·Hence the sources of the legal theory are of two types: the Qur' iin and the sunnaare the main textual sources, while ijmii' and ijtihiid are auxiliary, explanatorysources. Being the main textual sources, the Qur'iin and the sunna are not immediatelycomprehended; linguistically, they are in need of explanation, elucidationand interpretation, which causes diverse conclusions (ikhtiliij). Ibn Rushd(d. 595/1198), with whose philosophical hermeneutics the next section deals,summarizes the structure of sharr'a · before indicating the cause of the legaldiversity in his introduction to Bidiiyat al-mujtahid wa-nihiiyat al-muqta.yid. 65 Hissummary, freely quoted and restructured, runs as follows:. The rules of sharl'a, abkiim, ar(': of five types in relation to the human subject,al-mukallaf one, obligatory (wiijib), wherein the command is decisive and anomission (to do the act) invokes punishment; two, recommended (mandz7b),wherein there is reward (thawiib) for the act and no punishment for its omission;three, prohibited (bariim), wherein the prohibition is decisive and the commissionof the act invokes punishment; four, disapproved (makriih), wherein there is arecommendation to abstain from the act and no punishment for its commission;and five, permitted (mubiib or muhkayyar), where a choice is given betweencommission and omission.argues, however, that if we consider the repetitive character of the Qur' lin outside the legal domain, ·and if we, further, consider the average length otthe legal verse which "is twice or even thrice thatof the average non-legal verse, it is not difficult to argue that the Qur'an contains no less legalmaterial than does the Torah which is commonly known as 'The Law.' Therefore, while Qur'aniclaw constitutes a relatively minor part of the shari'a, the Qur'an is no less legalistic than theTorah." "Law and the Qur'an" in EQ, 3:150. The argument is obviously apologetical; the factremains that the legal role of the Qur'an in shari'a is limited.62 See for the development of this concept, R. Pare!, "lsti]Jsan and lsti 0 1al)," in E/ 2 , 4:255-95.63 Al-Risiila, ed. A]Jmad Mul)ammad Shakir, Beirut: al-Maktaba al- 'Ilmiyya, n.d. References will bemade in the text as (R, p.). As for al-Umm, Cairo: Dar al-Sha'b, 1321/1903. The same method willbe followed (U, p.).64 Cf. my AI-Imiim al-Shiiji 'r wa-ta 'srs al-aydiyliliijiyyii al-wa0atiyya ("Imam al-Shiifi 'I and theEstablishment of the Middle Position Ideology"), 2nd edition: Cairo: Maktabat MadbUII, 1996,129-46.65 Translated into English as The I;Jistinguished Jurist's Primer, trans. Imran Ahsan Khan Nyazee,Reading, UK: Centre for Muslim Contribution to Civilization, Gamet Publishing Limited, 1994.Towards understanding the Qur 'an's worldview 75> ~--Sharr'a has reached us through different channels: one, textual channels, the_ 'iin and the verbal sunna, the biidfth, or the reported sayings of the prophet;· .two, the practical sunna based on the Prophet's actions and approvals/. disapprovals (al-aj'al wa-l-iqriiriit); three, ijmii' ("consensus"); and, four, ijtihiidby applying qiyiis.· As for the first channel, the textual sources, i.e. the Qur' iin and the verbal sunna,Ibn Rushd divides its linguistic structure as follows: one, the form of wording• ·. · (.yiyiighat al-a/fo:f); two, the type of wording (a.yniif al-a/fo:f); and three, the levels·, .• of meaning and their relative ruling (a yiin al-abkiim).· As for the second channel, the Prophet's actions and approvals/disapprovals,some jurists maintain that the reports of the Prophet's actions do· not indicate: gbkiim, as they do not have linguistic forms. Ibn Rushd is ofthe opinion that ifthe· i actions occur as an explication of an obligatory Qur' iinic enjoinment (mujmal),they indicate an obligation, and if they occur as an explication of a recommendedenjoinment, they indicate recommendation. If they belong to the classificationof permissible acts (mubab), they indicate permissibility. The approvals/disapprovals, however, can only indicate permissibility.· As for the third channel, ijina ', it has no independent authority; its authority is:derived from one or more of the textual sources. Its role is, therefore, limited to·strengthening the type of a ruling from ?ann! ("unclear" or "non-decisive") to.• qat 'z ("definitive" and "decisive"). ·. Fourth, and last, is ijtihad by applying qiyiis, the domain in which sharl'a is•silent. Legitimate qiyiis involves assigning an existing ruling to a legal issue aboutwhich the sources are silent. As the incidents of life are unlimited while thesources, both textual and non-verbal (e.g. the Prophet's acts and approvals/dis!lpprovals) are limited, ijtihiidby applying qiyiis is the only legitimate method.to address our unlimited legal questions. Qiyiis, therefore, has to be bl!sed either· ·ori the resemblance between the issue waiting for a ruling and that for which the. law has provided the ruling (i.e. qiyiis shabah) or on the existence of explicit; or implicit cause in both the sharl'a ruling and the issue under consideration(i.e. qiyiis 'illa).After providing this concise summary of the structure of sharl'a, Ibn Rushdbriefly but adequately explains that the reason behind difference (ikhtiliif) in legal·matters is the linguistic structure of the textual sources. Ikhtiliifis even greater in· badfth because of the way they have been transmitted and the greater possibility.:of conflict (ta 'arut;/) between them. Moreover, conflict may also exist betweenreported acts (afal) or approvals/disapprovals (iqriiriit).·· · Lastly, conflict may occur between any one of the four channels of law and·:another.The third issue is the concept of the utmost objectives of sharz'a (al-maqii.yid. al-kulliyya li-1-sharl'a), proposed by GhaziilT in the fifth/eleventh century and later