Al-Shatibi’s development of Maslaha in 14th century Granada

By Mohsin Jaffery

This book review will analyze “Islamic Legal Philosophy: A Study of al-Shatibi’s Life and Thought” written by Professor Muhammad Khalid Mas’ud and published in 1977. Mas’ud is the director general of the Islamic research institute at the International Islamic University of Islamabad. He has authored many books surrounding the topic of Islamic Law such as, Iqbal’s reconstruction of Ijtihad, Islamic Legal Interpretation, and many others. In Islamic Legal Philosophy, Mas’ud’s goal was to illustrate the modern applicability of Maslaha, in order to create a humanist paradigm for the Shari’a through referencing traditional works on jurisprudence. The following review will consist of a concise summary of the text, followed by an evaluation of the authors motive, content and arguments.

Professor Mas’ud defines his primary task in this book to study the correlation between legal theory and social change in Islam law. This correlation was apparent during the time of the Andalusian Maliki Jurist, Abu Ishaq Ibrahim b. Musa al-Shatibi (d. 1388) as he strived to revive the concept of Maslaha (adaptability of Islamic legal theory to social theory/public interest).[1] The author directs the attention of the reader to the political and social changes in the 14th century Granada prior to discussing al-Shatibi’s views in legal theory. It is vital to understand the challenges al-Shatibi faced in this environment as a jurist leading him to adapt legal theory to new social conditions. The first half of the book discusses the political situation of Muslim Spain and the rise of Banu Nasr in which Sultan Muhammad V al-Ghani Billah reigned (d.1362-27).[2] The Sultan weakened the political power of the Shaykh Ghuzat, Wazir and Qadi, consequently decreasing the power of the Fuqaha. This resulted in state-controlled Madrassah’s and religious institutions. However, as other economic issues arose in Granada, the role of Fuqaha became more offices as they controlled a number of lucrative offices many of which influenced trade and commerce.[3] As new issues within business such as Riba (interest) developed, the involvement of the Faqih and legal theories were in demand. Mas’ud, therefore makes it clear that without understanding the social, political and economic factors during that era, it would be difficult to understand al-Shatibi’s thought in legal theory.

Another phenomenon that challenged the authority of the (Maliki) Fuqaha was the rise of Tasawwuf and the emergence of Tariqah within Granada. Since the Maliki school of thought held a traditional and strict stance towards matters pertaining to Fiqh and Shari’a, they strongly opposed the emergence of Transcendental Philosophy and Mysticism. Tasawwuf became prevalent in response to traditional legal theory as the Sufis focused heavily on piety, religiosity and moral commitment. This was a threat to the authority of the Andalusian Maliki Fuqaha, leading to the purge of Tasawwuf. [4] Al- Shatibi, reflecting his teachers views, wrote a treatise declaring  the practices of the Sufis to be Kufr, thus condemning its practitioners to death.  Evidently, the Shar’i (legal) opinions of the jurists known as Ijma came into contact with the phenomenon of Tasawwuf through the concept of Maslaha.[5] The ascetic teachings of Tasawwuf, challenged the aristocratic life of the Fuqaha which weakened their socio-political authority.  However, this sudden change resulted in an economic downfall as Sufis were  motivated to forsake material pleasures and be confined in spiritual institutions. This economic downfall motivated Fuqaha including al-Shatibi to be outspoken against Tasawwuf which included the release of Fatwa’s condemning Sufi institutions and practices.

Al-Shatibi disagreed with the majority on the legal principle of Mura’at al-Khilaf (consideration of conflicting opinions), considering it a Bid’a . The plurality of opinions within matters of Shari’a were considered contradictions as per al-Shatibi, since he believed there should be no disagreements in Shari’a. [6] Thus, accepting the notion that the diversity of laws was a contradiction for al-Shatibi, this resulted in polemics written against his views which will be discussed later in this review. Following this discussion, the author analyzes how the concept of Maslaha, which is inherently a discussion in legal theory, became a source of  theological conflict amongst the Ash’arites and Mu’tazalites. The debate dealt with whether or not the concept of Maslaha can cause God to do something – benefit the public interest – thus implying the notion of God being obliged to do good.[7] However, this discourse did not concern al-Shatibi as his goal was to free legal theory from theology. Nonetheless, al-Shatibi’s legal philosophy tended towards legal positivism through authoritative sources of law. However, he rejected a prominent principle that was agreed upon by consensus. This challenge posed upon the authoritative figures and institutions, caused his reformed legal theory to not flourish and was not able to be formalized as a positive legal philosophy.

The thesis of the author is that al-Shatibi’s legal thought reflected socio-religious, economic and political factors which arose in 14th century Granada, making it incumbent for him to adapt his legal theory to new social conditions through Maslaha. This main argument was portrayed through both primary and secondary recourses. He used primary sources such as al-Shatibi’s al-Muwafaqat , which discusses the principles of Islamic law as well as al-I’tisam in which al- Shatibi defends his views against polemical works.[8] Apart from other primary sources  such as al-Ghazzali and Ibn Khaldun, the author used secondary sources such as “The History of Spain” by Charles Bertrand, “Introduction to Shatibi’s Muwafaqat” by al-Daraz and others. Mas’ud used historical circumstances such as Muslim and Christian relations in that era to make the reader aware of how al-Shatibi’s legal theory correlated with issues in  his environment. Scholars such as Dave Eickelman acknowledge that without background knowledge of the socio-political climate of Granada, it would be difficult for one to follow along with Mas’ud’s premises as well as al- Shatibi’s views.[9] Mas’ud also depicted the socio-religious phenomenon of Tasawwuf, showing the challenges Maliki jurists including al- Shatibi faced and responded to, vis a vis legal rulings. I found the linking of al-Shatibis efforts to socio-political contexts to be a valuable strength in the book as it tied back to the author’s thesis. It also showed how the concept of Maslaha was applicable during this phenomenon by al-Shatibi. However, Mas’ud’s discussion regarding the concept of Mura’at al Khliaf and its correlation with Maslaha was not as effective, because he only discussed the principles pertaining to the discourse rather than its application. As he strived to show the humanistic approach to Maslaha, I personally think it would be beneficial if he had shown the pluralistic or perennial approach to Mura’at al-Khilaf. Mas’ud evidently presented them for an audience with a background within terminologies and concepts in the science.

Although there are limited amount of reviews written on this book, scholars such as Eickelman thought that Mas’ud did a successful job in portraying al-Shatibi’s environment and his application of legal theory to social movements.He believes that Mas’ud’s approach in theorizing the concept of Maslaha and its principles are practical through rationalizing legal theory, thus symbolizing a humanistic and universal paradigm. In my opinion, his motive for this book qualifies as a non-normative stance as he was attempting to  depict a conservative legalistic world view having implications in modern and secular contexts. His book has not only presented a jurisprudential matter but also a historical movement that shows the applicability of the nature of law and the philosophy of legal theories. This book is useful for studying the history of medieval Spain as Mas’ud vitalizes the intellectual, economic, social and political circumstances of Grenadian society in order to understand the thoughts and life of al-Shatibi, and his contemporaries. The discussions in this book takes an intellectual hold of the reader’s mind as it depicts the rise of different ideologies, sects and movements that were manifested through the theories and polemics of jurists and philosophers in 14th century Granada.

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[1] Masud, Muhammad Khalid. Islamic Legal Philosophy: A Study of Abū Isḥāq Al-Shāṭibī’s Life and Thought. (Islamabad: Islamic Research Institute, 1977), 25

[2] Ibid, 39.

[3] Ibid, 51. This issue revolved around the Grenadian Treasury owing money to the Christians and Berbers as tribute as well as the Mediterranean trade . This led to production of the copper Dinar, thus devaluing currency.

[4] Ibid, 59.

[5] Ibid, 169. These opinions that used Maslaha, considered aspects such as legal obligations as well as which elements in a social movement were harmful to people in society through considering rules in Shari’a.

[6] Ibid, 214. Based off his five conclusions on why disagreements on conclusions are impermissible in Shari’a, however methods in jurisprudence could differ.

[7] Ibid, 222. This was due to the linguistic and contextual definition of the word illa and whether it meant causes or motives. The discourse ultimately pertained to Gods omnipotence.

[8] Ibid, Preface vi

[9] Eickelman, Dale F. Journal of Law and Religion 15, no. 1/2 (Cambridge University press, 2000), 389-92. 390

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