Maṣlaḥa in Contemporary Islamic Legal Theory

Author(s): Felicitas Opwis

Reviewed work(s):
Source: Islamic Law and Society, Vol. 12, No. 2 (2005), pp. 182-223
Published by: BRILL
Stable URL: http://www.jstor.org/stable/3399225 .
Accessed: 07/08/2012 05:02

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .
http://www.jstor.org/page/info/about/policies/terms.jsp

.
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of
content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms
of scholarship. For more information about JSTOR, please contact support@jstor.org.

BRILL is collaborating with JSTOR to digitize, preserve and extend access to Islamic Law and Society.

http://www.jstor.org
 MA.SLA.HAIN CONTEMPORARY ISLAMIC
LEGAL THEORY*

FELICITASOPWIS

Abstract

This article investigates the concept of maslaha in contemporary Islamic

legal theory. After presenting models of maslaha developed by al-Ghazali,
Fakhr al-Din al-Razi, al-Qaraft, al-Tuft, and al-Shatibi, I analyze writings
on maslahaby leading jurists from the late 13th/19th century to the 1380s/
1960s, namely al-Qasimi, Rashid Rida, Mahmasan?, 'Allal al-Fasi, Khallaf,
and al-Buti. The findings show that the early reformers tended towards al-
TufiT'sexpansive understanding of the principle of maslaha in the law-find-
ing process. Later jurisprudents, in contrast, either advocated a holistic
approach similar to that of al-Shatibi or espoused a more restrictive use of
maslaha like that of al-Ghazali and al-Razi. The way in which jurists em-
ploy the principle of maslaha is not random but rather is influenced by
education, personal position, and historical environment.

Introduction

Since the late 13th/19th century, discussions of maslaha have be-

come ubiquitous in Islamic jurisprudence. In fact, such discussions
have surfaced in Islamic writings of great variety, ranging from
hadith studies' to policy recommendations.2 Literally, maslaha means
a cause or source of something good and beneficial. In English it

Felicitas Opwis, Yale University, Department of Near Eastern

Correspondence:
Languages and Civilizations, P.O. Box 208236, New Haven, CT 06520-8236.
E-mail: opwisfmm(wfu.edu
* A shorter version of this
essay was given at the Yale Symposium on Shari'a
in theContemporary Context:InquiriesintotheNormative Discourseof Islamon February
8-9, 2003. I would like to thank Ahmad Dallal, Frank Griffel, David Powers,
and the anonymous reviewers of Islamic Law and Societyfor their valuable
comments and editorial input on this essay.
' See Daniel
Brown, RethinkingTraditionin ModernIslamicThought(Cambridge:
Cambridge University Press, 1996), 122.
2
SeeJohn L. Esposito andJohn 0. Voll, Makersof Contemporary Islam(Oxford:
Oxford University Press, 2001), 192.

? Koninklijke Brill NV, Leiden, 2005 IslamicLaw and Society12, 2

Also available online - www.brill.nl
 MASLAHA IN CONTEMPORARY ISLAMIC LEGAL THEORY 183

is frequently rendered as "public interest,"3 although it is much

closer in meaning to well-being, welfare, and social weal.4
That the concept of maslaha has become a pervasive topic in
contemporary legal discourse has many reasons. At their heart is
that since at least the 5th/llth century Islamic jurists think of
maslaha as the embodiment of the purpose of the law (maqsudal-
shar' maqasid al-shar'a). In addition, the concept of maslaha can
serve as a vehicle for legal change. It presents jurists with a framework
to tackle the problem, inherent in a legal system that is based on
a finite text, of bringing to bear the limited material foundation of
the law (i.e., Qur'an and hadath)on everyday life in an ever-changing
environment. It thus bestows legitimacy to new rulings and enables
jurists to address situations that are not mentioned in the scriptural
sources of the law. How much legal change may be achieved through
applying considerations of maslahadepends primarily on the purpose
maslahaserves within a jurist's overall conception of the law. In this
essay, I analyze how the legal concept of maslaha was understood
by some of the prominent figures of Islamic jurisprudence in the
modern period. I concentrate on the Arab world and restrict myself
to a number of key authors from the early 14th/late 19th century
to the latter half of the 14th/20th century. Additionally, I attempt
to explain how the historical environment, along with the jurists'
social position, influenced their interpretation of maslaha and the
manner in which they integrated it into the framework of legal
theory. For this purpose, I first lay out the main features of the late
13th/19th century environment in which the calls for reforming
Islamic law were voiced. Second, I summarize the thought of Islamic
legal theorists of the middle period5 whose conceptions of maslaha
influenced jurists in the modern period. The third section of the

3 Maslaha,in my view, shouldbe translatedas

"publicinterest"only when
it refers to the permissibilityof the political authoritiesto issue rulings that
concurwith the publicgood withinthe sphereof siyasa.When, however,a muftz
gives a legal opinion on groundsof maslaha,this has little to do with "public"
well-beingbut is usuallybased on considerationsof a single, private case.
4 Since it is impossibleto translatethe term maslahawith one Englishword
that conveys the equivalent meaning, I have opted to use the Arabic term
throughout.
5 I follow
Hodgson'speriodization,where the "middleperiod"covers the
timefromc. 945-1503 (cf.MarshallG.S. Hodgson,TheVenture ofIslam[Chicago:
Universityof Chicago Press, 1974], vol. 1, 96).
184 FELICITAS OPWIS

article focuses on interpretations of maslahaby contemporary juris-

prudents.

The HistoricalContextof the Calls to Reform

Toward the end of the 13th/19th century, some Muslim scholars

expressed their concern that the current way of interpreting and
applying Islamic law was inadequate for the needs of Muslim societies.
Calls for reforming Islamic law were voiced in an environment in
which significant transformations were occurring in areas directly
relevant to religious scholars more generally and jurists in particular.6
In the Ottoman empire and other Muslim countries government
reform initiatives resulted in profound changes in the educational
sector and the legal sphere. While state-sponsored reform programs
varied by country, time of implementation, and results, they all
shared some general features.
One area of reform was education. Over the course of the 13th/
19th century the governments in Istanbul, Cairo, and other capitals
founded state schools based on Western models to teach the skills
needed for a modern society. This led to a slow erosion of the
'ulamd"sdominant position in educating students from the kuttdbup
to the madrasa.7Most of the graduates of these secular schools entered
government employment, and competition for jobs underscored
the inadequacy of the religious knowledge imparted at the madrasas
for working in modern state offices. Further, changes in the edu-
cational system gradually gave rise to an elite whose education was
not based on a religious curriculum.8

6 For a more detailed account of the transformation of the 'ulamd"s

position
in society see Felicitas Opwis, "Changes in Modern Islamic Legal Theory: Reform
or Reformation?" in An IslamicReformation, ed. Michaelle Browers and Charles
Kurzman (Lanham, Maryland: Lexington Books, 2004), 28-53.
7 This is not to say that the 'ulamd'were the only ones providing education.
Much of the practical knowledge needed for various crafts was conveyed through
the respective guilds or learned on the job. However, as Eccel pointed out
"education proper was religious education at the feet of the 'ulama'" (A. Chris
Eccel, Egypt,IslamandSocialChange: Al-Azharin ConflictandAccommodation [Berlin:
Klaus Schwarz Verlag, 1984], 34).
8 See Edmund
Burke, "The Moroccan Ulama, 1860-1912: An Introduction,"
in Scholars,Saints, and Sufis: Muslim ReligiousInstitutionsin the Middle East Since
1500, ed. Nikki R. Keddie (Berkeley: University of California Press, 1972), 95-
123, at 112; Richard L. Chambers, "The Ottoman Ulema and the Tanzimat,"
 MASLAHA IN CONTEMPORARY ISLAMIC LEGAL THEORY 185

The emergence of a dual system of education was accompanied

by the marginalization of the 'ulama' in the legal sphere. Efforts to
increase government efficiency created new offices and incorporated
many of the adjudicating functions of the 'ulamd' into the state
structure.9 Government policies resulted, on the one hand, in greater
interference with the religious judiciary, previously largely in-
dependent. In some cases, such as Morocco, the state changed the
appointment procedure for judgeships, and in other cases took control
over the administration of pious foundations-one of the main
sources of 'ulamd' income-as happened in the Ottoman empire,
Egypt, and Morocco.10 On the other hand, government reforms
encroached on religious jurisdiction as such. The mixed court
system that accompanied greater European commercial penetration
had already put disputes between Muslims and foreigners outside
the reach of the qdd.1 The introduction of legal codes in the Ottoman
empire and Egypt further reduced the sphere of authority of Islamic
law and its practitioners. The new legal codes, for areas such as
penal, maritime, and commercial law, were heavily based on Western

in Scholars,Saints,andSufis,35-46, at 36-8; David Dean Commins, IslamicReform:

PoliticsandSocialChangein LateOttomanSyria(New York: Oxford University Press,
1990), 14-6; Daniel Crecelius, "Nonideological Responses of the Egyptian Ulama
to Modernization," in Scholars,Saints,and Sufis, 180-205, at 189, 191-4, 200-5;
Eccel, Egypt,IslamandSocialChange,34-44, 263-81; Wolf-Dieter Lemke, Mahmud
Saltut (1893-1963) und die ReformderAzhar (Frankfurt: Peter D. Lang, 1980),
20, 24-7, 87-8; Afaf Lutfi al-Sayyid Marsot, "The Ulama of Cairo in the Eigh-
teenth and Nineteenth Centuries," in Scholars,Saints,and Sufis, 153-63, at 163;
Robin Ostle, "The Printing Press and the Renaissance of Modern Arabic
Literature," Culture& History 16 (1997), 145-57, at 146.
9 Brown has shown that the government reform policies in education and
the judiciary did not affect the 'ulamd'seducation and the sharl'a-based juris-
diction as such but reduced their influence in the state (Nathan Brown, "Shari'a
and State in the Modern Muslim Middle East," International Journal of Middle
East Studies29 (1997), 359-76, at 365-8).
10See Burke, "Moroccan Ulama," 107-8, 118; Chambers, "Ottoman Ulema,"
35-6; Crecelius, "Nonideological Responses," 182; Eccel, Egypt,IslamandSocial
Change,73-8; Uriel Heyd, "The Ottoman 'Ulema and Westernization in the
Time of Selim III and Mahmud II," in The ModernMiddle East: A Reader,ed.
Albert Hourani et al. (Berkeley: University of California Press, 1993), 29-60,
at 52;Joseph Schacht, Introduction toIslamicLaw (Oxford: Clarendon Press, 1964),
101.
11See
Chambers, "Ottoman Ulema," 43; Commins, IslamicReform,13; NJ.
Coulson, A Historyof IslamicLaw (Edinburgh: Edinburgh University Press, 1964),
152.
186 FELICITAS OPWIS

law and adjudicated in secular courts.'2 The transformation of the

legal system in the Ottoman empire reached its culmination in the
Mejelle. First promulgated in 1877, the Mejelle was intended as a
civil code based on the Sharl'a. It codified large areas of Islamic
law, mainly the area of transactions (mu'amaldt),in order to apply
Islamic law in secular courts for all subjects of the empire, regardless
of their religion. As Schacht pointed out, the Mejellewas seen as a
practical way to have authoritative statements of Islamic legal doctrine
without the cumbersome task of searching through the vast Islamic
legal literature.'3 Legal codification challenged not only the position
of Islamic law in the state judiciary but also the way Islamic law
was traditionally interpreted and applied.
In addition to government reform programs, the 13th/19th century
was characterized by continuous Western advances onto Muslim
lands. In reformist writings of the time, European influence was
a major concern, ranging from military threats to the effects of
European commercial penetration on social mores.14 Peters main-
tains that "Islamic reformism as it came into existence by the end
of the nineteenth century was a response to the challenge of the
increasing Western impact in the Islamic world."'5
The historical environment of the 13th/19th century instilled in
many Muslim scholars the feeling that Islamic societies were weak

12See Chambers, "Ottoman Ulema," 41-5; Commins, IslamicReform,16;

Coulson, Historyof IslamicLaw, 151-2; Crecelius, "Nonideological Responses,"
197; Aharon Layish, "The Transformation of the Sharz'afrom Jurists' Law to
Statutory Law in the Contemporary Muslim World," Die Welt des Islams 44
(2004), 85-113, at 88-9, 96-7. In the Ottoman empire, the process of state
legislation delimiting the authority of rulings pronounced by the 'ulamd'goes
back to the 10th/ 16th century. The Ottoman administrative legislation (qanun)
while being based on and intended to be supplementary to the Shari'a super-
seded it in many areas (Schacht, Introduction,90-1; Layish, "Transformation of
the Shari'a,"88).
13See Chambers, "Ottoman Ulema," 44-5; Coulson, Historyof IslamicLaw,
151-2; Eccel, Egypt,Islam and Social Change,78-105; EF, s.v. Medjelle; Schacht,
Introduction to IslamicLaw, 92-3.
14 Cf.
Burke, "Moroccan Ulama," 116-8; Commins, IslamicReform,26-9.
15Rudolph Peters, "Idjtihddand Taqlzdin 18th and 19th Century Islam,"
Die Weltdes Islams 20 (1980), 131-44, at 131. See also Ahmad Dallal, "Appro-
priating the Past: Twentieth Century Reconstruction of Pre-Modern Islamic
Thought," IslamicLaw and Society7 (2000), 333-42, at 333-4; Gudrun Kramer,
"Kritik und Selbstkritik: Reformistisches Denken im Islam," in Der Islam im
Aufbruch? Perspektiven Welt,ed. Michael Ltiders (Munich: Piper, 1992),
derarabischen
209-24, at 210.
 MASLAHA IN CONTEMPORARY ISLAMIC LEGAL THEORY 187

and inadequate in responding to contemporary needs. The answer

to the decline of Islamic fortunes was thought to lie in the reform
of Islam as a way to strengthen Islamic civilization and to counter
the onslaught of European domination. Reform-oriented Islamic
jurisprudents16 concentrated on issues such as establishing the
compatibility of Islam and reason, returning to a purified ur-Islam
and to the scriptural sources of the law, and enhancing the re-
sponsiveness of Islamic law to contemporary conditions. In this
context, reformers called for abandoning the legal edifice built over
the centuries by the legal schools in favor of direct recourse to the
textual sources of the law.17 Circumventing the traditional fiqh and
its methodology meant that any situation that needed a legal decision
and that was not directly covered by the Qur'an and the hadithhad
to be resolved through ijtihdd. In fact, reform-oriented jurists saw
the practice of ijtihddas a principal means for reviving Islamic law,
increasing its flexibility, and adapting it to contemporary needs of
Muslim societies.'8 And ijtihdd was the area of legal theory in
which the concept of maslaha was discussed. Before exploring the
understanding of maslahaby modern jurisprudents, an overview of
its interpretation in Islamic legal theory of the middle period is in
order.

The Conceptof Maslaha in ClassicalIslamicLegalTheoy

In Islamic law, rulings based on considerations of maslaha or the

social good are found in legal writings as far back as the 2nd/8th
and 3rd/9th century.19 As a technical term the word istislah was

16 I use the term "Islamicjurist"or "Islamicjurisprudent"to designatethat

the personis a scholarand/or practitionerof Islamiclaw. By contrast,a "Muslim
jurist"is a Muslimwith respectto religionbut practicesor studiessecularlaw.
"7See Commins,IslamicReform, 65, 69-73; Dallal, "Appropriating the Past,"
335-6;Kramer,"Kritikund Selbstkritik," 210, 214, 218; MazheruddinSiddiqi,
Modem ReformistThoughtintheMuslimWorld (Islamabad,Pakistan:IslamicResearch
Institute, 1982), 1-6, 24-5, 73-5, 86.
18 Commins,IslamicReform, 65, 69-73; Kramer, "Kritikund Selbstkritik,"
218; Siddiqi,ModernReformist Thought, 1-6, 24-5, 73.
19The technicalterm used in these
legal writingswas usuallyistihsdn,not
maslaha.See, e. g., Sahnun b. Sa'id, al-Mudawwana al-kubra,16 parts in 8 vols.
(Egypt:Matba'atal-Sa'ada, 1323/1904-05), part 14, 134; part 16, 217. The
2nd/8th centurylitterateurand politicianIbn al-Muqaffa'(d. ca. 139/757), in
his adviceto the caliphal-Mansur,used the verb istaslaha to describehowjurists
188 FELICITAS OPWIS

used by al-Khwarazmi (d. after 387/997) in his enumeration of

scholarly disciplines and their subject matter. When listing the
sources of law (usul al-fiqh), he attributed the use of istislah to the
Maliki school.20 One of the earliest extant works on legal theory
containing a discussion of maslaha,though in a vague and undefined
manner, was that of the Hanafi jurist Abu Bakr al-Jassas (d. 370/
980).21 The breakthrough for the concept of maslahain Islamic legal
theory, however, came only in the late 5th/ 11th century when the
Shaffi jurist Abu Hamid Muhammad al-Ghazal (d. 505/1111)
defined maslahain a tangible manner. His understanding of maslaha
set the parameters for the future interpretation of this concept.22
Al-Ghazali argued that maslahawas God's purpose (maqsad,pl. maqdsid)
in revealing the divine law, and, more concretely, that this in-
tention was to preserve for humankind the five essential elements
of their well-being, namely their religion, life, intellect, offspring,
and property.23 What protects these essential elements and averts
harm from them al-Ghazall considered a maslaha and what fails to
do so its opposite, namely mafsada.24
Al-Ghazal's conception of maslaha as the purpose of God's law
and linking it to the preservation of five tangible criteria was a
significant development. His theory of maslaha reconciled between
two intellectual approaches in Islamic thought toward moral knowl-
edge, the rationalist and subjectivist position.25 The position of

should decide people's affairs when no textual ruling existed ('Abd Allah b. al-
Muqaffa', "Risala fi l-sahaba," in AtharIbn al-Muqaffa',ed. 'Umar Abu l-Nasr
[Beirut: Dar Maktabat al-Hayat, 1966],345-61, at 360).
20Muhammad b. Ahmad al-Khwarazmi, Mafatihal-'ulum,ed. G. van Vloten
(Leiden: EJ. Brill, 1895), 9. Al-KhwarazmT'swork was, of course, not concerned
with the details of legal theory, and provides little information about how istislah
was defined or applied.
21 See Ahmad b. 'All al-Jassas,al-Fusulfil-usul(Lahore:al-Maktaba al-'Ilmiyya,

1981), 133-5.
22 Fora detailed in Islamiclegaltheory
analysisof the developmentof maslaha
from the late 4th/10th to late 8th/14th centurysee FelicitasOpwis, Maslaha:
An IntellectualHistoryof a CoreConceptin IslamicLegalTheory (Ph. D. thesis,Yale
University,2001).
23These elementsbecame known as al-darurat or al-daruriyyat al-khamsa.
24 Muhammad
al-GhazalT, al-Mustasfa min'ilmal-usul,4 vols. Jidda: Sharikat
al-Madinaal-Munawwara,n. d. [1993]), vol. 2, 481-2, 502-3.
25 I follow Hourani's
appellationof the two positionstowardethicalknowl-
edge as rationalisticobjectivismand theisticsubjectivism(cf.GeorgeF. Hourani,
IslamicRationalism: TheEthicsof'Abdal-Jabbdr [Oxford:ClarendonPress, 1971],
3, 8-13).
 MASLAHA IN CONTEMPORARY ISLAMIC LEGAL THEORY 189

rationalist objectivism, which is associated with the Mu'tazili school

of theology, held that acts are inherently good or bad and that the
human intellect is able to know their value without the aid of
revelation. The goodness or badness of an act is tied primarily to
its beneficence or harm, assessable by the human intellect.26 With
regard to the derivation of legal rulings this position implies that a
ruling is correct and legitimate when it permits a beneficial act or
prohibits something harmful. The other position, espoused by
the Ash'ari school of theology, was characterized by theistic sub-
jectivism.27This school of thought emphasized that the human intellect
is incapable of arriving at moral knowledge independent from the
divine revelation. Its adherents held that something is good only
because God commands it and bad only because He prohibits
it. A legal ruling is thus only legitimate when derived from the
revealed law.28
Ultimately, both the position of rationalistic objectivism as well
as that of theistic subjectivism may lead to the irrelevance of the
revealed law. In a thought system in which any legal issue that is
not directly addressed in the scriptural sources of the law can be
decided by recourse to rational inquiry unaided by revelation, the
body of law based on revelation will continuously decrease with the
passing of time and social change. God's law as pronounced in the
Qur'an and Sunna will, consequently, lose its immediacy for gov-
erning people's legal conduct. The position of theistic subjectivism,
while it avoids slipping into secularism, leaves unanswered the question
of how to know God's judgment regarding a matter when it is not

26
Hourani, IslamicRationalism,69-75, 121-5; A Kevin Reinhart, BeforeRevelation:
The Boundariesof Muslim Moral Thought(Albany: State University of New York
Press, 1995), 38-61. The terms scholars used to describe benefit and similar
meanings were naf, manfa'a,salah, and maslaha,and for harm darra,madarra,
and mafsada.
27
Associating theistic subjectivism with the Ash'arl school of theology does
not mean that prior to al-Ash'ari (d. 324/935) this position did not exist. Al-
Shafi'i (d. 204/820) and Ibn Hanbal (d. 241/850) also belong to this school of
thought (Hourani, IslamicRationalism,3, 9-12). Similarly, rationalistic objectivism
was not only advocated by Mu'tazill theologians. Ibn al-Muqaffa'espoused similar
ideas (Ibn al-Muqaffa', "Risala ft 1-sahaba," 348-9, 354-5, 360). Further, there
is much variation and development within one school. The Mu'tazilTtheologian
Abiul-Qasim al-BalkhTal-Ka'bT(d. 319/931), for instance, held views on moral
knowledge that were close to those of al-Ash'arI (cf. Reinhart, BeforeRevelation,
14-27, 31-2).
28
Reinhart, BeforeRevelation,62-76.
190 FELICITAS OPWIS

unequivocally expressed in the scriptural sources of the law. If the

revealed law cannot address new and changed circumstances, it
will in time lose its ability to respond to legal problems arising
under different circumstances.
Neither of these two positions in unadulterated form was historically
viable. Although the school of theistic subjectivism established itself
as the mainstream view of Sunni Islam, one factor that helped its
survival and ascendance to orthodox Islam was its rapprochement
with the rationalist position in the field of legal theory.29 Islamic
jurisprudents of both Mu'tazili and Ash'ari leaning developed
procedures of legal reasoning aimed at curbing the unchecked use
of human reasoning in the area of religious law and at making the
law-finding process less arbitrary and more objective. These efforts
to systematize legal reasoning resulted by the 5th/1 1th century in
a legal theory that coherently elaborated the law-finding process
based on the four sources of the law acceptable to Ash'aris and
Mu'tazilis alike, the Qur'an, the Sunna, consensus (jmad'),and legal
analogy (q yds).30
Of these four sources of law, consensus and legal analogy are
derivative sources; consensus functions primarily to sanction rulings
and legal analogy is used to extend qur'anic and sunnaic rulings to
new situations. Conceptually, however, consensus and legal analogy
cannot be used to set aside scriptural rulings. When revising or
disregarding established and accepted rulings, jurists had to refer
to subsidiary legal principles, such as juristic preference (istihsdn)
and custom ('urf). For jurists who adhered to the Ash'arn school of
theology both of these principles had drawbacks; juristic preference
was associated with arbitrary opinion (raCy),and custom could not
claim to be part of the revealed law. Perhaps as a result of efforts
to resolve this dilemma, later Ash'ari jurists, and in particular al-
Ghazali,31 developed the concept of maslaha as a method not only

29
Reinhart attributes the triumph of Ash'arism also to demographic changes.
He argues that once Islam became the religion of the majority of the population
under Muslim rule, the historical uniqueness of Islam and the revelation as
the standard of authority received greater emphasis (Reinhart, BeforeRevelation,
177-82).
30 While demands that
rulings are valid only when derived from the scrip-
tural sources of the law were voiced much earlier, e.g., in al-Shafi'?'s al-Risala,
it was not before the 4th/10th and 5th/1lth century that these demands re-
sulted in a coherent system of law-finding (cf. Wael B. Hallaq, A HistoryofIslamic
LegalTheories[Cambridge: Cambridge University Press, 1997], 30-7; Reinhart,
BeforeRevelation,14-30).
 MASLAHA IN CONTEMPORARY ISLAMIC LEGAL THEORY 191

to extend the divine law to new cases that are not addressed by the
scriptural sources but also to amend the existing law in particular
situations.
Employing considerations of maslaha as a means to bring about
legal change was and still is controversial. The controversy centers
on epistemology; the question is whether or not it is possible for the
human intellect to discern maslahawithout concrete indication from
the scriptural sources of the law. (Technically, the debate is about
the maslaha mursala, the unattested maslaha, one which lacks con-
crete indication (daldla)in the Qur'an, the Sunna or on account of
consensus (ijmd).) If the answer is yes, then jurists need to devise
ways to identify and determine what constitutes a legally valid
maslaha, namely one that with certainty remains true to the divine
will.
Jurists can, in theory, achieve legal certainty in two ways.32 They
can adopt a formal or a substantive legal rationality. My use of
these terms loosely follows Weber's typology of legal rationality,33
accepting these two categories as "ideal types" neither of which
exists in its full logical consistency in any concrete legal system or
legal theory; rather they occur as mixed types.34 When a jurist
follows a formal legal rationality in the law-finding process, the

31The Ash'ari theologian and Shafi'Tjurist al-Juwayni (d. 478/1085) had

already made significant steps toward finding a way to increase the extendibility
of Islamic law by establishing the criterion of suitability (mundsaba)to identify
the ratiolegisin legal analogy. His definition and use of suitable characteristics
to indicate the ratiolegis are to be seen as a precursor to al-Ghazalis concept
of maslaha(cf. Opwis, Maslaha, 31-40).
32Cf. Max Weber, EconomyandSociety(ed. Guenther Roth and Claus Wittich,
Berkeley: University of California Press, 1978), 656-7, 810-21; Majid Khadduri,
TheIslamicConception ofJustice(Baltimore:Johns Hopkins University Press, 1984),
135-60.
33Weber's typology of legal rationality requires some modification before
it can profitably be used to analyze Islamic law. His distinction between external
and logical formal rationality is of no particular use in Islamic law since both
may be applied in one and the same case. For instance, when assessing the
legal consequences of oaths, jurists evaluate their validity according to the
utterance itself (external formal reasoning) and the content of the oath (logical
formal reasoning). In Islamicjurists' interpretation and application of the concept
of maslaha, the key difference is whether they follow formal or substantive
rationality.
34Cf. Max Weber, "Die 'Objektivitat' sozialwissenschaftlicher und sozialpo-
litischer Erkenntnis," in Max Weber:Schriftenzur Wissenschaftslehre, ed. Michael
Sukale (Stuttgart: Philipp Reclam, 1991), 21-101, at 73.
192 FELICITAS OPWIS

validity of the derived ruling depends on the application of strict

procedural rules; the correctness of a highly systematized and logically
coherent procedure guarantees legal certainty and minimizes sub-
jectivity and arbitrariness. The method of legal analogy with its
formal procedures to determine the ratiolegisis exemplary for formal
legal rationality. In legal analogy a jurist establishes by logical analysis
one or several criteria that identify the ratio legis in the original,
ruled upon case (asl), which, if recognized to exist in the new
situation, warrants to subsume the new case (far') under the same
ruling as that of the original. The ruling for the new case obtains
its validity from the correct application of the method of law-finding,
i.e. legal analogy. The formal steps that a jurist must follow in
determining the correct ratio legis are thus of prime importance in
this method.
In contrast, a jurist who follows a substantive rationality in the
law-finding process evaluates whether the derived ruling accords
with the ethical purpose of the law; the more the ruling corresponds
to the purpose of the law, the more it approximates legal certainty.
The validity of the derived ruling depends not so much on the
formal application of the correct method of law-finding but rather
on its conformity with abstract norms and precepts that are taken
to represent the underlying reasons and purpose of the law. These
underlying reasons are usually formulated as general principles.
For example, when assessing rulings concerning contract law, jurists
may identify that, as a whole, they serve the purpose to preserve
property.35 Exemplary for substantive rationality is the principle of
eliminating pretexts (saddal-dhard'i'):whenever a formally legal trans-
action leads to something contrary to the purpose of the law, it is
considered illegal and void, such as a deferred sale (bay' al-ajdl) that
results in charging illegal interest (riba).36

35 Cf. Bernard G. Weiss, The Spiritof IslamicLaw (Athens, GA: University of

Georgia Press, 1998), 80.
36 Cf. Ahmad b. Idris
al-Qarafi, al-Dhakhara(Cairo: Matba'a Kulliyyat al-
Sharlfa, 1381/1961), vol. 1, 145; idem, al-Furuqwa-bi-hamishal-KitdbaynTahdhTb
al-furuqwa'l-Qawdidal-sanyyafi l-asraral-fiqhyya,4 parts in 2 vols. (Beirut: 'Alam
al-Kutub, n. d.), vol. 2, 33; idem, SharhTanq.hal-fusulfi khtisdral-Mahsulfi 1-
usul (Cairo: Dar al-Fikr, 1393/1973), 448-9; Mohammad Hashim Kamali,
(Cambridge: Islamic Texts Society, revised edition
Principlesof IslamicJurisprudence
1991), 315-7.
 MASLAHA IN CONTEMPORARY ISLAMIC LEGAL THEORY 193

The logic of formal and substantive rationality is displayed with

regard to the concept of maslaha in the following manner. A jurist
who emphasizes formal reasoning in order to attain a ruling that
approximates legal certainty incorporates considerations of maslaha
primarily into the procedure of legal analogy; whereas a jurist who
tends toward substantive rationality employs maslahaas an independent
standard to which a legal ruling has to conform in order to be
valid. Whether a jurist applies a formal or substantive rationality
will affect not only the way in which he integrates the concept of
maslahainto the law-finding process but often this logical move will
account for the extent to which maslaha lends itself as a vehicle of
legal change. In the legal discourse of the middle period of Islam
one can distinguish four models of integrating the concept of maslaha
into the law-finding process based on the predominance of formal
or substantive legal reasoning.37
The first model is that of the Shafi'i jurists al-Ghazali and Fakhr
al-Din al-Razi (d. 606/1210). Despite differences in their under-
standing and scope of application of the unattested maslaha, the
thought of these two jurists is representative of a model that primarily
applied considerations of maslahain the procedure of legal analogy
following a formal rationality. Al-Ghazali and al-Razi integrated
maslahainto legal analogy by identifying it with suitability (mundsaba)
as a criterion to determine the ratio legis ('illa) of a textually based
ruling.38 The unattested maslaha in this model conceptually takes
the place of the ratio legis.39

37 For an
in-depthdiscussionof these modelsof maslaha, see Opwis,Maslaha,
40-339.
38
For a short summaryof al-Ghazali'sunderstandingof maslahaand suit-
ability,see Hallaq,HistoryofIslamicLegalTheories, 88-90. Masuddiscussesboth
al-Ghazali'sas well as al-Razi's interpretationsof maslahain his work on al-
Shatibi (see MuhammadKhalid Masud, IslamicLegalPhilosophy: A StudyofAbu
Ishdqal-Shatibb'sLifeandThought [Delhi:InternationalIslamicPublishers,1989],
152-60).
39
Althoughal-Ghazalidid not considerthe unattestedmaslaha to fall under
the rubricof legal analogy,he treatedit conceptuallylike a suitableratiolegis
(al-Ghazali,al-Mustasfd, vol. 2, 488). Both al-Ghazaliand al-Razi developed
elaboratecriteriato identifylegally valid suitablerationes legis.See al-GhazTal,
al-Mustasfd, vol. 3, 620-33; idem, Shifd'al-ghalil(Baghdad:Matba'atal-Irshad,
1390/1971), 146-94;Fakhral-Din Muhammadb. 'Umar al-Husaynal-Razl,
al-Mahsulfi'ilmusulal-fiqh,2 vols. (Beirut:Dar al-Kutub al-'Ilmiyya,1408/
1988), vol. 2, 319-27.
194 FELICITAS OPWIS

Legal analogy, one should keep in mind, is a procedure that

serves to extend the law to new situations. However, in theory, it
cannot be used to adapt existing textual injunctions to changed
circumstances. I say in theory, because employing an unattested
maslaha as ratio legis enables jurists to do so by validating a new
ruling that may receive preponderance over an established ruling
in case of competing claims. The standard example, supplied by
al-Ghazali, is that of unbelievers shielding themselves with a group
of Muslim prisoners against a Muslim army. Although the Qur'an
(6: 151) prohibits the killing of innocent fellow believers, al-GhazalI
argued that it is permissible to disregard this ruling in order to save
the Islamic community. The extent to which considerations of maslaha
may be used to set aside scriptural laws depends on how a valid
maslaha is defined. Al-Ghazali, in this example, permitted that the
qur'anic ruling be disregarded only when it was certain (qat'i) that
not killing the Muslim prisoners would threaten the whole of the
Muslim community universally (kulli) in their necessary (darura)
essential elements (religion, life, intellect, offspring, and property).40
Whatever constituted merely a need (haja) or improvement (tahsin)
with respect to these elements was unacceptable to al-Ghazali without
concrete reference in the Qur'an or the hadath.41
A second model of maslaha was proposed by the Maliki jurist
Shihab al-Din Ahmad b. Idris al-Qarafi (d. 684/1285). He integrated
the concept of maslahainto legal theory in two ways. First, he used
it to extend the law through the procedure of legal analogy. Here
he adopted al-Razi's formal categories for identifying suitable
characteristics that validly may serve as rationeslegis, including the
unattested maslaha.42Second, al-Qarafi employed the concept of
maslaha in the area of legal precepts (qawd'id).43On the basis of
maslaha he rationalized precepts such as eliminating pretexts to
illegal ends (saddal-dhara'i')and granting exceptive license to commit
something ordinarily prohibited (rukhsa,pl. rukhas).44Scriptural laws

40
Al-Ghazali, al-Mustasfj vol. 2, 488.
41
Ibid., vol. 2, 487, 489.
42 See
al-Qarafi, al-Dhakhira,vol. 1, 119-30; idem, SharhTanq7h,383-94.
43 For a brief account of al-Qarafi's understanding of maslahaand legal precepts
see ShermanA. Jackson,IslamicLawandtheState:TheConstitutional
Jurisprudence
of Shihabal-Din al-Qardfi(Leiden: EJ. Brill, 1996), 59-62, 92-4.
44 See
al-Qarafi, al-Dhakhara,vol. 1, 127, 144-6; idem, al-Furuq,vol. 2, 32-
4; idem, Sharh Tanqih,85-7, 415-6, 448-50. It should be noted that al-Razi,
 MASLAHA IN CONTEMPORARY ISLAMIC LEGAL THEORY 195

could thus be set aside when they did not bring about maslaha for
the case under investigation. Applied in legal precepts, maslaha
functions as an independent standard to which a ruling has to
conform to be valid; the jurist does not have to take direct recourse
to the material sources of the law, as in the procedure of legal
analogy. Al-QarafT's model of maslaha,which combined both formal
and substantive legal reasoning, increased the potential for adapting
existing laws to new circumstances over the model of al-Ghazali
and al-Raz1.
A third model of maslaha was formulated by the Hanbali jurist
Najm al-Din al-Tufi (d. 716/1316). He rejected integrating maslaha
into formal procedures and categories such as necessity, need,
and improvement, and adopted almost exclusively a substantive
rationality. Being the purpose of the law, he understood maslaha as
an independent criterion for deriving rulings. It constituted for him
the most important legal indicant (dalil)-one that was known with
certainty and that was discernible by the human intellect.45 In effect,
al-Tufff's theory meant that anything that brought about maslahaor
averted harm was commensurate with the purposes of the law.
In order to adapt the law according to circumstances, al-Tufi argued
that a ruling entailing maslahashould receive priority over a contra-
dictory ruling, be it scriptural or not.46 He limited the supremacy
of maslaha in the law-finding process by excluding acts of worship
('ibdddt)from its purview and by stipulating that maslahacould neither
override fixed textual injunctions (muqaddardt) nor a specific indicant
(dalil khs.s) from the Qur'an, Sunna or consensus.47 With those
exceptions, al-Tiuft's model provided jurists with easily applicable
means to expand and adapt the law by using maslaha as a legal
indicant in its own right.
The thought of the Maliki jurist Abu Ishaq Ibrahim b. Musa
al-Shatibi (d. 790/1388) represents a fourth model of maslaha.48

whose model of maslahaal-QarafTotherwise adopted, did not explain legal licenses

in terms of maslaha.
45 See Mustafa Zayd, al-Maslahafi l-tashr' al-isldmawa-Najmal-Dan al-Tuf-

(Cairo: Dar al-Fikr al-'Arabi, 2nd ed. 1384/1964), 206-17. Zayd critically edited
al-Tufi's commentary on the hadath"laddararwa-ld dirar"in his study on maslaha
(ibid., 206-40). On al-Tufif'sconcept of maslahasee also Hallaq, Historyof Islamic
Legal Theories,150-3.
46
Zayd, al-Maslaha, 231.
47 Ibid., 210, 232-8.
48
For an excellent exposition of al-Shatibi's complex theory of law, see Hallaq,
196 FELICITAS OPWIS

Emphasizing the early part of the qur'anic revelation, al-Shatibi

argued that the Meccan suras embody the general message of Islam
in which the universal sources of the law are laid down. The Medinan
suras, as well as the Sunna, constitute the particulars of the law
that elucidate, specify, qualify or complement the earlier suras of
the Qur'an.49 He considered the universal sources of the law to be
certain and immutable whereas the particulars of the Qur'an and
the Sunna were probable and subject to change.50 For al-Shatibi,
attaining maslaha and averting mafsada at the level of necessities,
needs, and improvements was a universal source of the law.51 A
situation that lacked textual evidence could be judged as to its
conformity with the law by evaluating its maslaha.52 In case a particular
ruling from the Qur'an or the Sunna stood in opposition to a
universal source, i.e. maslaha, al-Shatibi gave preponderance to the
universal source. However, he did not consider maslahato be weightier
in every instance. Exempted were those particular rulings that
constituted legal licenses (rukhas)or specifications (takhsasdt).53 In
addition, considerations of maslahahad no bearing on acts of worship
('ibdddt),acts that happened or could have happened during the
lifetime of the Prophet and that had received a ruling,54 and the
continuous practice of the early Islamic community.55 Any other
act may be judged according to the maslahait entails under particular
circumstances, which, of course, varies by place, time, and person.56
Al-Shatibi's theory provided jurists with a comprehensive system to
extend and adapt the law to new circumstances.57

Historyof IslamicLegal Theories,162-206. For a broader analysis of al-Shatibi's

life and thought see Masud, IslamicLegal Philosophy.
49 Ibrahim b. Musa
al-Shatibi, al-Muwdfaqdtfiusul al-sharfa, 4 vols. (Cairo:
Dar al-Fikr al-'Arabi, n. d.), vol. 3, 366-8, 406, vol. 4, 20-2.
50Ibid., vol. 1, 34-41.
51 Ibid., vol.
1, 29-31, vol. 3, 15-7.
52 Ibid., vol. 1, 39-40, vol. 2, 283-6, 297-8, vol. 3, 77, vol. 4, 194-5.
53 Ibid., vol. 3, 9-13, 17-8, 261-2, vol. 4, 299-302.
54 Al-Shatibi argued that acts for which no textual ruling existed but that
were likely to have occurred during the lifetime of the Prophet Muhammad
were legally treated as acts for which no ruling was intended. For example, to
abstain from talking during the fast constituted, in al-Shatibi's eyes, a prohibited
innovation since the Prophet himself had made no indication regarding that
practice nor did the early community agree upon it (ibid., vol. 2, 410-3).
55
Ibid., vol. 2, 396, 409-12, vol. 3, 56, 64-70, 74.
56
Ibid., vol. 2, 284-5, 297-8.
57 It should be noted that al-Shatibi's
understanding of the relationship be-
tween the early and later revelations in association with his postulate that a
 MASLAHA IN CONTEMPORARY ISLAMIC LEGAL THEORY 197

These four models of maslahawere developed over the course of

four centuries. While the constituent elements of the concept of
maslaha did not actually change after al-Ghazali defined them at
the end of the 5th/ 1 th century, the application of this legal con-
cept was transformed over this time period from a subsidiary legal
principle (al-Ghazall) to the fundamental principle upon which the
whole of legal theory and law-finding was built (al-Shatibi). This
transformation, which was based on changes in legal logic and
epistemology,58 influenced the extent to which maslaha could be
used to expand and adapt the law to new circumstances. Maslaha
as a means to legal change, thus, depends on a jurist's emphasis on
formal or substantive legal reasoning and the way in which he
integrates maslaha into the law-finding process.

The ConceptofMaslaha in theModemPeriod

When in the modern period jurisprudents looked for ways to reform

Islamic law many advocated the practice of ijtihdd as a principal
means for reviving Islamic law and increasing its flexibility and
adaptability to the changing environment. As the concept of maslaha
falls under the rubric of jtihdd,the turn toward maslahawas a logical
consequence of the reformers' insistence that the gate of jtihddwas
open.59Naturally, jurists built upon the models of maslahathat already
existed in Islamic legal theory. Different jurists drew on different
models. This is not to say that they always adopted them wholesale.
Rather, most jurists of the modern period chose aspects of different
models, combining them or re-interpreting them in an eclectic manner
that fit their own understanding of the law. In the following, I
present an overview of key discussions of maslaha in the modern
period. To say that a contemporary jurist drew on one of the

universalor generallaw prevailsover a particularor specificlaw differedfrom

the traditionalconceptionof the revelationand the strengthof legal indicants.
58
For more details on the changes occurringin epistemologysee Opwis,
Maslaha,158-60, 246-50, 340-52; Hallaq,A Histogyof IslamicLegalTheories, 64-
5, 164-7; Wael Hallaq, "On Inductive Corroboration,Probabilityand Cer-
taintyin Sunni LegalThought,"in IslamicLawandJurisprudence, ed. N.L. Heer
(Seattle:Universityof WashingtonPress,1990),3-31;BernardWeiss,"Knowledge
of the Past:The Theory of Tawatur Accordingto GhazalL,"StudiaIslamica61
(1985), 81-105.
59Advocatingthe use of jtihdd
was not necessarilywelcomedbyjurists.When
Jamal al-Din al-Qasimi advocatedit, he had to endure severe criticismand
persecution(Commins,IslamicReform,50-4).
198 FELICITAS OPWIS

existing models of maslaha should be understood as pointing to the

main influence on a jurist's thought or to the similarity between
contemporary and earlier jurists in their interpretation of maslaha.
I am in no way suggesting that contemporary jurists are lacking in
originality.

Two Reformersof the Late Nineteenth/Early TwentiethCentury

Jamal al-Din al-Qasimaand MuhammadRashid Ridd
In the early 14th/20th century the model of maslahathat was espoused
by the reform-oriented jurists Jamal al-Din al-Qasimi (1866-1914)60
and Muhammad Rashid Rida (1865-1935)61 was that of al-Tufi.
Al-Qasimi edited al-Tuft's treatise on maslaha in 1324/1906, and
Rashid Rida reprinted it in his journal al-Mandr shortly thereafter.
Both men endorsed al-Tuft's views, and his thought significantly
influenced their interpretation of maslaha, especially that of Rashid
Rida.62 Why did these figures herald al-Tuft's model of maslaha?
The short answer is that this model best suited the aims of these
modern reformers.
The Tuft concept of maslaha fit into the reformers' idea that
Islam could be invigorated by returning to the true, purified Islam
and to its scriptural sources.63 Since most Islamic jurisprudents
understood maslaha to embody the purpose of the law and the
underlying reason (hikma)for divine rulings, taking the believer's
maslaha as the ultimate criterion in deciding rulings was seen to

60 For an analysis of al-QsimT's life and thought, see Commins, IslamicReform.

61
On Rashid Rida's political and legal thought as well as his life, see Malcolm
H. Kerr, IslamicReform:The Politicaland Legal Theoriesof Muhammad'Abduhand
Rash7dRidd (Berkeley: University of California Press, 1966), esp. 153-223.
62 See Commins, IslamicReform,112-3; Malcolm Kerr, "Rashid Rida and
Islamic Legal Reform: An Ideological Analysis," Muslim World50 (1960), 99-
108, 170-81, at 108, 171, 179; idem, IslamicReform,55, 198-9; "al-Muhawarat
bayna 1-muslih wa'l-muqallid," al-Manar 4 (1318-19/1901-02), 205-17, 852-
66, at 859; "Bab Usul al-fiqh," al-Mandr9 (1324/1906), 745-70, at 745-6, 753
footnote 1, 768 footnote 1; Muhammad Rashid Rida, rusr al-isldmwa-usulal-
tashrz'al-'amm(Cairo: Maktabat al-Salam al-'Alamiyya, 1984) 145-6, 151-2, 159.
Both al-Qasimi and Rida were familiar with the other models of maslaha(cf.
Commins, 171 note 33; al-Qasimi's notes in his edition of al-TuSf's treatise in
al-Manar9 (1324/1906), 746-70; Rida, Yusral-isldm, 141-52). Al-ShatibI's in-
fluence on Rashid Rida's conception of maslahais evident in his work Yusral-
islam (145-6, 157).
63 See Commins, Islamic
Reform,71; Kerr, Islamic Reform, 17; Rida, "al-
Muhawarat," 861; idem, rusr al-islam, 16-9, 50, 153.
 MASLAA IN CONTEMPORARY ISLAMIC LEGAL THEORY 199

correspond to the spirit of the law.64 In addition, al-Tufi's emphasis

that maslaha was rationally discernible undermined the notion
that Islamic law was antithetical to reason. It served the claim of
Rida and al-Qasimi that there is no contradiction between the
requirements of reason and revelation.65 They voiced this claim at
a time when the social position of the traditionally-educated religious
scholars was beginning to erode. Within the context of governmental
reforms in the Ottoman empire and Egypt, secular reformers saw
the religious law and its exponents as a factor that slowed progress
and hindered the administrative and educational reform programs.66
In order to retain or even enlarge the relevance of Islamic law, and
thereby their own influence, jurists had to prove that Islamic law
was compatible with the rational sciences and that it was able to
address the contemporary needs of society.67 Al-Tuft's model did
all that: maslahawas discernible by the intellect and could be used
to extend and adapt the law to new circumstances. In addition, it
was easy to apply. In al-Tufi's model maslaha was the strongest
indicant of the law, thereby serving Rida's desire to facilitate the
derivation of rulings.68 In legal practice it was easier to use maslaha
as a preponderant standard to which legal rulings had to concur
than to apply the intricate method of legal analogy.
Furthermore, al-Tufi's departure from traditional legal methodology
freed al-Qasimi and Rida from the constraints of adhering to legal
decisions pronounced by earlier jurists (taqlTd)and to madhhab
discipline.69 Yet at the same time, al-Tuff's model neither questioned
Islamic legal hermeneutics per se nor overturned the traditional
interpretation of the scripture. Its adoption neither challenged the
Islamic character of the law nor the religious education of the
'ulam'. Both Rida and al-Qasimi were traditionally-educated scholars
with little exposure to a Western curriculum;70 both were part of
and identified with the 'ulama' as a social group. They aimed at

64
Siddiqi,ModernReformist 74-5.
Thought,
65 See Commins, IslamicReform,
32-3, 48, 65-7; Kerr, IslamicReform,107,
157; Rida, "al-Muhawarat,"216; idem, Tusral-isldm,147.
66
Commins, IslamicReform,12-20; Kerr, "RashidRida," 170.
67
Commins,29, 32, 48, 66-8; Kerr, "RashidRida," 104, 170, 180; idem,
IslamicReform,55.
68
Rida, "al-Muhawarat," 866.
69
Commins, 65, 69, 71-3; Kerr, "RashidRida," 107-8; Rudolph Peters,
and Taqlzd,"141; Siddiqi,ModernReformist
"Idjtihdd Thought,75.
70
Commins,IslamicReform, 44-5; Kerr, IslamicReform,207.
200 FELICITAS OPWIS

reforming Islamic law from within in order to strengthen its relevance

and enhance the 'ulamd"s position in society. In this respect, al-
Tufif's model of maslaha provided an alternative to the expanding
secular legislation and reform programs of the state. Making maslaha
the basis of legislation was, in Rashid Rida's view, a means for
establishing truth and justice in society. He envisioned that the
'ulamd' would undertake this type of legislation in a consultative
forum (shura)with the political leader (imam). Those in charge of
affairs, the ulu 1-amr,whom he identified as mujtahids,should regulate
the worldly matters that fall under their responsibility (mu'dmaldt,
'dddt, and siyasa) on the basis of considering people's maslaha.71
Similarly, al-Qasimi saw the reform of Islamic law within its larger
social context. He advocated that the 'ulamd' interpret rulings
according to temporal circumstances. This would make Islamic law
relevant to the affairs of society and enable the 'ulama' to be its
leaders.72
Another factor that may have attracted al-Qasimi and Rida to
al-Tufi's model was the latter's interpretation of maslahaas a means
toward bridging differences between schools of law and toward
unity of all believers.73 The reformers of the late 13th/19th and
early 14th/20th century had the same concern.74 Rashid Rida blamed
the differences (ikhtilafjamong the legal schools for the weakness
of the Islamic community.75 Al-Qasimi called Muslims to unite
behind the universally accepted features of religion.76 Promoting
maslaha as a generally accepted legal standard was intended
to overcome sectarian strife between Muslims, unify them, and
strengthen them against the onslaught of European domination.77

71 See Kerr, "RashidRida," 108, 173-4;idem, Islamic Reform,155, 165, 183,

187, 189-90, 197-9,202-3;Rida, "al-Muhawarat," 859, 866; idem, Yusral-isldm,
46, 48, 83, 91, 153, 159-60. HallaqevaluatesRashidRida'sconceptof maslaha
as amounting"to a total negationof traditionallegal theory,"(History ofIslamic
LegalTheories, 219).
72 See Commins, Islamic Reform,48, 66, 69, 78, 142.
73 See WolfhartHeinrichs, "Gadalbei at-Tufi: Eine Interpretationseiner
Beispielsammlung,"Zeitschrift derDeutschenMorgenldndischen Gesellschaft.
Supple-
mentIII. 19. Deutscher 1975. Vortrdge,
Orientalistentag ed. WolfgangVoigt(Wiesbaden:
Franz Steiner, 1977), vol. 1, 463-73, at 468-9; Zayd, Maslaha,215, 226-32.
74 See Commins, Islamic Reform,65-73, 141; Rida, rusral-isldm,159.
75 Rida, "al-Muhawarat," 205.
76Commins, IslamicReform,69.
77 Cf.
Commins,IslamicReform, the
65-6, 69, 141-2;Dallal, "Appropriating
Past," 335-6, 357; Rida, Yusral-isldm,159.
 MASLAI IN CONTEMPORARY ISLAMIC LEGAL THEORY 201

In short, Jamal al-Din al-Qasimi and Rashid Rida saw maslaha,

as interpreted by al-Tufi, as the answer to their quest for a pure
Islam, as a means to invigorate Islamic societies, make them strong
and unified, progressive and innovative while at the same time
enabling the 'ulamd' to assume a prominent leadership role in so-
ciety.

The ConceptofMaslaha After the Early Reformers

Jurisprudents who were active after the early reformist movement

represented by Rashid Rida and like-minded 'ulamd' were drawn
toward models other than that of al-Tuft, whose interpretation of
maslaha came to be discredited as a type of utilitarianism, like that
ofJeremy Bentham and John Stewart Mill. Critics accused al-Tuft
of using fallible human reason to limit God's injunctions and of
changing the divine law arbitrarily.78
Discrediting al-Tuft's concept of maslaha as a utilitarian doctrine
was not the only reason jurists resorted to other models espoused
by jurists of the middle period. Another factor was the continuous
marginalization of Islamic law in the countries of the Middle East
and North Africa. Whereas at the beginning of the 14th/20th century
Islamic law and its exponents still exercised a considerable influ-
ence, this influence decreased with the break-up of the Ottoman
empire after World War I and the creation of nation states in its
wake. Most countries established legal codes based largely on Western
law. Even family and personal status law, which largely remained
grounded in Islamic law, were codified.79 The growth in secular
legislation, frequently issued by governments that identified with
non-religious ideologies, diminished the societal importance of Is-
lamic law. Egypt and Tunisia, for instance, abolished their Shari'a
courts in the 1370s/1950s.80 Demonstrating that Islamic law can

78 Cf. Badran Abu

l-'Aynayn Badran, Usul al-fiqhal-isldmZ
(Alexandria:
Mu'assasatShababal-Jami'a,1984), 213;Jallal al-Din 'Abd al-RahmanJallal,
al-Masalihal-mursala (Cairo:Matba'atal-Sa'ada,1403/
wa-makdnatuhdfi-l-tashri'
1983),57, 64, 67, 95-6;Kerr,"RashidRida, 176, 179;'Abdal-WahhabKhallaf,
Masddiral-tashri'
al-islidmfi-mdldnassafih(Kuwait:Dar al-Qalam,6th ed. 1414/
1993), 101; Kramer, "Kritik und Selbstkritik," 224.
79
The codification of Islamic law by Muslim governments since the 13th/
19th century basicallydeprivedIslamicjurists of their authorityin the law-
finding process and transferredit to secularlegislatures(see Layish, "Trans-
formationof the Shari'a,85-113).
80 See Schacht, Introduction
to IslamicLaw, 100-11.
202 FELICITAS OPWIS

function in a modern state system and preventing it from being

reduced to matters of personal status became a more pressing issue
for Islamic jurists over the course of the 14th/20th century.
Two general trends can be discerned among jurisprudents who
address the concept of maslahaafter the early reformers. Jurists who
belonged to the traditional religious establishment, i.e., muftis or
professors of Islamic law, who had been educated and/or were
employed in an institution like al-Azhar, leaned more toward the
Ghazali/Razi and al-QarafT models. Jurists who received a sub-
stantial part of their education in Western-style schools and/or
were closely involved with the non-religious state sector, especially
as lawyers or politicians, were more attracted to al-Shatibi's theory
of law.

ThreeProponentsof al-ShdtibF'sModel of Maslaha

1. Subhi Mahmasanz
One proponent of al-Shatibi's theory of law was the Lebanese jurist
Subhi. Rajab Mahmasani (1327-1406/1909-1986).81 MahmasanT was
familiar not only with Islamic law but also with Western legal
systems, having received a Doctorate in law from the University of
Lyon and an LLB diploma from the University of London. He
practiced law in Lebanon, served at the Court of Appeal, held high
political positions, and represented Beirut in the Lebanese parlia-
ment from 1383 to 1387/1964 to 1968. Mahmasani's writings reflect
his concern with the application of Islamic law in a modern state
framework as well as its relationship to international law.82
In his work The Philosophyof Legislationin Islam (Falsafat al-tashra'
ft 1-isldm),first published in 1365/1946, Mahmasani laid out his
understanding of Islamic legal theory, which was closely modeled
after al-Shatibi's jurisprudence. He used al-Shatibl's model of maslaha
and his system of universals and particulars in the law in order to

81 For a
biographical sketch of Mahmasani's life see Nabil Saleh, "Biographical
Notes on the late Dr. Sobhi Mahmassani (1909-1986)," MiddleEast Commercial
Law Review2, vi (1996), 183; Muhammad Khayr Ramadan Yusuf, Tatimmat
al-A'ldmli-Ziriklz(Beirut: Dar al-'Ilm li'l-Malayin, 1998), vol. 1, 242-3. Yusuf
and Saleh give different birth dates for Mahmasanl, 1323/1906 and 1326/
1909 respectively. Since Saleh provided a specific day, January 29, 1 follow his
dates.
82 Saleh, "Biographical Notes," 183; Yusuf, Tatimmatal-A'ldm,vol. 1, 242-
3.
 MASLAIA IN CONTEMPORARY ISLAMIC LEGAL THEORY 203

show that Islamic law could be applied within a state legislature

like any other type of law.
Mahmasani built his theory of Islamic legislation on the premise
that maslahaand the purposes (maqdsid)of the law83 were the rationes
legisfor all rulings. These rationeslegis,he emphasized, were rationally
discernible-with the exception of rulings concerning ritual worship
('ibddat),84which he excluded from his investigation.85 Hence, in the
area of social transactions (mu'madldt)humans could derive laws by
taking maslahaand the purposes of the law as the ratio legis. In order
to extend the law to new situations, the unattested maslaha would
take the place of the ratio legis in the procedure of legal analogy.
Mahmasani restricted the valid maslaha to the rank of necessities
(daruriyydt)and needs (jh-jyyat).He denied the validity of unattested
rationeslegis for establishing new rulings when they were based on
instances that were complementaries (kamaliyydt)and constituted an
embellishment (tazyan)or an improvement (tahsan)to people's essential
elements.86
In order to address the issue of adapting existing laws to changed
circumstances, Mahmasani adopted al-Shatibi's interpretation of
universals and particulars in the law. The universal rulings,
he maintained, were immutable whereas particular rulings were
susceptible to change according to time, place, custom, and cir-
cumstances.87 That means that the ratio legis of rulings to achieve
people's maslahadid not change. What changed, however, with the
evolving of society, was what constitutes people's maslaha. Since
maslahas were the rationes legis for rulings, he argued that it was
logically necessary that the ruling cease to exist or change whenever
the ratio legis upon which it was based, i.e. people's maslaha, ceased
to exist or changed.88 Mahmasani also permitted to disregard existing
rulings derived from a clear text (nasswddi.h)of the Qur'an or Sunna.89

83
Interestingly,Mahmasanidifferentiatedbetweenmaslaha and the purposes
of the law, mentioningboth side by side. However, nowhere in his book on
the philosophy of Islamic legislation does he elaborate on the difference
between these or define the purposesof the law.
84 Subhi Rajab Mahmasani,Falsafatal-tashr' fi-l-isldm(Beirut:Dar al-'Ilm
li'l-Malaymn, 3rd ed. 1380/1961), 163, 199, 219, 262.
85
Ibid., 176, 199, 204.
86
Ibid., 176-7.
87
Ibid., 217, 262.
88
Ibid., 200-2, 205.
89
Ibid., 204-5.
204 FELICITAS OPWIS

Yet he cautioned that the divine character of the law requires

utmost care in the investigation of the maslahas that give rise to
textual rulings.90 Textual rulings, according to Mahmasani, may be
set aside for three reasons. First, when the ratio legis changes, i.e.
when the ruling no longer produces the intended maslaha; second,
when the ruling is based on a custom that people no longer practice;91
and third, when necessity demands it.92 In this way jurists could
address those laws of the Qur'an and the Sunna that were perceived
to be incompatible with modern needs and attitudes, while the
religious and ethical message of Islam as embodied in the sacred
texts would be left intact. Mahmasani argued that disregarding
textually based rulings did not mean that the text itself was altered
but only that its exegesis and the interpretation (ijtihdd)of the text
underwent change.93
Adopting al-Shatibi's theory of universal and particular rulings
served yet another purpose, one that, I believe, represents the
primary motive for Mahmasani's discussion of Islamic legislation.
He emphasized that Islamic law is in fact very similar to other,
non-religious legal systems.94 Mahmasani claimed that the universal
rulings of Islamic law are the same laws that the ancient, i.e. the
Greek philosophers, had called heavenly or natural laws, which
include principles such as justice, truth, and maslaha.95This implies
that particular rulings from another legal system are not foreign
laws because particular laws are based on universal precepts, which
are the same, or almost the same, in all legal traditions. Thus
Western law is compatible with Islamic law so long as maslaha, that
is the intention of the Lawgiver, is preserved.
Mahmasani explicitly stated that positive state legislation is not
un-Islamic but rather is sanctioned by Qur'an, Sunna, and consen-
sus (#jmd').96He explained his vision of Islamic legislation in more

90 Ibid., 198, 201, 204-5.

91Ibid., 205, 212, 214.
92
Ibid., 205, 217-9.
93Ibid., 218.
94 At the
beginning of his book on Islamic legislationMahmasamn argued
that a Shari'aruling(hukm),like a statelaw (qanun),
refersto the genus and not
to a specificindividualor specifiedsituation(ibid., 19, also 269).
95
Ibid., 262-3. Examples of universal rulings are the prohibition to kill wrong-
fully, to misappropriate another person's property, and to engage in fornica-
tion (ibid., 262).
96
Ibid., 231-2.
 MASLAHA IN CONTEMPORARY ISLAMIC LEGAL THEORY 205

detail; one of its most important principles is what he called the

regime of consultation (nizam al-shura). Rulings should be decided
in a consultative manner based on considerations of general maslaha
and the holy texts.97 This legislation is binding on people so long
as it does not command them to perform a sinful act (ma'sya).98
Islamic legislation, on the one hand, regulates new matters that the
scripture does not address and, on the other hand, changes the
interpretation of textually based rulings when the general maslaha
requires such change.99 Not only may textually stated rulings be set
aside on account of maslaha, but also, Mahmasani maintained, the
state had the right to command adherence to a specific school of
law, a particular legal interpretation or even European law.100He
justified this on the grounds of precedents established in early Islamic
history and the accepted practice of Islamic jurists.'?0
It would thus seem that Mahmasani adopted al-Shatibi's
model of maslahafor two reasons. First, because al-Shatibi's overall
classification of law into immutable universal and changeable
particular rulings allows a legal system to incorporate new laws and
to adapt old ones that are (thought to be) inappropriate. Second,
al-Shatibl's model made it possible for Mahmasani to present the
current legal systems in the Middle East in general and in Lebanon
in particular, which were heavily based on Western legal codes,
as truly Islamic. He was writing at a time when the nation state
system of the Middle East had largely been established, and the
application of (traditional) Islamic law had been largely reduced
to matters of personal status. In addition, Lebanon had a large
non-Muslim population; as a lawyer and judge he had to apply
Lebanese law to all citizens of the state. Al-Shatibi's model of maslaha
provided the framework for a legal system that in Mahmasani's
interpretation could accommodate all of these aspects.

97 Ibid., 32, 235.

98
Ibid., 231, 234-5.
99Ibid., 232-3. For Mahmasani'sviews on how to apply Islamiclegislation
in practice, see ibid., 269-92.
100Ibid., 233. With this statementMahmasani
sought to defend Ottoman
legal codes that had incorporatedEuropeanlaws and the Mejelle,which was
based primarilyon Hanafi legal doctrine.
101Ibid., 239-41.
206 FELICITAS OPWIS

2. 'Alldl al-Fdsz
Al-Shatibi's concept of law was also adopted in a less comprehensive
fashion by the Moroccan jurist 'Alll al-FasT(1328-1394/1910-1974).102
Al-Fasi, who came from a prominent religious family, studied Islamic
law at the Qarawiyln college in Fez. After graduating in 1930 he
taught Islamic history at the Qarawiyln and later became a professor
of law at the new University of Rabat. Al-Fasi's fame, however,
derives from his role as the ideologue and leader of the Moroccan
independence movement.103
Like Mahmasanl, al-Fasi aimed at demonstrating that Islamic
law might serve as a legal system for a modern state.104 Unlike
Mahmasanl, he considered the Shari'a to be different from any
other legal system in its superior realization of justice ('adl, 'adala).105
Although al-Fasi frequently referred to al-Shatibi and agreed
with his theory of law, he adopted it only selectively. His desire
to adapt Islamic law to the ever-changing environment led him
to draw upon al-Shatibi's concept of immutable universal and
changeable particular rulings.106 However, with respect to the
derivation of laws he attempted to preserve the traditional structure
of Islamic law as much as possible. In this area he relied heavily on
the Ghazali/Razi model of maslaha.107Al-Fasi's contradictory aim-
i.e., to present a modern but at the same time traditional interpretation
of Islamic law-resulted in a legal theory that lacks the internal
cohesion displayed in Mahmasani's thought.108

102In the
secondary literature one finds different dates for al-Fasi'slife, varying
from 1323/1906, 1324/1907, 1326/1908, and 1328/1910 for the year of his
birth to 1393/1973 or 1394/1974 for his death (cf. Amnon Cohen, "'Allal al-
Fasi: His Ideas and His Contribution Towards Morocco's Independence," Asian
andAfricanStudies3 [1967], 121-64, at 121; EF, s.v. Islah; OxfordEncyclopedia of
theModernIslamic World,s.v. FasT,Muhammad 'Allal al-; Khayr al-Din Zirikll,
al-A'ldm[Beirut: Dar al-'Ilm li'l-Malayin, 1992], vol. 4, 246).
103 For his role in the Moroccan independence movement prior to 1956,
see Cohen, "'Allal al-Fasi," 121-64.
104 Cf. 'Allal al-Fasi, Maqasidal-sharf'aal-isldmiyya wa-makdrimuhd (Casablanca:
Maktabat al-Wahda al-'Arabiyya, n.d. [1963?]), 209-17.
105 See ibid., 8, 41-3, where he
explicitly criticized Mahmasani's interpre-
tation of Islamic legislation.
106
Ibid., 43, 159.
107
Ibid., 138-44.
108
For similar criticism of al-FasT'sthought see Hallaq, Historyof IslamicLegal
Theories,224-6; and Cohen, "'Allal al-FasT," 163.
 MASLAHA IN CONTEMPORARY ISLAMIC LEGAL THEORY 207

3. Mahmud Muhammad Tdha

The influence of al-Shatibi's theory of law is also noticeable in the

thought of the Sudanese reformer Mahmud Muhammad Taha
(1327 or 1329-1405/1909 or 1911-1985). Educated as an engineer,
Taha became active in the Sudanese independence movement
as the leader of the Republican Party. His legacy, however, rests
pre-dominantly on his religious thought.109 Although in the main
articulation of his reform program, The SecondMessage of Islam (first
published in 1387/1967),"? Taha made no reference to al-Shatibi-
or to any other Muslim scholar for that matter-parallels in their
thought suggest that Taha may have been inspired by him. Like his
8th/14th century predecessor, Taha emphasized that early Meccan
revelation embodied the principles (usul al-qur'dn) which were
unchanging, whereas the laws laid down in the Medinan suras
were derivations therefrom (furi' al-qur'dn)."' Taha held that the
Medinan derivations from the principal laws represent rulings
appropriate for the society in which the Qur'an was revealed."2
Like al-Shatibi, his understanding of the principal laws of Islam
rested on a re-interpretation of the concept of abrogation (naskh).
According to Taha, the abrogation of qur'anic verses was not intended
to be permanent but rather their implementation was intended to
be postponed until society was ready to understand and accept the
true message of Islam."13The historical laws of the Medinan revelation,
he maintained, not only lose their binding nature under changed
circumstances, but should be changed when the implementation of
the principal laws can be achieved. According to Taha, contemporary

109Abdullahi Ahmed An-Na'im

gives an account of Taha's life in his intro-
duction to the English translation of Mahmoud Mohamed Taha, The Second
Messageof Islam, translation and introduction by Abdullahi Ahmed An-Na'im
(Syracuse, New York: Syracuse University Press, 1987), 2-10.
110For a
synopsis of Taha's SecondMessageofIslam, see Mohamed Mahmoud,
"Mahmud Muhammad Taha's SecondMessageofIslamand His Modernist Project,"
in Islam and Modernities:Muslim IntellectualsRespond,ed. John Cooper, Richard,
L. Nettler, and Mohamed Mahmoud (London and New York: I.B. Tauris, 1998),
105-28.
1 Mahmud Muhammad Taha, al-Risalaal-Thanya minal-isldm(Omdurman,
Sudan, 4th ed. 1391/1971), 3.
112
Ibid., 134, 162-3.
113
Ibid., 9-10,
208 FELICITAS OPWIS

society had evolved to an extent that this was possible.14 Like most
Islamic jurists, Taha excluded rulings about worship ('ibddat)from
change,"5 but argued that the laws relating to acts of worship might
change. For instance, almsgiving (zakdt)remained an unchangeable
obligation, yet the proportions prescribed for almsgiving should be
interpreted in light of the principal rulings on sharing wealth."6
Implementing the laws of the principal message of Islam would,
according to Taha, achieve the maslaha of the individual and that
of the community.'7 He envisioned that the application of his
interpretation of Islamic law would bring about a society based on
equality, socialism, and democracy, values which he regarded as
the principal message of Islam as revealed in the Meccan suras.18

Two Proponentsof RestrictiveModels of Maslaha

Although al-Shatibi's concept of law provides a coherent system to

extend and adapt the law, implementing his model in its totality
has the potential to challenge not only a large part of the applied
law, but also of Islamic theology, exegesis, and hadith. Adopting it
without qualifications might result in a radical departure from the
historical body of Islamic law, similar to Taha's SecondMessage of
Islam. This, I believe, led jurists who were educated in a traditional
environment and who identified closely with the traditional religious
establishment to be more inclined toward models that follow a
formal legal rationality. In light of the continuous marginalization
of Islamic law, they tried to retain as much as possible of its traditional
character while at the same time seeking ways to address questions
of expanding and adapting the law by using the Ghazali/Razi
model of maslaha with or without elements of al-Qaraff's model.
Among these conservative jurists were figures such as 'Abd al-
Wahhab Khallaf and Muhammad Sa'id Ramadan al-Biut.. The
Ghazali/Razi model enabled them to address new situations by
deriving them within the framework of legal analogy under the

114
Ibid., 8-10, 140; see also Kramer, "Kritikund Selbstkritik,"223; Mahmoud,
"Mahmud Muhammad Taha," 116-7.
115Mahmoud
points out inconsistenciesin Taha's interpretationof the qur'anic
revelation ("Mahmud Muhammad Taha," 116-8, 123-4).
116 Taha, al-Risala al-Thanrya,164.
117
Ibid., 39.
118
See ibid., 142-60; Mahmoud, "Mahmud Muhammad Taha," 118-20.
 MASLAHA IN CONTEMPORARY ISLAMIC LEGAL THEORY 209

category of the unattested suitable maslaha. Formal criteria were

required to determine whether or not maslaha was attained in a
concrete instance, and thus provided a measure of accountability
for the jurist's legal reasoning. This was especially useful when
giving legal opinions (fatdwa), an activity in which these scholars
frequently were involved. In order to adapt existing rulings to changed
circumstances, jurists of this conservative outlook drew on al-Qarafi's
model in which maslaha is applied as a legal precept in those cases
in which the existing general ruling would produce hardship or
lead to undesired ends. Upon closer examination, the writings of
scholars affiliated with the traditional religious establishment ex-
hibit considerable differentiation in their positions and in their
integration of the Ghazali/Razi and the Qarafi model of maslaha
into legal theory. In the following, I will present the understanding
of maslaha by Khallaf and al-Buti., two exemplars of the conserva-
tive interpretation.

1. 'Abd al- Wahhab Khallaf

The Egyptian scholar 'Abd al-Wahhab Khallaf (1305-1375/1888-
1956)119studied at al-Azhar and the School of law (madrasaal-qadd'
al-shar'z)in Cairo, where he later taught for several years. In 1338/
1920 he became a judge in the Egyptian Shari'a courts and in
1349/1931 was appointed supervisor (mufattish)to these courts. His
most lasting influence was probably as a professor of Islamic law in
the Faculty of Law at Cairo University, a position he held from
1352/1934 until his death in 1375/1956. He wrote on fiqh and
legal theory but also commented on particular laws that the Egyptian
government had issued.120 During Khallaf s lifetime Islamic law
became increasingly marginalized in the Egyptian judiciary, giving
way to codes inspired by Western law. Like the early modern
reformers, Khallaf attempted to counter the pressures levied against
Islamic law by promulgating a legal principle that was acceptable
to various groups within Islam. For him the concept of maslahawas
a way to achieve unity-and thus strength-in Islamic legislation.121

119'Abd al-Wahhab Khallaf, 'Ilm usu-lal-fiqh (Alexandria: Mu'assasat Shabab

al-Jami'a, 1984), 4.
120 Muhammad 'Izzat
al-Tahtawi, Min 'Ulam' al-ruwwddfirihdbal-Azhar(Cairo:
Maktabat Wahba, 1990), 141-52.
121
Khallaf, like RashTdRida, saw in the Shari'a a means to unify the Arab
nations (Khallaf, Masddiral-tashrf, 6).
210 FELICITASOPWIS

But instead of giving predominance to considerations of maslaha in

the manner that Rida and al-Qasimi had done,'22 he sought to
preserve the sacredness of the texts and the edifice of Islamic law
by turning to the Ghazali/Razl model.
In his 1373/1954 book Masddir al-tashr' al-isldmifi-md lI nassafih
(The Sourcesof Islamic Legislationin the Case in which No Text Applies),
Khallaf laid out his interpretation of maslaha. His explicit aim was
to refute the orientalist claim that the sources of the Shari'a were
not flexible and adaptable to the development of society. To this
end he wanted to show that the legislative sources of Islam were
not limited to texts or to a specific historical environment but rather,
through the practice of ijtihdd,guaranteed legislative progress and
lawmaking according to the needs of Muslim nations.123
For Khallaf, ijtihddserves two purposes: first, to decide on issues
for which the applicable textual rulings were probable and equivo-
cal; and second, to solve cases in which no text or consensus (jmad)
indicated a ruling. Here jurists may arrive at different rulings due
to their different assessment of the underlying ratiolegisor on account
of the different environments that influence their evaluation of a
legal case.124
Khallaf stated that the primary method to be used by jurists
when no textual ruling applied to a particular legal issue was
legal analogy (qiyds). Like al-Ghazal and al-Razi, he integrated
considerations of maslahawithin the framework of legal analogy in
the form of the criterion of unattested suitability (mundsabamursala)
that identifies the ratio legis. He argued that the use of this criterion
to determine a ruling achieved the maslaha intended by the ruling
in the eyes of the mujtahid.'25To be suitable, the unattested maslaha
had to pertain to a necessity, need, or improvement to the elements
of religion, life, intellect, property, and honor.126 Khallaf accepted
even those instances in which it was doubtful or illusory that

122
Khallaf (ibid., 101) attacked al-Tufi's theory of maslaha,arguing that it
abrogates the sacred texts by arbitrary opinion.
123Ibid., 156-7.
124
Ibid., 9-12.
125
Ibid., 18-28, 51, 56.
126
Khallafwas not categoricalabout the orderor even the elementsfalling
underthe categoryof necessities;sometimeshe listed five, sometimesless, and
he alternatedbetweenmentioningprogenytogetherwith life or substitutingit
by honor ('ird)(ibid., 57-8).
 MASLAHA IN CONTEMPORARY ISLAMIC LEGAL THEORY 211

the ruling based on the unattested suitable characteristic under

investigation would lead to maslaha. Only when it was certain that
the intended maslahawould not be attained did he reject its use as
the basis of a ruling.127By lowering the standard of what constitutes
a suitable characteristic, Khallaf enlarged the area of valid rationes
legis based on unattested maslaha. In addition to the case in which
an unattested suitable ratio legis certainly did not lead to maslaha, it
lost its validity when it entailed more mafsadathan maslahaor when
the two were equal. This latter view, he maintained, was the preferred
view among Islamic jurists.128
Although Khallaf discussed the unattested maslaha again under
the heading of istisldh, he did not add any new dimension to it. It
seems that he mentioned it under this heading only to differentiate
it from the method of juristic preference (istihsdn).Istislah, according
to Khallaf, falls within the category of legal analogy and the unattested
suitable ratio legis.129The derivation of a ruling on the grounds that
an unattested maslahawas thereby safeguarded constituted for him
the most fertile legislative method on matters for which no text or
consensus existed.'30 Its subject matter excluded rituals ('ibdddt),
prescribed punishments (hudud), atonements (kaffarat), shares of
inheritance, and those matters that are given numerical specification
in the Qur'an, such as the length of a woman's waiting period after
divorce or her husband's death.'13
From Khallafs statements it is clear that he envisioned maslaha
to function as a method to extend the law to new situations to
which no text or consensus applied. He explicitly left the area of
adapting the law to the method of juristic preference (isti.hsdn).He
understood this method, which he subsumed under the rubric of
legal analogy, as two attested indicants entailing contradictory rulings.
A jurist might prefer one of the indicants on the grounds that it
attained maslaha(which he thought to be a "hidden analogy"), consider
one a specification of the other (takhsIs)or an exception to the
general rule. In any case, the jurist would base his decision on
indicants attested in the sources of the law.132

27 Ibid., 59-61.
128
Ibid., 59-61.
129 Ibid., 85-8.
130
Ibid., 85.
31 Ibid., 89.
132 Ibid.,
67-9, 101-2, 171.
212 FELICITAS OPWIS

At first sight Khallaf's legal theory leaves no room for an unattested

maslaha to set aside or adapt textual rulings. When looking at his
elaboration on its applicability, however, one reaches a different
conclusion. He allowed considerations of unattested maslahain social
transactions in those instances in which no certain text (nass qat'i)
or explicit consensus applied and when recourse to direct legal
analogy to the texts was not possible.'33 That implies that under the
purview of unattested maslahaswould fall those cases for which the
Qur'an and the Sunna were equivocal or for which laws were
based on custom. He thus enlarged the scope of applying con-
siderations of maslaha by limiting the scope of applicability of the
texts.134For instance, he considered the modern Egyptian law that
validates marriage by an official certificate rather than by two witnesses
to represent a decision based on an unattested maslaha. Likewise,
stipulating the minimum marriage age for women and men to be
16 and 18 years respectively was, according to Khallaf, an example
of a ruling based on considering an unattested maslaha.'35Although
Khallaf presented these examples under the rubric of extending
the law, they in fact represent adaptations of existing rulings from
among the Islamic legal tradition. Khallaf even allowed for textually
certain injunctions to be overruled by considerations of an unattested
maslaha under the condition-and here he followed al-Ghazall-
that it was necessary, certain, and universal.'36By holding a restrictive
interpretation of what constitutes an immutable ruling and an
expansive reading of what was a valid suitable characteristic or
maslaha, Khallaf left room to adapt existing laws according to new
situations and changed circumstances without sacrificing the basic
features of Islamic law.
Like Rida, Khallaf transferred the task of expanding and adapting
the law to a legislative group (jama'a tashr'fyya). This legislative
group was to replace consensus as the "guarantor of renewal" of
the law.137 While Khallaf emphasized that this group should not
rule autocratically but by consultation, he was less explicit about
who was eligible to participate in this task. On several occasions he

133Ibid., 102-3.
134 See also Hallaq, Historyof IslamicLegal Theories,220-4.
35 Khallaf, Masadir al-tashr', 56, 88.
136
Ibid., 101-2.
137
Ibid., 165.
 MASLAHA IN CONTEMPORARY ISLAMIC LEGAL THEORY 213

required that the legislative group be elected only from among

those who fulfill the qualifications of mujtahidsas set by the scholars,
and should be leading 'ulamd'. Yet, he also mentioned that the
group should comprise people who were trusted for their insight
into mundane matters.'38 These two (?) groups were charged with
legislating laws by following the procedures and applying the methods
established in Islamic law as laid out in his book.'39
Khallafs understanding of the concept of maslahaand the way he
integrated it into legal theory reflect his self-perception as a traditional
interpreter of Islamic law. Nowhere did he explicitly advocate a
departure from the previous generations' conceptions of the law,
especially not in the area of legal theory. But he did not simply
reiterate their conceptions or the Ghazali/Razi model of maslaha
but re-interpreted them in a manner that achieved a twofold aim.
First, he enlarged the area of rulings validly based on an unattested
maslahaby giving less scope to the texts and more scope to a jurist's
independent reasoning. This allowed for flexibility and adaptability
of Islamic law within the environment of a modern nation state.
Second, he was careful to preserve the law's divine and Islamic
character by excluding from the purview of maslaha those matters
in the scripture that pertain to religious worship, are unequivocally
stated, or that differentiate Islamic society from other societies,
such as the prescribed punishments (hudud)and the regulations about
inheritance and divorce.

2. MuhammadSa'id Ramadan al-Buti

One of the most interesting exponents of the conservative stand on
maslaha is the Syrian scholar Muhammad Sa'ld Ramadan al-Buti
(born 1347-8/1929). Al-Buti. graduated from al-Azhar in 1375/
1956 with a diploma in teaching Sharl'a, and he taught in several
Syrian institutions of learning. In 1380/1961, he became an assistant
at the Shari'a Faculty of Damascus University, and after completing
his doctorate at al-Azhar in 1385/1965, he joined the faculty of
Damascus University as a lecturer in comparative law and religious
studies. For some time he served as Dean of the Sharl'a Faculty
and he continues to teach at Damascus University.140 Apart from

138
Ibid., 13-17, 102-3, 167.
139Ibid., 13.
140
Andreas Christmann,"IslamicScholar and Religious Leader: Shaikh
MuhammadSa'id Ramadan al-Buti,"in IslamandModernity,57-81, at 58-60.
214 FELICITAS OPWIS

his influence as a professor, al-Biut is well-known through his regular

appearances on Syrian television as a preacher and interpreter of
the Qur'an and Sunna. According to Christmann, in his television
lectures al-Buti. "walks the tightrope to verify shar'i rules in the light
of secular law and society."14' Here, I will focus on al-Butil's scholarly
interpretation of the concept of maslaha,recognizing that his popular
religious sermons merit an independent study.
In his Dawabital-maslahafi-l-sharifaal-isldmyya(ThePreciseDeterminants
of Maslaha in theIslamic Sharz'a),based on his doctoral thesis and first
published in 1385/1965, al-Buti. recapitulated the most important
writings on the concept of maslaha by Islamic scholars from the
classical formulations up to the contemporary period. He critiqued
the liberal interpretation of maslahawhile at the same time providing
detailed criteria to determine whether or not something that con-
stitutes maslaha might serve as a valid basis for establishing a legal
ruling. He expressly wanted to turn away from using maslaha as a
means to legislate and to change textual rulings and the legal edifice
established by previous generations of scholars without proper recourse
to the sources of the law, i.e., the Qur'an, the Sunna, and correct
legal analogy.142 Adopting the Ghazali/Razi definition of maslaha,
al-Buti. emphasized that the intellect alone is not capable of either
grasping the rulings laid down in the SharT'aor comprehending the
order of importance of the essential necessities (darurdt).'43 Likewise,
al-Buti rejected the idea that maslahashould be determined by people's
customs or by the level of personal happiness of an individual or
a group.'44 Mundane maslahas were only determinable on account
of textual statements of the Qur'an and the Sunna and correct
legal analogy to these texts.'45 Furthermore, for a maslaha to be
legally valid it must pertain to the preservation of the essential
elements of religion, life, intellect, progeny, and property. Maslaha,
in short, is not an independent legal indicant as al-Tufi thought
it to be.146 Al-Buiti rejected the formulation, repeatedly used by

141
Ibid., 58.
142MuhammadSa'idRamadanal-Buti.l, Dawabit al-maslahafI-shar'aal-isldmyya
(Beirut: Mu'assasat al-Risala, 4th edition 1402/1982), 11-5. Interestingly, al-
Buti in this instance does not count consensus (ijm') among the sources of Islamic
law.
143 Ibid., 48, 50, 58-61, 65-6.
144
Ibid., 25-8.
145
Ibid., 15, 60.
146Al-Buti criticized al-Tuft repeatedly and at length (see ibid., 129, 140,
202-15).
 MASLAHA IN CONTEMPORARY ISLAMIC LEGAL THEORY 215

Khallaf, that "wherever one finds maslaha, there lies God's legis-
lation." 147

Despite the fact that al-Biti adopted the Ghazali/Razi model of

maslaha and, as we shall see, elements of al-Qarafi's thought, he
couched his elaboration in the language used by al-Shatibi. He
considered the realization of the believers' maslahato be the universal
meaning of the law; the particulars pertaining to this universal
meaning are the concrete rulings that hinge upon criteria indicating
their maslaha. When employing considerations of maslaha in the
law-finding process, it is possible that a particular ruling contradicts
the universal ruling to attain the believers' maslaha. To achieve
congruence or harmony between them, al-But.i employed two
strategies: first, he restricted the universal meaning of maslaha by
precise determinants (dawdbit); and second, he linked maslaha to
concrete legal indicants.148
According to al-Biti., the precise determinants that restrict the
universal meaning of maslaha are, on the one hand, that a legally
valid maslaha should pertain to the preservation of religion, life,
intellect, progeny, and property at the level of necessity, need or
improvement;149 and, on the other hand, that it not contradict a
ruling from the Qur'an, the Sunna or a correct legal analogy (qryds).'50
For instance, the abolition of polygamy on grounds of maslaha, as
legislated in Tunisia, constituted for al-Buti. not a true but an illusory
(mawhum) maslaha. Likewise, equalizing the prescribed shares of
inheritance for daughters and sons is not based on a real maslaha
and is contrary to the qur'anic ruling and hence invalid.'51
The only method al-Buti allowed for limiting the binding nature
of a textual ruling was by specification (takhszs).He discussed different
types of specification, including the case in which a general ruling
of the Qur'an or Sunna is specified by a ruling derived through
legal analogy to an explicit text. For example, the Qur'anic verse
that prohibits wrongful seizure of somebody else's property may be
specified by analogy to the qur'anic permission to eat carrion (mayta)
out of necessity. In case of necessity it thus becomes permissible to

147 Ibid., 12; Khallaf, Masadir al-tashri, 90, 101, 160.

148
Al-Buti, Dawabit al-maslaha,115-16.
149Ibid., 119.
150 For a detailed exposition of these determinants, see ibid., 129-247.
151 Ibid., 117, 133.
216 FELICITAS OPWIS

take money that rightfully belongs to somebody else.152 Another

type of specification is when textual statements are specified by
legal precepts, such as "hardship procures facilitation" (al-mashaqqa
tajlubal-tayszr).53The validation of the specific ruling over the general
leaves intact the universal ruling which aims at attaining the believers'
maslaha.For al-Buti, however, specification meant that the specifying
ruling has its basis in the texts of the Qur'an and the Sunna.
An unattested maslaha cannot specify and thus set aside a textual
ruling or one based on legal analogy. The adaptation of existing
laws from Qur'an and Sunna to new circumstances is thus limited
to comparing different textually based rulings and determining the
154
preponderant.
Al-But.i's second strategy to achieve congruence between the
universal law to attain the believers' maslahaand particular concrete
rulings was to elaborate the criteria of what constitutes a maslahain
the case in which the texts are silent about it. In this area he
followed closely the Ghazali/Razi model of maslahaand incorporated
the unattested maslahaunder the rubric of legal analogy in the form
of the suitable characteristic.'55
In order to give jurists guidelines to determine which maslaha
should prevail when two unattested maslahas or two attested
maslahas call for contradictory rulings,156al-Butil developed a scale
of preponderance that weighs the maslaha as well as the mafsada
involved for the case under investigation. He maintained that a
jurist will arrive at the correct ruling by applying the following
guidelines. First, he should weigh the maslahas according to their
importance in relation to the five essential necessities of human
existence. The most important on this scale was religion, followed
in descending order by life, intellect, progeny, and property. The
maslaha that is higher on this scale prevails over the lower one.157

152 Ibid., 139, 173, 197.

153 Ibid., 276-9.
154Al-Buti.allowedfor some
degree of adaptationof sunnaicrulings,which
will be discussedbelow.
155
Ibid., 216-32.
156 In case an attestedmaslahais in oppositionto an unattestedmaslaha,al-
Buti alwaysgave priorityto the former.He consideredthe unattestedmaslaha
to be illusorybecause he held that God does not neglect a maslahain His law
(ibid.,
157
67).
Al-Buti.allowedfor exceptions,e.g., to utter a word of unbeliefin order
to save one's life (ibid., 260).
 MASLAHA IN CONTEMPORARY ISLAMIC LEGAL THEORY 217

In addition to their relative importance, the jurist should evaluate

their urgency. Here, a maslaha at the level of necessities (darurPyydt)
has priority over the level of needs (hdajiyyat),followed by the
improvements (tahsnadt),and the complementaries to these three
levels.'58 For example, al-Buti stated that women's participation
alongside men in the workplace constitutes an improvement pertaining
to the maslaha of preserving property because it increases income
and productivity. However, this maslaha contravenes the necessity
of sheltering women from unrelated men and the need for proper
family relations that belong to the complementaries of the maslaha
pertaining to the preservation of progeny. Since the preservation of
progeny ranks higher than that of property, al-Biuti argued that the
maslaha of preventing women from working with men prevails.159
Should two opposing maslahas be of the same rank, the jurist
should weigh them according to their scope of attaining maslaha
and mafsada.Here the basic rule is that what affects people generally
is preponderant over what relates to a specific individual. For instance,
al-Buti stated that the maslaha of preserving people's intellect from
deviation and error (zaygh) outweighs the maslaha attained for an
individual from exercising freedom of opinion and expression. In
this case, both maslahasare at the level of need. Al-Biut. maintained
that disregarding the attainment of the first maslaharesults in greater
mafsada than not realizing the latter maslaha.160
A further criterion to determine the valid of two contradictory
legal maslahasis to look at their actual occurrence. When it is certain
that a maslaha or mafsada will be attained by a particular ruling,
then this ruling prevails over one for which the outcome is only
probable; still lower on the scale ranks a maslaha or mafsadathat is
doubtful to occur. For example, digging a hole for a well behind
a gate is certainly going to result in harm and must be prohibited.
Averting the probable mafsadaof selling grapes to a vintner prevails
over the certain maslaharesulting from the sale transaction. In contrast,
when grapes are sold to a person ignorant of wine production, the
prohibition of the sale would constitute only a doubtful or even
illusory maslaha;thus the maslaha attained from the sale prevails.161

158
Ibid., 248-51.
159 Ibid., 260-1.
160 252-3.
Ibid.,
161
Ibid., 254.
218 FELICITAS OPWIS

The presentation of this elaborate scale to reach the correct

ruling on grounds of maslaha-which ironically resembles al-Tufi's
procedure of determining rulings by weighing the maslahaand mafsada
involved162-serves a specific objective in al-ButT'sscheme. He wants
to demonstrate with this scale that using the criterion of suitability
is a better method to determine rulings than basing them on
considerations of maslaha.He argued, on the one hand, that suitability
is more specific than maslaha,implying that it is thus of higher legal
certainty; and, on the other hand, that suitability cannot be invalidated
by contradictory factors, such as a preponderant mafsada. While
something might still constitute a maslahadespite the fact that legally
it is considered invalid, this is not the case with the criterion of
suitability. It either exists or not. Consequently, al-But. argued, it
is a more reliable indicant for rulings than maslaha.'63
The aim of al-Buti's scale reflects his general objection to employing
maslahaas an independent indicant in the law-finding process without
direct recourse to the sources of the law. In al-Buti.'s concept of
legal theory, maslaha functions as a criterion to extend the law
within the framework of legal analogy when the texts are silent. By
adopting the Ghazali/Razi model of maslaha al-Buti was able to
preserve the laws laid down in the scripture. This meant that maslaha
may not serve to adapt the law by setting aside rulings established
in the Qur'an and Sunna. A valid textual ruling may only be
disregarded on account of another textual ruling, i.e. an attested
maslaha,by means of specification (takhs.s)or by legal precepts such
as averting hardship (mashaqqa),necessity (darura)or facilitation (taysir).
His use of legal precepts resembles that of al-Qarafi with the difference
that al-Buti did not tie them to maslaha but to textual statements
from the Qur'an and the Sunna.
Yet, al-But.'s interpretation does not mean that Islamic law is
completely rigid and incapable of addressing the changing needs of
society. In order to prevent this from happening, al-But. employed
interpretive strategies. First, he defined the unattested maslahamore
narrowly than other jurists did. For al-Buti, an unattested maslaha
is one that falls under the universal purposes of the Lawgiver,

162 See Zayd, al-Maslaha,235-40; Opwis, Maslaha,216-35. Although al-Razl

also had a similar scale of preponderance, al-BiutI'slanguage resembles more
that of al-Tuft (see al-Razl, al-Mahsul,vol. 2, 480-2; Opwis, Maslaha, 91-4).
163
Al-Buti, Dawabit al-maslaha,266, 270.
 MASLAHA IN CONTEMPORARY ISLAMIC LEGAL THEORY 219

although no textual evidence exists regarding its specific class (jins

qarnb).Any case to which a textual ruling applies, even in the form
of a precept, belongs to the category of attested maslahas.'64In line
with this definition, al-Butil re-interpreted examples given by other
jurists of rulings that were based on an unattested maslaha. For
instance, he analyzed al-Ghazali's example of Muslim prisoners
being used as human shield and concluded that the ruling to
permit shooting at and killing the Muslim prisoners can be derived
either on the grounds of the attested precept that necessity permits
the prohibited or on the basis of weighing two attested maslahas-
in this case the maslaha of preserving Muslims' lives and that of
jihad to preserve religion. In either case the decision to shoot at
the Muslim prisoners is firmly anchored in the revealed law.165
The narrow definition of the unattested maslaha enlarged the
scope of the attested maslaha, mainly by justifying the setting aside
of particular rulings on account of the precepts of necessity or
facilitation.
Al-But.i's second strategy was to increase the area of changeable
rulings by limiting the area of immutable rulings of the Sunna. He
considered sunnaic rulings relating to religious duties as well as
regulations for contracts, sales, gifts and the like to be immutable.
The remaining laws derived from the prophetic Sunna are
changeable according to person, place, and time. He subsumed
them under matters that fall under the authority of the imam. In
this latter area the Sunna need only be followed in its universal
regulations, i.e. attaining maslaha, but not in its particulars.166
Al-Buiti stated that the imam or the mujtahids who replace him
are competent to rule on these matters in accordance with the
demands of the maslaha of the people.'67 Another area in which
al-Bfutiallowed a modicum of change was that of customs. However,
only the details of the customs upon which the textual ruling hinges
are changeable according to region and time. For instance, while
the custom as to how the dower (mahr)is given may vary, the ruling

164
See ibid., 330-1.
165
Ibid., 331-2.
166
Ibid., 166-7.
obviouslyconsideredhimselfqualifiedto be a mujtahid
167
Ibid., 280. Al-ButT.
who has the authorityto ruleon mattersthatchangeaccordingto circumstances.
Whetheror not he envisionedmujtahids to form some type of consultativeor
legislativebody within the political structureof the state remainsunclear.
220 FELICITAS OPWIS

that a dower is necessary for a valid marriage remains untouched.168

Al-Buti's theory of maslahawas closely patterned after the Ghazali/
Razi model, although he was stricter than his predecessors in al-
lowing maslahato play a role in expanding the law only through the
procedure of legal analogy. He re-interpreted the unattested maslaha
in a manner that excludes its use from adapting the existing law.
In al-Buti.'s theory of law the scriptural rulings are much less subject
to adaptation or disregard than in the thought of Khallaf. Of the
jurists analyzed in this essay he went furthest in retaining the laws
of Islam in their particulars. His examples demonstrate that Islamic
law is a legal system able to address the issues of modern time.
Although the resulting rulings may not necessarily accommodate
the desire of Muslims for legal options, they reflect what al-Biut
thought to be the Lawgiver's immutable intention in revealing His
law.

Conclusion

Since the 14th/latel9th century jurists of Islamic law increasingly

have drawn upon the concept of maslahato address changes in the
political and social environment. One characteristic common to
most jurisprudents has been their concern to demonstrate that Islamic
law is capable of functioning in a modern state and of expanding
and adapting according to circumstances. The differences in the
historical setting are reflected in their respective interpretations of
maslaha. The intellectual environment at the turn of the century
compelled Rida and al-Qasiml to argue for the compatibility of
Islamic law and the rational sciences and for the absence of conflict
between the requirements of reason and revelation. Likewise, in
their desire to revive Islamic civilization they insisted that jurists as
qualified as themselves are entitled to investigate the sources of the
law independently from the existing school traditions. Practicing
ijtihdd, they also explored untraditional legal methods in order to
address the needs of Muslim societies. They found them in al-
TufT's interpretation of maslaha. His model served their claim
that Islamic law is rational and easily applicable to the modern
environment. In addition, it provides an agreed upon standard

168
Ibid., 281-91.
 MASLAHA IN CONTEMPORARY ISLAMIC LEGAL THEORY 221

which they hoped would achieve unity among Muslims and strengthen
them against foreign intrusion. The drawback of al-Tufi's model,
however, is its lack of accountability and its propensity to change
the revealed law permanently and to render its divine origin irrelevant.
In the period between the 1360s/ 1940s and 1380s/ 1960s, jurists
who were writing on maslahahad different concerns. For one, ijtihdd
was no longer a contested issue, for it had come to be generally
accepted that the gate of ijtihdd was open. The authority of the
schools of law had diminished to an extent that nobody advocating
this practice experienced persecution the way al-Qasimi had.'69
Instead of countering opposition from among their own ranks, the
'ulamd' were now increasingly challenged by proponents of other
ideologies, especially secularism and Islamic fundamentalism. In
addition to this intellectual pressure, the continuous marginalization
of Islamic law diminished the influence of Islamic jurists in society.
With the take-over of socialist, Arab nationalist regimes in many
countries of the Middle East and North Africa the role of the
Islamic jurist was frequently reduced to not much more than giving
legal opinions (fatdwa)and sanctioning the state's secular legislation.170
Jurists writing after the early reformers had a more pressing need
than their predecessors to prove the relevance of Islamic law to the
nation state and to demonstrate that it is able to deal with new
questions arising from scientific, social, and political developments.
Their interpretations of maslaha as a means to address these issues
mainly took two forms. One group, by focusing on the ethical
message of Islam, presented Islamic law as a comprehensive legal
system that is flexible and adaptable. In this group we find scholars
like Subhi Mahmasanl, 'Allal al-Fasi, and Mahmud Muhammad
Taha, who were involved in the secular legal system, in the state-
building process, and who were willing to change the inherited
body of Islamic law. They advocated, to varying degrees, changing
the methodology and hermeneutics of Islamic law in order to make

169
See Commins, IslamicReform,50-4.
170 The concept of maslahafrequentlybecame a vehicle to justify novel in-
stitutions,such as the Ottomanconstitutionor secularlaws that were contrary
to laws derived from the Islamic scripture, like Tunisia's abolition of polygamy
(cf. ibid., 126-7; J.N.D. Anderson, "The Tunisian Law of Personal Status,"
InternationalandComparative
Law Quarterly7 [1958], 262-79, at 267; Fazlur Rahman,
"A Survey of Modernization of Muslim Family Law" International JournalofMiddle
East Studies2 [1980], 451-65, at 457).
222 FELICITAS OPWIS

it a functioning legal system in the modern state context. They

drew upon al-Shatibi's theory of law with its hierarchy of universal
and particular as well as general and specific rulings. Maslaha was
interpreted as a universal ruling under which all other rulings may
be subsumed. It constitutes a legal indicant in its own right, one
that is authentically Islamic based on ethical concepts derived from
the Qur'an. However, if fully implemented this interpretation of
maslaha and Islamic law potentially could overturn much of the
traditional body of Islamic law as well as some theological doctrines,
as became obvious in the case of Taha's SecondMessage of Islam. As
far as I can tell, none of these figures addressed the full implica-
tions of al-Shatibi's theory of law.
The other group may be termed conservative jurists in the sense
that they aimed at preserving the traditional structure of Islamic
law as much as possible. These jurists, among whom I count 'Abd
al-Wahhab Khallaf and Muhammad Sa'id Ramadan al-ButT, were
closely associated through their education and/or employment with
the traditional religious establishment. In their interpretation of
maslaha they focused on the traditional areas of expanding and
adapting the law. They were drawn to the Ghazali/Razi model
that integrates considerations of maslaha into the formal procedure
of legal analogy. Here, maslaha is not considered an independent
legal indicant; rather, decision-making on grounds of maslaha re-
mains anchored in the sources of the law. In order to achieve the
desired expandability and adaptability of the law, Khallaf and
al-ButT pulled and pushed at the definitions of what is immutable
in the law and what is still acceptable as valid criterion in the
law-finding process. Their efforts bore different results. Khallaf's
interpretation limited the applicability of the texts and enlarged
the scope of the unattested maslaha for expanding the law. BfutT,
by contrast, enlarged the scope of the texts, and thereby the
attested maslaha, and reduced the derivation of new laws on the
basis of unattested maslahas. However, both scholars limited the
adaptation of the law to internal comparison of existing rulings and
giving prevalence to one over another. Despite the novelty of their
contributions to the concept of maslaha, Khallaf and al-But. stayed
within the parameters of mainstream views.
The preceding presentation of the way several jurists from the
early 14th/late 19th to the latter half of the 14th/20th century
interpreted the concept of maslahacovers only a small sample of the
 MASLAHA IN CONTEMPORARY ISLAMIC LEGAL THEORY 223

many views held on this subject. My selection was intended to

show that maslahaas a means for legal change has many facets and
may be used for different purposes. To understand the potential of
maslahato expand and adapt the law, it is necessary for scholars of
Islam and Islamic law to look closely at the way a jurist integrates
this concept into the legal system as a whole. By providing different
models from Islamic jurisprudence of the middle period, I have
attempted to establish a guideline for categorizing contemporary
interpretations. Furthermore, I have indicated that a particular jurist's
interpretation of maslahais not random, but rather is influenced by
the nexus of education, personal position, and historical environ-
ment that affects the way in which a jurist employs the principle of
maslaha to shape the legal sphere.