Muhammad Khalid Masud - Al-Shatibi's Philosophy of Islamic Law

SHATIBï's PHILOSOPHY OF ISlAMIC lAW

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SHAJIBï' S PHILOSOPHY OF ISIAMIC IAW n to An Analy tical Study of Shëi!ibï' s Conce pt of ma~laba in Relatio His Doctri ne of maqa~id al-shar'Tca with Particu lar Refere nce to the Pi"oblem of the Adapt ability of Islamic Legal Theory to Social Chang e

A Disser tation Presen ted to the Facult y of Gradu ate Studie s and Research MeGi "

Univer sity

ln Partial Fulfilm ent of the Requirements for the Degree of Doctor of Phi losophy

by Mu~ammad

Khôl id Mas(üd

Institu te of Islamie Studie s McGil l Univer sity Montre al March 1973

@)

Mul?aIDIDad KhBlid Mas cM

1973

ABSTRACT

Author

Mubammad Khalid Mas(üd

Title

Shatib"i' s Philosophy of Islamic Law: An analytical study of Shatib"i' s concept of ma~laQa in relation to his doctrine of maqà}id al-Sharl ca with particular reference to the problem of the odaptabil ity of Islamic legol theory to social change.

Department

Institute of Islamic Studies

Degree

Ph. D.

Tl,is thesis studies Shâtibi' s (d. 790/1388) frequently quoted yet little explored and often misunderstood concept of ma~labo.

The thesis argues that Shatibi' s

doctrine, that the protection of the ma~la~a of men is the main objective of Islamie law, was a produet of the grave need of hi s time to adapt Islamie lega 1 theory to new social conditions. Certain theological and moral considerations had limited the validity of ma~laba as a principle of legol reasoning.

After an analysis of

such considerations, Shë!ibi proposed ma~laba as the most fundamental source of Islamic law. Shatibi was, however, reluctant to accept the logical conclusions of his argument and let his definition of ta'abbud be ambiguous.

The study suggests that this doctrine could have led lslamie legal philosophy to a positive outlook in separating legal obligation from theological and moral ones if the analysis were carried on further ta refine the ambiguities remaining in the doctrine.

ACKNOWLEDGEMENTS

1 would like, initially, to thank, in connection with this work, twoinstitutes. Firstly, the Institute of Islamic Reseorch, Islamabad, Pakistan, where 1 received my initial training in researeh on Islamie law, and whieh granted me six years leove to complete my studies in this field at MeGill University, Montreal. Secondly, the Institute of Islamie Studies, here, where 1 reeeived the academic training as weil as the financial aid which has enabled me to produce this work. 1 am indebted to the Institute and in particular to its director, Professor Charles

J. Adams, who, in many ways, made the pursuit of these studies as weil as the completion of this work possible.

During the initial stage of the formulation of the problem of the dissertation, on various occasions, 1 was in touch with Professors J. Schacht, H. Toledano, F. Rahman and J . Van Ess whose valuable comments and suggestions were very helpful in clarifying some of the issues under consideration.

At the Institute of

Islamic Studies, 1 have had the benefit of constant consultation and guidance from Professors H. Landolt, M. Mu~aqqiq, D. P. Little, N. Shehaby, N. Berkes and T. Izutsu whose comments gave me new insights into the problems of the dissertation.

The painstaking supervision, constructive criticism and constant en-

couragement of Professor Adams considerably facilitated the early completion of this work. 1 must also express my gratitude to Mr. Muzaffar (Ali and his staff at the Institute' s

v

Library, especially Miss Salwa Ferahian, who have procured ail the necessary material from the libraries of the Universities of New York, Princeton, Harvard, California, Ottawa, Colorado, Congress and elsewhere. 1 am particularly gratefui to the Yale University Library for providing me with a mÎcrofi lm of the man u-

01-

script of ~Rëzi' s AI-Mab~ül.

To many colleagues in the Institute whose comments and suggestions have helped me in many ways, 1 am truly grateful.

.

1 should like to mention particularly

.

'Azlm Nanji, Ella N. Hann, Linda S. Northrup and Murtadâ al-Naqib in this connection;

and also Gerhard Bowering, Manuel Ruiz and Rusen Sezer for helping

to translate sorne of the materials from German, Spanish, Italian and Turkish.

Finally, my thanks are also due to Mrs. Norma Babikian who undertook the tedious task of typing the first draft, and to Mrs. IvyWard for the final typing.

TABLE OF CONTENTS

Page

Acknowledgements

..........................................

iv

Transliteration Table

..........................................

vii

CHAPTER

THE PROS LEM ••••• ••••. ••••• ••••• ••••• ••••• ••• Recent studies on Shétibi -- -- on ma~laDa

1

Il

ISLAMIC LEGAL THEORY ÀND SOCIAL CHANGE -- The Concept of Law -- The Historical Nature of Islamic Law -- Islamic Law in Practice -- The Question of Method -- Key Terms -- The Framework of Discussion

43

III

SOCIAL CHANGES IN FOURTEENTH CENTURY GRANADA 1) Political Developments 2) Socio-religious Developments 3) Economic Developments 4) Legal Developments

81

IV

SHÂ Tisi: HIS LlFE AND WORKS ••••• ••••• ••••• ••••• Sour~es -- Shàtibi' s Life -- Disputations -- His Works

165

V

SOCIAL CHANGE AND LEGAL THEORY ••••• ••••• ••• Shëtib1' s Fatôwô: E{gesis -- Theological Matters -- Rituals and Worship -- Family -- Property -- Taxes -- Contracts -Procedure

209

THE CONCEPTaPF MA~~~A B..EFg~E SHÂIIB1d: •• .; • • • • • • _ Early Period --A Juwaynr -~ -Ba~rl -- Ghaza 1i -- Raz, ~ ;:fi --~Taw l QayyilT Ibn -ya Taymiy Ibn Ibn (Abd al-Salam --

246

SHATIBï' 5 DOCTRINE OF MAQASID AL-SHARicA ••••• •• 1) Ma~laba the First maq~id of sh~rica 2) An analysis of the terms dalfila and macna 3) An analysis of the term taklif: Legal Obligation and Physical capability of Mukallaf 4) An analysis of the term taCabbud: Distinction between legal and moral and religious obligation 5) Mukallaf' s maq~id in legal obligation: An analysis of the term niyya

280

VIII

CONTINUITY AND CHAN GE. • • • • • • • •• . • • • • • • • . • . • A discussion of Sharica -- (Ada -- ~ -- Ijtihod --

364

IX

Summary and Conclusion ••••• ••••• .•••• ••••• ••••• •

403

VI

VII

APPENDICES: BIBLIOGRAPHY

A. B.

A Summary-vi ew of the Contents of QI-Muwafaqëit ------ ------ ------ ------ ------ - al-ICti~m

419 429 431

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