Search Results

Restricted Access

Felicitas Opwis

Abstract

This essay analyzes Ibn Taymiyya's discussion of juristic preference (istihsān) as a valid method of law-finding. Ibn Taymiyya rejects the interpretation of leading Hanbalīs of juristic preference as contrary to analogy and explains it instead as specification of the ratio legis (takhsīs al-'illa). His changed understanding of juristic preference leads him to re-interpret several of Ibn Hanbal's rulings that are based on this legal principle. How Ibn Taymiyya does this is illustrated with Ibn Hanbal's ruling on usurpation of agricultural land. Ibn Taymiyya does not question the actual ruling but rather rejects the rationalization adduced for it by previous Hanbalīs, such as Abū Ya'lā and Ibn 'Aqīl. By attributing his own position to Ibn Hanbal, Ibn Taymiyya undermines the authority of earlier prominent Hanbalīs, increases the authority of the eponym of the school, and enhances his own position as the living heir of Ibn Hanbal.

Restricted Access

Felicitas Opwis

Abstract

This article investigates the concept of maslaha in contemporary Islamic legal theory. After presenting models of maslaha developed by al-Ghazālī, Fakhr al-Dīn al-Rāzī, al-Qarāfī, al-Tūfī, and al-Shātibī, I analyze writings on maslaha by leading jurists from the late 13th/19th century to the 1380s/1960s, namely al-Qāsimī, Rashīd Ridā, Mahmasānī, 'Allāl al-Fāsī, Khallāf, and al-Būtī. The findings show that the early reformers tended towards al-Tūfī's expansive understanding of the principle of maslaha in the law-finding process. Later jurisprudents, in contrast, either advocated a holistic approach similar to that of al-Shātibī or espoused a more restrictive use of maslaha like that of al-Ghazālī and al-Rāzī. The way in which jurists employ the principle of maslaha is not random but rather is influenced by education, personal position, and historical environment.

Restricted Access

Felicitas Opwis

Restricted Access

Felicitas Opwis

The purposes of the law (maqāṣid al-sharīʿa) were traditionally tied to the definition of maṣlaḥa expounded by al-Ghazālī and employed in legal analogy (qiyās) and precepts (qawāʿid). This article addresses recent developments in the interpretation of the maqāṣid al-sharīʿa in the works of legal scholars promoting alternative interpretations, such as Ibn ʿĀshūr, Yūsuf al-Qaraḍāwī, Aḥmad al-Khamlīshī, Yaḥyā Muḥammad, and Jamāl al-Dīn ʿAṭiyya. Several trends can be observed: rejecting the Ghazalian definition of essential necessities by enlarging their scope beyond five and including justice, freedom, and equality; refining the categories of the purposes and creating more nuanced hierarchies of maṣlaḥas; and expanding the application of the purposes of the law beyond the sphere of the law proper, thereby giving considerations of maṣlaḥa a proactive role in shaping society through public policies. It is suggested that new interpretations of the objectives of the sharīʿa also alter the traditional four sources of law theory (uṣūl al-fiqh).


Restricted Access

Maṣlaḥa and the Purpose of the Law

Islamic Discourse on Legal Change from the 4th/10th to 8th/14th Century

Series:

Felicitas Opwis

Focusing on writings of legal theory by leading jurisprudents from al-Jaṣṣāṣ (d. 370/980) to al-Shāṭibī (d. 790/1388), this study traces the Islamic discourse on legal change. It looks at the concept of maṣlaḥa (people’s well-being) as a method of extending and adapting God’s law, showing how it evolves from an obscure legal principle to being interpreted as the all-encompassing purpose of God’s law. Discussions on maṣlaḥa’s epistemology, its role in the law-finding process, the limits of human investigation into divinecommands, and the delineation of the sphere of religious law in Muslim society highlight the interplay between law, theology, logic, and politics that make maṣlaḥa a viable vehicle of legal change up to the present.
Restricted Access

Series:

Edited by Felicitas Opwis and David Reisman

Restricted Access

Series:

Edited by Felicitas Opwis and David Reisman

Restricted Access

Islamic Philosophy, Science, Culture, and Religion

Studies in Honor of Dimitri Gutas

Series:

Edited by Felicitas Opwis and David Reisman

Islamic intellectual thought is at the center of this collection of articles honoring Dimitri Gutas by friends, colleagues, and former students. The essays cover three main areas: the classical heritage and Islamic culture; classical Arabic science and philosophy; and Muslim traditional sciences. They show the interconnectedness between the Islamic intellectual tradition and its historical predecessors of Greek and Persian provenance, ranging from poetry to science and philosophy. Yet, at the same time, the authors demonstrate the independence of Muslim scholarship and the rich inner-Muslim debates that brought forth a flourishing scholastic culture in the sciences, philosophy, literature, and religious sciences. This collection also reflects the breadth of contemporary research on the intellectual traditions of Islamic civilization.

Contributors include: Amos Bertolacci, Kevin van Bladel, Gideon Bohak, Sonja Brentjes, Charles Burnett, Hans Daiber, Gerhard Endress, William Fortenbaugh, Beatrice Gruendler, Jules Janssens, David King, Yahya Michot, Suleiman Mourad, Racha Omari, Felicitas Opwis, David Reisman, Heinrich von Staden, Tony Street, Hidemi Takahashi, Alexander Treiger, and Robert Wisnovsky.