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LITERALISM, EMPIRICISM, AND INDUCTION: APPREHENDING AND CONCRETIZING ISLAMIC LAW’S

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Citation:
Sherman A. Jackson, Literalism, Empiricism, and
Induction: Apprehending and Concretizing Islamic Law’s
Maqasid Al-Shari’ah in the Modern World, 2006 Mich. St.
L. Rev. 1469 (2006)

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LITERALISM, EMPIRICISM, AND INDUCTION:
APPREHENDING AND CONCRETIZING ISLAMIC
LAW’S MA QASID AL-SHARI’AH IN THE MODERN
WORLD
Sherman A. Jackson*
2006 MICH. ST. L. REV. 1469
TABLE OF CONTENTS
INTRODUCTION …………………………………………………………………………….. 1469
I. LITERALISM, JURISTIC EMPIRICISM, AND JURISTIC INDUCTION ……… 1471
II. JURISTIC INDUCTION AND THE MAQ,4SIDAL-SHARi’AH …………………. 1476
III. PRESERVATION OF REASON (HIFZ AL- ‘AQL): ONE OF THE MAQ,4SID ALSHA
R ‘AH ……………………………………………………………………………….. 1478
IV. AL- ‘AQL: BEYOND FALSE UNIVERSALS ……………………………………… 1480
V. CONCRETIZING HIFZAL ‘AQL IN THE MODERN WORLD ………………… 1482
C ON CLU SION ……………………………………………………………………………….. 1486
INTRODUCTION
It was in the nineteenth century that the “scientific” study of Islam approached
maturity in the West. This was also the period during which the
hegemonic rise of the hard sciences and “higher criticism” in religious studies
opened a new chapter in the age-old conflict between “reason” and revelation.
Among the most important by-products of this development was the
rise of religious Fundamentalism, in which Christian-more specifically
Protestant-scholars and theologians moved to erect a dike of literalism
around the Bible to stave off doctrinal erosion and compromise.’ To their
* Professor of Arabic and Islamic Studies, Visiting Professor of Law, The University
of Michigan. Ph.D., University of Pennsylvania; M.A. University of Pennsylvania;
B.A., University of Pennsylvania.
1. The term “Fundamentalism” is taken from a twelve-volume series entitled, The
Fundamentals, published by a group of conservative Protestant scholars and theologians
between 1909 and 1919, financed by two brothers, Wyman and Milton Stewart, in response
to liberal re-interpretations of Christianity. There were five main fundamentals: (1) the inspiration
and infallibility of Christian Scripture; (2) the deity of Jesus (including his virgin
birth); (3) the substitutionary atonement of Jesus’ death; (4) the literal resurrection of Jesus;
and (5) the literal’second coming of Jesus. For a good introduction to fundamentalism, see
ED DOBSON ET AL., THE FUNDAMENTALIST PHENOMENON 48-49 (2d ed. 1986).
Michigan State Law Review
opponents, secular and Christian “progressives” alike,2 literalism came to
represent the antithesis of both modernity and reason. This attitude would
soon permeate the academy where it informed the study of religion in general
and Islam more particularly. As the Western academy settled into its
new “post-religious” identity, almost every criticism that could be directed
at religion in general was assumed afortiori to apply to Islam. Literalism,
in this context, as the Believer’s last-ditch effort to find refuge from the
deluge of modem secularism, came to be identified with any and every serious
commitment to Islam.
Literalism, certainly as institutionalized in Western Fundamentalism,
assumes that meaning is restricted to the strictly lexical sense of words and
that allegorical, figurative, or metaphorical interpretations are most often
attempts to escape or distort the true meaning of scripture. Similarly, the
idea that science, history, church authority, ijmd’ (Unanimous Consensus),
or social reality might suggest or compel non-literal renderings is regarded
with suspicion if not contempt. On this understanding, any move by modem
Muslims towards more felicitous interpretations of Islam is commonly
assumed to require a move away from literalism. Literalism, in other
words, is assumed to be the root-cause of Islam’s maladjustment to modernity.
It is in this context that the approach to scriptural interpretation that
proceeds from what classical jurists identified as the maqdsid al-shari’ah,
(broader aims and objectives of the law) has acquired almost panacean expectations
among modem Muslims. This is based on the belief that interpretations
that are violent, intolerant or misogynistic, or culturally, economically
or politically stultifying or ineffective are almost invariably
grounded in a literalism that cannot stand in the face of appeals to the
broader aims and objectives of the law. These expectations, however, are
routinely thwarted by two interrelated oversights. The first is the failure to
differentiate between literalism, on the one hand, and what I term “juristic
empiricism,” on the other. The second is the inability to move beyond the
pre-modem jurists’ abstractions of the maqdsid al-shari’ah to practical concretions
that are responsive to the realities of the modem world.
This Article attempts to undo this confusion between literalism and juristic
empiricism, allowing for the introduction of the notion of “juristic
2. A pristine example of this is reflected in the important and controversial sermon,
“Shall the Fundamentalists Win?” delivered in 1922 by the then most prominent leader of
emergent Christian liberalism, Harry Emerson Fosdick. See Harry Emerson Fosdick, “Shall
the Fundamentalists Win?”: Defending Liberal Protestantism in the 1920s,
http://historymatters.gmu.edu/d/5070 (last visited May 15, 2007).
3. Indeed, aspects of this bias were even retrojected back into medieval times,
where it informed our perception of the substance, value, and significance of the Traditionalist
movement. For more on this point, see SHERMAN JACKSON, ON THE FUTURE OF THEOLOGY
iN BLACKAMERICAN ISLAM (forthcoming).
1470 [Vol. 2006:1469
Literalism, Empiricism, and Induction
induction” as the theoretical basis of the maqdsid al-shari’ah. The Article
then moves to a more functionally pragmatic concretion of one of the
maqdsid, namely hifz al-‘aql (preservation of reason). This shall entail a
number of interrelated questions: What is the meaning of ‘aql and how expansive
or restrictive a construct is it? Is ‘aql a mere paper tiger, invoked
primarily to insulate existing doctrine, or is it a more generative principle
capable of moving the law beyond the status quo? Are received notions of
‘aql adequate? If not, what adjustments might render hifz al-‘aql a more
useful tool for interpreting Islamic law in the modem world?
I. LITERALISM, JURISTIC EMPIRICISM, AND JURISTIC INDUCTION
My use of the term “juristic empiricism” is derived from the epistemological
theory of empiricism, according to which only sense-observation
and experiment can decide our acceptance or rejection of a proposition. In
the same way that philosophical and scientific empiricists deny all knowledge
beyond the senses and restrict it to a posteriori observation, juristic
empiricists look askance at all a priori claims to knowledge of shari’ah that
go beyond and cannot be explicitly documented in the sources.
To be sure, there is a thin line between literalism and juristic empiricism,
inasmuch as both seek to promote the primacy of texts and to banish
extra-textual biases, hunches, speculation, and presupposition. Literalism,
however, can also be placed in the service of another approach to legal interpretation,
namely “juristic induction.” Here the aggregate of a number of
texts, literally interpreted, point to a meaning that transcends each text individually
but implicitly inheres in the group, the whole equaling more than
the sum of its parts. Literalism and juristic empiricism meet in their common
tendency to uphold the self-sufficiency and finality of individual texts.
With juristic induction, however, literalism actually generates meaning beyond
the individual texts. These different applications of literalism may be
likened to the difference between direct and alternating electrical currents.
While both constitute electric power, where electrons flow from negative to
positive, alternating current has characteristics (for example, distance and
ease in adjusting voltage) that make it more advantageous for many more
commercial and domestic applications.
To demonstrate the difference between these two applications of literalism,
take a series of commands, for example, to open the window, fetch a
fan, turn off the lights, and pour a glass of water. One can separate these
commands, interpret them literally, and stop at that. Or one can combine
them and interpret them literally, in which case they might generate a cumulative
meaning to the effect that, “It’s hot!” On this understanding, it would
be proper to do anything that could effectively counter the heat (for example,
buy an air-conditioner) and to do nothing that might increase the heat
(for example, turn on the oven). In neither case, however, does the status of
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Michigan State Law Review
these ancillary actions depend on any explicit command or prohibition. Nor
does it depend on any figurative interpretation of any of the commands
themselves. Rather, the propriety and impropriety of these ancillary actions
reclines upon a literal interpretation of the original commands in the aggregate.
It, in other words, the illocutionary force that is produced by aggregation,
not the semantic possibilities opened up by figurative interpretation,
that allows (or perhaps even compels) us to go beyond these commands.
The point here is that literalism is not the antithesis of juristic induction,
even if the latter is capable of producing results that transcend the former.
Juristic induction, however, is the antithesis of juristic empiricism.
For, according to the latter, everything one did to counter or increase the
heat in the above example would require an explicit text that commanded or
prohibited these actions, respectively.
These two interpretive modalities, juristic empiricism and juristic induction,
along with their respective relationships to literalism, reflect a major
fissure in the Islamic legal tradition that has persisted from its early centuries.
It reached crisis proportions in the time of al-Shafi’i (d. 204/819-
20), one of the eponyms of the four Sunni schools of law, who wrote the
first known work on legal theory, al-Risdlah (The Epistle) in large part as a
direct response to this fissure. Contrary to the traditional view, however,
still maintained in some circles,4 classical legal theory (usfil al-fiqh) was not
a mere extension of al-Shdfi’is thesis. In fact, it was a reaction against al-
Shdfi’i’s rather crass nativism.’ Closely examined, al-Shdfi’i’s writings
reveal a deep concern over the presence of what he deemed to be “interpretive
viruses,” which he feared were going undetected because they were
sublated into the realm of “plain speech” by peoples whose language was
now that of the Arabians but whose interpretive presuppositions were emphatically
not.6 In al-ShAfi’i’s view, many of those who now swelled the
ranks of the Muslims-Arabicized non-Arabs-could be justifiably told
what the philologist and narrator of one of the seven readings (qird’ah) of
the Qur’dn, ‘Amr b. al-‘Ala’ (d. 154/770), told the proto-Mu’tazilite, ‘Amr
b. ‘Ubayd (d. 144/761): “You are a non-Arab (a jami), not in your language
but in your understanding …. .” Given his recognition of the role of interpretive
presuppositions in legal interpretation, al-Shafi’i understood that the
4. Notable exceptions include Sherman A. Jackson, Fiction and Formalism: Towards
a Functional Analysis of Usfil al-Fiqh, in STUDIES IN ISLAMIC LEGAL THEORY 177,
186-92 (Bernard Weiss ed., 2002) and Wael B. Hallaq, Was al-Shdfi’i the Master Architect
of Islamic Jurisprudence?, 25 INT’L J. MIDDLE E. STUD. 587 (1993).
5. For more on this point, see Jackson, Fiction and Formalism, supra note 4, at
186-92.
6. See, e.g., 2 AL-UMM passim, 4 AL-UMM 134, 141 (Cairo: al-Ddr al-Misriyah li
al-Ta’lif wa al-Tarjamah, N.d.).
7. See AHMAD B. YAHYA B. AL-MURTADA, TABAQkT AL-MU’TAZILAH (DIE KLASSEN
DER MU’TAZILITEN) 83 (S.D iwald-Wilzer ed., 1961) (translated by author).
1472 [Vol. 2006:1469
Literalism, Empiricism, and Induction
meaning of a statement, for example, “The thief, male and female, cut off
their hands,” was as contingent upon prior notions about the “character” of
God as it was upon the words themselves. In this light, he wanted to ensure
that the primordial presuppositions of the Arabs, or more properly the Arabians,
continued to reign supreme. Otherwise, a command to amputate the
hands of thieves might be interpreted away by those whose inherited notions
of God preempted the possibility that He might actually sanction literal amputation.
The reaction to al-Shdfi’i, however, was ultimately to reject his thesis
in favor of an interpretive theory that was grounded in linguistic formalism,
according to which meaning was restricted, mutatis mutandis, to the observable
features of language (morphology, syntax, grammar). This was the
beginning of what Prof. Bernard Weiss referred to as “exotericism” in Islamic
law, according to which all biases, hunches, and presuppositions were
to be extracted from the realm of subjective consciousness, packaged in the
guise of objective language, and presented as the plain dictates of revelatory
speech.8 The implication here was that all presuppositions-Arabian and
non-Arabian alike-were equally suspect and equally threatening to the
integrity of scripture.9 As such, legal arguments were to be judged solely on
the basis of their linguistic fidelity to sources and heuristic methods located
in the public domain, where they could be assumed to be equidistant from
and equally accessible to everyone. This trend, which came to dominate
usfil al-fiqh, had the ultimate (and in my view plainly intended) effect of
leveling the playing field between those who began versus those who ended
their genealogy as Arabs.
In this context, the main thrust of classical usfd al-fiqh came to constitute
a consciously-maintained form of the above-cited juristic empiricism.
Indeed, Islam developed not simply into a nomocratic civilization, but into
what might be termed, to borrow W.W. Bartley’s nomenclature, a “justificationist”
one.0 In this culture, all assertions of legal doctrine, legal rights,
and legal obligations had to be justified or authenticated on the basis of objective
legal proofs.
8. Bernard Weiss, Exotericism and Objectivity in Islamic Jurisprudence, in
ISLAMIC LAW AND JURISPRUDENCE 53-71 (Nicholas Heer ed., 1990).
9. One wonders, in this regard, if the palpably less-developed state of such sciences
as Asbdb al-Nuzfil (Occasions of Revelation) or even Sirah (Prophetic Biography) may also
be a reflection of the attempt to downplay everything that would result in a possible interpretive
advantage for those who hailed from Arabia. Even if no authentic body of material
existed on, for example the Occasions of Revelation, if the science itself had been as valued
as much as, for example hadith, certainly there would have been a more cogent attempt to
invent material, just as is claimed to have occurred with hadith.
10. See WILLIAM WARREN BARTLEY III, THE RETREAT TO COMMITMENT 73, 88, 91-
92, 97, 98, 102 (2d ed. 1984).
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Yet, Islam’s subscription to juristic empiricism has been routinely
mistaken (both in Western scholarship and under its hegemonic influence
by Muslims of various stripes) for a commitment to literalism. Nowhere,
perhaps, is this more clearly manifested than in the ubiquitous tendency to
identify the movement known as Zdhirism as an expression of “Literalism.””
Carefully examined, Zdhirism reveals itself to have been neither an
aberration nor unduly committed to literalism. It was merely a more entrenched
(and perhaps consistent) commitment to the already established
and increasingly hegemonic principle of juristic empiricism. The Zdhirites,
as is well known, went furthest in rejecting a priori presumptions in legal
reasoning, including those underlying the method known as qiyds (analogy)!
2 They were equally diligent in rejecting all mediating factors that
were external to scripture, such as the Unanimous Consensus of the jurists
(though not that handed down from the Prophet himself, which they clearly
saw as a constituent of scripture, part of the Prophetic Sunnah) or the opinions
of individual Companions. 3 Meanwhile, the only complete work on
Zihirite legal theory that has come down to us, al-Ihkdm fi Usil al-Ahkdm
of the Spaniard Ibn Hazm (d. 456/1064), clearly establishes that Zdhirism
was ultimately no more literalistic than any other legal school.14
If they say, ‘How do we know what diverts a statement from its apparent meaning?’
It is said to them, and by God the Exalted is success, ‘We know this by information
we gain from the apparent meaning of another text, or by an absolutely
certain Unanimous Consensus handed down on the authority of the Prophet, God’s
blessings and salutations be upon him …. 15
In the same work, Ibn Hazm expands this when dealing specifically
with the topic of literal verses’ metaphorical meaning (haqiqah wa majdz).
Here he denounces those who deny the use of metaphorical language in the
Qur’in and insists that:
Whenever we have certainty, based on a univocal text (nass), a Unanimous
Consensus (ijmd) or natural reason (tabi’ah), that a word has been diverted
11. See, e.g., N.J. COULSON, A HISTORY OF ISLAMIC LAW 71 (1964); N. Calder, Law,
in 2 THE OXFORD ENCYCLOPEDIA OF THE MODERN ISLAMIC WORLD 450 (John L. Esposito ed.,
1995); KHALED ABOU EL FADL, SPEAKING IN GOD’S NAME: ISLAMIC LAW, AUTHORITY AND
WOMEN 309 (2001); WAEL B. HALLAQ, A HISTORY OF ISLAMIC LEGAL THEORIES 207 (1999).
12. See, e.g., IBN HAZM, 8 AL-IHKAM Fi UsOL AL-AHKAM 2-123 (A.M. Shikir ed.,
Dfir al-Affiq al-Jadidah, 1403/1983) [hereinafter AL-IHKAM F USUL AL-AHKAM].
13. See, e.g., 2 AL-IHKAM Ff USOL AL-AHKAM, supra note 12, at 12-21.
14. Devin Stewart has extracted parts of a Zdhirite work by the son of the founder of
ZAhirism from the writings of the Isma’il jurist, al-Qadi Nu’mdn (d. 363/974). However,
these parts do not appear to include treatment of such topics as literal versus figurative meaning.
See Devin Stewart, Muhammad b. Df’id al-Zahiri’s Manual of Jurisprudence: Al-
Wusal ild Ma’rifat al-Usid, in STUDIES N ISLAMIC LEGAL THEORY 99-158 (B. Weiss ed.,
2002).
15. 3 AL-IHKAM F1 US.rL AL-AHKAM, supra note 12, at 41 (translated by author).
1474 [Vol. 2006:1469
Literalism, Empiricism, and Induction
from the meaning it was coined to have in the language to another meaning, we
must interpret it thus (wajaba al-wuqff ‘indah).’6
This is quite standard among the schools of law. All begin with a prima
facie deference to literal meaning, only agreeing to set it aside on the basis
of other textual or non-textual justifications. In this regard, Zahirism was
right in step with the mainstream. Where Zdhirism departed from the mainstream
was in its rejection of analogy and Unanimous Consensus. But this
was related not to literalism but to its more emphatic and uncompromising
commitment to juristic empiricism. In other words, the whole point of rejecting
these synthetic accoutrements was to promote and preserve the primacy
of scripture by insulating it from any and all potential competitors,
explicit or implied, subversive or well-meaning.’ 7
Meanwhile, mainstream, classical legal theory’s acceptance of qiyds
and ijmd’ was essentially an attempt in the same direction. This was aimed
at curbing the speculative, a priori forays of the jurists, binding them to
deductions from scripture. In other words, even the reaction to Zdhirism
reflected a shared, prima facie commitment to the principle that knowledge
of the law was (ideally) limited to the locutionary dictates of texts and could
go little beyond this.’8
All this leads to a conclusion of far-reaching implications for modem
Muslim legal discourse: contrary to popular belief, Islamic law neither produced
nor recognized a literalist canon of the Western Fundamentalist
genre. Muslim jurists only produced an empiricist canon. The confusion,
however, between these two modalities is a major impediment to the production
and acceptance of modem interpretations that purportedly recline
upon the maqdsid al-shari’ah. This is because literalism is essentially a
false problem in whose resolution the real challenge, juristic empiricism,
remains in full effect. On this oversight, interpretations that transcend literalism
via reliance upon the maqdsid al-shari’ah leave in place the require-
16. Id. at 28. For example, he notes that the verse, The Holy Qur’an, Sura al-Isra
17:24, “wa’ khfad lahumd jandh al-dhulli min al-rahmah,” can only be taken to mean that
we must incline in humble mercy to our parents, not that humility literally has a wing. See 3
AL-IHKAM F USOL AL-AHKAM, supra note 12, at 29.
17. As far back as 1883, even without the benefit of Ibn Hazm’s al-Ihkdm, the celebrated
Hungarian Islamicist Ignaz Goldziher was able to discern that Zdhirism was not at all
about literalism but constituted an attempt to combat ra’y, that is, “what the individual insight
of a legist or judge, in real or apparent dependance [sic] on those indisputable sources,
recognizes as truth emanating from their spirit.” See DR. IGNAZ GOLDZIHER, THE ZAHIRS:
THEIR DOCTRINE AND THEIR HISToRY 3 (Wolfgang Behn trans., 1971).
18. This is not to deny that such interpretive instruments as dalil al-khitdb (disjunctive
inference), fahwd al-khitdb (a fortiori inference), and even al-‘dmm yurddu bihi alkhusfis
(general expressions used for restricted referents) invest in the illocutionary force of
words. But these are quite limited by the range of what the conventional use of Arabic language
allows, as a means of controlling how much can be invested in a purely figurative
interpretation.
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ment of justification by reference to specific, individual texts. Thus, to return
to the hypothetical example, any claim about the propriety of purchasing
an air-conditioner or the impropriety of turning on an oven would be
met with the unfulfillable demand to produce explicit (individual) texts to
substantiate these claims.
II. JURISTIC INDUCTION AND THE MAQSID AL-SHAR’AH
Historically, juristic empiricism has dominated and marginalized all
other approaches to law. From surprisingly early on, however, there was a
growing recognition of some of its drawbacks and limitations. Early Hanafi
attempts to vindicate istihsdn (equity) are a clear manifestation of this; 9 so
are the efforts of such later Hanbalis as Ibn Taymiyah (d. 728/1328) and Ibn
Qayyim al-Jawziyah (d. 751/1350), as reflected, for example, in their gallantly
anti-empiricist work, al-Turuq al-Hukmiyah fi al-Siydsah al-
Shar’iyah;2° so are the ubiquitous Mdliki and other (for example, Najm al-
Din al-Tfifi (d. 716/1316)) attempts to vindicate the principle of maslahah
(public utility).2’ Even Shdfi’i’s, for example, al-Ghazali, would devote
words to the anti-positivist, extra-empirical instrument of maslahah, and
later Shafi’is would go so far as to engage in outright induction. Al-‘Izz b.
‘Abd al-Saldm (d. 660/1261), for example, explicitly proclaims such acts as
cursing the Prophet or smearing feces on the Ka’ba to be “the greatest of
major sins, even though the religious law [read individual texts] does not
explicitly identify any of this as a major sin.12
Still, where such efforts were not marginal, they remained invariably
apologetic. It was against this backdrop that the now much celebrated
Ibrahim b. Mfisd al-Shdtibi (d. 790/1388) would launch his campaign to
vindicate and gain more formal recognition for an alternative, or perhaps
more properly, supplemental, means of apprehending the law. Al-Shatibi’s
“juristic induction,” literally istiqrd’, as he called it, sought to break the near
monopoly of the reigning juristic empiricism and go beyond its uncompromising
deductive syllogism, which read something like the following: All
19. However, as M.H. Kamali observed, none of these attempts are convincing, for
clearly istihsdn is not a form of analogy but a reaction to it. Juristic empiricism could only
accommodate methods that were sufficiently bound to the a posteriori dictates of scripture
and thus sought, through a tortuous logic to cast istihsdn as such a move. See MOHAMMAD
HASHIM KAMALI, PRINCIPLES OF ISLAMIC JURISPRUDENCE 344 (3d ed. 2003).
20. (Cairo: al-Mu’assasah al-Arabiyah li al-Tibd’ah wa al-Nashr, 1381/1961).
21. RISALAH Fi RI’AYAT AL-MASLAHAH (Cairo: Dar al-Misriyah al-Lubnniyah,
1413/1993).
22. 1 QAWk’ID AL-AKAM F MASALIH AL-ANAM 23 (T.A. Sa’d ed., Dar al-Jil,
1400/1980).
23. This is confirmed by the modem jurist Ibn ‘Ashfir. See IBN ‘,sSH&R, 2 MAQASID
AL-SHARi’AH AL-ISLAMiYAHV 119 (M. T. al-Misawi ed., Amman: Dar al-Nafa’is, 1420/1999).
1476 [Vol. 2006:1469
Literalism, Empiricism, and Induction
X’s (and only X’s) are binding; Y is an X; Y (and only what can be validly
considered Y) is therefore binding (where X represents Qur’dn and Sunna
and Y represents individual texts of these). For al-Shdtibi, a text’s weight
was to be based neither on its substance nor its authenticity alone but on its
relationship to a universe of meanings and values that were inductively extrapolated
from an aggregate of texts. On this understanding, legal matters
were to be resolved by reference to inductively-established values and principles,
even in the absence of explicit texts.24
We should note, however, that it was not al-Shdtibi’s aim to execute
an act of “epistemicide,” whereby juristic empiricism would be denied all
validity. On the contrary, he readily recognized that juristic empiricism was
integral to the very process of juristic induction itself, for it was through a
straightforward reading of an undetermined quantity of actual texts that the
broader aims and objectives of shariah were to be inductively established.”
In other words, al-Shdtibi’s primary commitment remained to a text-driven,
as opposed to a purely speculative, approach. His aim was simply to vindicate
juristic induction or istiqrd’ as a valid legal epistemology, such that
juristic empiricism, as a particular way of reading texts, would not be the
only basis for arriving at or judging legal conclusions.
Through this process of juristic induction or istiqr’, pre-modern jurists
(al-ShAtibi being simply among the most emphatic) extracted and vindicated
the so-called maqdsid al-shariah. Al-Ghazdli, for example, makes
a point of clarifying that the maqdsid are known “not on the basis of any
single proof-text (dalil) nor on the basis of any specific principle but on the
cumulative strength of proofs too many to enumerate. 26 In a similar vein,
al-Shatibi declares that
The entire Community agrees, nay all religious communities agree, that the religious
law was instituted for the protection of the five absolute necessities: religion,
life, progeny, property and reason.
This Community (i.e., the Muslim Community) has unassailable (darfrt) knowledge
of this. But this has not been established on the basis of any specific prooftext
nor confirmed by any specific principle that we could isolate and invoke.
Rather, its appropriateness to the religious law is simply known on the basis of an
aggregate of proofs too numerous to count.27
24. IBRAHIM IBN MusA SHATIBI ET AL., 1 AL-MUWFAQAT FI USUL AL-AHKAM 36-40
(1388) [hereinafter AL-MUW.FAQT].
25. This is almost certainly the point behind al-Shfitibi’s banning anyone who had
not mastered traditionalfiqh and legal theory from reading his work. See 1 AL-MUWAFAQAT,
supra note 24, at 87.
26. AL-GHAZALi ET AL., 1 AL-MUSTASFA MIN ‘ILM AL-USUL 295, 311, 313, passim
(Bfilaq: Amiriyah Press, 1322/1904). Indeed, al-Ghazdli’s whole point in this section is to
vindicate inductive reasoning from the grip of judgments and criteria of validation that are
grounded in juristic empiricism.
27. 1 AL-MUWAFAQAT, supra note 24, at 38.
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III. PRESERVATION OF REASON (HIFzAL- ‘AQL): ONE OF THE MAQiSIDALSHAPJ’AH
On the above approach, typical vindications of the preservation of reason
(hifz al- ‘aql) as one of the maqdsid point to the depth and breadth of
scriptural prohibitions on consuming intoxicants. Al-Qarffi (d. 684/1285),
for example, derives the value of hifz al- ‘aql from the fact that, “God The
Exalted has never (in any dispensation) sanctioned … the abuse of one’s
faculties by allowing drunkeness.”28 In a typical display of circumspection,
he adds that even religious communities that allow the consumption of alcohol,
do not countenance inebriation.29 Meanwhile, the famed Fakhr al-
Din al-Rdzi insists “reason .. .is protected via the prohibition of intoxicants,
and God The Exalted has alluded to this via such statements as, ‘Satan
simply desires to sow dissention and hatred among you through intoxicants
… “’30 Earlier, al-Ghazdli had neatly summed up the matter by suggesting
that, “the imposition of prescribed punishments upon those who
consume intoxicants is a means of protecting the faculty of reason, upon
which all legal responsibility (taklit) hinges.”‘”
Directly or indirectly, all of these writers implicate induction in the
process of establishing hifz al- ‘aql as a maqsad. When we turn, however, to
the actual application of this principle, we are confronted with a strange and
debilitating paradox. Hifz al-‘aql is supposed to be a maqsad, a “broader
interest” inductively extracted from the aggregate of prohibitions on consuming
intoxicants. This mode of extrapolation presumably takes hifz al-
‘aql beyond the more conservatively-deduced ‘illah (ration essendi) or hikmah
(underlying rationale) involved in the process of analogy (qiyds).32
Indeed, the whole point of inductively validating hifz al- ‘aql would seem to
be to authenticate conclusions that could not be supported on the basis of
qiyds. Yet, for all the hopes and expectations modem Muslims place in the
maqdsid, this is precisely what we tend not to find in the actual application
of the principle, hifz al- ‘aql.
In what is perhaps the most widely cited (if not most authoritative)
work on the subject by a modem jurist, Maqdsid al-Shari’ah al-Isldmiyah
(The Broader Aims and Objectives of Islamic Law), the late Muhammad al-
28. AHMAD IBN IDRIS QARAFI ET AL., SHARH TANQIH AL-FUSUL FI IKHTISAR ALMAHSUL
FI AL-USUL 392 (1306).
29. Id.
30. SHIHkB AL-DIN AL-QARAFi, 4 NAFk’IS AL-USOL Fi SHARH AL-MAHSUL 166 (M. A.
‘Atfi ed., Beirut: Dfir al-Kutub al-‘Ilmiyah, 1421/2000).
31. 1 AL-MUSTASFA, supra note 26, at 287.
32. The ‘illah of the prohibition on consuming intoxicants would be that the latter
intoxicate. The hikmah would speak to the underlying wisdom behind this, that is, why
intoxication itself is bad.
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Literalism, Empiricism, and Induction
Tahir Ibn ‘Ashr (d. 1393/1973), spelled out the practical implications of
hifz al- ‘aql as a maqsad in the following terms:
The meaning of preservation of reason (hifz al-‘aqi) is to prevent damage from befalling
the minds of people. For damage befalling the minds of people leads to
great corruption, in the form of their losing control over their actions. Damage befalling
the minds of individuals leads to micro-cosmic corruption, while damage
befalling the minds of groups and nations is greater still. Thus it is as necessary to
prevent individuals from becoming intoxicated as it is necessary to prevent intoxication
from spreading among nations. Likewise, it is necessary to prevent the
spread of such corrupting agents as hashish, opium, morphine, cocaine, heroin and
similar substances whose use has become wide-spread in the 20 th century.33
It is difficult to discern, the point of this exercise, for none of these
prohibitions require anything approaching the kind of juristic induction that
Ibn ‘Ashfir (like al-Shdtibi and others before him) claimed to be the very
basis of the maqdsid. Indeed, if this is the sole or universally-recognized
application of hifz al- ‘aql, it is unclear that juristic induction offers any real
advantage over mainstream (to be distinguished from Zdhirite) juristic empiricism.
We should note, however, in fairness to Ibn ‘Ashr that this particular
application is not exclusive to him. On the contrary, it represents the only
application of hifz al-‘aql that I have ever encountered-wa ‘adam al-‘ilm
laysa ‘ilman bi al-‘adam. Among its most obvious redeeming features is
perhaps its universality (which Ibn ‘Ashr and others cite as one of the criteria
for a valid juristic induction).34 In other words, what sustains this application
is the fact that it-and perhaps only it-is recognized as the application
that is relevant and suitable to all peoples in all times and all places.
As such, it satisfies, in its own way, the surreptitious yet enduring criterion
of objectivity (read juristic empiricism) that extends, as we have seen, all
the way back to the reaction to Imam al-Shdfi’i.
At any rate, what we end up with is a universal, a “kulliyah,” “hif al-
‘aql,” which, if applied as such across time and space, turns out to be substantively
and practically empty. This very idea and value of universality is
intimately indebted, however, to juristic empiricism. Its function is to negate
the impact of time, space, and perspective-the implication being that
in the absence of these, our conclusions can be solely and justifiably attributed
to texts. However, what we gain in the way of theoretical neatness and
empirical justification, we lose in the way of concrete, practical utility.
Moreover, the entire arch of meaning generated by our inductive reading of
the sources is sacrificed to an undetected addiction to juristic empiricism.
This problem of universalism (keeping in mind its indebtedness to juristic
empiricism) is far more pervasive and problematic than may initially
33. MAQAsiD, 221.
34. See, e.g., IBN ‘,SHGR, 2 MAQ,&SID 184.
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Michigan State Law Review
meet the eye. Typically, rather than negate perspective, claims to universalism
tend only to disguise it. Elsewhere, I have referred to this conflation as
the problem of the false universal, according to which only those who share
one’s specific concretions of “justice,” “reason,” “beauty,” etc., are justified
in laying any claims to these.35 The false universal conceals itself in the
habit of speaking as if the shape that one’s values assume in concrete social,
political, or interpersonal contexts is not grounded in cultural, historical, or
even ideological perspectives but is reflective of a natural order that is obvious
to all, save the stupid, the primitive, or morally depraved.
Several modem critiques, from Afrocentrism to Feminism to postmodernism,
have succeeded in exposing the false universalism in the hegemonic
claims of the modem West.” Less apparent is how Muslim articulations
of such constructs as maqdsid al-shari’ah are also prone to this tendency.
This is precisely what is reflected, however, in the tendency toward
a uniform application of hifz al- ‘aql, despite the racial, ethnic, cultural, and
historical differences separating modem Muslims from one another and
their past. Such unanimity reflects a belief in the irrelevance of history or
perspective and suggests the propriety of subsuming the massive diversity
of the modem Muslim community under a single application of the principle,
“preservation of reason.”
As an alternative, I propose a position already marked out by the Hanbalite
jurist, Ibn Taymiyah, according to whom abstract universals, qua universals,
exist only in the mind and that the only meaningful manifestation or
application of a concept, value, or principle is in the concrete.37 On this
understanding, taking Ibn ‘Ashfr’s “preventing damage from befalling the
mind”38 as our abstract universal whose status and validity is grounded in
induction (which means that its purpose must reach beyond the prohibitions
and exhortations of specific texts), this principle’s actual concrete application
must assume different modalities, qualities, and characteristics for different
times, places, and peoples.
IV. AL- ‘AQL: BEYOND FALSE UNIVERSALS
Part of the difficulty in settling on a functionally meaningful application
of hifz al-‘aql is connected to traditional definitions of ‘aql itself.
Typically, ‘aql is equated with the faculty for a priori conceptualization and
35. See, e.g., Sherman Jackson, Islam(s) East and West: Pluralism Between No-
Frills and Designer Fundamentalism, in SEPTEMBER 11 IN HISTORY: A WATERSHED
MOMENT? 113 (Mary L. Dudziak ed., 2003).
36. See, e.g., MOLEFI KETE ASANTE, AFROCENTRICITY (1988); LINDA ALCOFF &
ELIZABETH POTrER, FEMINIST EPISTEMOLOGIES (1993).
37. On this point, see WAEL B. HALLAQ, IBN TAYM1YYA AGAINST THE GREEK LOGICIANS
xxii-xxiii (1993).
38. IBN ‘AkSHfR, 2 MAQSID 184.
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