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SHARĪʿA AS STATE LAW: AN ANALYSIS OF ʿALLĀL AL-FĀSĪ’S CONCEPT OF THE OBJECTIVES OF ISLAMIC LAW

Published online by Cambridge University Press:  28 December 2020

Mustapha Tajdin*
Affiliation:
Assistant Professor, Khalifa University of Science and Technology

Abstract

This article presents and evaluates the legal thought of Muhammad ʿAllāl al-Fāsī (1910–1974) with a focus on his discourse on the objectives of Sharīʿa and the motives behind his reformulation of these objectives within the broader context of his political agenda. Al-Fāsī's concerns were not purely academic. As a political leader who struggled for the independence of his country and as a decision maker within the newly established Moroccan state, his theorization of Islamic law departed from traditional and modern efforts to negotiate the supposed status of Sharīʿa within the institutional structures of postcolonial Muslim states. The questions engaged in this article are to what extent did al-Fāsī's contribution to Maqāṣid go beyond its classical reformulations as represented by the Andalusian Māliki jurist Ibrāhīm Ibn Mūsā Abū Isḥāq al-Shāṭibī (d. AH 790/1388 CE) in his seminal work, Al-Muwāfaqāt fī Uṣūl al-Sharīʿa, and whether al-Fāsī's work represents a turn in the field of Maqāṣid when compared with that of other modern Muslim jurists, among them Muhammad al-Ṭāhir Ibn ʿĀshūr (1886–1970). This article focuses on al-Fāsī's book on Maqāṣid al-Sharīʿa, Maqāṣid al-Sharīʿa al-Islāmiyya wa Makārimuhā, and its contribution to the ongoing efforts to accommodate Islamic law within the corpus of modern secular laws.

Type
Research Article
Copyright
Copyright © The Author(s), 2020. Published by Cambridge University Press on behalf of the Center for the Study of Law and Religion at Emory University.

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References

1 For an extensive understanding of al-Tirmithī's efforts, see al-Raysuni, Ahmed, Imām al-Shāṭibī's Theory of the Higher Objectives and Intents of Islamic Law, trans. Roberts, Nancy. (London: International Institute of Islamic Thought, 2005), 5CrossRefGoogle Scholar.

2 See Shams al-Dīn Muḥammad ibn Aḥmad al-Dhahabī, Siyar Aʿlām al-Nubalāʾ [The lives of noble figures], ed. Hassan ʿAbd al-Mannān (Lebanon: Bayt al-Afkār al-Dawliyya, 2004), 3568–69. The book Ithbāt alʿIlal forms one of the bases for his persecution and exile. See al-Ḥakīm al-Tirmithī, Ithbāt alʿIlal [The confirmation of the bases and reasons of Islamic law], ed. Khālid Zahrī (Casablanca: Maṭbaʿat al-Najāḥ al-Jadīda, 1998). However, Ithbāt alʿIlal contains only orthodox views on the secret wisdom of some rituals, like prayers, fasting, and pilgrimage, and some financial transactions, like usury and land tax. Sufi traditionist and hagiographer Abū ʿAbd al-Raḥmān al-Sulamī (d. AH 412/1021 CE) says that the authorities forced al-Tirmithī to leave his hometown of Tirmidh (Termez) on charges of heresy because of his two books, Khatm al-Wilāya [The seal of sainthood] and ʿIlal al-Sharīʿa [The confirmation of the bases and reasons of Islamic law], although the latter contains no heretical views. See al-Dhahabī, Siyar, 3569. I think that Khatm al-Wilāya must have been the reason of his persecution, for some claimed that he preferred therein the state of Wilāya (sainthood) over the state of Nubuwwa (prophethood).

3 Abū al-Maʿālī al-Juwaynī, Al-Burhān fī Uṣūl al-Fiqh [The proof in the principles of Islamic law], ed. ʿAbd al-ʿAẓīm al-Dīb, 2nd ed. (Cairo: Dār al-Anṣār, 1979).

4 Al-Ghazālī, Abū Ḥāmid, Al-Mustaṣfā min ʿIlm al-Uṣūl [Choice essentials of the methods of jurisprudence], ed. al-Ashqar, Muhammad Sulaymān, 2 vols. (Beirut: Muʾssasat al-Risāla, 1997), 1:417Google Scholar.

5 For more information on al-Shāṭibī's legal theory and methodology, see al-Raysuni, Imām al-Shāṭibī's Theory of the Higher Objectives and Intents of Islamic Law; Muhammad Khalid Masud, “Shatibi's Philosophy of Islamic Law” (PhD diss., McGill University, 1973). On his hermeneutical method, see El-Mesawi, Mohamed El-Tahir, “From al-Shāṭibī's Legal Hermeneutics to Thematic Exegesis of the Qurʾān,” Intellectual Discourse 20, no. 2 (2012) 189214Google Scholar; Hallaq, Wael B., “The Primacy of the Qurʾān in Shāṭibī's Legal Theory,” in Islamic Studies Presented to Charles J. Adams, ed. Hallaq, Wael B. and Little, D. P. (Leiden: Brill, 1991), 6990Google Scholar.

6 In the introduction to his edition of al-Muwāfaqāt, Drāz explains how ʿAbduh's repeated mention of al-Shāṭibī prompted him to edit the book. Ibrāhīm Ibn Mūsā Abū Isḥāq al-Shāṭibī, Al-Muwāfaqāt fī Uṣūl al-Sharīʿa [The reconciliation of the fundamentals of Islamic law], ed. ʿAbdullah Drāz, (Beirut: Dār al-Kutub al-ʿIlmiyya, 2004), 10.

7 Muhammad al-Ṭāhir Ibn ʿĀshūr, Maqāṣid al-Sharīʿa al-Islāmiyya [The objectives of Islamic law], ed. Mohamed el-Ṭahir el-Mesawi, 2nd ed. (Amman: Dār al-Nafāʾis, 2001); Muhammad ʿAllāl al-Fāsī, Maqāṣid al-Sharīʿa al-Islāmiyya wa Makārimuhā [The objectives and noble qualities of the Sharīʿa], ed. Ismāʿīl al-Ḥasanī. 2nd ed. (Cairo: Dār al-Salām, 2013).

8 Al-Shāṭibī, Al-Muwāfaqāt fī Uṣūl al-Sharīʿa, 16. A partial translation of Al-Muwāfaqāt is available in English: Ibrāhīm Ibn Mūsā Abū Isḥāq al-Shāṭibī, The Reconciliation of the Fundamentals of Islamic Law, trans. Imran Nyazee, 2 vols. (Reading: Garnet, 2012, 2015).

9 Muhammad al-Ṭāhir Ibn ʿĀshūr, Treatise on Maqāṣid al-Sharīʿa, trans. Mohamed el-Tahir el-Mesawi (London: International Institute of Islamic Thought, 2006), xvi.

10 The scarcity of literature about al-Fāsī's legal thought is acknowledged by many Western writers. See Sara Mogilski, “French Influence on a 20th Century ʿĀlim: ʿAllāl al-Fāsī and His Ideas toward Legal Reform in Morocco” (Master's thesis, McGill University, 2006), 1; Ian Shaw, “The Influence of Islam on the Political, Economic, and Social Thought of ʿAllāl al-Fāsī,” (Master's thesis, McGill University, 1984), 1, 7. Shaw notes that Western historians were attracted more to al-Fāsis's political activities than to his ideology and ascribes this imbalance in scholarship to the fact that al-Fāsī wrote in Arabic. Mogilski adds a more reasonable justification to the effect that al-Fāsī's political contribution is much clearer than his ideological contribution (Mogilski, 1n2). Shaw provides a list of works on al-Fāsī in foreign languages, including the following: Attilio Gaudio, Allal el Fassi ou l’ Histoire de l'Istiqlal [ʿAllāl al-Fāsī, or the history of independence] (Paris: Éditions Alain Moreau, 1972); Erwin Rosenthal, “ʿAllāl al-Fāsī: A Blend of Islam and Arab Nationalism,” in Islam in The Modern National State (Cambridge: Cambridge University Press, 1965), 154–78; Amnon Cohen, “ʿAllāl al-Fāsī: His Ideas and His Contribution towards Morocco's Independence,” Asian and African Studies, no. 3 (1967): 121–64; Mohamed el Alami, M Allal el Fassi: Patriarche du Nationalisme Marocain [ʿAllāl al-Fāsī: Patriarch of Morocan nationalism] (Casablanca: Dar el Kitab, 1975). To this list, I add two others: David L. Johnston, “ʿAllāl al-Fāsī: Sharīʿa as a Blueprint for Righteous Citizenship,” in Shari‘a: Islamic Law in the Contemporary Context, ed. Abbas Amanat and Frank Griffel (Stanford: Stanford University Press, 2007), 83–103; Andrew F. March, “Naturalizing Sharīʿa: Foundationalist Ambiguities in Modern Islamic Apologetics,” Islamic Law and Society 22, nos. 1/2 (2015): 45–81. Apart from these last two works and Mogilski's, nearly all the literature available to me on al-Fāsī either concentrates on his political career and provides a historical sketch of his life and achievements or deals with his ideas in a more general manner. Through this article, I offer, instead, an exploration of the dynamics of Islamic law and how al-Fāsī avails himself of them to negotiate the incorporation of Islamic law principles within the legal structures of the postcolonial state.

11 Al-Fāsī, Maqāṣid al-Sharīʿa al-Islāmiyya wa Makārimuhā, 256–65.

12 Al-Fāsī, 226–30.

13 Ibn ʿĀshūr, Maqāṣid al-Sharīʿa al-Islāmiyya, ed. Mohamed el-Ṭahir el-Mesawi, 2nd ed. (ʿAmmān: Dār al-Nafāʾis, 2001), 142.

14 Ibn ʿĀshūr, 142.

15 Al-Fāsī, Maqāṣid al-Sharīʿa al-Islāmiyya wa Makārimuhā, 36.

16 March makes the same mistake when he describes al-Fāsī's book on Maqāṣid as not being a standard uṣūl manual on legal method as if there were an already established standard method to be emulated. See March, “Naturalizing Shariʿa,” 8.

17 IbnʿĀshūr, Maqāṣid al-Sharīʿa al-Islāmiyya, 142.

18 El-Mesawi in his effort to establish Ibn ʿĀshūr's precedence over al-Fāsī tries quite successfully to prove that al-Fāsī availed of the work of Ibn ʿĀshūr without mentioning him even once. Certainly, this is one of many shortcomings running through al-Fāsī's book. But the question that remains unanswered is why al-Fāsī was systematic in ignoring Ibn ʿĀshūr. El-Mesawi laments this deliberate and unfair oblivion ascribing it to some kind of intellectual rivalry and jealousy, which he calls ḥijāb al-muʿāṣara, or the veil of contemporariness. I find this justification untenable given the personal qualities of al-Fāsī's character. I propose a somewhat different answer. Al-Fāsī, like all North African nationalists engaged in the struggle for independence against the French administration, was against the French policy of naturalizing the Tunisians and granting them the French citizenship—a policy designed to accelerate the Frenchification process and get in the way of the nationalist movement. Unfortunately, Ibn ʿĀshūr, who was then an eminent religious figure and the sheikh al-Islam (the nation's highest-ranking religious scholar), issued a fatwa allowing naturalized Tunisians to recant their French citizenship by mere verbal repentance in order to be allowed to buried in Muslim cemeteries. This fatwa was opposed by many nationalist activists as being ambiguous, flexible, and tacitly encouraging Tunisians to hold the French citizenship. Ibn ʿĀshūr and other clerics were attacked and accused of secretly cooperating with the French administration. Al-Fāsī's strong sympathy with the independence movements in the Muslim world and especially in North Africa would very likely lead him to ignore Ibn ʿĀshūr not only in the domain of scholarship but also in the field of political activism, for al-Fāsī never mentioned Ibn ʿĀshūr even when he had the opportunity of disparage him in the concise account he wrote on the French policy of naturalization in Tunisia in his book on movements of independence in the Maghreb. See Muhammad ʿAllāl al-Fāsī, Al-Ḥarakāt al-Istiqlāliyya fī al-Maghrib al-ʿArabī [Independence movements in the Arabic Maghreb], 26th ed. (Casablanca: Maṭbaʿat al-Najāḥ al-Jadīda, 2003), 73. For more ideas on Ibn ʿĀshūr's life and career, see Nafi Basheer, “Ṭāhir Ibn ʿĀshūr: The Career and Thought of a Modern Reformist ʿĀlim, with Special Reference to his Work of Tafsīr,” Journal of Qur'anic Studies 7, no. 1 (2005): 1–32.

19 Ibn ʿĀshūr, Treatise on Maqāṣid al-Sharīʿa, xxiii (my emphases).

20 March, “Naturalizing Shariʿa,” 5.

21 Al-Fāsī, Maqāṣid al-Sharīʿa al-Islāmiyya wa Makārimuhā, 91.

22 Ibrahim Yasir, “An Examination of the Modern Discourse on Maqāṣid al-Sharīʿa,” Journal of the Middle East and Africa 5, no. 1 (2014): 39–60.

23 Yasir, “An Examination of the Modern Discourse,” 53.

24 A Moroccan political party founded in 1943 under the French protectorate. Its main goal was the struggle for independence from which its very name (istiqlāl means independence) is derived. The party, alongside the sultan, played a decisive role in the politics of post-independence Morocco. After a short-lived leadership by Ahmed Balafrej, al-Fāsī assumed the undisputed leadership of the party, which gained strong popularity among almost all classes of the Moroccan society. Later, the party lost its momentum after the secession of many of its influential figures, among them Ben Barka, Muhammad al-Basri, and ʿAbdullah Ibrahim. The party subsequently split into three main political organizations—Istiqlāl, Union Nationale des Forces Populaires, and Union Socialiste des Forces Populaires—as a result of the rise of the Moroccan left and the recession of conservative ideas.

25 Muhammad ʿAllāl al-Fāsī, Difāʿ ʿan al-Sharīʿa al-Islāmiyya [Defense of Islamic law] (Cairo: Dār al-Kitāb al-Miṣrī; Beirut: Dār al-Kitāb allubnānī, 2011).

26 Al-Fāsī, Maqāṣid al-Sharīʿa al-Islāmiyya wa Makārimuhā, 111. Unless otherwise noted, all translations are mine.

27 This dual system of Sharīʿa courts and customary legal practices that prevailed in precolonial and colonial Muslim countries has been analyzed by many scholars. See, for example, Aharon Layish, Sharīa And Custom in Libyan Tribal Society: An Annotated Translation of Decisions from the Sharia Courts of Adjābiya and Kufra (Leiden: Brill, 2005), viii; Deniz Kandiyoti, “Islam, Modernity and the Politics of Gender,” in Islam and Modernity: Key Issues and Debates, ed. Muhammad Khalid Masud, Armando Salvatore, and Martin Van Bruinessen (Edinburgh: Edinburgh University Press, 2009), 91–124; Ebrahim Moosa, “Colonialism and Islamic Law,” in Masud, Salvatore, and Van Bruinessen, Islam and Modernity, 158–81; Auwalu Hamsxu, “Colonialism and the Transformation of the Substance and Form of Islamic Law in the Northern States of Nigeria,” Journal of Law and Religion 9, no. 1 (1991): 17–47.

28 Mogilski, French Influence, 14. Mogilski refers to the areas populated by Berbers as Bilād al-Sība. This epithet, rendered by many Western anthropologists as “the land of anarchy,” included Beber areas located outside the control of the centralized government headed by the sultan and his entourage (the Makhzan). Ernest Gellner rightly prefers a more precise translation than anarchy because anarchy implies the absence of order and institutions among the Berber communities, and thus, according to him, Bilād al-Sība is better understood as “the land of institutionalised dissidence.” Ernest Gellner, Saints of the Atlas (London: Weidenfeld & Nicolson, 1969), 1.

29 Al-Fāsī, Maqāṣid al-Sharīʿa al-Islāmiyya wa Makārimuhā, 265–72.

30 Wael B. Hallaq, Sharīʿa Theory, Practice and Modern Transformations (Edinburgh: Cambridge University Press, 2009), 438–39.

31 William A. Hoisington, “Cities in Revolt: The Berber Dahir (1930) and France's Urban Strategy in Morocco,” Journal of Contemporary History 13, no. 3 (1978): 433–48.

32 The Moroccan nationalists interpreted this decree as an attempt on the part of the French administration to deepen the cultural differences between Arabs and Berbers. This interpretation proved fruitful for turning the nationalist demands from legal reforms to full independence. See Hallaq, Sharīʿa Theory, Practice, 439.

33 Fatima Harrak, “The History and Significance of the New Moroccan Mudawwana,” Institute for the Study of Islamic Thought in Africa, Working paper no. 09-002 (2009): 1–10, on file with the author. See also Hallaq, Sharīʿa Theory, Practice, 439.

34 Erwin I. J. Rosenthal, “ʿAllāl al-Fāsī: A Blend of Islam and Arab Nationalism,” in Islam in the Modern National State (Cambridge: Cambridge University Press, 1965), 154–78, at 154.

35 Hallaq considers the idea of law as a state jurisdiction to be the most powerful political and legal tradition colonialism has introduced into the colonized territories. Hallaq, Sharīʿa Theory, Practice, 439. The underlying theological concepts of legal compliance render the codification of Sharīʿa as state law problematic. Sharīʿa is not merely a body of legal ordinances; it is also a set of moral rules and ethical principles based on which a large area of legal responsibility falls within the person's conscience and her relationship with God and consequently outside state control. Hence, thinking of Sharīʿa law as state-imposed law amounts to an oxymoron. See Muhammad Zubair Abbasi, “Sharīʿa and State Law: Relevance of Islamic Legal History for the Application of Muslim Family Law in the West,” Journal of Law, Religion, and State 3 no. 2 (2014): 124–38, at 125–26.

36 Hallaq, Sharīʿa Theory, Practice, 439; Sherman A. Jackson, Islamic Law and the State: The Constitutional Jurisprudence of Shihāb Al-Dīn Al-Qarāfī (Leiden: Brill, 1996), xiv–xv.

37 The estrangement of Sharīʿa in the context of postcolonial period or more accurately its marginalization has been witnessed across the Muslim world. For more details, see Hallaq, Sharīʿa Theory, Practice; Clark B. Lombardi, State Law as Islamic Law in Modern Egypt: The Incorporation of the Sharīʿa into Egyptian Constitutional Law (Leiden: Brill, 2006); Iza R. Hussin, The Politics of Islamic Law: Local Elites, Colonial Authority, and the Making of the Muslim State (Chicago: University of Chicago Press, 2016).

38 On the apologetic tone of al-Fāsī's views on Maqāṣid, see March, “Naturalizing Sharīʿa.”

39 For more details on the rise of utilitarianism in classical and modern Islamic law theories and practices, see Lombardi, State Law as Islamic Law.

40 See, for example, Ṣubḥī Maḥamaṣānī, Falsafat al-Tashrīʿ fī al-Islām: Muqaddima fī Dirāsat al-Sharīʿa al-Islāmiyya ʿAlā Ḍawʾ Madhāhibihā al-Mukhtalifa wa Ḍawʾ al-Qawānīn al-Ḥadītha [Legal philosophy in Islam: An introduction to the study of Islamic Sharīʿa in light of its different schools of law and modern laws] (Beirut: Maṭbaʿat al-Kashshāf, 1946); Muhammad Khalid Masud, Shāṭibī's Philosophy of Islamic Law (Kuala Lumpur: Islamic Book Trust, 2005). Masud believes that Shāṭibī's concept of maṣlaḥa (benefit) constitutes the basis of his philosophy of Islamic law (Masud, Shāṭibī's Philosophy of Islamic Law, vii) despite the fact that Shāṭibī's analysis of public utility cannot be detached from its scriptural foundations, based on which legal rulings are derived and considered, while reason plays only a secondary role in the process of legal inference. For this reason, it is revelation and not reason that constitutes the basis on which maṣlaha should be considered (maṣlaḥa muʿtabara) or revoked (maṣlaḥa ghayr muʿtabara). Jasser Auda claims that a philosophy of Islamic law has indeed emerged during the fifth Islamic century. The epitomes of this intellectual trend, according to him, are al-Juwaynī, al-Ghazālī, ʿIzz al-Dīn b. ʿAbd al-Salām (d. AH 660/1262 CE), Shihāb al-Dīn Aḥmad b. Abī al-ʿAlāʾ al-Qarāfī (d. AH 684/1285 CE), Shams al-Dīn Muḥammad b. Abī Bakr b. al-Qayyim (d. AH 751/1350 CE), and al-Shāṭibī because they focus on the concept of unrestricted benefit (al-maṣlaḥa al-mursala). Jasser Auda, Maqāṣid al-Sharīʿah as Philosophy of Islamic Law: A Systems Approach (Herndon: International Institute of Islamic Thought, 2008), 16–17. I argue that all their contributions are, to varying degrees, far from formulating a philosophy of Islamic law, for none of them attempted to elaborate on the ontological place of reason and the independent role of maṣlaḥa in the construction of the normative rules of law. Instead, they distanced themselves from the Muʿtazila principle of embellishment and repugnance (al-taḥsīn wa al-taqbīḥ), which champions a straightforward version of legal rationalism.

41 Al-Fāsī, Maqāṣid al-Sharīʿa al-Islāmiyya wa Makārimuhā, 126–35.

42 For more details on natural law as a theme of legal philosophy, see Jeffrey Brand, Philosophy of Law: Introducing Jurisprudence (London: Bloomsbury Academic, 2013); Brian Bix, “Natural Law Theory,” in A Companion to Philosophy of Law and Legal Theory, ed. Dennis Patterson (Malden: Wiley-Blackwell, 2010), 211–27; Mark C. Murphy, “Natural Law Theory,” in The Blackwell Guide to the Philosophy of Law and Legal Theory, ed. Martin P. Golding and William A. Edmundson (Oxford: Blackwell, 2006), 15–28.

43 Avner M. Emon has devoted remarkable effort to uncovering the seeds of Islamic natural law theories in classical Islamic theology and law. Anver M. Emon, Islamic Natural Law Theories (Oxford: Oxford University Press, 2010). He singles out two tendencies within Islamic kalām (dialectic theology). One advocates a hard version of natural law according to which human reason, independently of any external authority divine or otherwise, is capable of distinguishing between good and bad and that divine will, by necessity, does only what is conceived of by human reasoning as just and good. The other champions a soft theory of natural law that is predicated on an ontological premise rooted in God's omnipotence and his unlimited will. This latter version is labeled soft because although it acknowledges that God can be unjust by doing what is conceptually construed as bad, God's grace interferes through its hidden ways to comfort and reassure those afflicted by misfortunes destined by God. In the realm of law, the hard theory of natural law presupposes, at least theoretically, the ability of human reason to devise laws and confer on human actions the normative values of being either legal or illegal and on secular legislations the authority to be binding and obeyed. Emon cites Abū Bakr al-Jaṣṣāṣ (d. AH 370/981 CE), al-Qāḍī ʿAbd al-Jabbār b. Ahmad b. ʿAbd al-Jabbār (d. AH 414 or 415/1025 CE), and Abū al-Ḥussein al-Baṣrī (d. AH 436/1044 CE) as the representatives of the hard theory of natural law owing to their theological position about God's actions being inherently good. Emon, Islamic Natural Law Theories, 40–88. As far as theology is concerned, Emon is right, but Islamic theological principles have had only meager impact on Islamic legal theories. Abū al-Ḥussein Al-Baṣrī, for example, though he was a rationalist in matters of theology, his formulation of legal principles and inference reflects mainstream ideas of medieval Islamic legal theories. He argues that reason plays only a secondary role in lawfinding not only in relation to the Qur’ān or Sunna, but also to solitary traditions. Abū al-Ḥussein Al-Baṣrī, Al-Muʿtamad Fī Uṣūl Al-Fiqh [The reliable source on the principles of Islamic law], ed. Muhammad Hamidullah, Hassan Hanafi, and Muhammad Bakr (Damascus: al-Maʿhad al-ʿIlmī al-Faransī li Addirāsāt al-ʿArabiyya, 1964), 583. Ibn ʿĀshūr accurately concludes that those legal theorists who elevated legal principles to the level of certainty wrongly applied the rules governing the principles of uṣūl al-Dīn (theology) to uṣūl al fiqh (legal theory). Ibn ʿĀshūr, Treatise on Maqasid Al-Shari'a, xxi. For more details on the idea of natural law as discussed by some modern Muslim reformists, see Frank Griffel, “The Harmony of Natural Law and Shari'a in Islamist Theology,” in Amanat and Griffel, Shari'a, 38–61.

44 Al-Fāsī, Maqāṣid al-Sharīʿa al-Islāmiyya wa Makārimuhā, 143. Cf. Shirley Robin Letwin, On the History of the Idea of Law, ed. Noel B. Reynolds (Cambridge: Cambridge University Press, 2005), 4.

45 Brian Bix, Natural Law Theory, 211.

46 Al-Fāsī, Maqāṣid al-Sharīʿa al-Islāmiyya wa Makārimuhā, 143.

47 Al-Fāsī, 143.

48 Al-Fāsī, 144–50.

49 Al-Fāsī, 144. Here al-Fāsī does not quite accurately grasp what natural law meant for the Sophists. They downplayed the centrality of cosmic natural laws and emphasized instead the importance of human natural disposition. See Mark H. Waddicor, Montesquieu and the Philosophy of Natural Law (The Hague: Martinus Nijhoff, 1970), 2.

50 Al-Fāsī, Maqāṣid al-Sharīʿa al-Islāmiyya wa Makārimuhā, 144–45.

51 Al-Fāsī, 146.

52 Al-Fāsī, 146.

53 Al-Fāsī, 147.

54 Al-Fāsī, 149.

55 Al-Fāsī, 149.

56 Al-Fāsī, 149.

57 Al-Fāsī, 150. This is indeed in line with the definition provided by Frederick Pollock: natural law is “an ultimate principle of fitness with regard to the nature of man as a rational and social being, which is, or ought to be, the justification of every form of positive law.” Frederick Pollock, “The History of the Law of Nature: A Preliminary Study,” Journal of the Society of Comparative Legislation, 2, no. 3 (1900): 481–33, at 418.

58 Al-Fāsī, Maqāṣid al-Sharīʿa al-Islāmiyya wa Makārimuhā, 112.

59 Johnston, “Sharīʿa as a Blueprint,” 86.

60 Johnston, 86.

61 Al-Fāsī, Maqāṣid al-Sharīʿa al-Islāmiyya wa Makārimuhā, 113.

62 Emon states that Muhammad ʿAbduh equated Sharīʿa with natural law, but Emon failed to provide any proof to substantiate his claim. Emon, Islamic Natural Law Theories, 16. Certainly, ʿAbduh struggled to revive Islamic knowledge in order to catch up with the developed West. Such a revival requires a turn to rationalism as one of the foundations of knowledge. Although ʿAbduh is of the view that justice and virtue can be discovered by reason without the aid of revelation, his idea is discussed within the principles of a moderate theology between extreme voluntarist Ashʿarism and radical rationalism of Muʿtazila. To claim that he formulated a notion of natural law is again an invalid argument predicated on a false analogy between theology and law. See also Griffel, “The Harmony of Natural Law and Shari'a in Islamist Theology.”

63 March, “Naturalizing Sharīʿa,” 6–7 (March's emphasis).

64 March, 3.

65 March, 5.

66 Wael B. Hallaq, A History of Islamic Legal Theories: An Introduction to Sunnī Uṣūl Al-Fiqh. (Cambridge: Cambridge University Press, 1997), 224.

67 Emilio Platti points to this contradiction in the thought of the Indian-Pakistani fundamentalist Abū al-Aʿlā al-Mawdūdī, who recognizes the consistency of Sharīʿa with the laws of nature inherent in man's natural disposition but when he discusses the details of Islamic positive laws, he rejects any congruency between them and the principles of natural law. Platti, Emilio G., “La théologie de Abū l-Aʿlā Mawdūdī,” in Philosophy and Arts in the Islamic World: Proceedings of the Eighteenth Congress of the Union Européenne des Arabisants et Islamisants, ed. Vermeulen, U. and De Smet, D. (Leuven: Peeters, 1998), 242–51Google Scholar. See also Griffel, “The Harmony of Natural Law and Shari'a in Islamist Theology,” 38.

68 Al-Fāsī, Maqāṣid al-Sharīʿa al-Islāmiyya wa Makārimuhā, 180.

69 Al-Fāsī, Maqāṣid al-Sharīʿa al-Islāmiyya wa Makārimuhā, 152–53 (my translation, adapted from March, “Naturalizing Sharīʿa,” 20).

70 March, “Naturalizing Sharīʿa,” 20. Al-Fāsī is highly critical of the idea that the higher objectives of Islamic law could replace its sources. Like all orthodox Muslim legal theorists, he views these objectives as an extension of the meanings of the sources of law through the active agency of interpretation rather than independent concepts in the ontological sense of the term. See al-Fāsī, Maqāṣid al-Sharīʿa al-Islāmiyya wa Makārimuhā, 151.

71 March, “Naturalizing Sharīʿa,” 7–8.

72 Al-Fāsī, Maqāṣid al-Sharīʿa al-Islāmiyya wa Makārimuhā, 151.

73 Johnston, “Sharīʿa as a Blueprint,” 96.

74 Al-Fāsī, Maqāṣid al-Sharīʿa al-Islāmiyya wa Makārimuhā, 348.

75 Al-Fāsī, 348.

76 Al-Fāsī, 349.

77 Al-Fāsī, 349.

78 Hallaq, History of Islamic Legal Theories, 225–26.

79 Al-Fāsī, Maqāṣid al-Sharīʿa al-Islāmiyya wa Makārimuhā, 348.

80 Al-Fāsī, 348.

81 Al-Fāsī, 349.

82 Reinhart, A. Kevin, Before Revelation: The Boundaries of Muslim Moral Thought (Albany: State University of New York Press, 1995), 3Google Scholar.

83 Al-Fāsī, Maqāṣid al-Sharīʿa al-Islāmiyya wa Makārimuhā, 171.

84 George Hourani points to the fact that theology and philosophy had been considered by Muslim scholars two separate disciplines before they started, at a later stage of the Islamic intellectual tradition, to interact. Hourani, George Fadlo, Reason and Tradition in Islamic Ethics (Cambridge: Cambridge University Press, 1985), 6CrossRefGoogle Scholar. Johnston mentions this integration of philosophy and theology in al-Fasi's discourse. See, Johnston, “Sharīʿa as Blueprint,” 98.

85 Al-Fāsī, Maqāṣid al-Sharīʿa al-Islāmiyya wa Makārimuhā, 171.

86 Al-Fāsī, 171.

87 Al-Fāsī, 171.

88 Al-Fāsī, 172.

89 Al-Fāsī, Maqāṣid al-Sharīʿa al-Islāmiyya wa Makārimuhā, 172.

90 Al-Fāsī, 173. The idea that human freedom of choice is limited by external natural laws can be ascribed to Aristotle, who argued that human freedom is realized only in matters under human control. See George Hourani, Reason and Tradition in Islamic Ethics, 110.

91 Johnston, “Sharīʿa as a Blueprint,” 91.

92 Al-Fāsī, Maqāṣid al-Sharīʿa al-Islāmiyya wa Makārimuhā, 175.

93 Al-Fāsī, 175.

94 Al-Fāsī, 179.

95 Al-Fāsī, 181.

96 Al-Fāsī, 181.

97 March, “Naturalizing Sharīʿa,” 20.

98 March, 20.

99 Masud, Shatibi's Philosophy of Islamic Law, 240.

100 Felicitas Opwis, “Islamic Law and Legal Change: The Concept of Maṣlaḥa in Classical and Contemporary Islamic Legal Theory,” in Amanat and Griffel, Shari'a, 62–82.

101 Nazli Hanum Lubis, “Al-Ṭūfī's Concept of Maṣlaḥa: A Study in Islamic Legal Theory” (Master's thesis, McGill University, 1995), ii.

102 Al-Fāsī, Maqāṣid al-Sharīʿa al-Islāmiyya wa Makārimuhā, 265.

103 Al-Fāsī, 265.

104 Al-Fāsī, 279.

105 Al-Fāsī, 301.

106 Al-Fāsī, 301.

107 Al-Fāsī, 301.

108 Al-Fāsī, 302.

109 Al-Fāsī, 307.

110 Al-Fāsī, 309.

111 Al-Fāsī, 310.

112 Johnston, “Sharīʿa as a Blueprint,” 99.

113 Al-Fāsī, Maqāṣid al-Sharīʿa al-Islāmiyya wa Makārimuhā, 312.