Introduction
A vital scholarly interest in the topic of Maqāṣid al-Sharīʿa, the objectives of Islamic law, has emerged in different periods of the history of Islamic legal theory. This concept of Maqāṣid is by no means new. Since its inception, Islamic legal thought, whether in theory or in practice, has made great intellectual strides, the most remarkable of which is going beyond the letter of the law to tap its sprit. Prior to the Andalusian Māliki jurist Abū Isḥāq al-Shāṭibī (d. AH 790/1388 CE), whose formulation of Maqāṣid is considered to be the most sophisticated in postclassical Islamic jurisprudence, many Muslim scholars were aware of the problems of legal rigidity and the predicament of the obdurate attachment to certain old legal opinions deemed authoritative and, as such, unsurpassable. Indeed, the idea of Maqāṣid can be traced as far back as the end of the AH third century/ninth CE with the effort of Abū ʿAbd Allāh Muhammad ibn ʿAlī, known as al-Ḥakīm al-Tirmidhī (d. probably AH 298/910 CE), the earliest scholar to devote a full book to the Maqāṣid of ritual prayersFootnote 1 and another to the underlying reasons (ʿilal) of legal injunctions.Footnote 2 Later, Maqāṣid became a central theme in Islamic legal discourse, as Al-Burhān Footnote 3 of Abū al-Maʿālī al-Juwaynī (d. AH 478/1085 CE) demonstrates. However, it is Abū Ḥāmid al-Ghazālī (d. AH 505/1111 CE) who clearly articulated the five necessary objectives of Islamic law being the embodiment of the essential human interests to be achieved and protected by Sharīʿa.Footnote 4 It was a few centuries later that al-Shāṭibī, drawing critically on his predecessors, embarked on the outstanding project in which he laid down a systematic theory of legal interpretation with the higher objectives of law at its core. Not only did he categorize the Maqāṣid into their appropriate sets, but he also devised a whole methodology of legal interpretation rooted in the logic of inductive reasoning and a sociolinguistic approach to sacred texts.Footnote 5 In modern times and because of the deplorable situation of Muslim societies, some Muslim luminaries, among them Muhammad ʿAbduh (1849–1905), stumbled across the work of al-Shāṭibī and decided to capitalize on it in their struggle for Islamic revival. ʿAbduh's ardent admiration of al-Shāṭibī led his student ʿAbdullah Drāz to edit Al-Muwāfaqāt and write an extensive introduction to it.Footnote 6 North African Muslim scholars Muhammad al-Ṭāhir Ibn ʿĀshūr (1886–1970) and Muhammad ʿAllāl al-Fāsī (1910–1974), perhaps under the influence of ʿAbduh and his disciple Rashīd Riḍā (1865–1935), took this project further. Not only did they attempt to reproduce al-Shāṭibī's ideas and make them accessible to modern readership, but they also wrote seminal treatises in which they attempted to expound and surpass what he had outlined in al-Muwāfaqāt. Two examples are noteworthy: Ibn ʿĀshūr's Maqāṣid al-Sharīʿa (1946) and al-Fāsī's Maqāṣid al-Sharīʿa al-Islāmiyya wa Makārimuhā (1963).Footnote 7
What spurred modern Muslim scholars to reemphasize the objectives of Islamic law remains a central question. Al-Shāṭibī states that his intention was to reconcile the legal methods of interpretation used by the Mālikis and those applied by the Ḥanafis.Footnote 8 Hence the title al-Muawāfaqāt (literally, the reconciliations). Ibn ʿĀshūr's motive was quite similar to that of al-Shāṭibī. He avers that his intention is to minimize legal disagreements and cultivate a sense of critical thinking that allows jurists to justifiably prefer one legal opinion over another.Footnote 9 In what follows, my analysis of al-Fāsī's work demonstrates the sociopolitical factors that influenced it and helped situate his book within a somewhat different context, which is the value of the objective approach in al-Fāsī's struggle to modernize Islamic law and include it in the legal structures of the postcolonial Moroccan state.
Al-Fāsī and the Salafiyya Discourse
One of the seldom explored areas of critical cultural studies is the impact of public memory on the intellectual contributions of notable thinkers. Part of the semiotics of ideas is the ways they are remembered. No one has the ability to choose how people should reminisce about him or her after leaving this world. More often than not, the shades of ideas, their ghosts, and impressions are more important than the ideas themselves. This appears to apply perfectly to al-Fāsī, whose career covered a wide range of activities and significant achievements. However, although he was a political activist, an ʿālim (a religious scholar), and a social reformer, it is his political career as a leader of the Moroccan independence and resistance against French colonialism, that caught the attention of subsequent generations and has been the focus of modern scholarship about him. Only little consideration has been devoted to his legal ideas.Footnote 10 Another area of substantial significance is the politics of knowledge and how, within a critical discourse analysis framework, ideas are negotiated, refined, modeled, and pruned to respond to immediate personal and social needs. Al-Fāsī's thought and his political program for independence and nation building are so intertwined that understanding one in the absence of the other is doomed to do disservice to his ideas as a whole.
Born in 1910 to a prestigious and traditional family of Andalusian origins, al-Fāsī, like his peers, was admitted to a Qurʾānic school to memorize the Holy Book, the Qurʾān, and learn the basics of standard Arabic. Not only did he excel in absorbing the traditional religious sciences at a very early age, but he also cultivated a critical mindset owing to his exposure to the French culture and his admiration for the Salafiyya movement that emerged in Egypt in the second half of the nineteenth century and started to influence Moroccan intellectuals and ʿulama (traditional scholars) since the beginning of the twentieth century. This movement is known to have adopted a critical view to the ways in which Muslim societies, under the yoke of colonial powers, confronted issues of political independence and civilizational awakening.
Jamāl al-Dīn al-Afghānī (1838–1897), Muhammad ʿAbduh, and Rashīd Riḍā appear to have agreed, with some significant variations, that an Islamic renaissance cannot be achieved unless Muslims go back to the original sources of Islam while selecting all historical, doctrinal, and legal aspects of Islamic creativity on which basis a fresh understanding of Sharīʿa is constructed. Under the influence of the Salafiyya movement, the young al-Fāsī grew mindful of two necessities: political independence and Islamic renewal. The former required organized political resistance and a program of action, while the latter called for a systemic cultural strategy for revival with religion at its core. As were Muhammad ʿAbduh, a graduate of al-Azhar University in Egypt, and Ibn ʿĀshūr, a graduate of al-Zaytūna University in Tunisia, al-Fāsī, who graduated from al-Qarawiyyīn University in Morocco, was convinced that restoring the role of the ʿulama in public life must start from a revision of the traditional curriculum that introduces modern science and methods of teaching. Because Sharīʿa encapsulates the fragmentary aspects of a Muslim identity under the attack of various modernizing forces, Muslim reformists unanimously came to the conclusion that the edifice of a new Islamic discourse had to be established on a new and firm foundation originating from a twofold strategy: encouraging ijtihād (independent legal reasoning) and rejecting taqlīd (blind imitation of traditional reasoning). However, they felt that this attempt would be doomed to failure without recalling the glorious past of Islam, on which desired reforms are modeled and communicated. Thus, from their respective countries, ʿAbduh, Ibn ʿĀshūr, and al-Fāsī each found in al-Shāṭibī and his discourse on the objectives of Sharīʿa a genuine precursor whose legal ideas legitimized their call for Islamic renewal. While ʿAbduh was content with encouraging some of his students to edit al-Shāṭibī's seminal treatise on the objectives of Sharīʿa, Ibn ʿĀshūr and al-Fāsī endeavored to digest al-Shāṭibī's ideas and critically surpass them in order to respond to the exigencies of modern society.
Al-Fāsī and Maqāṣid Discourse
From the early period of Islam to the present, Muslims have wrestled with the issue of how to implement the divine law within the complexities of human reality. Their aim has always been subject to the interplay of two major forces: the intentions of the lawgiver (God or his messenger) and the exigencies of human contexts. In other words, from its inception as a rudimentary corpus of opinions and practices to its codification as a systemic analysis with various doctrinal approaches, Islamic legal discourse has struggled to bring the perceived will of God to terms with the interests of mankind. Ijtihād (independent legal reasoning) is therefore the effort to discover areas of agreement between what serves human interests while safeguarding the sovereignty of God's will. Ijtihād is forcefully expressed in the domains where divine will appears to go against the changing aspects of human utilities. Consequently, legal theorists have had to articulate a discourse of law that begins with the hermeneutical task of first laying bare the intentions of God and his objectives and then devising general legal rules that transcend the particularities of individual scriptural texts. In short, the aim of Ijtihād is to discover the universal grammar of the divine will running through God's speech and creation.
Maqāṣid al-Sharīʿa, or the objectives of the divine law, is therefore nothing but a human effort to uncover what God wants rather than what he says. The English term objectives as a rendering of the Arabic word maqāṣid fails to capture the essence of the original term. Maqāṣid is derived from the root word qaṣada, which simultaneously refers to three basic core meanings. ‘Qṣada ilā’ (to go to or to point to) is a phrase that implies intention, motive, and direction. Hence, Maqāṣid al-Sharīʿa not only means the objectives of law, but it also connotes the ulterior motives behind the law and more significantly its direction, which surpasses both the semantics of speech and the immediate context within which the law was initially articulated.
As mentioned earlier, Islamic legal theory has struggled to accommodate the changing realities of Muslim societies. Three main areas in this theory have been subjected to elaborate revisions in order to provide the jurist (faqīh), the judge (qāḍī), and the jurisconsult (muftī) with sufficient legal tools to achieve this desired accommodation. The first is the concept of unrestricted utilities (al-maṣāliḥ al-mursala).Footnote 11 The second is the categorization of the Prophet's actions to see whether all are binding and to explore the possibility of acting at variance with them.Footnote 12 The third, the core of my analysis, deals with the higher objectives of Sharīʿa (Maqāṣid) and the opportunity they offer to remedy the rigidity of legal precepts. This is, in fact, the aim of al-Fāsī, to which I suggest adding an intent to lay down the theoretical foundations for the codification of Sharīʿa rulings in a modern postcolonial state like Morocco. But before delving into the depths of the issue, I offer some notes on the relevance of al-Fāsī's ideas to Maqāṣid.
In the elaborate introduction to his Arabic edition of Ibn ʿĀshūr's Maqāṣid al-Sharīʿa al-Islāmiyya, Mohamed el-Ṭahir el-Mesawi levels warranted and unwarranted critiques at al-Fāsī's book. His implied aim is to establish Ibn ʿĀshūr's precedence and superiority as the main modern scholar who wrote on and developed the topic of Maqāṣid. El-Mesawi maintains that the book of al-Fāsī, despite its title, does not fall within the domain of Maqāṣid properFootnote 13 because al-Fāsī did not go deep into elucidating its meanings, rooting its concepts in Islamic scholastic tradition, developing its methodologies, and extending its reach to practical issues of Ijtihād.Footnote 14 This evaluation is rightly dismissed by al-Ḥasanī as hasty,Footnote 15 for if it were true, then al-Fāsī's effort in its entirety would have been futile. To say that al-Fāsī did not explain the meanings of Maqāṣid and extend its domain to include practical issues ignores the obvious. El-Mesawi is right when he describes al-Fāsī's style as digressive and his approach as polemical. But to conclude, based on this assessment, that al-Fāsī was driven away from the heart of Maqāṣid is, to say the least, arbitrary and unwarranted. El-Mesawi implies that Ibn ʿĀshūr's methodology is the one that represents well the topic of Maqāṣid in its supposedly standard formFootnote 16 because it concentrates on issues relevant to the field. By contrast, according to El-Mesawi, al-Fāsī unnecessarily tackles such topics as natural law, Roman law of nations, new Judeo-Christian influences, the narrative art in the Qurʾān, the translation of the meanings of the Qurʾān, and others that fall outside the purview of Maqāṣid.Footnote 17 In fact, some topics mentioned by el-Mesawi are not essential, but the concept of natural law that occupies a significant place in al-Fāsī's work is so important that devoting some effort to its concepts is a merit to be acclaimed rather than a shortcoming to be criticized. El-Mesawi fails to appreciate the differences between Ibn ʿĀshūr and al-Fāsī. While the former is an erudite scholastic with reformist inclinations, the latter is a social reformer and a nationalist leader with scholarly merits.Footnote 18 The main aim of Ibn ʿĀshūr is to enlarge the scope of the objectives of Sharīʿa so that they include all areas of positive law, especially transactional dealings and judiciary within the changing circumstances of modern Muslim societies, whereas the purpose of al-Fāsī is to convince the secular elites of the progressive nature of Sharīʿa and assure the traditional circles of its indispensability in the process of postcolonial state building. El-Mesawi seems to suggest that there is an ideal method for writing about Maqāṣid, as palpably demonstrated in Ibn ʿĀshūr's treatise. Even al-Shāṭibī, argues Ibn ʿĀshūr, “fell into the trap of longwinded and confused analysis. He also omitted some crucial aspects of the Sharīʿa's higher objectives and thus failed to reach the target that he had set himself.”Footnote 19
Although this criticism leveled at al-Shāṭibī appears to be overstated, it by no means disqualifies his work from falling within the kingdom of Maqāṣid and being the most acclaimed work in the field of Maqāṣid. Likewise, despite al-Fāsī's unsystematic methodology, digressive style, apologetic and polemic mood, and nuanced views, his book remains a keystone in the edifice of Maqāṣid, demonstrating “some of the most elaborate and sophisticated expressions of the core Salafiyya themes of Islamic renewal”Footnote 20 and adding to its literature valuable insights, especially those related to the ever-evolving nature of Islamic lawFootnote 21 and its compatibility with human natural disposition to justice and good. Al-Fāsī should be credited for filling some generally recognized holes in the classical theory on the higher objectives of Islamic law. Many modern Muslim intellectuals have noticed that al-Shāṭibī's theorization of Maqāṣid lacks a crucial dimension—dignity—related to the preservation of human rights against tyranny and oppression and leaves much to be desired as far as ethics are concerned, which, in the premodern model of Maqāṣid proposed by al-Shāṭibī and other scholars before him, were relegated to the status of supplements rather than being viewed as the core of all legal rulings.Footnote 22 Dissatisfied with the classical formulation of Maqāṣid, jurist Yūsuf al-Qarḍāwī (b. 1926) “argues, for example, that those legal theorists did not include ‘freedom, equality, brotherhood, economic cooperation (takāful) and human rights.’”Footnote 23 Interestingly enough, what al-Qarḍāwī mentions as lacking in the classical theory of Maqāṣid is exactly what al-Fāsī ventured to explore and propose as the essence of the higher objectives of Sharīʿa. Not only did he devote a whole chapter to human rights and another to the ethical foundations of legal rulings, but he embarked on a very critical issue in modern times, that of peace between nations and civilizations theorizing it as part and parcel of the objectives of Islam and transcending both history and circumstantial phases of conflicts and rivalries between nations and communities. Therefore, this seminal work of al-Fāsī is a book of Maqāṣid par excellence and deserves its place under its multifaceted auspices.
To do justice to al-Fāsī's reformist program requires a deep look into the motives behind writing his book on Maqāṣid. Whether manifestly or tacitly, al-Fāsī was driven by many intentions similar to those that constitute the backdrop of the whole reformist agenda of modern Muslim intellectuals. However, one can set him apart by some significant peculiarities overlooked by many of his critics and admirers. Although all the figures of the twentieth-century Salafiyya movement were concerned with the issue of political independence, only a few of them, like al-Fāsī, were actively engaged in the politics of resistance and liberation. This aspect of his involvement is highly instrumental in discerning the complexities underpinning his discourse on Sharīʿa. He was a political leader, an iconic figure of a nascent nation, and a statesman. He founded a political party with heterogenous ideology cemented by only one aim: political independence. Within his Istiqlāl party,Footnote 24 different ideological sensitivities cohabited, from socialists who sympathized with Marxism to liberals who championed capitalism and tradionalists who were faithful to a pure version of Salafism. Al-Fāsī had to navigate his ideas in an ocean of opposing currents and waves of political compromises. He had to be an ideologue rather than an independent thinker. Because of this, his discourse was a repository of divergent orientations. After all, his Titanic had to avoid the iceberg. He had to maneuver rather than theorize. However, his holistic theory can be assembled from scattered pieces by focusing on its core and setting aside circumstantial and accidental views.
As mentioned earlier, al-Fāsī's main aim was to convince the Moroccan elites and the palace-run government of the integration of Sharīʿa in the newly established legal system of the Moroccan state. To fulfil this aim, he had to explain the progressive nature of Islamic law and its adaptability to the new sociopolitical circumstances. Perhaps al-Fāsī felt that his work on Maqāṣid did not achieve the objectives set for it. If so, that may be why he embarked on a more ambitious and less apologetic project, which he published in 1966, Difāʿ ʿan al-Sharīʿa al-Islāmiyya.Footnote 25 However, although it is a prompt sequel to his book on Maqāṣid, the earlier book remains the mouthpiece for his theory in its abstract and conceptual form.
Al-Fāsī begins his analysis with a critical review of the classical methodology adopted by early Muslim scholars who wrote on the topic of the higher objectives of Islamic law after al-Shāṭibī. According to him, these scholars failed to grasp the core of al-Shāṭibī's views, to go beyond what he had outlined in his treatise, or to avoid relating all areas of positive law to causes while adopting a literalistic approach to the objectives of Islamic law. Despite the fact that al-Fāsī does not identify these scholars by name, one can assert that al-Fāsī's aim was to break away from the casuistic analysis of furūʿ (positive laws) and embrace a more holistic, comprehensive, and objective-based approach akin to the one proposed earlier by al-Shāṭibī, an approach that revolves around the universals of Sharīʿa arrived at through textual induction. The fragmented view of al-Fāsī is obvious here, for since he criticized those who associate every legal ordinance with causes, he was expected to agree with Fakhr al-Dīn al-Rāzī (d. 1210 CE), who, al-Fāsī argues, following al-Shāṭibī, “found it problematic to say that God's ordinances as well as his actions are subject to ratiocination (taʿlīl).”Footnote 26 However, al-Fāsī maintains, against his initial submission, that God does not act except in accordance to cosmic laws he himself, created. Al-Fāsī's argument, as is that of al-Shāṭibī, is predicated on theological rather than on legal premises. What al-Fāsī implies is that divine actions are designed for the well-being of mankind, but they are not necessarily caused by it, as claimed by Muʿtazila doctors of the theological school of the eighth and tenth centuries. Hence, the causation of legal ordinances is not, in its totality, discoverable by human reason but extracted from textual proofs. That said, reason, according to al-Fāsī, constitutes the basis of faith, and therefore it is instrumental in legal knowledge and interpretation. This position exhibits an oscillation between theology and law, but it can be summarized as al-Fāsī's middle view between radical rationalism of Muʿtazila and extreme voluntarism of the Ashʿarites, the school of theology founded by Abū al-Ḥasan al-Ashʿarī (d. 935/936 CE). Hence, while reason can assume a functional responsibility in understanding law, it has no ontological precedence over God's ordinances and actions.
Al-Fāsī's Maqāṣid and Colonial Morocco
Traditional Muslim societies had adopted two forms of law before they came under the control of foreign Western powers and their ensuing legal systems.Footnote 27 These forms are Sharīʿa and customary laws. Sharīʿa refers to the corpus of legal precepts and interpretations drawn from two main sources, the Qurʾān and the Prophetic Sunna. Customary laws designate social practices that, over the passage of time, were endowed with a degree of normative authority and thus elevated to the status of locally binding customs. Customary law in Morocco has two distinct categories. The first, known as ʿUrf (literally, custom), is the body of legal practices dating from the pre-Islamic period. These practices prevailed in the Berber areas.Footnote 28 The second is the body of customary practices derived from the praxes of the early Muslim generation of Medina during the formative period of Islam. This category, technically called ʿAmal (practice), is considered within the Māliki School of law a source of legal inference.Footnote 29 Under the French protectorate, this dual legal system was subsumed by the French code that presided over civil, commercial, and penal affairs, thus, allowing the French to ensure complete administrative control while restricting the authority of Sharīʿa law to some private matters of family law deemed marginal for the colonizer's hegemony.Footnote 30 After the promulgation of the controversial Berber Ẓahīr (decree) in 1933, through which the French administration desired that Berber communities could handle their legal issues according to their own inherited customary practices,Footnote 31 Sharīʿa law and its relevance to modern Morocco became not only a revived scholarly topic for debate among Moroccan intelligentsia but also a motif for consolidating a threatened national identity in the face of the colonizer's strategy of divide and rule.Footnote 32
No sooner had Morocco received its political independence in 1956 than the national government embarked on the task of codifying the family law on the basis of Sharīʿa principles. This effort, in which al-Fāsī took a significant part, is, perhaps, the “second most important task after the abolition of the Berber customary law.”Footnote 33 Al-Fāsī's preoccupation with the codification of Sharīʿa as state law was the outcome of his fruitful encounter with the Western legal tradition.Footnote 34 Not until the experience of colonization was the Muslim legal mind aware of the role the state could play in the formulation and enforcement of a legal system under the control of the stateFootnote 35 and how this centralization could remedy the unrestricted diversity of legal opinions, the idle boast of Islamic juristic tradition.Footnote 36 Within the postcolonial political arena, the revivalist narrative of Muslim reformists like al-Fāsī faced new peculiar challenges. The implementation of Sharīʿa and its relevance to modern sensitivities were no longer taken for granted. Out of ignorance or outright objection, the Moroccan francophone elite, holding key administrative positions in the newly independent state, was skeptical about the viability of a legal system wholly based on Sharīʿa principles.Footnote 37 Consequently, Islamic reformist discourse had to emerge in an apologetic and polemical context. These two aspects indeed colored al-Fāsī's views—not only on Maqāṣid but on Sharīʿa law as a whole.Footnote 38
Within this context, al-Fāsī had to negotiate the return to Sharīʿa law ideals using a discourse rooted in a robust form of utilitarianism.Footnote 39 Thus, to ensure the compatibility of Sharīʿa with the modern concepts of law as a tool supervised by state institutions rather than an open field of interpretive exercises by individual jurists or ʿulama, al-Fāsī had to focus on the higher objectives of Sharīʿa being the remedy for overcoming the rigid and outdated legal opinions and practices of the sterile past.
The Philosophical and Theological Foundations of Maqāṣid
Unlike traditional Muslim legal theorists, al-Fāsī seems aware of the direct connection between the theoretical framework of legal theories and their broader philosophical and theological backgrounds. Yet, to credit al-Fāsī with the formulation of a full-fledged philosophy of Islamic law would be an exaggeration to say the least. Unfortunately, some modern Muslim scholars have used the term philosophy as applied to law quite loosely, to the extent that almost any aspect of legal theory is included in the domain of legal philosophy.Footnote 40 In al-Fāsī's discourse on Maqāṣid, one notices a fondness for the history of the idea of law and its origins. The implied logic in al-Fāsī's apologetic program is to establish religion, revealed or otherwise, as a source of all human legal traditions and consequently justify the relevance and suitability of Sharīʿa law within the modern context of state building and legal codification on the premise that all legal traditions, including modern secular ones, could be traced back to the same origin.Footnote 41 Central to al-Fāsī's legal philosophy is the concept of natural law and the belief that humans' natural disposition (fiṭra) is fundamentally endowed with the capacity to distinguish between right and wrong and consequently craft normative rules for the regulation of human conduct.Footnote 42 In fact, Muslim reformists of the nineteenth and twentieth centuries attempted to reconcile Islam with modernity. The main result of this attempt has been the emphasis on the place of reason and utility in the formulation of the basic principles of Islamic law in order to negotiate the common ground between Sharīʿa and Western legal traditions rooted in the concept of natural law.Footnote 43 In the following, a discussion of natural law as conceived by al-Fāsī and related topics like fiṭra, reason and law, and maṣlaḥa is essential to uncover the structures of his theory of Maqāṣid and its elasticity, which allows it to be included in a modern state system of governance.
Sharīʿa and Natural Law
Nowhere in al-Fāsī's discussion of natural law is there any attempt at a definition of its basic essence or delineation of its scope. He views it as a human development toward freeing law from the yoke of customs and legal precedents established by judges and priests.Footnote 44 The main purpose of natural law is the identification of some higher moral standards, intuitively or rationally assumed as such, against which laws are assessed and based on which commands are obeyed.Footnote 45 Al-Fāsī argues that this development is the outcome of two faculties: human reason and conscience and their evolved conception of justice.Footnote 46 For a reason that I discuss later, al-Fāsī appears to ignore religion as a source of natural law and claims that it constitutes a step toward a complete separation between law and religion.Footnote 47 Al-Fāsī maintains that Western conceptions of natural law changed over time and gave rise to five different expressions: the Greek, the Roman, the Ecclesiastical, the English, and the modern.Footnote 48 The Greeks, al-Fāsī explains, understood law as a reflection of fixed and eternal laws of nature and, hence, what constitutes a legal action is already known to those who observe the physical laws of the universe. Yet, al-Fāsī contends, the Greeks held three different interpretations of natural law: the conservatives capitalized on the concept to support and strengthen existing laws on the grounds that they reflect eternal cosmic laws; the Sophists deployed it in order to undermine the authority of some positive laws deemed in conflict with the laws of nature;Footnote 49 and the Epicureans emphasized compliance with the law regardless of being in harmony with nature.Footnote 50 The Romans inherited the concept from the Greeks. The Stoics in particular believed in the existence of unchanging, everlasting, and universal laws.Footnote 51 Such a conception allowed the Romans to draft transnational laws (the law of nations) on the ground that law is an expression of the nomoi anchored in the physical structures of the universe.Footnote 52 With Christianity, al-Fāsī believes, the idea of natural law was given a religious form. Since God is the creator of nature and the laws governing its functioning, man's behavior ought to comply with these divine laws through man's acceptance of revelation and God's eternal commands.Footnote 53 In England, the rigidity of customary laws and their inability to attain justice raised public discontent. To remedy this problem, al-Fāsī explains, legal cases were brought before the king, who would adjudicate them based on his own understanding of justice.Footnote 54 Hence the English adage, “Justice flows from the conscience of the king.”Footnote 55 The modern conception of natural law, according to al-Fāsī, is rooted in a general idea about justice as the ultimate purpose of law.Footnote 56 However, modern thinkers, al-Fāsī avers, distinguish between the primordial principles of natural law, that is, its eternal and universal set of laws, and the elementary and practical aspects of law that deal with individual cases in light of the above-mentioned principles.Footnote 57
Al-Fāsī's analysis, although fragmentary, unsystematic, and sporadic may be considered the first clearly expressed attempt ever made by a Muslim legal theorist to compare Sharīʿa with natural law and explore areas of conformity between concepts of divine will and natural universal laws embedded in the universal intentions of scripture (as is the case with al-Shāṭibī), and the laws of physical and human nature. Al-Fāsī makes a bold claim with unprecedented significance: God acts according to the cosmic laws that he, himself, created.Footnote 58 David L. Johnston convincingly argues that al-Fāsī uses the term nāmūs (law or religion) deliberately, but he overinterprets al-Fāsī's purpose as downplaying the Sharīʿa in his political and cultural writings,Footnote 59 arguing that “[t]he word nāmūs is a deliberate attempt to move the debate away from the traditional perimeters of fiqh (applied Islamic jurisprudence) and its methodological theory, usul al-fiqh.”Footnote 60 However, according to al-Fāsī, nāmūs is not antithetical to Sharīʿa; rather, it is its natural direction and ultimate purpose. Hence, although upgrading Sharīʿa to meet the horizons of cosmological laws entails going beyond its traditional perimeters, this by no means necessitates its rejection. On the contrary, the principles of Sharīʿa seen from the prism of Maqāṣid are so elastic and adaptable that they are bound to conflate with natural laws to form one single entity. This process of continuous evolution from Sharīʿa to natural law mirrors the progression of mankind from base animality to the heights of human responsibility.Footnote 61
The originality of al-Fāsī as expressed in his awareness of the commonalities between Islamic law and natural law is, however, not straightforward and requires further discussion and deliberation. In modern Islamic milieus, some scholars have been credited for being fervent advocates of reason and its indispensable authority. However, none went as far as to equate Sharīʿa with natural law.Footnote 62 What Muslim scholars did—and al-Fāsī is no exception—is to defend Sharīʿa in the face of secular alternatives not only by stressing its adaptability to modern universal values but by taking the battle, in a swift offensive strategy, to be fought on the secular soil claiming that all non-Islamic ideologies are inadequate for the wellbeing of mankind and that Sharīʿa is superior to them all. However, this supremacy of Sharīʿa over secular legal codes entails its conformity with them with some added value found in Sharīʿa and lacking in its man-made counterparts. Andrew F. March writes,
For me, the more important reason is that Fāsī himself rejects the comparison to natural law and argues at some length for the superiority of sharīʿa to natural law. This is not surprising, and, by itself, is not decisive. Modern thinkers like Fāsī are certainly choosing to stress naturalistic themes in their discussions of sharīʿa. But they do not generally advance the ontological claim that natural laws or truths causally determine or constrain God's moral laws or the epistemological or hermeneutic claim that assumptions about the human good or telos provide the primary method of reasoning to moral obligation independently from revelation.Footnote 63
The reformation discourse of al-Fāsī, like all the Salafiyya movement architects, was in fact a product of a disturbed Muslim mind that, given the new realities of Western domination and Islamic golden age nostalgia, found itself on the horns of an unprecedented dilemma. The right choice was so difficult that the ensuing discourse of Islamic revival was ambivalent, hesitant, and unsettling. Psychologically, Salafiyya discourse was a result of a collective shock, from which Muslims are still suffering today, for “never before the 19th-century were Muslim religious scholars, authorities and lay intellectuals faced with justifying the sharīʿa in public as the right law to be chosen by Muslims for social application in the face of widespread ideological alternatives.”Footnote 64 Al-Fāsī exhibits well this tension rendering his thoughts on naturalistic themes in Sharīʿa not only ambiguous but tactical, cautious, complex, and open-ended.Footnote 65 Wael Hallaq's evaluation of al-Fāsī's discourse is on target when he qualifies it as an emasculated form of utilitarianism rooted in natural law that is paradoxically constrained by the intervention of revealed texts and medieval legal methodologies.Footnote 66 This paradox reflects al-Fāsī's vacillation about how far one can take the harmonization between Sharīʿa and natural law. Any attempt at a full reconciliation of the two legal systems brings about two conflicting negative consequences. On the one hand, to concede that Islamic law is in total harmony with some legal norms arrived at through reason or consideration of public goods is to infringe on God's authority as the ultimate source and the sole locus of lawmaking. On the other hand, to believe that Sharīʿa does not share the same principles with natural law risks rendering the whole reformist project futile. For al-Fāsī and other Muslim reformists, the way out of this conundrum has been a kind of concocted discourse riddled with contradictions and inconsistencies.Footnote 67 While al-Fāsī supports the idea that Islam is the perfect expression of human natural disposition (fitra),Footnote 68 he avers, “Sharīʿa is a set of legal injunctions (aḥkām) that comprise some objectives. It is also a group of objectives that contains legal injunctions. Sharīʿa is not akin to a natural law inherent in God's creation and discovered by man through inspiration, the obscure discovering the obscure. Rather, it is in fact looking at certain general sources by which man guides himself to thoroughly grasp the secrets of the Sharīʿa and its purposes in their generality and specificity through [divine] speech and revealed proofs.”Footnote 69
Therefore, even though al-Fāsī exhibits a sharp awareness about naturalistic themes in different legal traditions, he could not depart from the mainstream orthodox and traditional Muslim perspective that places revelation at the center of the general theory of knowledge, a perspective predicated on an Islamic legal doctrine that ties legal inference primarily to the scriptural sources rather than to human independent competencies like reason, natural disposition, and rational conceptions about utility.Footnote 70 However, because Islamic law and natural law are not necessarily compatible and given the fact that the former is superior to the latter by virtue of its divine origin, the question that requires attention is whether or not the above-mentioned contradiction in al-Fāsī's discourse is a permanent deficiency, implying the impossibility of integrating Sharīʿa in the corpus of secular laws adopted by modern Muslim majority postcolonial states. March clearly argues that the inconsistencies of al-Fāsī's views are unresolved and remain ubiquitous across the broader spectrum of modern Islamic legal and political thought. He writes, “Fāsī's reflections reveal a set of unresolved ambiguities and conflicting impulses that impose crucial costs on developing a perfectly consistent moral theology, ambiguities that I believe permeate modern Islamic legal and political thought more broadly.”Footnote 71
March's assessment, I argue, is hasty and overlooks some important details within al-Fāsī's general purpose to seek a reconciliation between Sharīʿa and modern laws. It is true that al-Fāsī appears to object to any attempt to constrain God's freedom to devise laws and issue commands that are not necessarily in harmony with human reason or inner natural disposition. For this reason, al-Fāsī repeatedly insists that the general objectives of Sharīʿa ought to be dependent on revealed proofs. Hence, Maqāṣid, according to al-Fāsī, are “part of the essential sources of Islamic jurisprudence. The ruling arrived at by way of public interest or legal preference (istiḥsān) or by any other way of creative legal reasoning, is considered an Islamic legal ruling; that is a discourse from Allah to those who are legally responsible (mukallafūn), for it is the result of the legal discourse made explicit by these objectives viewed as indicants leading to the rulings intended by Allah through His Book and the Sunna of His prophet.”Footnote 72
So, while al-Fāsī downplays the ontological basis of the harmony between Islamic law and nature, be it physical or moral, he highlights the critical role textual and paratextual interpretation plays in achieving that desired harmony. For example, al-Fāsī's inclusion of human rights within the domain of legal objectives of Sharīʿa, which is indeed a novelty and a significant addition to the classical theory of Maqāṣid,Footnote 73 is supplemented with a new theoretical tool that al-Fāsī calls amr irshād (order of advice). He declares that he is the first jurist ever to have mentioned it, and he proposes that this order of advice be included as a source of law with equal weight enjoyed by other known sources.Footnote 74 This unprecedented source refers to the direction of a divine command. This direction is supposed to alter the existing command when contextual circumstances are ready to support such alteration.Footnote 75 For example, explains al-Fāsī, the Qurʾānic commands on polygyny by restricting the number of legitimate wives to four and the emphasis on fairness on the part of the husband is to abandon this type of marriage and move toward the ultimate adoption of monogamy.Footnote 76 The same applies to war. Given all Sharīʿa restrictions on warfare, al-Fāsī concludes, using the order of advice mechanism, that sustainable peace is the ultimate direction of divine commands.Footnote 77 Implicitly, the order of advice as a hermeneutical strategy means that the purposes of law being general, normative, and noncontingent override individual, substantive, and contingent laws. The reason why al-Fāsī is hesitant to accept a direct congruency between Sharīʿa and the radical reason-based theory of law is to be uncovered from his attempt to appeal to the masses and the ʿulama, who are generally the champions of a traditional version of Islam. For this reason, I partially disagree with Hallaq's evaluation of al-Fāsī's hermeneutics as irredeemably traditional and conventional. Hallaq states,
It is difficult to make sense of Fāsī's thought in light of his hesitant and selective appropriations from traditional legal theory. He dearly appreciates the necessity to remold legal theory so as to render it responsive to modern exigencies. Yet, he is reluctant to abandon the conventional hermeneutic as expressed in qiyās, istiḥsān and the literalist approach to legal language. More important, while he hovers over a renewed notion of istiṣlāḥ, to justify, if nothing else, the modern reforms in the law, he proves himself unable to embrace a legal philosophy that relegates the texts of revelation to a place subservient to the imperatives of modem social change.Footnote 78
While Hallaq is correct in his description of al-Fāsī's inconsistencies, he fails to take note of this reformist's latent discursive strategies and how he maneuvers to negotiate the modernization of Islamic legal thought. Had Hallaq given even the least of his attention to the order of advice mechanism as expounded by al-Fāsī, he could certainly have mitigated the intensity of the criticisms he hurled at al-Fāsī's legal discourse.
Central to al-Fāsī's modernizing program is the elevation of Sharīʿa rulings from the specific and the cultural to the universal and the global. This desire is bound to be challenged by the particularities of Islamic law that govern most of the body of substantive law. To overcome this predicament, al Fāsī sets the whole Sharīʿa on a gradual course of change with the ultimate purpose of embracing humanity as a whole. Just like qiyās (analogy), the order of advice serves as a tool of legal inference as well as a source of legislation.Footnote 79 According to al-Fāsī, the order of advice method is constructed through an inductive survey of textual legal proofs to be backed up by a host of legal indications like all the universals of Sharīʿa (Kulliyāt al-Sharīʿa).Footnote 80 He states, “What should hinder us from relying on this source, the order of advice, which is realized through the fulfillment of what the Lawgiver intends in any particular case of law such as the longing for freedom, the desire to establish justice and peace in the family, the realization of world peace and the banning of war, something He intends for every unit of humanity?”Footnote 81
Sharīʿa, Reason, and Fiṭra
Heated debates among Muslim scholars on the place of nonrevelatory criteria in legally assessing acts spanned a period of four hundred years since the eighth century of the Islamic calendar and were subsequently summarized, explained, and taxonomized for another eight hundred years.Footnote 82 Al-Fāsī devotes a whole chapter to argue, like all Muslim reformists, that Islam is “the religion of reason and justice.”Footnote 83 His discussion reflects well the development of the Islamic intellectual tradition as a discourse in which philosophy and theology are integrated.Footnote 84 Muslim theologians, argues al-Fāsī, seem to have wasted much time and energy in futile debates as to whether or not God is required to act justly in accordance with human interests, and whether an act is inherently good or bad independently from the divine will.Footnote 85 The Sunni Ashʿarites, claims al-Fāsī, emphasized God's omnipotence and the absoluteness of his will, and hence an act is good not because it is essentially good, but because God willed it to be good.Footnote 86 Consequently, human reason is incapable of formulating laws with normative authority independently from revelation. Muʿtazila and Māturidīs believed that God's will is inherently good and hence open to human rational evaluation.Footnote 87 The absolute will of God as understood by the Ashʿarites by no means implies that God can do evil, but it places the divine acts above human judgment.Footnote 88
However, the problem of evil and how Muslim theologians reacted to it had significant consequences on Muslims’ understanding of God's justice. While Muʿtazila argued that God can never do evil, the Ashʿarites agreed with the possibility of God doing evil given His absolute will. The Māturidīs claimed that some evil acts, such as punishing the obedient, are unjust and therefore God will not perform them. In his search for a solution to this dilemma, al-Fāsī resorts to Muslim philosopher Ibn Rushd (Averroes, d. 1198), who believes that God wills evil only for the good it can accomplish.Footnote 89 For this reason, God created in us the ability to choose between good and evil. Such ability guarantees our freedom of choice being the repository of human responsibility. Al-Fāsī's aim is to go beyond the prolixity of theological arguments and seek a middle ground between Muslim theologies. Hence, he capitalizes again on Ibn Rushd's moderate view on human will's being limited by the external laws embedded in the universe.Footnote 90 Yet, limited will does not mean the human inability to choose and make independent decisions. According to Johnston, al-Fāsī believes that “Ibn Rushd is correct when he argues that neither is God's power to predestine events in the future (al-jabr) all determining, nor is human will absolute.”Footnote 91 This moderate position adopted by al-Fāsī came at a price. Following Abū Muḥammad ʿAlī ibn Aḥmad ibn Saʿīd Ibn Ḥazm (d. 1064), al-Fāsī seems to agree that reason has no say in some legal matters compared to its importance in general matters of understanding.Footnote 92 Therefore, reason has only a subordinate status in the area of law although the general principles of religion do not go against reason in the first place.Footnote 93 For al-Fāsī, reason is only one aspect of a larger and more significant human faculty that is fiṭra or human innate disposition. It refers to what God has endowed humans with such as reason, the ability to acquire knowledge, the inclination toward sociability, the readiness to obey divine commands, and the thirst to explore the unknown.Footnote 94 Al-Fāsī declares that Sharīʿa and fiṭra are in total harmony provided that the term fiṭra is not understood to specifically refer to human intellect as Ibn Sīnā (Avicenna, d. 1037) and other Muslim philosophers did.Footnote 95 Thus, explains al-Fāsī, human fiṭra is not limited to the inner human nature; it also covers the realm of actions and behavior.Footnote 96 So, fiṭra in al-Fāsī's parlance combines two dimensions: epistemic and ethical. Al-Fāsī here continues the same Islamic legacy of orthodox jurists who downplayed the role of reason, allowing it only a secondary role in legal theory, with revelation the primary role. Andrew March rightly observes that al-Fāsī understands Sharīʿa “in much the same way that Muslim theologians and legal theorists have always understood the distinction, namely in the centrality of Divine command and the importance of revelation for clarity and determinacy in legal and moral norms.”Footnote 97 Even the objectives of Sharīʿa as well as its secondary sources “are not a separate source external to revelation but entirely part of it—a ruling extracted with reference to maṣlaḥa or maqāṣid is considered a sharʿī ruling or a divine address, and not a distinct constraint on the law or an independent interpretive lens for extracting the rules.”Footnote 98
Islamic Law and the Concept of Utility (Maṣlaḥa)
Legal precepts are continually revised, amended, and even abandoned on the basis of how much justice they can serve and the extent to which they fulfil certain individual and social utilities. Even divine law, as represented by Sharīʿa, is subject to human interpretation deep-seated in the principles of justice and social welfare. However, Muslim jurists seem to unanimously agree that the definition of what is beneficial (maṣlaḥa) and what is harmful (mafsada) is provided, directly or indirectly, by revealed texts rather than by human reason. Al-Shāfiʿī's final articulation of the sources of Sharīʿa law succeeds in placing the sources of law above any other hermeneutical device, and hence the concept of maṣlaḥa has been approached “especially by Shāfiʿī jurists in terms of ‘sources.’”Footnote 99 In the post-Shāfiʿī period, argues Muhammad Khalid Masud, three main views arose to account for the relationship between revelation and maṣlaḥa. The first position was advocated by some Shāfiʿī jurists and theologians. They claimed that something is considered a legitimate benefit (maṣlaḥa muʿtabara) only if it has a textual basis. Therefore, any maṣlaḥa not covered by a revealed text is considered void and invalid (maṣlaḥa mulghāt). The second view was largely espoused by the Ḥanafi jurists and some Shāfiʿīs. They argued that even if a maṣlaḥa is not textually stated, it still falls under the purview of legitimate benefits as long as it is analogous to some other established benefits. Hence, while the text is regarded as the basis of maṣlaḥa according to the first opinion, already established benefits, according to the second view, become the basis for new ones through the application of analogy. The third opinion ascribed to Mālik b. Anas maintains that unrestricted benefit (maṣlaḥa mursala) which has no basis in texts nor is it analogous to other established benefits is considered valid and legitimate. Masud appears to ignore a fourth opinion, attributed to Najm al-Dīn Sulaymān ibn ʿAbd al-Qawī al-Ṭūfī (d. 1316), who radically departed from the orthodox juristic outlook and argued for the precedence of rationally formulated benefits over revealed texts. Al-Ṭūfī proposed a clear-cut theory of legal interpretation ingrained in substantive rationality.Footnote 100 He “prefers to place maṣlaḥah above all legal sources, including the Qurʾān and the Ḥadīth which, according to him, cannot lead people to uniform rulings. He believes that only with this theory can human welfare be secured.”Footnote 101 I regard this medieval and unique view adopted by al-Ṭūfī as a counterexample against the widely held opinion among modern Islamists that overlooking the Qurʾān and Sunna in modern legal discourse exhibits a complex of inferiority against Western hegemony and a willingness on the part of the conquered to emulate the conqueror. Al-Fāsī's critical analysis of al-Ṭūfī's view resonates well with the mainstream Islamic orthodoxy. He objects to the possibility of having a contradiction between a general text and human interests.Footnote 102 For al-Fāsī, this possibility exists only in some specific textual indicants that entail Ijtihād to remove the contradiction by evoking the general import of texts instead of preferring interests to revelation.Footnote 103 Ijtihād in al-Fāsī's legal theory refers to the intellectual effort exerted by erudite jurists to adapt Sharīʿa to changing environments. The mujtahid has to depend on three aptitudes in the process of legal inference:Footnote 104 (1) acquaintance with textually based sources of law like Qurʾān, Sunna, Consensus, and legal disagreement; (2) firm knowledge of Arabic language namely semantics; and (3) the ability to evaluate various evidences in order to select and employ the weightiest. Ijtihād is, therefore, functional rather than creative. Nowhere in al-Fāsī's discourse is there any clear attempt to view legal inference as an inventive effort distinct from the sources of law except for the order of advice tool mentioned earlier. Hence, new legal opinions ought to relate to old ones. Just like the higher objectives of Sharīʿa, Ijtihād has no independent existence from the sources of law. However, al-Fāsī repeatedly attempts to surpass many classical views especially in areas of human rights. To do so, he needed to revisit some principles of Islamic legal theory (uṣūl).
Ethical Aspects of Sharīʿa and Legal Inference
Another area of creativity in al-Fāsī's discourse on Maqāṣid is the ethical background for legal rulings. The classical theory of uṣūl provided only an atomistic and case-based approach to ethics in legal inference. One might assert that Muslim legal theorists have not discussed ethics as an independent theme of Islamic jurisprudence or as a general framework of legal inference. Rather, they have extensively elaborated ethical issues in the area of substantive law. For example, the Muslim is enjoined to avoid all types of fraudulent practices in transactional dealings, a ubiquitous topic in all Islamic legal compendia. Therefore, no systemic effort has been invested by classical Muslim jurists to approach ethics as part and parcel of the legal theory. Al-Fāsī begins a chapter titled “The High Moral Standards are the Criterion for Each Public Interest and the Basis for Every Legal Objective” by stating that legal objectives are subject to divergent views.Footnote 105 Hence, what is considered by a community or ideology as a benefit to be achieved may be regarded by another community or ideology as a harm to be avoided.Footnote 106 According to al-Fāsī, this state of affairs has always been behind political conflicts and military clashes.Footnote 107 To overcome this calamity, agreed upon universal criteria must be identified to account for globally legitimate objectives that ought to be attained by mankind. Al-Fāsī maintains that ethics is what humanity agrees on as the ultimate purpose for human behavior.Footnote 108 Since Islamic ethics are embedded in human beings’ natural predisposition to good (fiṭra), what remains is that all communities should come together to achieve these moral standards and establish their laws according to them. Al-Fāsī suggests two concepts that constitute the ethical foundations for all legal obligations. The first is al-ʿafou, or tolerance,Footnote 109 which is an ideal ethical concept with strong legal implications. On the basis of this standard, every legal command is considered legitimate as long as it removes hardship and stresses ease. Yet al-Fāsī fails to explain how a hardship resulting from a particular legal injunction is universally assessed as such. The second is maʿrūf, that which is recognized by mankind as good.Footnote 110 The antonym is munkar, that which is abhorred by mankind as strange to human fiṭra. The legal implications of maʿrūf are substantial, for what Islam enjoins is supposed to be naturally recognized by any human being regardless of his religious affiliation or nationality.Footnote 111 Thus, al-Fāsī, widens the definition of the mukallaf (a person who is legally accountable under Islamic law) to include even non-Muslims because they are supposed to know what is maʿrūf and what is munkar.Footnote 112 Again, al-Fāsī could not take this reasoning to its logical end. If maʿrūf constitutes what is known and approved by human natural disposition, then the particulars of Sharīʿa should be evaluated on the basis of this universal ethical standard. In other words, Sharīʿa laws are supposed to be subservient to what human nature prescribes as legal and ethical and what it proscribes as illegal and unethical. Al-Fāsī seems to reject this conclusion. He understands natural ethics (al-akhlāq al-fiṭriyya) within the parameters of what is approved or disapproved in Sharīʿa instead of understanding them in light of a universal natural disposition. Al-Fāsī agrees with Rashīd Riḍā that maʿrūf ought to be constrained and limited by revelationFootnote 113 and, thus, what Sharīʿa recognizes as an approved practice becomes a universal standard, a one-way material implication.
Conclusion
As mentioned earlier, al-Fāsī was preoccupied by issues of state building brought to the foreground in the period following the independence from the French protectorate. He was a strong advocate of a gradual Islamization of the Moroccan constitution—although with a more liberal inclination. Al-Fāsī's Islamic state is essentially distinct from the utopian, idealist, and anti-Western state envisioned by Islamic political activists of the postcolonial period, such as Egyptian Sayyid Quṭb (d. 1966) and Pakistani Abul A'la Mawdūdī (d. 1979). In the section he devotes to political sovereignty in Islam, he makes no reference to either Quṭb or Mawdūdī, whose ideas on ḥākimiyya (divine domination over the legislative authority) were supported by the vast majority of Muslims, especially in Egypt and Pakistan. Rather, he relies on Rashīd Riḍā and ʿAbbās Mahmoud al-ʿAqqād (d. 1964). Quṭb or Mawdūdī represent the final formulation of a modernist Islamic outlook with an implicit turn to Salafism, while Rashīd Riḍā and al-ʿAqqād are free Muslim thinkers with no clear ideological agenda. At the theoretical level, al-Fāsī agrees that God is the sole lawgiver. However, in practice, legislative authority is vested in the people who elect their representatives in a way similar to any democratic system. Because Sharīʿa laws are in line with the human fiṭra, the legal system and the constitution of the modern Muslim state will be compatible with the globally recognized human rights and the principles of social justice. Hence, not only are human dignity, freedom of conscience, woman's rights, and democracy protected by Sharīʿa, but they are the ultimate objectives of the Islamic state that is, therefore, prepared to cooperate with all other nations for a just global order and peaceful coexistence.
