abu ishaq al-s~tibi>s reforlmltlation of a...
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e-- ABU ISHAQ AL-s~TIBI>s REFORlMLTLATION OF THE
CONCEPT OF BIDCR. A S m Y OF HIS
ALICT~SSW
A thesis
submitted to the Faculty of Graduate Studies and Research
in partial fWWment of the regu.&ments of the degree of
Master of Arts
BY
h e p Saepudin Jahar
Institute of ïsïamïc Studies
McGill University Montreai
Canada
Asep Saepudin Jahar 1999
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Author : Asep Saepudin Jahar
Titie : Abu Is+q al-ShatibT's Reformulation of the Concept of Bid'a:
A Study of His al-IrteÜm
Depariment : Institute of Lslamic StudZes
Degree : Master of Arts ( M A )
This thesis Iooks at the concept of bidru as defïned by al-Shatibi (d.
7901 1388) in his al-Ictig5rn It begins by setting this deanition in the context of
his time, which was an era of rapid change, and in the context of the criticisrns
leveled at al-ShGfilG by those who accused tiim of intmducing innovations into
the law. His andysis of bidca was written in response to tb is situation and it
was also an exercise in reformuiating the concept on the basis of a sMct legal
methodology. Our investigation therefore includes a survey of the fundamental
features of bidca, defïned by al-Shaw as having two aspects: al-bid'a al-
haqïiyya (real bid'a) and al-bid 'a al-idàfryya (relative bid'a) . This taxonomy wiU
in turn be considered in the light of his division of the Shan'a into 'ibadit
(religious matters) and 'cidiyyat (mundane matters) . M e r m o r e , it also
analyzes al-Shàtibi's distinction between the basic character of ~ Z d y
mursala and isti&& on the one hand, and bid'a on the other. Having
concluded that the latter is essentially prohibited, he was concemed to vaiidate
the first two, which he realized were vital sources of the law. The investigation
will also investigate a l -Shw's rejection of the possibility that bid'a could be
divided into good and bad, and his objection to assigning the five legal values to
this concept
Auteur : Asep Saepudrn Jahar
Titre : La ReformuIation du Concept de M'a par Abü Ishaq
al-Shatibi: Une Étude de Son al-I't&cÜn
Departement : Institut des Études Islamiques, Université McGiU
Diplôme : Maîtrise ès Arts (M.A.)
Ce mémoire jette un regard sur Ie concept de bid'a tel que défini par al-
Shaw [mort en 790/1388) dans son al-I%@x La recherche établit au départ
changement rapide! et ce! dan un contexte des critiques adressées à al-Shaw
par ceux qui l'accusaient d'avoir introduit des innovations dans la loi. Son
analyse du bidca fut écrite en réponse à cette situation et son ouvrage fit aussi
un exercice dans la reformulation du concept, en se fondant sur une stricte
méthodologie Iégde. Notre enquête va donc indure un survol des
caractéristiques fondamentales du bid'a, définies par al-Shatibi comme ayant
deux aspects. soit le al-&idCa a l - w y y a (le vrai bid'a! et le al-bidca al-idgfzyya
(le bid'a relatif). Cette taxonomie sera à son tour considérée selon sa division de
Ia SharfCa dans lxibàiit @es -es religieuses) et Cc5digyüt lies affkires
séculières) . De plus, la recherche analysera la distinction d'al-S entre,
d'me part, le caractère fondamental de La ~~ mursala et f'ist&sün et,
d'autre part, le bidca Ayant conclu que ce dernier est essentiellement prohibé,
al-ShZtibi était soucieux de vaLider les deux premières caractéristiques, qu'il
considérait comme étant des sources vitales de la loi. La recherche enquêtera
aussi sur le rejet d'al-Shaw de la possi'brlit6 que le bid'a peut être divisé en
bien et mai ainsi que de I'objection de l'auteur à l'assignation des cinq valeurs
légales à ce concept
I would iike to extend m y deep appreciation to those who assisted me in
the course of r~iy graduate studies at the hstitute of Zslamic Studies, M c G a
University Monfreal. I would est of ail like to express my sincere gratitude to
my academic advisor and thesis supervisor, Prof. Wael B. Hallaq, without whose
guidance and encouragement this work could not possibly have ken
accomplished. His brilliant maste- of the subject of Islamic law and He-long
cornmitment to schokuship have been an inspiration to me- 1 owe a debt to him
that 1 wilI never be able to discharge.
1 wish also to express my thanks to Prot A. Oner Turgay, Director of the
Institute of Islamic Studies, for his support throughout my tirne at the Institute.
Thanks are also due to CIDA (Canadian International Development Agency] for
my scholarship gant and to the staff of the Indonesia-Canada Higher islamic
Education Project.
1 also want to express my gratitude to my co12eagues Masdar H h y .
Chuzaemah Batubara, Su'aidi Asy'ar& Munir: M u j i & w m a n , Andi Ni.
Kusmana and Lia for their support, valuable intelIectual exchange and sincere
fkiendship during ~ny academic s t q in Montreal. 1 would also like to th& the
SM of the Islamic Studies Library. especiaiiy Salwa Ferahian and Wayne St.
Thomas, who assisted me in obtahing sources for q thesis; Jane Trernbley
who has eanslated the abstract into French. The efforts of Reem Meshal and
Steve Millier. who patiently helped m e in editing the language of earlier drafts of
this thesis into readable EngEsh, are vexy much appreciated as weU.
I wouid like to express m y appmiation to my parents and parents-in-
Iaw, who aiways supported and prayed for my success in this endeavor. Special
and sincere gratitude is due to my late grandmotber wbo ~elessly protected
and supported me since childhood. 1 regret Wt 1 could not see her before she
passed away while 1 was in the midst of wxiting the last chapter of this thesis.
To my faniily who aiways encouraged me to pursue my graduate studies
abroad, 1 owe you all a v e v great debt
Last but not least, 1 am indebted to my beloved wife, Tati Nurqomaryati,
who has always given me her support and encouragement. Without her
patience at living so far away h m me, this thesis could never have ken
accompiished. E t is to her îhat i humbly dedicate this thesis.
Montmal, May 1999
A.S.J
NOTES
Throughout this thesis the soumes of reference have been placed in
footnotes at the bottom of every page. For example, AbÜ Ishaq al-Shapii, al-
I'tiqàin, ed. Mutpumuad Rashid W G , 2 vols. (Caïrv: Maktaba al-TijEriyya al-
Kubrâ, ad.), 1, 192-197. While each source has been referred to in full detail at
its k t occurrence in a particuîar chapter, from its second occurrence on, O*
the author, the title (in short form with quotation marks), and the (volume and)
page number were recorded. Later references will use a shortened form of the
work, such as al-Shatibi, al-ï't&fin, vol. 2, 131.
The system of transliteratIon of Arabic words and names applied in this
thesis is that used by the Institute of I s W c Studies, M c G a University. The
table of transLiteration is as follows:
TABLE OF CONTENTS
...................................................................................................... Abstract i
. . Résumé.. .................................................................................................... .u
*. . Acknow1edgments.. .................................................................................... .ln
Notes. ............. .,.. .............. ... .................................... .v
Table of Contents.. .................................................................................... ,.vi
Introduction. ...............................~........................................-...................... 1
Chapter I: THE SIOlPlFfC~CE OF AGI~TI@&IN THE DEVELOPMENT
OF A L - s ~ ~ % ' s LEGAL THEORY
A AbÜ Isw-q aî-Shao'b7's Life and Work.. ......a.........-.......... ... . -7
B. m-m and Jurists in Andalusia. ........................................ -11
C. From al-MuwafaqZt to al-lc/isüm .........................a............ -26
Chapter II: BIDcA WIT- THE FRAMEWORK OF AL-BH~TIBL's THEOR.
B. Abü fswq al-ShEtibi's Concept of Bid 'a.. .......... ,. ......... ... . .49
Chapter Ili: BIDcA AllD A G S ~ ~ ~ S ARGUMEIT REGARDïïVG MASLAHA
MVRSALdl AND I S ~ S À %
.............................................. A. &'d'a and M-1- Mursalu 69
Bid'a and
Conclusion. .............................................................................................. -9 9
Abu Ishaq al-Sh-bi (6.7901 1388) was one of the most Wuential
schoIars of the Maliki school in Andalusia in general and Cordoba in
particuLaruLarl His signiticance lies in E s contribution to the refoxmulation of
Ishnic legai theories, particUlRr1. the notion of bidca (innovation). One of his
most important works on Is1Fimic k w is al-i~üirz, which expounds in pariicular
the reiationshîp between the notions of ui-mu@@ cd-mursala and istiwün to
bid'a.2 ln th.% work, he discusses the nature of the latter in I s W c Law, and
argues that bùica was strictly forbidden. Prior to al-ShZm, aLmshT
(6.4741 108 1) also rejected bidca but did not differentiate between a novelty and
an innovation (muMatha and bid'aj.3 However, al-Sha@bIys distinction between
C&diyyÜt (customs) and SbEdCt (ritual practice) allowed him to restnct the scope
of bide% by redenning its concept Ïnto bidca haq-iyya (real bidca) and bidca
idüfyya (relative bidca) .4
A I 4 ~ 6 r n was written in response to charges by his conkmporaries that
he was an "i?novator", Le., someone who deviated from the tnie path of religion.
1 Maribel Fierro, "Al-Shatibi," in The Encyclopaedia of Islam, new edition. While a M S k i scholar, al-Shatib'i alss wrote beaiises on grarnmar, poew and theology as weiï as Islamic jurisprudence.
2 ~ b Ü Isbiiq al-Shgtibi, AZ-I%&Em ed. MuIpmmad Rashid Ridg 2 vols. (Cairo: al-Maktabat al-Tijarjya al-Kubra, nad.). This book is closel.. reIated to al-Muwafaqcft f U.l aZ-SMCa The latter is mostiy concemecl with legai theow.
3 ~ b ~ Bakr Abmshl, Kita'b a l - m a r d h wa al-Bida; ed. 'Abd ai-MaJd aL-TurE (Beirut DEr al-Gharb al-IshG, 1990), 3 1-2. W s h l contended that novelw or innovation in 'Üdat and 'ibtfdd which was not stipukted in the Qur'ari and the sunna is prohibited.
' Al-ShatibÏ, al-ï%@a, vol 1,286-287.
In this work, al-ShaD'bi does indeed seeb to formulate a novel epistemology of
bid'a in which fie rejects the notion of bidcu lpsana5 To compensate for this,
however, he borrowed the concept of sunna &zsana (a good tradition).6 His
argument in ui-I?i@in is inte~~elated with his eariier work on legal theov, al-
M u w â f q â t While his unique appmach to the concept of bidca was not limited
to the Iegal field, its implications for innovation in the Shan's were especially
profoumi, and entailed p a t e r reliance on reason and human humsnistic
considerations.7 The theory of al-ma+la& al-mursala and isti@xfn, for example,
are seen as compatible with the Shan'q and csnnot be categorized as bid'a
@asana However, the main purpose behind his writing of this theoreticai
exposition was to criticize the S u - . for what he believed to have k e n a rigid
and unduly demanding application of the iaw on the one hand, and the jurists
who were too lenient in issuing fatwEs on the other.8 In response to this
situation al-Shatibi's theory, therefore, aimed at restoring the iaw which he
thought had been corrupted by two extreme practices: the lax attitudes of
6~-~hae%ï, a i - X C t & c ï i i 142. Bidea marra, unlike sunna mana, al- Shàp'bi contends, is prohiiited because it is often used to jus* personal desires reseznbles the Shczrïca.
8 ~ a e 1 B. Hallaq, A History of Islamic L e g d Theones (Cambridge: Cambridge University Press, 199 7), 162-72. H&q ehcidates the historical background of al-ShZtibi's works, a l - I c ~ ~ and al-Muwafaqcfc which challenges the contempomy .(i and jurists who accused him of being mubdic (innovator). Hallaq highlights particularly three accusations: firs t is the stringency of his legal views; second, his inimical attitude toward the WB; ami third, his deviation fiom the jarnafa (reiigious community).
jurisconsults, and the excessive legal demands hposed by the niajority of
Al-SWtibi divides bidca into two types: The first is an innovation in
religion that resembles the way of the Sharfca; the second is an innovation in
'cGdiyyyàiF with an intention sirniîar to that of the Shda Whenever innovation
deals with re1igious matters (Sbti&ft) wiehout any cIear indication (dalr'l shaffj
noni the SMCa, it shouid be considered bidCa Whenever the novelw
(mwatha) deals exclusively with '6diyycii @undane matters), it cannot be
considered bid 'a Io
Al-Shatibi, furthermore, does not consider aii muMathas as prohibited.
Whether they are or not hinges on the intention (nFya) and the correct
understanding of the prrrpose of the M c ~ ~ l If the act and the intention
conform to the purpose of the Shcd'a, the act is vaiid. O n the other hand, if act
and intention violate the Shan7a, the act is invalid. If only the intention
conforms to the SMca and the act does not, the act is qualined as bidca If the
act conforms but the intention does ~ o t , the act fds into the category of
hypocrisy -12
Al-SMtibÏ disagrees with jurlsts who iden* al-ma$- d-mursala and
istib6n as bidca According to him, both al-nm+l@a aCmursala and ffiti@&
LoAI-~hatibi, al-I%$âm, vol. 1, 36-42. He Werentiates between mumatha and bidca The former has a broader meaning either religious or mundane matters, while the latter pertains to speciüc matters in the Shwfca
"~1-~hà@i'b1 discusses nia (intention) and correct understanding in his al-Muwüfqüt. See Abü 1s.q al-Sbap'bi, al-Muwüfaqat ft U N ai-ShwrhwrCa, 2 vols. (Beinit: DzÜ al-Kutub al-Wyya, n.d.), II, 31-9 1.
and bid'a are opposed to each other. Al-M@la@a al-mursala and ist@scZn are
compatibie with the Sh6a and therefore do not fall under the heading of
bid'a.13 Al-SMtibi thus showed that acceptable m ~ a 7 i h c ~ n n o t be equated
with bid'a and that they are not limited to the category of &tÜ-iI'+ as some
jurists maintaïned. In fact, the above eiahration on ai-mqla&z al-mursala
conforms to d-Sh5$i"bT's concept of mcqla&z which is of fundamental
sienificance to his doctrine of ~ n a ~ w d al-shmfca 15
AI-Sba?ibi elsewhere confirms the primacy of the Qur'tZn over other
sources of Law. Even the Sunna seems me- a fooîxote to the Quihi6
Moreover, al-Sha-.l admits that the nature of 'âdiyycft acts, wbich are not
specified and prescribed in these two sources, might change accordhg to thne
and place. Furthermore, wlde the Shan'a remains infalzi'ble and is based on the
I 3 h this case he refers to M W , who upheld al-mql@za ai-mursala as a legal interpretation. He also mentions the concept of mumiSb of GhazaIi- Conceniing al-nmgla&z al-mursalu, he gives ten examples in support of bis opinion that bidca is not the same as al-nuqla(za d-mursalu Al-Sha@E, al- Ict&& 112-13.
14 In his QI-Mustwf@ GhazaIi elaborated the adaptabizity of rncz+L@a on the ground of d-6 (vital necessity), qatriyya (cIear-cut certainty) and kulligya (universal). See Abu Hadd MuQammad b. Mu&immad &Ghazali, d-Mustaqf6 min 'Rrn QI-UwZ, 2 vols. (Cairo: Mustafa M-d Press, 1937), II, 139-41. For more detaii see also af-GhazaIi, Shrra7 al-Ghaltl fi BayCn al-Shabah wa al- Mukhzl wa Masa7ilc al-TaCZtl; ed. w d al-Kabisi (Baghdad: wba'at al-irshzd, 1971),*205-224.
"~uhammad KhaEd Masud, Islamic Le& mU2osophy: A Sudy of Abù I s h a q d-Sh@ibPs Life and Thought (Islamabad: Isiamic R e s e m h Institute, 19771, 302-3.
IbWael B. HaiIaq, "The Primacy of the Qur'Zin in S h w ' s Legd Theory," in rslamic Studies Resented to Charles J Adans, ed. Wael B. Hallaq and D.P. Litüe (Leiden: E.J. Bri& 199 11, 88. The Qur'âh, according to al -SUE, provides the kulliyyàt of the ShaSa, whiie the Sunna ody interprets it and sometimes entaiIs uncertainty Like surrounding the solitary of prophetic traditions.
unchangulg principles of 'awa7id al-sharciyya, nonetheless the al-'awa7id al-
jcZnya bayn a l - M q (sociai customs) may change.
As long as we know, there are several scholars who have studied al-
SMtibT's works which mostly concenirated on legal theory. 'They include the
work of -ad Rays-, NWyyat d - M a q w d "ind al-Imüm al-Sh@%f
(Virginia: The International Institute of I s h d c Thouet, 1995), &umnSdÏ al-
Wbaydi, al-Shaitibi wa Maq- arl-SMCa (Tripoli: d-Jamahir ai- WqnZ, 1992)
and Muhammad Khalid Masud, Islamic Legal Philosophy: A Shrdy of Abu-1s-
al-ShaTtibiJs Life and Thought (Islamabad: IsIamic Research Institute, 1977).
These works, focusing on legal t h e o ~ and al-Shatibi's thought in generd, do
not touch specifically on the question of the concept of bidca, a subject with
which al-Shatibï was greatly concerned. This study is, therefore, a e fimt
attempt to delve into al-Shgtibi2s standpoint on the concept of bid'a as
expressed in his book al-Icti$a-m
This thesis is comprised of three chapters. The first deals with the
purpose and signincance of alalI%+x5rn in ternis of al-Shiitibi's legal theory. This
is set in context by a discussion on bidca up to ai-Sh5tibi3s the . It ako focuses
on its relationship to his earlier work, al-Muwa-faqüt Moreover, it elabrates on
al-Shaws response to his criücs on the subject of bid'a.
The second chapter dîscusses the conceptual fhmework wbich al-
Shapti worked out for bidCa It anaîyzes the different distinctions he made
between certain acts of ntud practice (Ybüdti't) and customs ('a'diyyü&
However, Shatibi aiso differentiated between red (w$yya) and relative
(i&ij'Tyya) bidca, a distinction which forms the mRin topic of our discussion in
this chapter. The third chapter focuses on the compatibility of al-mcz+l@a al-
mursala and istimcùi with Islamic law (the S b 7 a ) according to al-Sha~'bi's
understanding. This matter pertains to his contention that m @ I a a murs&
and isti@sin do not rem the characteristics of bidca
The conclusion seeks to answer the questions of whether or not al-
Sha$iE's concept of bidra in al-Ic%Km in fàct reveals a new epistemology
compared to that of eariier scholars.
CHAPTER ONE
THE SIGNIFICANCE OF ALI~TI~AM IN THE DEVELOPMENT
OF A L - S ~ T I E @ S LEGAL THEORY
This chapter deals with the juristic and wjtic practices prevalent in
Andalusia duruig the time of al-Shatibi, focusing on the engagement of w j in
excessive spiritual practices and the official phenornenon. This took the form of
indictment by orthodox theologians on the one hand, and the lax attitude of
jurists of Isiamic law on the other. The purpose is not to judge N-j or jurists,
but to attempt a general review of the scholarship, circumstances and means by
which a l - S m responded to these phenornena in al-ICt@6m
A. Abù Ishaq al-ShaibI's Life and Works
As our concern is to scmtinize the position of al-Smbi's scholarship in
relation to the fi and juxists of his time, it will be useful to glance at his life
and works, His full name is reported as Abu Ism Ibrahim b. MYsa
b.M-ad al-lakhml al-SMW. The detatls of his early Me, however, are
not known. His name, al-Shaw, is apparently derived f?om the town of S w b a
(Xativa or Jativa) £ h m which the family hailed. Al-Shatibi was born in fl. 730
A.H. and died in 790 A.H. in ShEtiba, but grew up in Granada where he spent
his days pursuhg a traditional religious educati0n.l Auspiciously, bis career
' m a d i al-Vbaydi, d-Sha@ibi wa Maqci$id al-Sh-'a (TripLi: al- Jamahir al-TJzmG, 19921, 12- 13.
coinaded with the reign of Sul@n M w a d V al-Ghani BilIah, a glorious
period in the history of Granada.2
AZ-Shiitibi was well-known as a m.ahid, a faqZh, a traditionist
(mumddith) and a linguist.3 He studied the Arabic hnguage in some depth with
the master grammarian in Andalusia, Abü 'Abd Allàh M-ad b. 'Ali al-
Fakhac al-BE. His close rektionship wi th the latter continued until a i - ~ ~ s
death in 7451 1353.4 His second teacher in Arabic was AbÜ al-QEsim al-Sabfi
(d. 760/ 1358), who was weI1-lmown for his commentary on the M a q ~ T a of
Hazim. In &h, ai-Shâtibi benefited from the instruction provided by AbÜ Sa'id
b. Lubb. It was to the Iatter that al-Shaw most indebted for the bulk of his
legal training. Newertheless, al-S- engaged in several disputaiions with AbÜ
Sa'ld b. Lubb teacher, on a number of issues-5
Mu&unmad V had conducted a series of campaigns against the Chris-s to establish himself as the defender of Isiam, Due to interna1 troubles in the Christian kingdoms, M u I y m m a d V's tenure was generally successful in repulsing Christian attacks. See Li& al-D-m Ibn al-Khapb, al- -:ta fi Akhbçü- Ghanraïta, ed. Muhammad 'Abd AUah Ghinan (Cairo: Al-Shirka al-Misriyya Ti al-PWa wa a l -Nash , l974), 26-65.
' -ad Bàbâ al-Tanbukfi (d.963/ lO36), Nayl al-IbtihQJ bi-Ta-trri al-Dr'b@, ed. 'Abd al-Hamid 'Abd AUaZi al -Haea, 2 vols. (Tripoli: Kulliyyat al-Daka al- Iskniyya, 19891 1398), II, 48. Baba reports that al-ShgtibZ was a man whose engagement in religious matters ranked him as one of the most reputed irncfins among MaWàte jurists especially in the religious sciences. His command of fiqh, .dith, Qufanic commentary and the Arabic language served his reputation as a sophisticated jurist in issuùig fu.J~Üs to questions put to him.
' Abu Ishaq al-Shapibi, al-rfcùlüt wa al-lwhÜdcZt, ed. Muhammad AbÜ al- A j f k (Beirut Mu'assasat al-Ri*, 1983), 98. See also, Abü al-'Abbas al- Maqqa.6, Nafh al-m, ed. Mukpmmad Muhy al-Dk 'AM al-Haniid, 10 vols. (Cairo: MamaCa Sa'iida, 1949), VII, 276-270; 279-30 1.
' M-d al-Makkiluf, Shajwat &N<r al-Zbkiyya, 2 vols. (Cairo: Salafiyya, 1930), 1, 108, 230. For example, Al-Shapbi was disagreement with AbÜ Sacid b. Lubb in the practice of duc6 @rayer) mer five saluts a day. The former d o w s such practice as a iawfbl while the latter prohibits and c h s it
AbÜ 'Abd AUàh al-Maqqali (d. 758), the author of aZ-&faqziq rua al-
Raqa7iq fi al-Tqaummf; was the man responsible for introducing al-Shs@'bT to
Süfism as weil as to u+l al-&k6 Al-Shaw became acquainted with traditional
and rational sciences through al-Shanf Abü 'Abd Allah al-Tilimsanl (d.
77 1/ 1369), who also boasted the titïe of mufiahid.7 The aforementioned account
makes it clear, therefore, that al-Shatibi studied a very rich range of topics
extending fkom the Arabic Ianguage to the rational sciences. His interest in legai
theory as weU as in the Arabic language was thus kinded at an eariy stage.
While %j and jurists played a signifïcant role during al-Sh@GYs Me
time either in serving the comuni ty or in regulating it, the former were often
accused of upholding notions which contradicted the Qur'Gn and the principles
of the Sunna In his a l - I C ~ ~ aI-Shatibi attempted to eiaborate on religious
and mundane rnatters as substantiated in the Shcuïcu. In his words:
1 started with the p ~ c i p l e s of religion (zqÙ7 al-dk) in theory and in practice and branches based on these problems, It was this period that made apparent to me what was bida' and what was lawN and what was not. Comparing and collating this with the pruicipIes of religion and f7qh (law), 1 urged myself to be with the group whom the Prophet cailed al- sawa'd al-a'gam (the Prophet, the Companions and his followers who avoided bida').
as an innovation, which has no mots in the hophet tradition' or his Companions. See, Vbaydi, aZ-Shciïtibi wu Ma@id al-SMCa, 2 1-22.
I t is stated in Nafh al-1Cb that al-Sha@iI discussed wl al-fiqh [on universal ('&m) and particular (ms) matter] with al-Maqan? which was not dealt with by other scholars. AI-Maqqari, Nafh al-m, VOL Va, 187-88, 232-249.
' -ad BàbS, Nayi, vol. 1,49.
"bu Iswq aI-Shagiii, al-F*Üm, ed. Mulpmmad RasEd Rida, 2 vols. (Cairn: al-Maktabat al-Tijariyya al-Kubra, n.d.), 1, 25. See also, Muhammad Khalid Masud, Islarnic legai Philosophy A Study of Ah- I s m crl-Sha?tibi's Life and Thought (Islamabad: IslRmic Research Institute, 19771, 102.
Aithough al-Shap'bï was h o w n as a jurist, his profession was never
clearly defined, It is regarded, however, that he served as a khatïb or a muftrftrin
a certain moque. HoIding office did not, in fact, appear to agree with his
con-ary temperament, since we iearn that he was later dismissed h m the post
on the charge that he was a mubdfy even though he himseif opposed the
practices of bida?
During his Wetime, al-SM@bi wrote several books on the Arabic
Ianguage, grammar and jurisprudence. A&md Baba, in his Nayl al-lbtih*;
reports that al-Shaw wrote a commentaIy on grammar entitled Shmh 'Alüal-
Khulea f al-N@w. This book, written as a commentary on Alfiyu of Ibn M m ,
consists of four parts.'* Other works of his include 'Unw6n al-Itt.t$ii f 'Rm al-
IshtiqcïQ and Kita-b 0;.7 al-Na?zw. lx Besides his fahuük, collected in the Miry6r of
al-Wmshar?si, he wrote the jurispmdential Kitab al-Maja7&, a commentary on
the section on sale in the S* of al-BukhEî- He also wrote al-ifCdcZt wa al-
ImhÜd6t to which M a q q d and -ad Baba resorted when quoting their
information on Muslim scholars. Finally, his best known work in legal theory is
his al-Muwcffaqat tft U-7 al-Shanhan'a, originally entitled 'Unwciin al-TarnT bi Asrai.
Alpuad bin YahyE al-Wanshafisi, al-Mi'yür al-Mucrib wu a l - J Ü ~ ' al- Mughrib 'an Fatâwtï Wamài? IfniFyya wu al-Andalus WU al-Maghrib, 13 vols. (Beirut DEr al-Gharb al-IsEmi, 1401/1981), Xi , 139-42. Al-Shiïtibi wrote a letter to his colieagues saying that bis position was regarded as seange (ghan'b) or even '%eretical" among bis contemporary 'ularnü due to his consistency in followhg the authoritative classical ftqh rather than the modem one. His rejection of modem fiqh was because of his ignorance with the author or its reliability. Ai- Wanshafisi, al-Micycii al-Mu'rib, VOL 1 1, 141-42. See also, Masud, Islamic legal Philosophy, 1 03.
" Khalid Masud mentions both books: Nayl al-Btihüj of -ad Baba and ShQjarczt al-NÜr of MuQanmmd M W Z . see Masud, Islamic Legal Phi10~0phyy 110.
d-TakEJl* AZ-I?&iin however is the only work in which al-Shàpii elucidates his
notion of bid'a or innovation. AhmiSd BaE does not, however, mention this titie
except for stating that al-Shap'bi wrote a noteworthy book on Wwadith
(novelties) and bidd (innovations). 13
Reading carefully al-MuwàjfaqEt and al-Icti$clin reveds al-SXtibi's
concern for his milieu and for the 'uIam6of his üme. Both books present a
sophisticated legal construction in a consistent attempt at preserving the
authentic Sh&'a on the one hand, and at foilowing the M a t e school on the
other. It is the 'ularna; probably to be identifïed as w!j and jurists, who
become the main target of his criticism due to their deviation h m the Shadca
B. Su-fis and Jurlsts in Andaîusia
The great traveler Ibn BaWw (d. 779/ 1377) reports that Andalusia, and
especially Granada, was famous for the numbers of jurists and Among
them the most famous jurists were Mqammad b. Ibrahim al-BayyZrÜ, Abe Sa5d
ibn Lubb (who became ai-ShtZtib7s teacher) and Abü al-Qàsim al-Sabfi.
According to him, the people of Granada were not only engaged in constant
juristic debate but were much given to practicing in mystical orders. It was the
zt5iyas which served as the centers for tqawwz.tf activities. The famous
and zcfiuiya leader was 'Abd AUah M-ad b. MaQrÜq. His &?ya was welI-
lmown as zwzya Bomka located on the moutain 'Uq@. Moreover, Ibn
Batilpi notes that Granada attracted p u p s of f+ originally h m
l2 Makhlüf, Shajaraf VOL 1, 247. This book was epitomized by QS@ AbÜ Bakr b. '&im (d. 829) who was also known as al-Shàtibis disciple.
l3 AQmad Biiba, NayL, vol. 1, 49.
Samarqand, among them like AbÜ 'Abd Allah. al-Samarkandi and firom
KhmâSan like al-IJGj Husayn al-KhurrEsSd. l4
EIistoric~y it is difncult for us to deiineate exactly the msition" of the
w-j% orders in Andalusia. For as we shaU see in the particuh case of I s W c
Spain, .(-fis were often targeted by jurists. This was probably due to their
Werent approaches to manifesthg the orciinances of God and the Sunna of the
Prophet Both camps, however, crnimed to be servants of God and to be
complying with the prùiciples of the SMCa. Our discussion will therefore deaI
specificaLiy with those -j adjudged as being extreme on the one hand, and
the jurists who were reproached by al-Shatibi for being lax, on the others.
Before describing the attitudes +fis and jurists in Andalusia, it would be
usefiil to look at the issues they raised in the broader contact of Islamic
thought. The case of the great reformer of $üEsm and juristic thought, Sayyid
-ad Sirhindi (d. 1034/ 1624), is instrucing given that he reconciled these two
ways of implementing the rules of God. In his mind, taqawwuf and Jqh were
inseparable, for knowledge of God codd oniy be attained through both the
m a and the haqz3a Both concepts were, for him, subservient to the S h d a ,
or its derivative concepts of Me, iimcrn and *~rnaL~~ He, furthemore
contended tfiat the rapture and ecstasy which experienced were not,
ultimately, the goal of Siifism. For bim, these were the myths and fancies with
l4 Ibn Batilta, R . a Ibn Ba-tJz@a, ed. Karam a l - B u s e (Beirut: Diir Beirut, 1980), 671-72.
" Muhammad Abdul Haq AnSan, @-mm and Sharïca (London: The Islamic Foundation, 1986), 221-22. Sirhindi noted the hallmark S s s m was proceeding in the way of obedience. .ma and @@>a are the main ways of reaiizing its tnird part, shcerity (ikhlcik]. Therefore, the procedure, for him, is to fum the Sharfca, not to consummate something beyond the Shan's.
which the novices of * j m are fed. lkhle, the essence of the S M C a , could
ody be attained by following the path of the m j
From Sirhindi's point of view, the intention to obey God is the ultimate
and superior goal, not the experiences of rapture in themselves. Some &i-m engaged in even more indulgent practices, which led to the corruption of
doctrine and earned the antagonism of jurists who declared such practices to
be strange (ghanb) innovations without basis in the Sunna of the Prophet or hXs
Companions. To the jurists, there fore, any form of worship ('ibCdÜt) without
clear basis in the Q u i E u or the Sunna was bid'a.17
Jurists were also amcious that the excessive ciifferences between the
pzn>as in performing dhikr (invocation) and meditation would serve as an
indiciment of the authenticity of the Sharltway. As such, they often questioned
and even condemned the themselves as heretical bidr&8 A s esoteric
devotees, the *fis espoused a metaphysical approach to the QUIJân and the
Sunna which gave them the widest possr'ble latitude in its interpretation. &iJ%
often went m e r , espousing a unitive metaphysic could be regarded as
" Ignaz Goldziher, Muslim Studies. tram. C.R Barber and S.M. Stem, 2 vols. (London: George Allen 86 Unwin Ltd, 1971), II, 34.
18 Marsha1 G.S. Hodgson, The Venture of Islam. 3 vols. (Chicago: The University of Chicago Press, 19961, II, 218-20. Al-Qushayiï (d. 4651 1072-73), for example, introduced mystical states b Ash'm- k d 6 m Such approach was intended to compromise between the way of the and the way of jurists when observing the divine ïaw.
pr imq, sipifkant for itseif and dispensed fYom any way of Me. Its "full
appreciation couid be seen as the very goal of the mystical discipiine."I9
Jurists Wqahai, according b Bemard Weiss, tended to be more
concerned with the ~'hir al-lafi (exoteric meaning). Such a meaning can be
discovered with the aid of lexicography, grammar, and other sciences concerned
wi th the exploration of the inner workings of the l a . By contrast, the esoteric
meaning subscribed ,$O by y-j cannot be accessed through philoIogicd
investigation, but must be sought h m wholly pnvate sources or through
consultation with individuals privileged enough to possess i t z o Sùnsrn is an
ideology based on mystical experience and cannot, therefore, rely sole@ on the
-hi. meanhg of the lafi, the iaw written in the Qur'Gn or the Wdfth
Ibn 'Arabi (d. 638/1240), the great Andalusian ax criticized jurists for
what he saw as their dependence on qiy& and their rigidity in interpreting the
Ietter of the law without regard for its inner rneaning.21 Moreover, he felt that
jurists were hypocrites who fabricated fahoas in the interest of power and
wealth.22 Unsurprisingiy, the relationship between the two factions was not
I9 Hodgson, The Venture, VOL 2, 462.
20 Bexriard Weiss, "Exotericism and Objectivity in Islsmic Jurispmdence," Islamic Law and Jurisprudence, ed. Nichoias Heer (Seattle: University of Washington Press, 1990), 58. The way of twawwuf or Süfïsm is directed to seek the experience and taste of faith in the hearth, devoid of rational facts. Its objective is to reach the spiritual light (QEm? a l - m i y y a ) and the truth, or become annihiIated in it, See, Mulymmad Y5si.r Sharif, Falsafat al-Teaunuuf al-Sab T?z? (Damascus: ManshiIrat Wizarat ai-Thaqafa, 1990),97-
" M-yi M m ibn 'ArabZ, AI-hctu?pït al-Mcùkigga, 4 vols. (Cairo: Biilaq, 13291, IXI, 69. See Wiliiam C. Chittick, The *-fi Path of Kmwledge (Albany: State University of New York Press, l989), 20 1-2.
" M. Chodkiewicz, ?ibn 'ArabT: la Lettre et la Loi," A d s du le Colloque: Mistique, Culture et Societé, ed. Michael Meslin (Sorbonne: Université de Pans, 1983), 29. Burckhardt aiso informs us that the Andalusian jurists were quite
aiways harmonious. Jurists condemned .(-fi for these transgressions in ritual
practice and their innovations (bid'u), whüe the iatter c-ed that jurists were
too rationaIistic, ignoring the crux of 'ibüdüt The evidence shows that and
jurists were, to some extent, upholding the nilings enshrined in the Qu* and
the Sunna whüe ais0 deviating fkom the path laid by their predecessors.
SÜfEsrn has been consistently criticized by classical and medieval jurists
aLüse, among them al-Shan5 (d. 204/820) and Alpnad b. vanbal (d. 241/855).
The former denounced the -me and their way of rituals, e-g., dhikr, or
singing and dancing as he had witnessed in Baghdad.23 Ibn vanbai likewise
condemned the wfZpath and the practice of zuhd (asceticism) in its extreme
fom.24 The sha.rpest charge came Iater and was leveled by a Hanbalite jurist,
Ibn Taymiyya (d. 728/1327). He condemned the p5qa al-bata7.iyya ai-
rafa"iyya as deviations fkom the tme SWca His reasoning was tkiat, %dthough
they ( ~ ~ ) identined themselves as Muslim ... their practices aiso led to shU.k
(association with God), transgression and innovation in the Shdan25
In S w b b i opinion, and certain jùqahQ (jurists) under the
innuence of tqawwuf contradicted the mainstream of mashhu5- a l - - h (Maiilcite
close to the nilers. In effect, the former were fabricating iaws sometimes to the benefit of nilers. Titus Burckhardt, moorish CuIture in Spain, trans. fisa Jaffa (New York: McGraw-Hill Book Company, 1972), 38-41.
Y 'Abd d - R a @ m k 'Abd d-Khaliq, al-Fikr &-@@fi Qnw' al-Kitab wa al- S ~ n a (Kuwait Maktaba Zbn Taymjyya, 1986/ 1406), 449.
'*Abc al-Faraj 'Abd al-Rahman b. 'AIi b. ai-Jawzl, Taibis I b l k (Cd: D a al-Fikr, n.d.), 166. Mgnad b. -bal rejected &i-j behavior on waswüs (temptation) in 'ibEd6t which was not practiced by Companions.
'Abd al-KhàLiq, al-Fücr al-=fi; 391-92; 449-50. In ibn Taymiyya's words," wa VikaRu' muntusibih iZâ al-lsl6m.. .fa yuJad aydan fl bac@ihirn min al- shirk.. . WQ min al-ghuluww wa al-bida' fi al-ls26m. ."
fiqh) by performing rituds which he considered to be bid'a due to their adverse
effect upon the authoritativeness of jurisprudence mh) and t (qiX26 H1s critique
is probably directed at the extreme perfomances of of an esotenc nature
that seemed &en to juridical principles, According to Weiss, this seemed them
a public rejection of a body of doctrine objectively arrived at. thus became
their opponents, rather than their colleagues. wfts, at times, seemed to
threaten the simcture of theology and iaw pmmoted by jurists and buiit upon
the foundations of the d d 'a@ and the ddiZ IaaW Marshall Hodgson,
however, attempting to reconciIe them through an epistemological approach,
highlights the points on which flr-m (observing the inward meaning) and the
jurists (observing the outward meaning) f ù E U the divine law. Both are
completely valid and necessary, he concludes, complementing rather than
contradicting one .another.zg
26 Masud, Islamic Legal Philosophy, 106- 107. Al-Shapii objected to the practice of submission totaUy to a Shaykh to be initiated into a discipline. Rather, for him, discipline could be hown h m books. H e afErmed his notion referring to a %-'master Ibn 'Abbâd of Ronda (d. 792/ 1389) on the matter. The latter agreed that submission was an essentiaï fact of journey on the path of tqawwuf: Wowever, he disthguished between Shaykh al-tarbiyya (educator) and Shaykh al-taCEm (instructor). The former was essential for everyone while the latter was not. Reliance on "educator" Shayk, for ibn 'AbbZd, was introduced by later wJ6 fmtaJakhiriii), whiie the ancients reïied on uinstructof Shaykh See also, Ibn 'Abbad, al-Rqsa7îï al-mghrcZ; ed. P. Nwiya (Beirut: Impxherie Catholique, 1958), 106-107.
'' See Weiss, '<Exotericism and Objectivity," 57-59. Weiss maintains that "Dacil 'aqE brings the object into the public domain by anchoring the object within a rationai understanding of the world which ali mature persons of sound mind possess. DQlZZ lam on the other hend, is used as an instrument to m M e s t the exoteric as a category or level of meaning."
*' Hodgson, The Venture of Islam, VOL 2, 219. The justification of Süfism, according to Hodgson, with respect to Shafira does not depend on dialectical subtleties or on rigobistic rules, but on a kank labor division. The tclamcfbught the Sharfra, the way of d d y life; the taught the tania, the way of rnystical Me.
Legay speaking, it is not possi3le to say that all practices violate
the S W t a The problem lies, as Weiss notes, with the extreme who ignore
the za'hir al-la& of the n w . More commonly, jurists eiaborated the Shan'a as a
way of daily Me and carried that order into effect in the tm4a in other
words, the +ijj path is presupposed by the SharFa. After all, it was widely
recognized that no person couId attempt t~ become a .cfS unm f h t confkmed
in the way of the jurists.29
Despite AndaIusians adhered in the main to the Maïikite school, they
were also devoted to wfrorders such as the one led by ibn Sab'in (d. 669/ 1270)
and, later, by füs disciple al-Hasan al-Shushtax? (ci. 668/ 1269). Moreover, it
was reported that the development of such &i-fiorders owed much to the influx
of immigrants fiom India, Samarqand, Tib& and Kh~wZsih.3o The flourish of
m s m was, reported that people gathered in the houses of certain W-fi,
especially to recite the Quian, perform dhzk and listen to p e t s Like al-Hallaj.
Such practices were later followed not just by the Fj% but, &O, by juîsts who
tried to blend their exoteric mode o f m h with the esotericism of t ~ a w w u f : Such
cusbms among some and jurists were regarded by al-SMDii as a bid'a
al-dalala (erroneous innovation) which had no precedent in the time of the
Prophet or his Companions.
Generaüy speRking, mystical practices were performed by groups of
+-fiS. Al-Sha@bZ believed that gathe~gs for the purpose of dancing and
mystical singing were not ody foreign to the Sunna of the Prophet but had ais0
30 Yüsuf Shukn FarhSt, Ghamïita ff ?fii Bani al-A&mu (Beirut: Al- Mu'assasa al-JamiSyya Li-al-Dirasa wa al-Nashr wa al-Tawii', 1982), 153-56.
0 been censured by the pious mal-Hasan al-Ba@. The latter condemned every
religious act th& deviated fimm the salaf d+d@ (the pious predecessors).31
The @.i-jmovement in Andalusia is supposed to have been founded in the
10th century by groups of fe W-j% in the reign of Granada.32 Among others,
the most remarkable leader was Sidi Abü 1s.q Ibrahim who was
considered to possess considerable baraka (blessing) . 33 Ibn al-Khafïb records
that some Andalusians were also devoted to the ra3.a (&@order) led by AbÜ
-ad Ja'fàr. This order focused on the recitation of the Qur'Zn, dhi?w and
poeby readings of al-Hmj. Such practices were beyond the pale of the Shan's
according to many jurists. This camp was considered extreme, for its mernbers
would engage in spiritual sessions invoiving ecstatic chanting. More often than
not they went about almost naked, awaiting God's rU~unination.34
Al-Wansharis? (d. 914) reports in greater detail on the growth of *-fi
practices and orders in the Andalusia of his day. The camps or centers of these
mystics varied in structure and in nRme (fi-@ah, ribat or faqU.1 h m one m a
to another. Such were severely condemned by fùqahüwho accused them
of king responsible for the spread of bidca Their gatherings where they
'' Al-Wanshaiisi, al-Micy& al-Muc&, vol. I l , 40. Malik b. Anas severely censured the habit of spiritual singing and dancing. For him, the innovation on that matter is counted as al-bidca ui-&ida (erring innovation) which may only be perfonned by kids and insane people. Al-Wanshafisi, al-Mi'yür al-Muc~b, vol. 11, 41.
" Rachel Aré, L'Espagne Musulmane, L'Espagne Musulmane au Temps des nasrides 1232-1 492 (Paris: De Boccard Imprimerie, 1990), 420-2 1.
" h é , L'Espagne Musulmane, 420-23. The miraculous of AbÜ Iswq was admired for Es ability to cure illnesses which puzzled doctors.
34 Arié, L'Espagne Musulmtvte, 422.
danced, sang and recited dhik?- sometimes moved them to the point of weeping,
Such practices were considered an indicment to the Shri 'a and categorked as
bidca by Anadalusian jurists such as ?zz &D'in b. 'Abd al-SaMm (d.1260/660)
and Abü Faris 'Abd d-'Aiiz b. MuQammad al-Qayrawanl.35
The sharp censure which deviant Sucfpractice elicited was reiterated by
Abu Zayd Sayyidi 'AM ai-R&pZn al-WEghlisX. Basing his conviction on tbe
opinion of ImZm Malik (d. 179/795), who severeiy rejected the practice of
clapping hands and dancing in spiritual dhila, al-WSghiïsi argued that such
activities had never been indulged in by pious a-jpredecessors in the dhilcr or
'ibcGdÜt. However, he admitted, if the practice was intendecl as a defense against
the dangers of corruption (da7 al-mcrfcisid) and not as a form of worship
('iba'da), it could be counted as part of *&Kt and legally be foïiowed.36
Responding to these charges, =fSS argued that no evidence or proof
couid be found to jus- barring the @rQa They pointed out that the jurists
who imp2icit.y gave approvai, legitixnized and attended performances reulforced
these practices. Had they deviated fkom the true path of the SluuïIz, these
j u i s t s would never have taken part in them.37 Al-Swbï, however, dismissing
the presence and attendance of jurists at these fiinctions, deLivers a severe
critique of dhilcr gatherings s forms of prohi'bited bidca. He resorted to the
Al-Wansharisi, Al-Mi'yâr al-Mucrib, vol 1 1, 29-34. Al-Qayrawani wamed against the danger of such practices. Dance and Song in dFiikr were, for him, more dangerous than poison contaminating a body. His severe condemation of it xendered it a bigger sin than zina (adultery), robbery and others. For, according to him, the two big transgressions are obvious, while a-** performance threatens the faith of the layman.
'' Al-Wansharisi, AI-MicyÜr al-Mu 'ri& vol. 1 1, 34
37 Al-Wanshansi, Al-MicycFi al-Mu 'rib, VOL 1 1, 39-40.
histoncal evidence of the Prophet and his Cornpanion who did not engage in
sucfi practices.38
The development of the &iijorders was not generally accepted either by
jurists, e&ecially the extremist orciers. Ibn SabWs teachings, for example,
c k e d that sala- or sawm (fasting in Ramadan) for those who had reached the
level of red 'ulamcf(sing. aiirn) was unnecessary. Moreover, his direct challenge
to Malikite jurists coqtained an indiciment against the readiness of jurists to
permit men to have more than four wives, which was forbidden by the mashhzïi
al-fitqaha", and to d o w the consumption of alcoholic beverages.39 For Ibn
Sabk, the blend of fih, theoIogy (kczEim), Silfism and phiIosophy is important.
Fiqh is the road to the SharïCa, Ash'mfyya the road to theology and Süfïsrn the
road to God's haqria. For Ibn SabTn, fiqh is not the only path to that reality
( m a ) , for it is based on reason &one, particularly @y& (ratio legis), and
hides, therefore, God's Iight f?om His servants. By bis logic, therefore, it is
jurists who have gone astray.40
We have seen, however, that it was jiqh that was considerd the fïrst step
in understanding the divine law of God (Sh&'a) and, therefore, the precursor to
t~awwzf f : But in Ibn Sabfn view, the foundations offiqh --linguistic and divine
laws (SeCa) based on reason ('aql) for those of sound mind (muicallafl-- are
- -
Quoting the hadith of the Rophet, al-Shaw confirmed that the renowned tradition reported: 'khoever rnakes an innovation in our Sïmrfca for which there is no clear textual evidence is absolutely rejectedw (man m a t h a f i amrin6 m-laysa mvlhu fahuwa raddun). Al-Wansharisi, Al-Mïcyàr al-Muc&, vol. 11, 40.
'' Sharif, Falsafat ta l -Tqaww/u~ 114-15. Sharif also refers to the book written by Dhahabi in his TiiXdz al-Islâm
" Sharif, Fakafat a l -T~awunr . 14 1-44.
emneous. His charge to jurists, in this case, was not proportionately irue. For,
he generalized the error of ail jurists without disthguishing between the 'piousn
or qusiified jurists and the lax jurists in issuing the law.
Ever since the tenth century, the role of jurists had no longer been
restricted to refigious &airs oniy, but had also corne to include political theory.
Once established in a given temtory, their support was usudy reserved for a
particular ruler. Indeed, it was true of both jmists and w j that they were
present in every corner of the MusLim world and were generaily in a position to
support one mler over another. By implication, their role was not merely
religious, for it also encompassed the indoctrination of &ers. For example, the
Friday sennon was more than a religious ritual; it was dso a political one in
view of the fact that the names of rulers were invoked routinely.41 This distorted
a -
approached to the Friday sennon led ai-ShatibT to condemn it as bidk Some
Anddusian jurists, such as Wanshansi (d.914), generdy felt that reciting the
names of rulers or su[tciim during the khufba was forbidden. ?zz al-D'in 'Abd ai-
Salam, for example, called it bid'a and detested it42 Nonetheless, the proxhïty
of some jurists to rulers lead them to adopt Lax attitudes when implementing
the iaw, an offense which earned them the contempt of both pious jurists and
Su-frs-
'" M'hammad Benabood, 'Socio-Political Role of Andalusian 'UIarnÜ During W / l P C~ntuxy,~ Islamic Studies 23, 2 (1984): 117-18,
42 Al-Wansbansi, al-Micy6r al-Mu'rib, vol. 2, 469-70. Izz al-D-m enumerated the things possibly mentioned in W b a The k w b a can only contain praise to God, praying, reminding people to fear and ask for blessing from God and reciting the verses of the Qu?&. It is preferred, he added, merely to recite duc& for the Pmphet Mmammad.
The emergence of the practice of twaururuf in Andalusia was often
associated wi th the decadence of mosality and the religious impiety found
among some ju is ts and rule&. This class was accused of Living a glamorous life
style, while the population endured economic hardship. Moreover, it was said
that some jurists were negligent in pronouncing religious pr in~ip les .~~
In the era of the Murâb*n, when the school of M W predorninnted, the
speculative *-fi movement, however, was viewed with considerable suspicion.
The dissociation of W-fis fkom recognized religious leaders had always been a
cause for suspicion and resentment h m the jurists. In contrast to the latter
who seemed to welcome tbeir gmunding in realiiy, participation in esotenc and
mystical congregations, such as those for listening to mystical songs, chanting
was regarded as violent to the orthodoxy.44
For their p a the * j relationship with the government or &ers was
far fkom harmonious. In fact, tbeir v e q presence was regarded as a threat to
these Iatter, who often imprisoned on the grounds that they deviated fYom
the ShMCa It was the jurists, uitimately, who were appointed as the mf7s' judges and executioners, a position they exploited in the înterests of the niling
powers. For this reason even the jurists were characterized as corrupt given
" Ibrahim aLQ5diri Bütaszsh, al-Maghrib wu al-AndaIus fi %sr al- Muraiijfh peirutr DGr al-Tali'a E al-nba'a wa al-Nashr, 19931, 126. Rippin also noted that the es ly mystical practice challenged the manipulation of religion by "the r u h g p e r s for their own purposes". Andrew Rippin, Muslims TheY- Reügious Beliefs and Rdces, 2 vols. (New York: Routledge, 1990), 1, 122.
44 Bütashish, ALMaghrib, 133. --SE regarded the a-j as mubtadic due to their deviation fkom the Sunna and religious principles. See also, J Spencer Trimingham, The Sufi Orders in Islam (Ornord: Oxford University Press, 1998), 8-9.
that they functioned not only as religious offich.ls but as advocates for the
political interests of n t l e r~ .~s
Su-jadepts aspire to a "state" of d e r experience which implicitly entails
the possession of an esotenc knowIedge, both unique and irreducible,
unquestioningly recognized by the MthfuI, The rapid spread of $liJT teachings
was probably aided by the rigidity displayed by some Malikite jurists in
responding to the cbanging needs of society. FazIu Rahman may be correct in
so far as he identifies the rigiàity of the WZamü7, their system of legd casuistry
and empty theological pedantry &ove the more serious minded men of religion
into the w j fold.46 It cannot be denied for instance that some Andalusian
jurists were en~mored of Sufi doctrine. This sparked a reaction fkom al-Shztibi,
who deplored the lax attitudes which permitted jurists to amalgaqate the
exoteric with the esoteric. This did not mean that Süfïsm had no place in IsIam
or in juristic doctrine. Extreme *fi practices, however, such as singing,
dancing and other orgiastic rituais, were generaily abhomd. Süiïsm's cinim to
lead adepts to direct communion with God, was challeaged by the ju1ists.47
Because the jurists also served as qud& (suig. qai, it was common
practice to RmRlgamate religion with politics. The khufba (Friday sermon) as
rnentioned above, for example, was used as a forum for the pronouncement of
a Fazlur Rahman, Islam, 2nd ed. (Chicago: University of Chicago m s s , 1979), 142-43.
'' Rahman, Islam, 150-5 1.
the caliph's name.48 Jurists thus, to some extent found themselves in direct
opposition to in both the reiigious and political spberes. This schism can
be detected in the words of an Andalusian @ij7 who migrated to Tunis, Ibn
Sab'in (d.669/ 1270): ujmists are true to the roots of the SharfCa However, they
digress in issuing fatzucEs, reasuning merely on the basis of their own desires,
and acting differentty fkom what they procIaim."49 This critique was probably
aimed at those j-ts who were perceived as being prepared to issue fcltwcik in
accordance with the needs of nilers.
The polemic over both $Li3 and juristic practices was vigorous during al-
Shatibi's time. The entire debate, it must be rernembered, only occurred
because of efforts by certain and jurists to amalgamate the two paths to
the truth. The former often practiced asceticism with a certain legalistic element
a while the latter mixed mystical (@fi) methods with their own. This phenornenon
was particulariy characteristic of Spain and provoked many intriguing
consequences. Al-Sha0i.T describes how people who ciaimed to be =frs would,
professing poverty, congregate at night in a home. "The gathering begins with
some cornrnumdiy recited invocation (dhik). Then they move into singing7
ckpping their hands, and making ecstatic utterances un.til dawn.... ..Some of
the jurists participate in their g a t h e ~ g s , so that if anyone questions them
'' Manuela Marin, "Muslim Religious Ractices in al-Andalus (2nd/8th-
4th/ 10th Centuries)," in T?ze Legacy of Muslim Spain, ed. SsimR Khadra Jayyusi (Leiden: E. 3. BnU, 1992), 880-8 1.
49 S m %.tif al-Zayn, al-mima fi N- al-Islüm (E3einrt D G al-Kita3 al-Lubnhi, 1985), 508. Ibn Sab'in says: "bi a n n w - s d i h al-el f e d al-far'i sadi4 al-jns k6dhib al-naw' yatukdlamu 'an nafsih . .'
about their behavior and the permissilbility of their meetings, they merely
respond that the jurists would not attend if they were iUicit"50
In Süflsrn, God and the world of man are perceived dinerently. The Sufi
perception of the existence and unity of God underlies its unique brand of
spiritual practice. Ibn KhaIdÜn (d. 1406) states that assumptions are
identical to those of the Iimïmya Shi'a concerning their r i m The latter
believed in two ways in wbich the oneness of the Deity with the imam was
achieved. First, the essence of the primeval Deity is hidden in aU created things,
including both sensihifia and intellegibilia, and are one to either perception,
Second is the belief in absolute oneness.51 The moreover, considered the
"saints" to be the "pole" of mac@ (gnosis) which revolves around them, a
doctrine reminiscent of the Shi'a tradition on 'AG.
m72, were not, in fàct, distinguishable fkom their feUow Muslims on the
basis of any particular religious practice, but were merely partic* modeIs of
religion and asceticism.~~ Even in al-Sha.iYs t h e , the lax attitude of jtuists
who practiced Siinsm and the W-j extremists who held to the tradition of
intuitive expenence, rendered the position of the SmCa (IslRmic lawj, and
more specifically fQh precarious. SuTf "ibcüdüt were not categorically rejected by
the jurists, but those methods which were
Qu'Sn or the hadith were condemed as
not clearly mentioned either in the
heretical (bid'a). Innovation of this
Ibn 'AbbSd, Ibn 'Abbad of Ronda W e r s on the SuJF Path, trans. John Renard (New York: Paulist Press, 1986), 223,
j1 Ibn Khaldün, The Muqaddimuh, trans. Franz Rosenthal, 3 vols. (New York: Kingsport Press, 1958), ZII, 85-6.
Ibn Khaldün, he Miqaddimah, vol. 3, 93-4.
type was unacceptable to some Mous
disdain for the intuitive expe1ïence.53
m f i r s and jurists, in part due to their
The W-fi concept of incarnation was, as ibn Khddün notes, in
consonance with that professed by the neo -1s-Wyya Shica extremists. The
latter believed that the incarnated 1-m could reappear, a doctrine not known
to the early 1~mà'~iZiyycz. Such concepts of incamation and oneness later
received more profomci treatment in Andalusia at the hand of Ibn al-'Arabi
(d.642/1240) and Ibn Sab'in. It was also ui: S\?f?Tsm that the theozy of poles
( N b ) was articulated. This theory asserts that the chief gnostic cannot be
chosen from âmong those who seek it, untii God has taken him into Himself.
This theory was rejected by ibn Khaidün because of its intuitive and kationai
basis and because it deviated fbrn the religious law.54
Al-Shatibi's al-Fti@in, written in response to the issue of innovation, is
an indicator of the development of his legai theory after al-Muwcijfaqd in view of
its concern with a particular religious practices and the problems of bidca which
the author perceived as permeating Islamic orthodoxy. The specinc aim of al-
Ic*Üm was to challenge the divergences mm religious law and to reformulate
the concept of bidca using a more epistemological legai approach.
C. Front al-Muwafaqat to al-ïW+iin
Between his al-Muwüfqüt and al-I'ma-in, al-ShZm responds to and
criticizes devialions from religious law in MusEm inteilectual circles, basing his
argumentation on the ShdCa E s landmark work, d-Muwüfqa't, focused on
" Ibn Khaldün, The Muqaddirnah, vol. 3, 83.
Y Ibn KhddÜn, lRe Muqaddimczh, vol. 3, 92-93.
legai discourse, demonstrating on the one h d the digressions of jurists in
applying the kiw too leniently and the other the undue m c u l t i e s created by
mm. Elsewhere in this work, he provides a discussian of the way in which
fatwck were used by his contemporaries to meet their own needs, desires and
interests, uid not the requirements of the law.55
For ai-Shatibi, the iaw appiied for all mukallam and was of equal weight
for men and women, whether dictated by the Sunna of the Prophet or the
Qur'En. There should be no distinction between M u s b s who are of sound
xxzind (mukalla.. No person can be absolved of its ordinances, argues ai-ShEtibi.
His intention seems also to have been to correct what he saw as the +fZS
misconception of the ends (rnuqcï$id) of the law. He descnbed the .(By attitude
towards the question of paying the alms-tax (zak~t) as ambivalent. These
insisted on the one hand, that the refusai was in confonnity with the $@ï
school, wbïie on the other it depended on the school of the petitioner. .(-fzs, aï-
SMtibi says, conceived of themsefves as superior to ordinary folk, whereas by
nature all sound peopie (mukallafrr am ssubject b the laws of God without any
distinction. Al-Shatibï says, "that because considered themselves distinct
they were ailowed to do things not open to non-.CfrsfrsW~
When he cornes to discuss whether the benefits of zuhd are
recommended (mQnau-b), al-Shatibi divides it lato three categories. The term
55 Wael B. Hallaq, A Wistory of ïslamic Legal Theones (Cambridge: Cambridge University Press, 1997), 163; 173; 206. See d s o Abü 1s.q al- Shatibi, al-MuwEfaqütfZ U N C Z Z - S ~ ~ ~ , 4 vois. (Seinit: D& aï-Kutub ai-amiyya, n-d.), n, 189.
56 Ai-Shàm, cd-Muwüfaqcft, vol. 2, 189. Hallaq notes that the sipnificance of this assertion was to provide, par exelleme, an elucidation of the aims of the laws that were corrupted by WfEs who claimed to be supexïor to the ordinq mernbers of the community. Hallaq, A Nistory, 172.
a was employed by $ci-@ in a more meticulous sense than by jurists. Though
zuM is tawful as a form of a deep spiritual training, its excessive, habitua1
performance coud result in reprehensible or even prohibited (m~mntl3
behavior. For instance, clothing and food can be abandoned for a given period
of time, but to abandon them forever would be prohibited.57 Z%iM of the h t
category, al-Shatibi says, applies to those ordinances wbich the law prescnies
should be neglected. The second, favored by most pious people, incIuding the
Prophet and his Companions, consists in abandodg only tt-iings categorized as
bad, under circumstances rendering them more beneficiai than haxmful. The
third category is abandonhg permissi%le things either intention does or not- if
the intention does no& it Lies under forgetfulness, thus iawfûi. On the contrq ,
if the intention does on the ground of worldly matters it is not counted as zuhd;
if it is on the religious matters, this c m be counted as f@a (goodness).
-Quoting al-GhazaIi (d. SOS/ 11 1 l), ai-Shatibi opines that "mhd is the departure
h m the sheer desire to the better alternative."s8
As were generaiïy considered more pious and more possessed of
miraculous m e r s than ordkmy beings, people in Andalusia often sought
their help. Al-Shatibi denounced this activity arguing that the miraculous
should onïy be sought in the Prophet and his Sunna. Legiwate miracles
57 Haliaq, A History, 174. See Al-Shatibi, d-MuwÜfaqü$ vol. 1, 87-93. This part contains al-ShatibT's elaboration on the five norms: wc# (obligation), @mfm (prohibited), mu&& (permissible), mandu3 (recommended) and mQkTuX (reprehensible), of which he palaces the greatest emphasis on the category of the permissible. These categories he classses under the commands incumbent upon one with a sound mirid (mukaltaA.
Al-Shatibï, ai-Muwàfaqüt, vol. 1, 86. In his words, al-Ghazali says: "al- zuM 'iba'rat 'an @u6f al-raghba 'an al-shuy' ilcima- huwa khuyr mi&"
(karâmo),59 he insists, do occur and can be accepted as long as they do not
contradict the basis of the Sunna of the Prophet. Nevertheless, the S h i he
argues, is superior and should be used to refute both superstition and personai
c b s to elevated status. The Shafica, for him, was the ody criterian for
judging the validity or IegaLity of all human actions, including the existence of
miraculous saints.60 Obviously, al-Shatibi believed that the ShmfCa
subordinates a 1 Muslims to its guidelines regardiess of whether the person is a
%ftor not
Before elucidating the distortions which overtook the uiterpretation of the
ends (maqü@dj of the iaw, al-ShZ@%ï differentiates between Sbâda and 'Üda
The former, for him, is perfonned for the sake of submission (ta'abud) and
without any question as to whether the pertinent act is reasonable or not. The
latter, however, is subject to such questions and may be perceived through
reason. 'ibüda, therefore, is absolute and certain and needs neither addition nor
subtraction. Though d a fàlIs under the rubric of 'ibüdüf it is generally subject
to reason (mqla&z) in its impIementation.6~
'9 Kwüna is a title held by awZiy6 (sing. wali) "the niends of God" and granted by God. These mirades most usudly consist of unnaturai happenings in the corporeal world, or else of predictions of the future, or else interpretation of the secrets of hearts, etc." Karàma is different h m mufjiza which is and attribute held by Prophets of God. AIthough in nature both involve a "breaking of the ~ t u r a l order of things* ( M à i i al-%Cda), mu% however, is a public act, preceded by a "proclamation" (da'wa) and a "cl.iallenge" (ta&zddi), by means of which the prophet demonstrates incontrovertibly the %potencen ('ajq of his hearers to repmduce, Likewise, the miracle thus brought about, while kur6m is a simple, personal fivor. See L. Gardet,"KarZma," Encydopaedia of Islam, new edition.
Having discussed the two categones of divine ordinance, and '&la,
al-ShEtibT tunis his attention to jurists whose treatment of the aforementioned
topics may be deemed circuitous. Fmm his perspective, his fellow jurisconsults
( m . ) were far too lenient in applying the law and too quick to pursue their
own personal interests. Jurists, for instance, often supported their
interpretation of the law with legai stratagems (@&al; sing. ma). ma, ai-Shaw
says, uemanates f?om the exemption of a mukallaf fkom his/her obligation to
make something la- which is otherwise prohiiited by law."62 Before al-
ShZ.i, Ibn Qayyim al-Jawziyya 63 (d.751/ 1350) elucidated the dangers of
stratagems [@r'a) used as a method of issuing fatwe. For him the use of a m a in determinirig the ïaw violates the Shun"a7s jurisdiction by blocking the means
(sadd aZ-d~cZCt] of averting danger.64 Thoiigh Aï-ShatibT agreed that
stratagems provoked havoc, he did not reject the use of @7a ousight, but
accepted it in cases where t&ey conformed to the law and its ends (maqc@d). A n
example of a Iawfulh7a is the confession as of one as a kgfi (infidel) in the case
of self defense. The Shtz6'a, al-ShatibT insists, aims at implementulg benefits
which are univefsauy applicable. Resorting to unlawful stratagems (ma4 or
cornbiriing the doctrines of more than one school in an arbi.trary manner
defeats this purpose and wreaks havoc on the universal provision of the law.
" Ibn Qayyim divides unlawful smtagems into three categories: fïrst, makuig la- what is unliiwful; second, regulating matters permissible by nature in order to prohibit them; third, making the uril.iwful to be lawful in the SMCa. Ibn Qayyim al-Jawziyya, Icl&n al-Mwwaqqi<rn 'an Rabb al-'~~urrti~ 4 vols. (Egypt Matba'at al-Sa'ada, 1955), III, 346-347. See aiso Joseph Schacht, -al," EncycIopaedia of Islam, new edition.
" Ibn Qayyim, I'lüm al-Muwaqqi- VOL 3, 17 1.
Recognizing as he did these shortcomings, al-Shàtibi not only tried to
revive the sound traditions (al-sunna al--ana) by resorting to the Q u i h and
Sumu, but he also criticized the jurists and .(-m of his tirne for having deviated
fkom the true Shmffa This is substantiated by Wael B. HaIlaq whose study of
ai-Sha@ii7s legal theory has Ied him to conclude that al-Shaoii's goal was to
establish a middle course between considerations of personal benefit on the one
hand and the undue difficulties caused by its absence on the other.65 The
former position was the one taken by jurists, the latter by *-fi.
Ai-Shap'bi's criticism of *-Dm was not merely meant to provoke, for it
aIso went to the root of the indicants (udillz; sing. ciam of -&a (reality) and
mj& (metaphoric) in divine law, the QUIJCn and the Sunna The language of
law, including h@qa and majcii, he contends, are both terms which refer to
real and proper indicants which are not open b ambiguity. Lnebriation (sakarj,
for example on the part of mulcallaf is the ucause" that invalidates any prayer
(saLat) that he may perform. In this con- insists al-Sha.i, the meaning
cannot be interpreted metaphoncaiiy, Le. desire (shahwa) for wealth.
Inebriation (sakar), defined as shahwa (desire), says al-Shatibi, often
experienced by during prayer, is not ped t t ed . For him, the metaphoricai
rneaning in this case was not known to Ambs of the classical p d o d ody the
real one.66
66 MShatibi, OI-MuwÜfaqÜ& VOL 3, 39-40. The use of metaphoric imagery was often used by S-s. The random use of the two ternis by &i-fis is not explicitly mentioned by al-ShiQiiS hirnself but by the editor of cd-MuwàfqcZt. It is, however, believed to be true, tbat al-S12atibi confessed in his ai-F-a'in that he was accused of q i m (literalism) for interpreting the word according to mal ( m a ) meaning which he did not regard as metaphoncal See d s o Q. 4:43.
As a celebrated jurist, aL-SEia@&i tailors his argumentation in al-Ict&&n
on the basis of the legaiistic approach he took in al-MuwafaqcZ He
acknowledges, at the beginning of al-Ict@Üin, that he was accused by the "ulamcf;
and especiaJ-I.y, by the wfi, of isolating himself fkom the jmSa of the
al-'rtlarncï (famous and reputed ' u lmE) ,67 I n prepaxing his defense, he classifies
under six headings their reason for accusing him of king mubdf. The first and
the second categories contai. charges that he negïects vaxious forms of duci
The third charge is their accusation of al-Shâpiï as isolated Ç o m the imïïms
(a'imat al-madhaW), due to not mentioning their names during kh@ba As al-
SM?i'bi himself states: "they alIeged that I was not accustomed to performing
congregatioonal duc& after salüi. Moreover, he was also accused of abandonhg
the ways of the Companions, a charge that must have originated in the @.iF
a camp which resented his omission of the names of the four Cornpanion during
his Friday sermon.68
The fourth, iifth and sixth charges are vividly articuIated by HalLaq who
has treated al-Shatibi's apologia in d e M in bis ground breaking A Htstory of
Islamic Legui Theories. As Hallaq indicates, the fourth charge clearly emanated
fkm the jurists' camp, which regarded ai-Shatibi as having been stringent u1
his legal views, and as having demanâed the application of iaws that led to
hardship. AL-Shà@bl explains that "their accusations anse fkom my consistency
Ïn issuing legal opinions which conform to the dominant and widely accepted
(mashhui doctrines of our (Mâiikite) school; but they transgress the Wts of
the school's doctrines by issuing le@ opinions which deviate fkom the
mashhui, opinions agreeable to the people and their pleasures."69
The fXth charge directed at al-SMpE is that he publicly preached
against some who heId to '%ereticalw practices which deviated fkom the
Sunna FixmUy, he was accused of deviating Çom the religious community
@m6C~). To borrow Hallaq's words, al-Sh&bT realized that Ythis accusation was
based on the assumption that the community, which must be followed, i s
[def?ned as] that of the majority. They fhis accusers] do not reaiize, however,
that the upright cornmuni@ is that whi* foIlows the example of the Prophet,
his Companions and their foIiowers,"70
It is clear that the era in which al-Shatibi Iived was fidl of and
jurists whose interpretation of the Mb was adulterated and corrupted. O n
the one hand, %fis saw themselves as the rewivers of the S u n ~ when, in actual
fact, they imposed excessive legai demands, while on the other jurists tended to
be h x in applying the paradigrnatic doctrine (nmdhhab) of substantive iaw. Al-
ShcZtibT, i~ this case, occupied a Middle-of-the-road position between the two
Before elaborating on the objections to bidac @hg. bidca) on the basis of
textual evidence, al-Shapii enurnerates five ways in which it subverts the
ShmfCa Fïrst, he asserts, human intellect is iimited in its ability to perceive the
69 H&q, A History, 163. For more details see al-Shatib1, AI-fCtigx5n, vol. 1, 28.
70 H a l l a ~ A History, 164. See aïso N-ShZ$iOi, a l - I C ~ c ù n , vol. 1, 28. No less than six accusations were directed at al-Sfiatibi. As a Malikite jurist who held to the sound Sunna and the traditions of the Companions, he was also charged with having Q a d e ? a m Rafwq M ~ Y ~ I ï l e a r n ù i g s .
reaI meaning of the world and its ma+l@a (public interest). The use of reason iD:
preference to revealed evidence whether in mundane or %a-düt rnmatters is the
seed of bidca The divine law, therefore, is the on& vehicle for solving problems
of legal relativity while avoiding reliance on personaï whim, ai-Shap'bT insists-
Second, the Shan'a represents thorough and absolute virtue, needing neither
addition nor subtraction. Third, bidca involves the assumption of an attitude
whïch has no roots or basis in tüe Mra, with its unequivocal methods and
paths. Any transgression of this path, al-Shatibi contends, is unlRwful bidCa
Fourth, he continues, when the primacy of the mubdi' (who is ruled by reason
or desires) is estabîished over the divine law, bida' tend to perpetuate udawful
habits in 'ibciidüt. FFinally, as the Shan-a is absoiute and real to ai-Shatibi, any
desire to subsume the latter to reason thwarts the Prophet's Sunna and thus
constitutes a primary source of bid'a.71
To demonstrate the dangers of bid'a, ai-ShatibT furnishes six proofs. The
e s t , and most important, is Qur'anic evidence in the foxm of verses entailing
either certain ( m u ~ a m ) or ambiguous (mutashabih) rneaning7* Censure, al-
Shap'bi says, applies to those who neglect the m&karn (certain m e m g ) in the
QuiZn while upholding ambiguous passages (mutashnbh). The tendency to rely
on the ambiguous verses is identined as a path of error. Al-ShatibT gives the
example of Q. 6: 153 which describes the right path as the way (@rat) of God
and the others as paths (subul; sing. sabQ of desire or ed. By basing
themselves on the ambiguous (mutusha-bih), innovators are quickly led a~tray.~s
" Al-Shaw, a l - I c ~ Ü i vol. 1, 47-53.
See (Q. 3:7)
" Al-Shiitibi, al-I%@n, vol. 1, 53-60.
Second, al-SMpE cites the Prophetic Sunna condemning ianovation,
which consists in fact in a single @adith reported by 'fisha, the wife of the
Prophet; %ho brings the innovation into our rekigion without any roots (in our
tradition) is rejected.*74 This mciifh cleariy indicates the Prophet's disapproval
of those who based their interpretations on considerations which deviated from
the QUI-'& and the Sunna7s
Third, al-ShZtibi lsoks for evidence in the reports narrated by pious
predecessors (al-salaf aba7i@), the Cornpanions and their followers. In his view,
the violence perpetrated by bidac on the Shda was unequivocal, an opinion he
substantiates by refening to Abc Bakar and Umar b. mm's severe
condemnation of it- The latter, whom al-SMW often quotes, reminded
Muslims to be aware of those who produced traditions which contradicted the
Q e à n or the Suma In short, al-ShEtibI felt that all the pious predecessors
had exnphasized the significance of upholding the Qur'iZn .and the Sunna and of
limithg innovation?
Fourth, AI-Shatibi tumed his attention to the notion of the rnushhu? and
the pious &-fi in an attempt to dissuade followers of the innovative .CD.
'While the pious %fes condemned acts of innovation, others of their persuasion
were less stnngent, and were excessive in their mysticd practices. IronicalIy, al-
Shâm asserted, the innovative presented themselves as athaiLi (sing.
ux7Ud) who performed la* t-awzuu. even though they were, in fact,
misleading people and e r ~ g . Ai-Shgp'bT states that there were ody siightly
more than foxty pious and credible who nrmly upheld the Qu 'Sn and the
Sunna of Prophet and who, more importantly, abhorred the dangers of
innovation. He counted among the pious &i-@, Ab6 al-Qiisim al-Qushayfi,
whose genuine SûfIsm referred to him. Aïthough he was a knowledgeable and
pious @.ifit he did not consider himself above obsening the law stipuiated by
legalistic specialists. Thus it was not h m the pious al-ShS?îbi suffered a
backlash, but fkom the pseudo-@jj.
Fifth, al-Shatib1 addresses to the innovators and their habitual elevation
of reason over text. Though reason is an important part of the legal process, it
should function in consonance with the taxonomy of legai mies. Otherwise,
reason wiU lead to the flourisug of unlRwful innovations which are based
neither on a iawfid foundation nor on the Qdân and the Sunna77 Unlike those
who insist that the rejection stems f?om the innovator's speculation on the
ShanFa, al-Shap'bi goes further and iries to demonstrate the actual hami done
to the sacred law. The most significant exampfes are interpretations of uqi? or
firrri' which have no foundation in the Quian or the Sunna78 On the whole, he
concludes, the interpretation of the Shudcu basing on its regulations is valid,
whereas speculation based on desire is wrong.
Finayr, al-Shàtibi ponders the transcendentai rewards stipulated in the
reports m a t e d by the Companions. In his final remarks, he informs
innovators negligent of 'ib&dCtt, sala't, fasting, haÿ and so forth that their
suppiications will not be rewarded.79
It should be obvious to us that al-Shâ?ibi does not indict ali He
did, however, condemn + i who practiced a pseudo-&@Sm which not only
contradicted the pious @F predecessors but dso corrupted the tnre Sunna
The pious %fi, al-Shatibi states, are know1edgeabIe in Fqh and @udïth and
Iegitimately foiiow the virtuous sciences of the Shan''a80
Describing the situation in AndaIusia specficaiiy, al-Sha.ibi implicitly
states that ritual practices aiien to the Sunna of the Prophet or iawful 'ci'id6t
were common. The local population regulady engaged in ritual practices
('ibadat) which sometimes transgressed the Wts of the Sharfca, and foiIowed
jurists or ai who deviated fkom the practice of the Prophet and bis
Companions. Al-Sb- gives one example of this when he points to the
habitua1 dhikr recitations after prayer or at a set evenùig location. Such
practices, he confirmed, were never mentioned in the Sunna of the Prophet or
the tradition of the Companions. If, however, it is practiced only once instead of
habitu- the act is permissi'ble and la-.
The sources of rectitude can be derived through both reason and divine
revdation, concludes ai-Shaw. Reason, although used as a means to the
extraction of textual evidence (the Qu'Sn and Sunna), is iimited to that whicfi is
observable. Beyond conventional rnatters ('cGdiyycft), however, meaning can only
arxive at by means of the Qean, Sunna, ijm* or @y&. The intervention of
reason in the reah of divine revelation, an often ambiguous area, slxouid be
limited to the textual meaning; othemise, its interpretation on the basis of
reason would produce a subjective resuit. When this occurs, the Shar'T
procedures are abandoned and its tenets are interpreted to suit personal
pleasures. For a l - S m , the precedence of reason over revelation (al-dam al-
naqlrJ was the seed of bidca A reasoned interpretation was subject to individual
preferences as weU as limitations. Unlike LibàidcZf Al-ShapTT stressed, mundane
matters can be regulated by the community's agreement and needs across t h e
and place.81
Our analysis shows that in al-Shgtibi's time, Isiamic kiw had far fkom
fded to meet the needs and challenges of socio-economic change in
eighth/ fourteenth-centuxy Andaiusia.82 On the contrary, his works rnerely
reveal a paradox in the attitude dîsplayed by contemporary mm and jurilsts
who on the one hand demanded respect for the law to an undue degree, and
those who were too lenient in their approach to the Shmira
Masud, Islamic Legal Philosophy, 10 1. Masud eiaborates here on the degradation of I S ~ & C iaw in the tune of al-ShE@Z. Our understanding of al- Shaw's two books, al-Muwafqüt and al-ICti@Tn, however, shows him to be responding to the transgression of some &-j and j e s t s in practicing traditional rites that were alien to the ShantCa
CHAPTER TWO
BIWA PVfTHïN THE FRAMEWORK OF AL-S~TIBÏ'S
THEORY
This chapter is devoted to a discussion of al-Shatibi's understanding of
bidca in an attempt to show how he articulatecl the concept. It will be argued
that al-ShEtibï did not just respond to the accusation that he was a mubdf, but
refomulated the concept of bid'a based on an epistemology of Iegal theory. In
this he differed fkom his predecessors who relied on arguments founded on
dogma.1 W e attempt in the present chapter to show that al-Sh@'bi did not
imitate his predecessors on the concept of bidca, but instead reforrnulated its
precepts by devising a formula based on legal epistemology.
A. Bidk Prior to al-Sheibi
As we saw in chapter one, al-Sha$i'bi was accused of "beresy" by
contemporary jurists and @ï-fG. In al-Ict@àin, he reviews the Islamic legal
philosophy undermg the concept of &idCa in order to defend hmiself against
the charges directed at him, and constructs his own theory--one which diners
in a number of ways fkom that of his predecessors.
l YDogmatic" is the term used to describe a belief or doctrine, which is taken for granted as being tnie without seeking for its rational basis. I t is said that dogmatic can be interpreted as "proceeding upon a priori principles accepted as tme, instead of being founded upon expenence or induction." See J.A. Simpson and E.S.C. Weiner, ZRe Owford English Dictioncuy, 2nd edition, 20 vols. (Odord: Clarendon Press, 1989), IV, 929.
Bidca 2 (innovation) and muMatha (novelty) are concepts ttiat have much
in common and are sometimes used interchangeaMy to denote practices foreign
to Islamic tenets, and therefore subject to censure. The former term is more
specific while the latter tends to have a broader dennition. Historkdly, it is
difficult to trace exactly when the concept of legal and theological bidca was
foxmulated. One may conjecture, however, that the doctrine of bidca was
developed durhg the disputes which arose over the question of hovat ion
versus authenticity in Isiamic dogma. Mohammad Talbi, for instance, contends
that the doctrine of &idCa was recognized in matters of dogrna before any of the
recognized principles of fiqh were fbïiy articulated. This may have been the
result of excessive, distorted religious practices and naïve veneration. The
veneration of persons regarded as saints is one such example.3
m ' a may also have developed in response to social changes in the
community which, to some extent, intruded into the domain of the Shm7a by
merely altering the patterns of Iife. Modem examples inchde chânging styles of
coshune or the introduction of the radio. The latter was widely rejected by
' Ji Robson describes bid'a as 'a belief or practice for which there is no precedent in the tirne of the Prophet." He maintains that bidca is the opposite of Sunna and is a synonym of muMatha or hadath He expiahs that there are two psifions on the topic, one wanthg to prohibit every innovation and the other aJlowing it to proceed for the sake of adapting to changing circumstaaces. See J. Robson, 'Bid'a," in Enqciopaedia of Islam, new edition, 9 vols. (Leiden: E.J. BnU, 1960), 1, 1199. See also Bernard Lewis, "Some Observation on the SignXcance of Heresy in the History of Islam," Sudia Islamica 1 (1953): 43-63.
Mohammed Talbi, ?Les Bida6,* -dia Islamica 12 (1960): 43. The spread of veneration of hdividuaîs in Islam was closely ihked to the growth of &iVJ%rn. The forni of veneration which is counted as bidca is extreme submission to .(-fi or Shaykhs as spintual leaders. See M Geijbels, "Aspects of The Veneration of Saints in Islam, with Special Reference to Pakistan," The Muslim World 68 (1978): 176-186.
exireme opponents of bid'a who abhorred innovation or novelty of any kind, be
it in reiigious matters or otherwise.4
Our discussion of this issue d focus on al-Sha$i'biJs d-lrti@h, in which
the bulk of his discourse on bidca is to be found. in order to pror.ide a general
sumey of bidca, however, we will preface our account of al-Shatib1's doctrine
with a sunrey of the concept of bid'a as consbnrcted by his predecessors. It is in
fàct essential to our discussion to determine whether or not our author's
schohship was a direct response to the circumstances of his tirne. Tt may be
the case, as Waei B. H a h q points out, that there is "a close link between the
stnkingiy impersonai style and seemuigly monolithic, repetitive content, on the
one hand, and the particuiar reality of the authois world on the other."s f t will
be seen that al-Shatibi not oriiy responded to the charges of his contemporaries
who accused him of king a mubdr', but aiso reformuiated the concept of bidca
to reflect a distinctive character that owed much to the epistemological and
juridical principles of his theory.6
Among classical Islamic scholars M-ad Ibn W a e Q al-Qumbï (d.
287) was one of the m t to condemn bid'a as a clear violation of what he
understood to be religious dogma. He argued that its intrusion into this area
" Ignaz Goldziher, Muslim Studies, trans. C.R Barber and S.M. Stem 2 vols. (London: George Allen 8s Unwin Ltd, 197 l), n, 33-34.
Waei B. Haiiaq, The Priniacy of The Q W h in Shiimi's Legai Theory," in Islamic Studies Presented to C h d e s J. Adams, ed. Wael B. Kallaq and Donald P. Little (Leiden: E.J. Brill, 1991), 69.
Abu Ismq al-ShZtibi, al-Ic~àm, 2 vols. (Cairo: Maktabat al-Tij-a al- Kubra, n-do), 1, 27-29. See also, Wael B. Hallaq, A Wistmy of Islamic Legal Theories (Cambridge: Cambridge University Press, 1997), 164. Hailaq notes that al-Sha@hZ's work was Written in response to the charges directed at him, as well as to expose the prevailing tendency towaTds innovation and degradation ia the law.
was poten- more dangernus to the faith than a fïre destroyïng a mosque. He
furthemore contended that novelties of dl Ionds were uxdawful-7 Upholding the
Prophetic report which states that ody one of seventy-three parties is
acceptable in God's eyes, Ibn al-Jatiçrlti al-Baghdàdi (d.597) said that the notion
of bidca pertained to customs not attested to in the Sunna of the Prophet or his
Companions. He purportedly rejected every novelty touching on custom and
religious rites. He contended that the restrictions of the Sunna were to be
preferred to reliance on i$ihcCd in ambiguous matters.8
The notion of bidca and the Sunna was to evolve m e r as it came to be
acknowledged that every notion, by nature, contains negative and positive
connotations. Devoting oneseif to the Sunna conveys the sense of foliowing a
m e path (Shan'a) taught by the Prophet or his pious Companions to the
M u s h community, whereas bid'a was of a less certain quantity.9 Quoting ai-
Shan5 (d. 204/821), Talbi explains that bidca in the first place represents
iin7swfid innovation which clearly contradicts the QUiEn, the Sunna or
' M-ad Ibn Wadd* al-Quabi, ME Ja'a fT al-Bida: ed. Badr b. 'Abd Allah al-Badr (RjaQ: DZr al-Sami'i, 1996), 61; 83. In his censure, Ibn W a d d a argues that Illicit bidra is not onïy essentkdiy subversive, but rather difncult to amend to the real law. His stance, therefore, was based on the Prophetic report which stated Yhe worst things are those that are novelties, every novelty is an innovation, every innovation is an error'.
AbÜ ai-Faraj 'Abd al-RakpZn b. 'Ali Ibn al-Jawz5, Talbik Iblk (Caim: DG a i - 13681, 5-23. Of the seventy-three parties supposed to have emerged after the Prophet, fin al-JaWZi elabrates that all are in em r , except one which is made up of those who fouow the Suma In Ibn ai-Jawii's eyes, the erring groups are the protagonists of bidra and the corrupters of Sunna.
The Sunna of the Rophet was absolutely opposite to bidca Resenring the Swvia means following the true path as prescribed by the Ruphet, whereas performjng bidra is to act the otherwise, thus prohibited. See Muhammad Ibn Y&d Ibn Miija, S u m lbn M@a, ed. KhaEi Ma'rnün Sl iQa , 5 vols. (Beirut: D&r al-Maiifa, 1996), 1, 137-138.
(consensus). Such innovation is qualined as emr and is absolute& censured.
in the second place, bidca is a form of innovation which is not attested to in
either the QUI?&, the S u m or ma' but is nonetheless Iawfui due to the
positive changes it effects in human life.lo I t is iinlikeIy however that al-ShZfïT
would have tolerated any muMatha which touched on 'ibÛdEL In this case,
Talbi seems to agree with al-Shafi'i who considers bidca as good or bad.
The Malikite jurist a l - m s h l (d. 474/1081) also censures bid'a as an
unIa.wful practice. For him, there is no difference between novelty (muMath )
and innovation (biaca). He maintains ttrat aii acts which can lead to bidca or
pose a threat to huma. weifare, whether in the area of 'Ükliyyüt (customs) or
'ibüdit, are unlawfizi. in the area of custom, for instance, he rejects the
tradition of people giving up work on Friday, since for him t b i s resembled the
practice of Jews resting on Saturday. In the area of ' i b 6 i he condemned
those who simply memorized the words of the QUTJiin without understanding
their meariirig. Likewise, he censwed the habitua1 act of non-obLigatmy fasting
(wwm) at fixed tirnes which was not presczibed by the Shan'"'a Ai-.irtüshT's
condemnation of bid'a, however, although it touched on legal issues, was
certainly not part of an in-depth evaluation. Unlilce al-Sha.bi, whose
elaboration is pmficient and detailed in its legal epistemology, aLWshi's
'O Tabi, "Les Bida:" 62. The two types of bidca are classed by al-S-5 as m&mu-da Ipraiseworthy) and madhm.üjna (blameworthy). The ïatter Spe, in essence, contradicts the Sun- and is therefore unlawfùl. M u M a t h a (novelty), however, has a broader. meaning than does unlewfiil bidca As with bidca, he ais0 classines it into two categories. First, muMatha (noveltyj that clearly violates the Qur'Zn, the Sunna, ijrruïc (consensus) and dhâr (the Prophet's reports), which. This is mnirrtained to be erroneous bid'a (al-bidcu u2-qida7a); and second, novehy that contains a beneficence which does not violate the dorementioned texts, and which is therefore not blameworthy. See, ?zzat 'Ali 'Atiyya, al-Bid 'a (Beirut D* alalKim aï-'Arabi, 1980), 160.
analysis is too general, relying as it does o d y on textual evidence either Born
the Qur'k or the Surmu. 1 1 Both al-ShE@G and al--SE, however, although
they Hved in Werent eras (about thme centuries apart), resernble one another
in recording some of the more innovative features of their times. This may be
due to the fact that both lived in Andalusia, where innovative practices were
quite prevalent.
In line with a i - m s h i , the ShanSte schokir Ibn Ab1 S k a (d. 665)
defines bid'a (innovation) and muMatha (novelty) as matters which have no
precedent in the QUT'Zn, the Sunna and z j m i T . He does, however, develop the
notion of muMatha in accordance with al-ShiXE's understandingJ2 Accomlîng
to him muMatha can be designated as licit (bid'a mustaipana) and illicit (bidca
mustaqba&z). The fonmer is novelty which is in conformi@ with the principles of
the Shant'a, The latter, however, pertains to the persistence of rituals either
contradicting or deviating i b n the SMca l3
Bidca mustaqbaha, in the eyes of Ibn Abi Shania, can itself be divided
into two: the first is prohi'bited bid'a (bidca mu.mwna) or reprehensible bidca
(bid'a rnakrwh) and the second ambiguous bid'a (bid'a mushtabiha). Prohibiteci
bid'a, for example, includes the religious behavior displayed by certain fqi
@ï-js which, according to him, deviates fkom the true religious p ~ c i p l e s . He
notes that similRr .(?'orciers ttansgress the S h ~ ~ ~ a by neglecting sdüt (prayer)
" Abü B a h al-'J'w!%shi, Kaab al--dith wa al-Bida', ed. 'Abd al-Majd al-TurE (Eleirut De &Gharb al-1s- 1990), 35-37; 164-170; 189- 198.
'' See note no 10.
" 'Abd al-RaIpnh b. IsmZV Abü Shama, al-BàCith 'A Lcï Inkar al-Bida' wa ai-@awÜdifh, ed. 'UthmEn [email protected] 'Anbar (Cairo: Matba'a al-Sa4&, 19781, 19- 20; 22-28. See aïso note 10.
and sawm (fasting) in the month of Ramac$En."J Ibn Ab? Shama seems to
characterize as ambiguous bida' ail non-obligatory 'ibciida, like recommended
sawm or saiit which is habitually and excessively performed. For him, such
practices ernanate h m an interpretation of the ShuKca which relies heavily on
reason rather than the indicants (adilla, sing. dalTI) of the ShmTcals Most
notable in this attempt at ciassincation is his use of legal categories to evduate
the Licitness of bidca. In short, Ibn Abi Sh&naTs elaboration of bidca represents
an effort to synthesize the concepts of predecessors like al--SE and al-
S h a i ui a legal manner. He is, however, somewhat less than systematic in the
way he does so, in spite of his attempt to approach the subject in a more
comprehensive rnanner.
The Hanbalite jurist Ibn Taymiyya (d. 728/ 1327) deflned his notion of
bidca by basing himself directiy on the Quian, the Sunna, z ~ h 6 ' (consensus)
and qiy* (mtio legis). He clRimed that ail foreign Rnniversaries and festivities
should be counted as objectionable, since these were based on the practices of
non-Musiims and had no basis in either the Qur'k or the SunmzI6 A sirnik
m e on bidcq one which did not differentiate between religious or mundane
matters, was adopted by al-Ghazali (d. 11 11) and Ibn E-Jazm (d.456/ 1062). It is
" Ibn Ab1 Shiima, al-Bzith, 25. This $*a and others like it were, for Ibn Ab; Shama, the seeds of paganism or the associates of eviI (shag$aii) which c m destroy Islam.
'' Ibn Ab? S W a , al-BaTth, 28-3 1. H e afnrms that we are o d y required to perfornt what God has stipulated, without addition or subtraction.
l6 Taqi al-D-rn Ibn Taymiyya, 14tf*@ÜJ al-Sie al-Mùstaqfk Muk9ui7afat A s m alJwm, ed. Mdptmmad E@inid al-Faqi (Cah: Matbacat a l - S i r n n ~ al- Mu@munadiyya, 1950), 267.
reported ehat according to tüe former, bidca is any act which is not attested to
in the Sunna or which is foreign to the Sharfca fin Ham also used the same
formula to censure every act viokting or contradicihg the Quian and the
Sunna17
Refuting those who chimed that bidca could be divided into two
categories (lïcit and illicit bicica), Ibn T a m a argued that tfiis notion
contradicted the Pmphetic saying to the effect that Wi forms of M'a are emr."
This math of the Prophet, he contended, coanoted a refutation of the proposal
that some bidca is lawfùl. The rejection of bid'a, for him, encompasses the
refutation of good or bad bidcu, even though the clear iadicants (adilla, sing.
dalq are dent or the subject In addition, Ibn Taymiyya stresses that
introducing bid'a in the service of public interest (nu@u@a) is contradictory to
the Pmphetic &dith cited above.
In tus sharp censure of bidca, Ibn Taymiyya based himself on the
prescriptions of divine iaw and sornetimes on the customs of the pious
Cornpanions in deking the true path of the Mca He rejected 'diyy6.t
(customs), even though their validity was approved by the arguments of ijmcr'
(consensus). He claimed that the Shwïca is perfect and liable neither to
subtraction nor to addition. The sound 'ularna7s pxescription, or the Wnna of
the ahl al-Madz'na (the people of Medina), he added, functioned as a measure of
judgement, not as the tradition of a ~0mmuIlIitpr~~9 Has insistence on the
universality (latlliyya) of bid'a which does not toIerate particularization (t-1
" 'Atiyya, al-Bid 'a, 16 1.
l8 ibn Taymiyya, I@a7 al-WÜt, 2 70-7 1.
I9 Ibn Taymjya, 14t.a7 al-wc& 271-273.
into good or bad, is shdar in this respect to al-ShZp'bTYs concept of the
universaiity of subversive bid'a, as we sfiatl see.
The prohï'bition against bid'a stipuïated in the @d%h of the Prophet
makes no distinction between iawful and uniawful innovation, fin Taymiyya
declares. Thus attempts at c l a s s ~ g bid'a into licit and illicit are tantamount
to introducing reason into the equation. In his Iucid elaboration of bidca,
following his citation of the &dith, Ibn Taymiyya p m c ~ s that it refers to a l
kinds of bid'a which are, without exception, reprehensi3Ie. The prohibition
applies to aJl areas of the law and does not recognize any ciifference between
'Üdiy y6t and 'ibaidd. 20
in tryirig ta differentiate between the iinguistic and SFu;zfr'meanings of
bidca, Ibn Taymiyya seesses that the former is broader than the latter. By
implication, any innovation in the SharTa is forbidden, he -S. Bidca in the
linguistic sense, however, pertains to a generai type of innovation. If the case is
attested to in the Q u i k or the Sunna of the Prophet, the innovation in that
conte- is lawful. He resorts to the saying of 'Umar b. aï-Khawb, "the licit bid'a
is this" [nicnzut al-bid'a hciiahih] to justify his position.2L An example of this type
of bid'a is the congregational prayer held on the night of Ramadan which, Ibn
Taymiyya says, connotes a linguistic sense of innovation and not a Shar'S one.
This tradition had been the custom of the Prophet and was fouowed later by his
Companions, espechlly Wmar b. al-Kham-b. Therefore, there was no innovation
on Umar's part, for it was attested to as the cusbm of the Prophet. ibn
Taymiyya's elaboration of the aforementioned seems to us somehow ambivalent.
'O Ibn Taymjya, IQtiba7 al-Suüt, 273-74.
" Ibn Ta-dyya, Iqfi&Z' r'a@k@, 275-76.
In one sense, he rejected the partïcuhization of M'a into good and bad, wbile
on the other he accepted bidca in the Iinguistic sense (al-mac~-al-hcqhCz~] such
as in the case of the congregational prayer on the night of Eiamadh. Ibn
Taymiyya, however, was still consistent in declaring the indicants (adilla, sing.
dan) of the as the basis of his censure of bidca.
On the subject of novelty (muMatha), Ibn Taymjya contends that it c m
be defined as being Werent h m bidca O- if the exigencies of Me and a
commWty's n u q d ~ (public interest) are at stake, can novelty be introduced
as a hwful alternative. Its aiiowance, however, is subject to the condition that it
does not set a precedent, that it can be shown to conform to the Rophet's
example, and that it in no way violates the stipulated law of God.22 Ibn
Tayrnjya is thinking here, it wouId seem, of novelty in mundane rnatters and of
phenornena which can be tolerated within the confines of the ShcufCa or which
serve to preserve its existence. For instance, in the eyes of Ibn Taymiyya, the
war of the first caliph AbÜ B a h (d. 13/634) against those who refused to pay
alms tax (zaiccft) was a tolerabie novelty. War against Muslims is forbidden but
in the interests of the SMC% even this sort of innovation is hwfiil.23
Our survey of the development of bidca shows that Muslim scholars, on
the one hand, held that bidca applied oniy to Ybüdcft, whiIe on the other, they
distinguished between "ibcZd6t and 'diyyüt (customs). On this very point, al-
Shatibi's refomuiation is worth scrutiny, for f?om both iegal and
epistemological perspectives, al-Shapii placed himself midway (d-tawassug)
between these two positions by basing his theory of M'a on the epistemology of
22 Ibn Taymjya, I@Ü al-Wüt, 229.
Ibn Taymiyya, 1-6 &-Pr@, 280-285.
legal theory. in doing so, he retained the notion of adh developed by his
predecessors, on the one hand, and reformulated it on the basis of Iegal
epistemology, on the other. We now turn to ai-Shàtibï's concept of bià'a
B. Abu Ishàq Ai-Shi?ibI's Concept of BidQ
Before embârkiag upon an eIuCidation of bidCu within the fiamework of
his legal phiiosophy, al-Shatibl fike his predecessors, r e m s the argument
against bid'a, stressmg reliance on the QUI-'&, the Sunna, ma' [consensus), @y& (ratio legis) and the doctrines of pious Wj.24 He then goes on to cite
three categories of legal m g s : command (al-am, prohilition (al-Nahy) and
Rmslgamated selection (al-taWuzygur). Of these he takes the most Wouble to
deme prohibition, which he m e r subdivides into prohibition against doing
a. that which is express@ forbidden, and prohibition against doing anythbg that
contradicts the Smca, whether it is forbidden in so many m r d s or not This
scheme is mirrored in his subdivision of bid'a itself into two categories: fkst,
innovations in religious matters falling under the heading of 'ibEdüi and
second, innovations in religious and rnundane matters intending to resemble
the Shan-ca2s At the same time, he makes it dear that mere novelty (muMatha)
in mundane matters does not count as bidca26 Thus anyt)ling that serves to
" AbÜ Iswq al-Ûhâtibi, cd-I?&üm 2 vols. ( C h : al-Maktaba al-TijZriyya al-Kubrii, n.d.), 1, 53-89. The long discussion on this matter has ken dealt with in the fkst chapter under the heading =hm al-Muwafaq& to al-I't&Üm.w
" The first dehnition is "iba7at 'an $urÜpfiai-din mu?khtanCatan tudaKal- shar'iyya yuqsad bi al-suhik 'dayh6 ai-mba7agha fi ai-ta'abbud li-Alla3 s u b m h " The second which includes '6dÜt and 'iba-d6t is =.tan'qa fi al-& mukhtmCVICatan tudàhï al-shafiyya yuqsad bi al-suhc7c 'alay?uï m- yuqsad bi al- tadqa al-shar4'yya" Ai-Shatibi, d-ICt&a-in, vd. 1, 37.
support understanding of the SMc& such as Arabic grammar (%rn al-mm) or
~7 121-fiqh, is la- even though they were not taught by the Prophet Their
sources or roots are extant in the he argues, despite the fact tbat they
were not known at the time of Islam's first appearance.
As we SM see, al-Sha@~i's work on bid'a is intimatel. tied in with the
epistemology of Isiamic Iegal theoxy, and is based on such concepts as the ends
of the ShhCa (maqcf@d al-sharfCa).27 Such a m d g e between the domain of
bicica and the ends of the ShmFa renders ai-Shatibi's concept of M'a distinct
and identifies bim as the proponent, if not the master architect, of maq- al-
sha~'cz. There is an obvious reliance on the rational process on the part of al-
ShZtibi when dealing with this question, yet the SMta is unequivocaLly seen
as occupying h t place.
Reason is an indispensable tool for understanding the Sharïcq it is not,
howver, to be used to interpret the texts independen*. This is because reason
itself, according to al-ShZpii, is quite limited in its ability to fathom the
purposes of the divine law.28 The Sha~'a, on the other hand, is perfect, needing
neither addition nor subtraction. Any atterupt at using reason to interpet the
'' Al-Shatibi was not the first to speak of the science of ntdq-d al- Sha.~'a; Islamic scholars before him, such as the Sbiifi'ite jurist 'Izz al-D-Zn b. ;Abd al-SaEm (d. 660) who wrote on 'qaw*id al+kEmY (the of principles of rulings) and the Hanbalite scboLar Najm al-D-in al-rn (d. 7 l6/ 13 l6), who composed on a treatise of maqa. mrrrsula anticipated this issue. Al-Shatibi, however, deveIops the theory. His work on the subject of maqaSi/i al-ShdCa is principally based on two standpoints: the fïrst is the primacy of the QI&& as the first authoritative source, and second, on the subject's dependence on the principles of w l f i q h (for examples: intentions, the ends and zj?ih6id, and the universal aim of maqà3id). See H d d i Wbaydi, al-Shebz' wa M a q a d al- S h i c a (Tripoli: al-JamiXkiyya al-TJzrnS, 1992), 134- 138. See d s o HalIaq, T h e Primacy of The Qur'En in Shap'bi9s Legal Theory."
Sh@a which goes beyond its teaching or transgresses its stipuiated d e s ,
Ieads to bid 'a according to al-Shi@ii7.
Sirice zwhtïd 2g relies on rationakation within the framework of juridicai
procedure, it is, therefore, not to be regarried as bid'a For as long a s it is
emp1oyed as it should be, the activity of twd will avoid trespassing on
ambiguous matters (al-mutclshaiih), aï-Shatibi afnrms. As such, a pious and
qualified mujtahid never falls into error if there is a clear indicant derived fkom
the textual evidence.30 The position of a mjtahid, ipso facto, is Werent £kom a
muqtadin (foiiower) . Nevertheless, al-Shaw insists
people of innovation (ahl al-bida'j should, due to E s
himself quaiüïed as a mubdf (innovator). This is
that the foliower of the
fânaticism (tacassub) , be
because the foliower is
29 TO practice @ih6id, according al-ShEtibX a mujtahid must meet two qualifications: the h t is to be able to understand clearly the ends of the Shdca, and the second to have the laiowledge required to derive conclusions by Iiis own abrlities. Abil Ishaq al-Shaw, al-Muwafaqd fi U@ al-SharfCa, 4 vols. (DZr ai-Kutub al-?lm&ya, n.d.), IV, 76. Wael B. H a h q defines z$ihÜd as "the maximum effort expended by a jurist to master and apply the principles and rules of ugZ al-fiqh (îegal t h e o ~ ) for the purpose of discovering God's iaw." See Wael B- HaHaq, W a s The Gate of Iwd Closed?," International Journal of Middle East -dies 16 (1984): 3-41. H a k q challenges Schacht's thesis that the door of zjWz6d was closed by the beginning of the fourth ceniuy of hijra (about AD. 900) in An Introduction to Islamic Law (Odord: The Clarendon Press, 1964) especiaüy on pages 69-75. Hallaq beüeves that theoreticaiiy and practicaily speaking the door of ~jlilzcfd was never closed. His monumentaï article, basically a concise s u m m q of his Phd Dissertation has been reprinted many times. See in Ian Edge, ed. Islamic Iaw and Legal Theon/ (The Intmatfonal Library of Essays in Law and Legal m o n / , series editor Tom D. Campbell) (Hampshire: Dartmouth miblishing Co., 1993); aiso reprinted in Hatlaq, Law and Legcd Theory Vr Clussical and Medieval Islam (Aldershot Variorum, 1995). Hoebink tries to reconcile the position of Schacht and H a k q on z$ihcUi by saying that the two are basicdy two haives of the same -th. Schacht, according to Hoebink's view, is referring to the z$iM of the independent mujtahid (mjtahid mustaqi'u), while H&q includes the afEJiated mjtahid (mujtahid ghayr mustaqïZ). See Michel Hoebink, 'Itua Halves of 2 7 ~ Same mtk Schacht, HalZaq, and The Gate ofImd (Amsterdam: Middle East Research Associates, 1994).
effectively a muttab? who h o w s the ratio legis of the law but instead merely
bases himseIf on rational vindication in ambiguous matters.31
The censure of bid'a, according to al-Shaw, is absolute and leaves no
room for concession Denying that there is any such thing as good or bad bidcu,
al-Shaw explains that in this sense bid'a is different f?om Sunna, which can
admit of both good and bad. Foilowing good Sunna is in consonance with the
Shadca, whiie to do otberwise rneans foUowing an uulawful path not attested to
in the text.32 On the contrary, bid'a cannot be counted as good or bad, for any
attempt to divide it thus is rejected by the Good or bad can only be
measured by the Shan'a per se, contends al-Shafii'bi.33
Al-ShZm was convinced that bid'a was universai in meanhg and could
never be interpreted as partially good or parüaily bad. The uniVersality of bid'a
led him to emphasize the doctrine of e m r (dala7) comected to the concept of
" Al-Shàtibi did not see the laity ('aurwüm) as being the sanie as the people of innovation (ah1 al-ibtida'). The former, due to their ignorance of how to derive ruLings from the iaw, are following the truth as defïned by 'ulama' and are searching for rectitude in the Shan'' not engaging in ambiguity. The follower (muqtadin), on the con t r~~y , is qualined as a muttabi', i.e., one who knows the sources of law, but he himself, in the end, sets aside sound reason or textual evidence, r e 1 . g instead and to an excessive extent on a master. Therefore, he is counted among ahl d-ibtidci? (the people of innovation). See ai- ShaQoi, d-I.àin, vol. l, 163-65. See Q. 5: 104.
" The Sunna is subdivided into two: good and bad S u m Such Prophetic report i s descri id by Ab? Jt@ayfà: " man sanna sunnat &sana..wa man sanna sunnat sayyîJcr.kc%~ 'alayh wizr wa mithZ awza-iihim min ghayr an yanqus ... shay'm" Ibn Màja, Sunan Ibn Ma* vol. 1, 136.
33 Al-Shajiï AI-WÜm, VOL 1, 184-87. The relativity of reason in judging good or bad in the Shar'Tmatters is declared by AbÜ al-Wafa' Ibn 'AqX (d. 513f 1 1 19). He maintains that the SMCa is better placed to determine what is good or bad. Reason, on the other bnd, is inferior to the S h - a See Ab6 al-Wafa' Ibn 'A@, al-W&d@ f U'7 crl-Wh, ed. George Makdisi, L VOL [Stuttgart: F m Steiner Verkg, 1996), 12.
universal (kulliyya) in Islamic legaI theory.34 In other words, the division of bidh
into either good or bad is a logical and legal paradox. This is but one example of
how al-Sh-rns expertise in Zsiamic legal epistemology gave him a unique
perspective on the diskourse of bidca35
The iculliya of bid'cx, according to al-ShZm, is substantiated on four
counts. First, the term bid'a is, on the evidence of the S M a , absolute and
universal, leaving no room for exception (istithnaq. Second, once the principle
of the term is subsumed under the heading universal (kuliyya) or the universal
of the Shar'ï indicant is dictated, the function of the universal is certain and
constant, as long as there is no qualification (taqyfii. Third, it was the univerd
consensus among the pious Cornpanions and their folIowers that bid'a is error,
pure and simple. Fourth, as bid'a is rat iody defïned as an act violating the
SMccz, it becomes, in the eyes al-Shap'bi, impossible to divide into
praiseworthy or otherwise. Thus, to accept good or bad bWa when it is
universaUy understood that bidca is a digression M m the law is simply wrong.36
Although the censure of M'a is universal, al-Shaw assumes that the
sinful acts on bid'a can vary depending on the degree of seventy. ma, he
argues, c m be categorized as major (kabUa) or minor (saghzTa). The former
category includes the innovation introduceci under the heading of necessity
I5 Al-ShatibT believed that the error (dalal) of bid'a is universal. If so, according to him, bid'a itself defies division into good or bad. "In the Shett he says, "the great majority of p a r t i c m (constituting a kuUiyy4 are considered tantamount to a conclusive generai, since the instances diverging fkom a kulligga cannot constitute ancither kzdliyya which can then compete with the £ïrst established kulliyya" See Haiîaq, The Primacy of The Qur'iïn," 87. Ai- Shàm, al-Muwüfaqüt; VOL 2, 37.
( d a n ) matters ie., religion (clin), whereas beyond this type is qualined as
minor. The persistence on the s a g h k , nonetheless, will resuit in the kabïra, he
reminds.37 Al-ShâpK"b classification in this matter is paralle1 to the degree of
human sins clas&ed by thefi4h
Al-ShStib7 was particuiarly insistent in bis position that bidca is
prohibited because it invents practices not attested to in the SMca This is
shown in bis rejection of those who tned to classi@ bidca according to the five
values normaIly assigned fn Sharcï m g s : (obligatory), IprQm
(prohibited) , makru-h (reprehensible), mandu3 (recommended) and m b Ù @
(permissible). This had f5st been atternpted by ?zz &D'in b. 'Abd a1-S- (d.
660/ 126 1) and Shihâb al-D-m al-Qara (d,684/ 1285) who sought to estabïish
this approach as a permanent feature of fiqh (IsWc jurisprudence). AI-SMtib1
a. States however that al-Qarafi was wmng to adopt this position, for in doing so
he was treating bid'a as though it was part of the legd values. Af-ShEtibï wouid
on& acknowledge that bidca can be defined a s reprehensi%le or forbidden; the
other categories represent a contradiction in terms.38 For al-Shz@X, any
" Al-Sha- maintains that there are four qualifications in which bidca s a g r n a can turn iuto bidca kabïra First is persistence in its performance; second is encouraging others to practice it; third is practice of bid'a in public places and fourth is discrediting its violence. Al-Shiitib?, al-ICt&üin, vol. 2, 57- 63; 65-72. See also, Vardit Rispler, Toward a New Understanding of the Term B d c ~ n Der Islam, 68, 2 (1991): 325-326.
" Muhammad Khalid Masud, Islamic Leqd Philosophy: A Study of Abu- Ishai al-Shciitibï's Lzfe arrd Thacght (Islamabad: Islamic Research Institute, 1977), 303. Ai-Sha?ihi contends that 'Izz al-D-m b. 'Abd al-SaEm and al-QarEfïys position regarding bid'a @asana is d e n to the context of bid'a, and that it is the manifestation of zfihcCd on ugiï cd-SharFa (mots of the Shan's), Iike ist@zscüL (juristic preference) and 7~9a?i@ mursala @u bïic interests). BWa, a2-ShE@3i insists, is the act deviating or contradicting the principles of Shan'a which has no basis either in the Qu* or the Sunna. Therefore, for al-Shaw, bid'a cannot be counted as -ana (good). See Hamadi Wbaydi, d-Sh@bf wa M q ü s i d al-Shantra (Tnpo1.i: al-Jamahinyya ai- WpniT, 1992), 1 13- 1 14.
attempt to link bid'a to the values of the Swa is an invented action ( a m
muwrtcuu'), which is itseIf nothing less t?xm M'a and is, therefore, udawfuL
Furthermore, he states t b t al-QarafT was wrong to attxiiute these notions to
his master ?zz al-D-in b. 'Abd al-Saiâm, since, according to him, the latter had
rejected a l - m a + i a ~ al-mursala (public interest) as a form of bid'a-39
The division of bid'a according to the Iegd values of I s W c
jurisprudence is also attempted by Turkumibï (fl.1397). He contends that b2'a
can be counted as permissiHe (mub@~), reprehensi31e (maiau-h) or prohibited
(har6m). Furthermore, he maintains that bid'a can be categorized as bad or
good. Examples of the latter, according to him, include celebrating the
anniversary of the Prophet's birth or building schooIs for social or educationaï
purposes.40 Any attempt however to subsume bid'a under such quaiifÏcations is
mis1eading according to al-Shaw, for to categorize bid'a as amalgamateci
" Al-Shatibï, ai-Irt@Üm, VOL 1, 188-92. See also, Talbi, ' U s Bidac," 66. Before elaborating on how M'a encompasses the five legd values, ïzz al-D'in b. 'Abd al-Salam defines bid'a as an activity not attested to in the time of the Prophet He then justifies the division as follows. F b t , bid'a wüjiba (obiigatoxy innovation) is substantiated in the creation of Arabic grammar to understand the words of God. Second, bid'a muharrama (prohibited innovation) is identifïed with the creation of the Qaddyya and Jabariyya schools. Third, bid'a maiauh (reprehens~%le innovation) is exempiifîed as any attempt to decorate a moque or the Qur'Gn. Fourth, bid'a m b d p (pennissi%le innovation) is typined by the practice of shakhg hands after gubh and 'w prayers. Finaliy, bidca manduia (recommended innovation) is seen in the construction of bridges and schoois. 'Tzz al-D'in b. 'Abd al-SaKim, Qawa7id al-AWKm f2 Maqa7. al-Anciin, 2 vols. (Cairo : Ma$ba8at al-Istiq-, ad.), II, 172-74.
" Idns b. Baydab Turkumaril, al-luma' fi ~awciidith wu al-Bidac, ed. Subhi Labib, 2 vols. (Cairo: DZr ïhya' al-Kutub al-'Arabiyya, 1986), 1, 37-43. Turkumani's division of bid'a counted as good or bad was probably Muenceci by the classification of Ibn Abi S m in 'ai-B&%h 'Alci Iniccï? ai-Bida' w u al- Hawüdith. '
a selection (takhayyur) or obligation (waJib) contradicts the universal nature of its
erroneousness, and besides creates new innovations in itself ( a m mukhtwa3.41
O n the basis of this general criticism of bid'a, al-ShEtibi devebps for it a
two-tiered classification: real bidca (ai-bidca al-haqiqiyya) and relative bidca (al-
bid'a al-idü$Tyya). Regarding matters of ïbüdcft, al-Shatibi contends that the
itnIRwfulness of innovation in this area is recognized by ail "ulamQ', whether in
questions of faith (i'tiqa'd) or merely in practical matters (al-umi al-jawQ'ih). On
the other band, the "ulama' disagreed over the issue of 'cüliyycft (customs). This,
according to al-ShZGbi, was due to the ambiguity resulting fkom confusion of
the customs that existed in the time of the Prophet with his real Sbàdât.42
Before al-ShaD"b1 explains how innovation in 'ibüdüt and 'üdiiyyüt
(customs) can or cannot be counted as bidca, he reaffums the principles of the
Sh&'a, and especidy the Iegal epistemology of %Üda and 'üda. 'lbâda, he
says, pertains to matters whose prohibition and command is r a t i o d y not
understood, such as .Et (payer), qaum (fasting in Rama-) and @zj
@ilgrimage). %da, on the other hand, should be understood to denote public
interest in its benefit (manfaCa) and its hann (mafsada) and the like, including
traditions affecthg d e , Maniage and crime.43
Addressing the issue of bid'a in 'a-diyyüc al-Shgtib'i cites the introduction
of custommy practices into those of ïb6dÜt and vice versa. For him, the two are
" Al-Shaw believes that bidca is universal in its censure and violation. As such, he merely divides biclca into real bidca (miyya) which either ciearly and directly violates the textual evidence or relative bid'a (idafryya) which is the indirect means (sabab) Ieading to real bidk See al-Shap'bi, al-IcfiS&n, VOL 1, 192- 197.
" Al-Shafibi, al-I%+Üm, vol. 2, 78-80.
interchangeable when perforrned in obedience to God (for the sake of God's
orciinances). If certain 'Üdiyyüt are to be counted as Sb~Gdcit, like those involved
in marriage (nikaa), then any innovation in such a case, according to al-Sha~ibi,
is unlawfùi.++ In marriage (nika3), for instance, the ShmTCa requires that a
dower be paid as the symbol of a religious contract having been agreed. The
festivals associated with the practice of rùka71, on the other hsnd, which are not
considered "sacred" transactions (such as ijkit~ and qabzîi fall under custom. In
this instance, the Shar'iconstruction is h e d and never changes. Customs, on
the other hand, do change, and can differ h m those observed in the time of the
PropheL4S Thus, al-Shafi'bi ciassifies bid'a into two aspects: fïrst, real bidca (al-
bidca al-&qQiyya), which is contradictoxy and in cIear violation of the Sfi5a;
and second, relative bidca (al-bid'a al-it$Kfsyga), which is ambiguous and may
either be counted as bWa or not. It i s the latter that al-Shatibï discusses
extensively and develops into a brilliant rapprochement of legal philosophy.
1. At-BidCa al-Waqfqiyycl
Like his predecessors, al-Shap'bi defines al-bid'a al-hqQiyya as
innovation which is not attested by the Quian, the Sunna or ijmQC. Such
innovation i s categorized as iiTilawfbI, for it was not approved of by the ah1 al-
'ilm (the people of knowfedge) either in the universal or in the p a r t i c d sense.
45 Masud argues that al-ShZpiT saw 'awa7id as king subject to change. The Shan"cz, however, is based on unchanging principIes of 'awsid, which are thus called aVawa7id al-sMCiyya. Nevertheless the 'awa7Z pe rtaining to human beings (al-cawsid af-j6riyya bayn al-khalq) are subject to transformation. Masud, Islamic Legal PMosophy, 305. See also Al-ShSQ%ï, al- Icti$Üh, VOL 2, 77-78.
For him, there is no concession to the constraints on real bid'a, as
eiaborated above, no attempt to make it pennissible or to associate it with
la- indicants. A s for the c m that bid'a can even be good or permitted, he
sees it as fundamentally erroneous in that it either contradicts the indicants of
Law or is not attested to in the QuiSn or the S < U m 4 6
Bid'a MQiyya appiies unreservedy in the domain of %Cd& since this
area of the Iaw was regarded as God's own stipulation, even though it may
contain some rationai provisions. The goal of 'ibÜdQ't is not to pedorm a n
empirical function; since its effect is quite general.47 His elucidation of the field
of real bidfa, however, is aot extensive, for he merely approves the verdict of his
predecessors and affTrms their discourse by tying it into the QI&& and the
traditions of the Prophet as weLL as legal theory. As he states, the subversive
nature of bid'a haqiiliyya has been amp1y defbed in the textual.evidence and its
treament by the pious 'ulamc? This aiiows him to devote m e r attention to the
subject of relative bid'a (al-bid'a crl-@c@yya), which is the more tendentious
subject.
2. Al-Bidga al-I@aijEgya
Relative bid'cz, for al-Shatibi, consists of two categories. First, there is
innovation rooted in a clear textual indicant (ddrl), which can be regarded as
good on@ insofar as it does not result in unIawfU bid'a For instance, the
innovation introduced by 'Umar b. ai-Kha- regarding congregationd
Al-Shaw, a l - I C t @ 6 q VOL 1, 286.
"Al-Shatibï, ai-Muwâfaqciit, vol. 2, 303-4.
on the nights of Ramac@n may be counted as an acceptable innovation. The
second is innovation based on ambiguous indicants, or on no indicants at all.
The second type is to be censured and rejected, says al-Shatibi, since it is
based rnerely on speculative justif?cation48 These two types of relative M'a
genemte a quasi-iinlnwfrii bid'a which resembIes the Sunna on the one hand,
and one that is sjmiiar to al-bià'a al-&q@iyya on the other.49
Ai-Shgtibï assumes that every ambiguous act for which there is a Wkm
(the de), whether innovative or not, can be categorized as relative bid'a fbidra
Mu'yya) and should therefore be avoided. The prohibition against dealing in
ambiguous matters (mushtabahciï), he contends, is a cautionaxy measure
against this. Thus, re&.aining ftom doing so is preferable to the danger of f&g
into real bid'a An example of this would be abstaining h m the consumption of
meat which is suspected of having been iiTilawfùHy slaughtered; this would be
preferabie to its consumption, whatever the truth may be, al-Shatibï insists.50
In this example, the ambiguity of the case is isolated as the important factor.
Since refising to exercise Wyat (caution) in the relevant case W a p s the subject
into acting, he/she wouid effectively be perpetrating bidca51 Ai-Sh@i'bi, finaDy,
indirectly advises the reader to avoid such traps by practicing three things. The
f b t is tawaqquf (suspension) fjrom the case, if at least two of the indicants of
kbility are not expressly mentioned. The second is tawaqquf in conjunction
" Al-Shatibi admits that his attempt to divide relative bidh into two is meant to f istrate the distinction between truth and deviation in customs ('adiyy6t) and rituals ('ibcfdcri mattes. Al-Shâp'bi, al-l'fis& VOL 1, 287.
with a search for the truth which is based on clear indicants, when two parties
of %dama7 reach a contradicbry mkm on the laarful and u n l a f i nature of a
case. F W y , it is o d y in following what is stipuhted and ordained in the
Sunna of the Prophet that bid'a may be avoided.52
In al-ICri+;a al-Shatibi fkequently exnpIoys the ends of the S h a a
(rnaq- ai-Sharfra) as a tool to develop the concept of bidca As long as the
performance of 'ibakld, especially non-obligatory 'ibàdu, is not made a habit or
a longstanding cultural practice, the act is la- O n the other hand, ta-
(particularization), such as designathg the time for non-obligatory 'ibcUia when
none is stipulated by a dalil (indicant), or praying a certain number of times on
each occasion or fasting (sawm) a certain day in the month, should be regarded
as tashnc m7id (creating additional Shanhan'a), al-Shatibï decIares.53 I t is
understandable that al-Shâm wouid want to preserve the integrity of the
S h ' a by keepùig mc~qÜ$id al-sM'u at the fore of the discussion. The aim of
this in turn is to ensure that the interests (mcqdih) of Muslims are preserved as
much as possible in this world and in the hereafter. For God, al-Shatibi insists,
acts according to the best interest of His subjects. The Shanra was instituted
for [the promotion ofl the good of beiieversn (d-ShmFa. .. . .unr@at li-ma7ih al-
'*a-4 -54
'' Al-Shgtibï confirms that, originaiiy, tashn' itselt was forbidden (nafs al- tashn' huwa nafs a2-mammF). See a l - S m , al-lwüm, VOL 2, 12, 8 1.
s4 H&q, A Histow of Islamic Legal Theon/, 168. -ad RaysrIn7, N v y y a t al-Maqwd 'Ùtd al-Im-m al-Shqabi (Virginia: The International hstitute of Isïaxnic Thought, 1995), 344-349.
The application of bidcu in 'ibadat, whether recommended or obligatory,
should conform to certain requirements and e g s . Its perpetud or temporal
effect on a relevant command can, to some extent, be regaxded as either lawful
or iinlswfui. On the one hsnd, it is Iawfiii if it conforms to its requîrements and
p ~ c i p l e s (arkün) and is udawfuI if it deviates fkom its indicants on the other.
As such, the consent of God (ri@wcUn AUcih), was treated by al-Sha.T as an
important part of 'ibâd&.ss
As an example of how 'z'bcidüt can be aec t ed by relative bide& al-Shaw
points to the ascetic practices depicted in Q. 57:27. Drawing on this verse, he
tums to the theory of sha@ (condition) to support bis argument. He states: "the
practice of monasticism, of neglecting mundane afhirs, in toto, can be
categorized as unfawful bid'a, ifnot based on a condition of the ShmFa (al-shae
QI-rnashru?). Likewise, if a certain ritual is subject to a certain condition (sha.),
negiecthg such condition is aflilkted, automatically, to bidrQ". Persistence in
performing the act without relying on its s-, the consent of God (n'dut&
AllcLh), al-ShâtibT insists, is red bidCa"56 The invention of monasticism,
therefore, is a primary example of M u , since it had neither &vine sanction nor
precedent.57
?Il-Shàtibi, al-lVi@in, VOL 1, 288-89. R@wcfn AIIàh, according to al- Shatibx can be classified as s-. - therefore, is hherent in SbÜdÜt
" Wael B. Halïaq, %novation (bidra, muMath)," Ihe Encyclopczedia of Qur'ân (Leiden: E.J. Brill, forthcoming). 1 a m gratefuf to Prof. Wael B. Hallaq for makhg this article available to m e and allowing me to use it for my research. Fierro notes that this innovation could be understood as partially or totally negative. Maribel Fierro, The Treatises Against Innovations (Kufub al-Bida) ," Der Islam, 69, 2 (1992): 204-246. See his elaboration especialiy page 205.
With respect to observing non-obligatory orcihance in obedience to G d
(umul d-tatawwu'a't), al-Shz$ï'bi distiaguishes within it two aspects. On the one
hand, it is subject to the indicant (daq of one's ab* to pefionn it and not
practiced on a habitud basis- On the other, it can under certain circumstances
be counted as a duty, making its habitual performance obligatory. In support of
this conclusion, al-Shatibi cites Q. 49:7 and various Prophetic &zcl2'ths. Uniike
the Prophet, who showed the most pious submission to Cod in all matters,
Muslims are only expected to do so to the best of their ability. God, after ail,
imposes no burden on rn-d that is beyond human capacity, insists al-
ShaQ'bi. Ai-ShGtibT quotes the report narrated by Ibn SalamR which declares
that habituai practice of non-obiigato~ ordinances will lead to hardship. And
where there is hardship, this contradicts the philosophical entity of the iaw,
which is to avoid difficulty and create ease for human beings, d-Shatibi
contends.
Quoting the h d t h narrated by d-Tirmidhl, al-Shatibi says that the ease
of non-obiigatory %6&'t is Werent kom real %&da and its zWd,59 AL-S-bi
furthermore contends that the report means that hardship due to the habitual
practice of non-obligato~y rituais is to be abandoned, for imposing non-
obligatory 'ibüda as a habit on the one hand, and Ieading to hardship on the
other, is clearly rejected.60
The practice of non-obligatory % d a as a habit, al-Shao't,i says, can
however stem ftom a vow (TLCLdhr).cl For al-Sh'o'bi, the characteristic of nadhr in
non-obligatoxy 'tbCdu results in difficuity for somebody, as on the one band one
ought to do what one has sworn to do, whereas, on the other, one may be faced
with the burden of implementing it continuously. Such an intention, in fact,
contradicts the philosophical entify of the S h ' a , which does not ordain that
humans should perforrn acts which are beyond their capacity or limits. in
trying to persuade those who tried to imi&te the Prophet in ali mateers, ai-
Shiig%ï quotes the Prophetic report, PTL am
m y God feeds and waters me." 62
With regard to the habitua1 practice
nadhr or not, this tends to resemble the
iinlilce you, for whiIe I am sleeping
of permissr%le acts, whether due to
obligatory 'ib6dcZt when performed
regularIy. Constant practice in such voluntary matters, al-Shghatib'l asserts, is
reprehensible, as it leads to a prohibition (nanhiyy 'a&). He reasons that God
only ordains what is easy for His semant to perfonn, thus averting hardship.
Another reason for allowing certain fonns of non-obIigatory habituai practice,
he insists, is to avoid engaghg in repetition or reprehensible acts.63
6' The vow ( d v ) originally coines h m Lhe b-adilion of pre-Iskmîc Arabs which was then taken over into Idam and undement modi£ication by the new religion. The idea of dedication is associated 6th the mot n-dh-r, which also found in South Arabian, Hebrew and Aramaic and to some extent in Assyrian. Obligatory and recommended 'ibcCda, like .Lij rites and ictik6J are also the objects of a TUZdhr. Nadhr, however, is treated by hadiths wbich urge the fuLfillment of vows as weU as those that forbid them. See J Pedersen, "Nadhr," Encyclopaedia of Islam, new edition, 1993 ed.
Be that as it may, the rniddle position (tawassut) r e m s a signincant
feature of 'ibüdat as asserted also by the Shafi'ite scholar Ibn 'Allan (d. 1057').
The latter states that the ends of 'zBÙda are obedience toward God witüout
excessive ritual wbich may lead to tedium.64 Furthermore, and probably more
importantly, the prohibition against habituai practice is meant to avoid
excesses (ghuluzuzu) in the ShcufCa, something which is certaidy probibited.65
After elaborating on the excessive practices in non-obligatory (vo].untary)
matters that lead to undue rlifficulties, al-Shapii turns his attention to
congregationd or constant Frayer (dura], which was common in Anddusian
mosques once the five dady prayers (galüt) had been said. Constant duc&
spoken doud, was not attested to by any c1ea.r indicants. For him, it was
forbidden for anybody to develop a practice based solely on his m'y (reason).
Udess there is a duil supporting its performance, it is counted as bid'a-66
The same vein of innovation was introduced into the ShmCa by the
spiritual singing and dancing pop* among the *-fis. AI-Shatibi sees this as a
form of innovation not attested to in the Qu'Zn or the Sunna. He censured it,
implicitly, on the grounds that it constituted a new fkshion of spiritual behavior
" MuIpmmad b. 'Allan, Dclm al-Fdi@k li-mnrq Riy. al-Sdi& 4 vols. P e h t : DEr d-Kutub al-Thiyya, 1995), 1, 281-3. H e eiaborates comprehensively, quoting the reports of Prophet under the heading 'Economic on Obedience' (al-iqtisKd fi al-'ib&Za) that easiness in the ordulances of God is much more common than hardship. The latter must even be avoided, he states. His argument based on the Q. 2: 185 (yuKd AII& bi-kurn al-yusr wa lÜyu6d bi- h m al-ksr) and the Q. 20: 1.
6s Al-S-Shatibi quotes the m i t h narrated by Ibn 'Abbas saying that, 'iyyü kum wa ai-ghuluww fr al-dh fa i n n m - halaka man kclna qablakurn bi al- ghuhiwui f al-di2 [do be carefbi of king excessive in the Shafrcz, for, people perished before you due to their excessive indulgence in the Sha~CaJ. Al-Swtibï, al-Ire6in, VOL 1, 304. See also (Q. 4: 171).
rather than the essence of ducEitseK67 Ibn Qayyim al-Jawzfyya (d. 751/1350),
however, treats the matter in paradoxical terms. On the one hand, duc& is
recommended as beneficial, while on the other, ce- modes of àÙE, e.g.,
sinmg or dancing, are deemed by him to be fiarmful to the S M a In the end,
he concludes that it is more harmfuI than beneficiai and is, therefore,
forbidden.68 It is obvious to us that al-Shaws substantiation of his argument
is fundamentally derived from his theory of the ends of the SMra For him,
duc< whether performed as Song or in other ambivalent modes, shodd be
examined in the light of the aims of iaw (rnaqü$id), i.e. necessity (&m-i, need
(@à2 and improvement (t.rsuZr). These three principles, in al-Sha@ï's eyes,
serve as the raison d'être of the iaw, and hence there shouId be no particular
that stands in opposition one to another.69
The censure against singhg in generd is echoed by the Egyptian Shan5
scholar Ja&i ai-D-in al-Suyü@ (d. 911/ 1505), whether as a matter of %a-dat or
'üdiyycft For him, such performances typ* diversion (ldzw) fkom the way of the
Shczrk In addition, he says that al-ShZfi5 himself discredited singing for its
" Ahmad b. YahyE al-Wanshw1si, al-M@& d-Mughrib w a alJEmi' al- MU- 'an Fatüwci 'UICU~UZ~ ifnqiyya WQ &Andalus WU al-Mghrib , i3 vols (Beirut: D k al-Gharb al-Islanii, i401/ 1981), XI, 39-40.
'' Ibn Qayyim al- Jawziyya, ai-Kd6m 'alcf Mizs'ala c~l-Sirna-~, ed. Rashid b. 'Abd al-'& al-Hamd (Riyad: DZÜ al-'hima, 1409), 157-160. Ibn Qayyim drew an analogy between this characteristic with aicohofic drinking, which has both benefit and harm. Its hann, however, is bigger than that of benefit He condemns those who contend that spintuaï singing and dancing entail a joyous feature of duc& for, he says, such a way is a deviation beyond the ShariCa
69 Hallaq, A Histoty, 169-70. Tt is to be noted that al-Shatibï did not condemn the du'a itsex. On the contrary, he censures the innovative modes that foreign to the ShuntCa
tendency to lead a person into error.70 AI-Suy6?ï's own opinion towards the
censure of singing is less certain, however. For bis elucidation of what category
of action singing f d s into is too general to elicit a .tkm. 'Ulama?, for instance,
as mentioned above, painstakingly condemned innovation or novelty which
may be counted as subversive to the -'a or human weifare. Singing to the
accompaniment of conventional musical instnrments, for instance, is generdy
regarded as custom and considered to be entertainment. Al-SuyCB, however,
generalized in deciarîng singing to be harmfhi and censured it.
~ommenting on the sufii al-shukr (bowing before God as a gesture
expressing gratitude) 71 approved by Maiik b. Anas, al-Shatibi states that if the
divine law and the ijma' of the Cornpanions are dent on the matter, then
accordingly, it should be discontinued. This foUows h m hïs conviction that the
main purpose of the ïaw is "averüng undue difncuky for people." 'AdiyycF-t
(customs), however, are often seen as king in accordance wi th r n ~ l @ m (public
interest), a principle which aiigns them with the Shan'k
Wiîh respect to twaurwuf (*j), the path of obedience to God, al-
ShZo'bT contends that there is nothing in it which can be counted as bid'a. He
70 Jalal. al-DDm al-SuyU., NaqUlat al-Sunna wa al-Bidcu, ed. Al-vusa- 'Abd d-Majid HEshim (Cairo: Dâr al-In&, 1985), 24-26.
" Al-Sb-obi adopted the example of st(pl'd al-shukr (bowing before God out of God thadduhess), as we are informed by Malik b. Anas. The Latter, however, forbade people fiom engaging in such practice. For Malik, its performance was not stipulateci by the Shan7a; and if the Law is silent on it the onl . solution is to abandon it altogether. AI-Shiïtibi, al-ICt@uïh, vol. 1, 362, 364. Ibn Rushd (d. 520/1126) also reafnrmed that su.Z al-sfutkr was stipuiated neither as an obligation nor a recommendation in the Shanh
in this context, al-Sh@iE again stresses the distinction between Cibüdc3t and '~ZdiyycZt matters. For him, the former is certain and clear, whiIe the latter is oniy probable ( m c ~ z ~ n n a ) . Al-Shiitib7, a i - I c ~ ~ ~ VOL 1, 363-64.
attempts a definition of the term prior to rnRking a clear judgement. For him,
tqawzuuf is comprised of two types of action: first to act in the way of the
Prophetic Sunna and to isolate oneself fiom evil; and second, to amiMa . . te
oneself and to abide only in God. These two definitions actually denote one
meaning. Ai-Shii@bï, however, contends that the former is simikr to and
conforms to the cornmandment (taklrSg of juridical mies wme the latter is the
result of the former and can therefore be declared as either Lawful or unlawful.
Before issuhg his final judgement based on legal epistemology which would
determine the juridical basis of bidca, al-Shatibi concludes, o n the one hand,
that t ~ u w w u f is la- insofar as it is defined by and attached to the juridical
nrlings attested to in the Q u i & and the Sunna, and rinlnwfril or counted as
bid'a should it contradict or vioIate the SharFa, on the other.73
Al-ShiQibi's view is seemine in line witü al-QushayTi's statement that
SuGsm (t-awurufl was nothhg more thRn spintual f i h m h al-bc@n).74 The
former, however, challenges the attitude of total submission to a shaykh when
s e e h g to be initiated into a discipline, since any such discipline can be known
h m b0oks.~5 The c U s of to lx adept at direct communication with God,
" Al-Shàtibï, d-I'fi+Üin, VOL 1, 207-208. He confirms that all acts should confonn to IL@ al -shda (mots of the Shmffa), for, bidca, is to do the otherwise act without textual evidence.
" AbÜ al-QEsim al-Qushayfi argues that fiqh is divided into two: fiqh al- @& and ftqh al-butin. The former is substantiated as the rulings pe-
. . g to
'ihàdcft and 'Üdiyyit of mukallafzn and the latter to the science of deaLing with the acts of hearts (afa7 ciiqzdu3). Ibn KhaZdÜn, Sh@a7 al-Sâ'il Ii-Tahdhî'b al- Mascï'z~ ed. MuQammad b. TaWit WabakE (Istanbul: Osman YaIqin Matbaasi, 1957), 10- 11.
" Masud, Islamic Legal Philosophy, 107. A s quoted by Masud, Ibn 'Abbâd of Ronda maintâined that submission to a shayich is essential in the joumey of tqaururuf: Ibn 'Abbad, however, differentiates between the shayh% al-tarbr'yya (educator) and shaykh d-tacEm (insnctor). The former is not Iüreiy to be
through Fuinihilation and the teaching of the invisiible science ('alam al-ghuyu'b
wa al-anuaB), al-Shajiii insists, should be rejected, as they were not
sanctioned by the pious predecessors (al-salaf al+a7ih).76
It is obvious fYom al-Shaw's own statements that Islamic legal theory
was, for him, more binding than speculative reason, which diverges f?om the
epistemology of divine law and which can Iead b bidca. In adopting this
position, he reformulated his predecessors' concepts of biXrcq m&y by basing
his anaiysis on the epistemology of Islamic legal theory.
Havuig discussed al-Shztibi's concept of bidca and that of his
predecessors, we c m conclude that al-ShGtibi differed fkom both M u s h
classical and medieval scholars in his approach to the subject. The iatter did
not provide a s-cient elaboration fkom which to develop a new le@ or
philosophical paradigm and generaUy relied only on the evidence of the Qur 'k
and the Sunna in formuiating a dopat ic position on this issue. Among the
points that distinguish al-Shatibi7s discourse on bidca is his development of the
argument on istimaiz and ma$u&z m r s d a , which contras& with the freatment
of earlier scholars. We shall discuss this subject in chapter t h e .
essential for the 'traveler', while the latter is necessary for everyone engaged in It was the modem (muta'akhi.6~) &i-j who hdd educators to an
approach which al-Shatibi criticized. Al-Sham probably disapproved of the that the shaykh ai-tarbiyya who was held to be an important figure by contemporary %fi rather than the shaykh al-taclïm to whom the predecessors relied. See Ibn 'Abbiid, d-Rasa7z'I al-mghr< ed. Paul Nwja @leirut: Imprimerie Catholique, 1958), 107. See also al-Wanshaxisi, al-Micy6r al-Mughrib, VOL 12, 293-307. See aïs0 the note befow.
" Al-Shâ$i'bi; al- lc~Üm, vol. 1, 208-2 1 1. See also Fazlur Rahman, Islam editioa (Chicago: m e University of Chicago Press, 1979), 152-153.
CHAPTER THREE
BID'A AND AC-SHATIBFS ARGUMENT REGARDING
MR@Ul@'A MURSALA AND ISTmSAlV
This chapter deais with the jurïdical basis of ai-ShEtibi's argument
against those who considered melaha mursala and isti&& to be forms of
innovation. The discuSsion wili examine the efficacy of al-ShZtibi7s distinction
between bidca (innovation), which is foreign and even contraclictory to the
Shanwr@ and the validity of the legal principles of m l - mzsnla and isti@scin
as subsidiary, yet valid sources of law after the Q u i a , the Sunna, ijma' and
@y& (ratio legis). In addition, we shall try to show how ai-ShZtibT's
epistemological reliance on legai theov distinguished him fimm j d s t s who
shared quite Miren t views on the same matter.
A. BidCa and Ma+la@a dbursoria
From the standpoint of their lack of an expiicit textual basis in the ws,
bid'a and ma+l@a mursala are similar. The former was censured by the Sunna
due to its violation of religion, although there was an assumption on the part of
some schoiars that bidca could be go& or bad. Ma+lc&a mursalq however, was
regarded as a legal argument, even though the text did not eïaborate explicitiy
on its cornmandments and prohibitions. Due to endless polemics over these two
terms, it is necessary for our purpose to examine them fYom the angle of le@
theory and especially with respect to al-Sha?ii's argument
As we saw above in the second chapter, al-SM* censured bidca in a
universal sense (kulliyya) and rejected the possibility that there couid be such a
thuig as good or bad bid'a He, however, believed that bidca couid only be
condoned in matters not attested to in the Qur'Sn or the Sunna Mwl+
mursala (public interest), on the other hand, although not rooted in a certain
dam (indicant), was regarded by al-ShatibT as legal and in no wise ta be counted
as bid'a. Yet he acknowledged that the vaLidity of nu+l.Za mursala is disputed
by junsts.' Ln this section, we s h d discuss the argument of al-Shaw against
those who deemed nm+lahn mwsala an example of good bid'a (bid'a !psana).2
Some schoks such as Vardit Rispler have argued tbat the concept of
good and bad bid'a developed as a p a d e l system to the Sharik3 m e it is
true that some early scholars classitied bidca into good and bad, this position of
course contradicts a l - S h w ' s belief that any such classification is IegaUy weak.
He felt that its justification was based on a purely ratiod (and therefore
arbitraxy) rather than Iegd point of view. This was not however the case in his
eyes with ma@@a mursala and isti&cüz, which were fmy integrated by his tune
within the juridical system of the MaWate and Kanafite schools. Thus principles
such as rnagla@a mursala can be used in instances where the Qur'k, the
Surmu, @nâ' and qiy* (ratio legis) fail to yield an answer. In other words, there
' AbÜ Ishiiq al-Shatibi, al-ICti@in, ed. M-ad RasEd Rida, 2 vols. (Cairo: Maktabat al-TijEriyya al-KubriZ, n. d.) , ïï, 1 1 1.
* In this regard, al-SiGa admitted that he himself was forced to argue against those of kl&' who deemed mqla?uz mursala as innovation. Al- Shzp'bi, al-Icti$6n, vol. 2, 1 11.
Vardit Rispler, "Toward a New Understandhg of the Term Bid'a," Der Islam, 68, 2 (1991): 320-328. Rispler stated that =in order to open the stagnant development of Islamic law, the ciassincation of bid'a into good and bad is made possiile to serve as a paralle1 to the Sh~*~ct." While in fact, for our understanding, bid'a itself is not a juridicai edince of system like m@aha mursala stood and derived the conclusion fkom the SharTs matters when the textual basis is absence. On the contrary, bid'a is a doctrine in which theologicaiiy it is censured by the Prophetic tradition.
is no legai or logical reason for the use of good or bad M'a as a foundation for
juridical arguments when there is no need to do so. For, unlike bidca, a , l e a
mursala is legally guaranteed as the outcome of t$ïhtUi, which by definition
recognizes the superiority of the Sh&'a.
M@ca&a mursala is in fact essent i . to the correct firnctioning of the law.
The rulings which are incumbent upon Muslims cannot ail be traced back to
the Qur'h, the Sunna, I$TZG!~ (consensus) or &a3 (ratio legis), since many
rukgs are unspecinc in terms of either commands or prohibitions. Maslaha
mursala is in this sense very dinerent nom bidcu The former is employed to
a d v e at nilings, based on certain indicants, and in deriving legal j~dgements ,~
while the latter consists in creating a ruling without any precedent or textual
basis.
W e mql@a mursaia is used to implernent rnaqla& (generd good) for
human beings when there is no clear stipulation in the text, this alone cannot
serve as its ody claim to authenticity. This is because its arbitrary use will
result in reliance on rational standards and the inevitable introduction of
innovation. Therefore, the function of the general good should be based as
much as possi'ble on its confofllll'ty with the ratio legis or its suitabiiity. In other
words, m@&a can be made to function in order to preclude unlawfirl
innovative actions as long as the constraint of necessi@ (q?unEn) exists. ~ l - h i d i
(d. 630/ 12321, for example, asserts that This does not mean that every
~1~ (general good) is accepted as the basis of rulings; rather it means that
Ab6 alHasan 'AG Sayf al-Dvm al-&nidi', d-WcZmfi U@ d - A ~ - m , 4 vois. (Cairo: M a w ' a t 'AIi mbayh, 1968), IV, 37-38.
mu@* (sing. ma+Zam) can be resorted to only where the necessity is clear-cut
and ~lniverd."5
The merence between rnc@ahQ mursala and bidca is substantially
rooted in the indicants and the ends of the SMca M ~ Z u & mursala, d-S-
contends, is principally based on the indicants of the S W a by which the aims
of the latter, Le., promoting benefit and averting harm, are msinmined.6 For if
rn-a mursala is not rooted in a dalZI, this means that one is c o n s m g
Sharf matters as good or bad based merely on reason, which is prohibited.
Malik (d. 179/795), the outstanding proponent of q l a h a mursalq uisisted on
adjudicating rnatters on the basis of the Shanca, not merely on reason. The
Shmfcu, al-ShGtibT asserts, never tolerates bùica at aLi, for there is no good bid'a
tolerabie to the Sharïra O n the contrary, pointing to the univerdty of the
censure of bid'a ("every bid'a is error and every e m r is in heun), al-Sh-
concludes that ail bida' are blameworthy.7
As rn-Za.@a mursala is a Iegal principle used when the da22 in the n/tss
is absent, al-Sh5m m e s clear the distinction between the domains of 'ibüdat
and 'Ediyyüt (customs), insisting that the former are illogicd and require an
intention ( m a ) while the latter are entirely logicai and need not be prefaced by
an intention (naa). Therefore, bid'a in a general sense, al-Shatibi contends,
consists in the habitual performance of acts pe rtaining to 'ibüdüt (religious
matters) and aimed at association with divîned law (rnashnci which are not
@ammSdi al-'lmaydi, d-Sh@tibi wu Maqâ$id ai-Shurï2z (Tripoit ai- Jam* al-Uzmâ, 19921, 228-229.
sanctioned by the Q u i a n or the Sunncr8 Thus, aii behavior tied merely to
c u s t o m q matters can legdy resort to mqla@a mursala,
In malang this distinction, ai-ShZtibT stands out, in our opinion, fkom
other jurists.9 H e cleariy differentiates between cases related to pubIic interest
(m@&cz mursala) and bid'a itself. Of course the former is a - e d at through
the exercise of ~ftiha-ci, as is the latter. But when it cornes to the division of bid'a
into good and bad'0 or the application to it of jundicd values, like w6jïb and
mandub, this aI-Shapii rejects, since such value judgement in this case is
purely arbitrw. The Eve legai values, after ail, are based objectively on the
S h d a and are regarded as a legal obligation (takEfi for one who possesses a
sound mind (mukallafj. They also cany with them the certainty of the Shan'cr
Bicl'a, however, if divided into rulings by analogy, is ambivalent whether
logically or legally. LogicaIiy spe-g, if it is reasonable that it shouId be so
divided, bow can the censure of bidca as error (kuLb bid'a &lala) in essence be
substantiated? Legdy speakhg, on the other hand, rulings are relateci to
Mulymmad 'Abid al-Jàbiii, &-Zn wu al-Duwla w a Tatbiq al-SharFa (Beirut Markaz DK.asZt a l - W w a al-'Arabiyya, 1996), 13 1- 132. Ai-JZbE argues that al-Sh@iE's concept of bidccz is quite different fkom other jurists. His uniqueness Lies in the fact ttiat he differentbtes between Sbàdüt whkh are certain and customary ('cfdiyykt) which are flexi'b1e and changeable. Thus, it is to the latter that al-ShàpBiï developed the theory of r n q l a f m different h m bid 'a
'O The Indian reformer Shaykh -ad Sirfündi (d. 1034/ 1624) taunches vigorous attacks against the distinction between good and bad bid'a. H e insists that either of them is away with the Sunna and therefore should be sc~pulously avoided. See Y o b n m fiedman, Shaykh Ahmad SirhindL- An Oufline of fiis Thotcght and A Study of Nis Image in the Eyes of Postmen@
e (Montreal: McGiU-Queen's University Press, 197 1),43-44.
' ' AbÜ Ishaq al-Shatibi, ai-Muwüfqüt fi Uw7 al-SMra, 4 vols. (Beirut: DiZr al-Kutub al-ThQya, nad.), 1, 76-8 1.
a rewards fkom God, whereas the warning of the c M t y of bidca itseif is
universai. Therefore, innovation is undoubtedly a violation of the Sha6'u,
whereas novelty in mundane affairs f d s under the heading of public interest
(r?uqda?pz mursala), no t under bid 'a waJiba or bid'a mandu'ba '2
It wouid appear that the weakness in the reasoning behind the division
of &d'a into Iegal values lies not only in its conwadictory nature but also in its
tendency to introduce ambiguity into Iegd argument. Wa~z? (obligation), for
instance, if attached to bidrq yields bid'a wâ@a, which consequently entails
the Iegal n o m of obIigation.13 Bid'a, however, is itself epistemologicaliy
censured based on the aforementioned Prophetic report. Therefore, it is
misleadkg to qu- bid'a by one of the legai noms such as obiigation. For,
obligation (wüjib) as a legal norm represents "an act whose performance entails
reward, and whose omission entails punishment."l? Obviously, the argument
over whether bidca can be wuQJ or mandub is debatable fkom both theological
and Iegai perspectives. Al1 this goes to show tbat there is a guLf between bid'a
and ma+Za& mursala in the eyes of al-Shatibi.
To demonstrate how bià'a is unacceptable in law and ma@c&a mursala
alowed, Al-Sha@S develops his own theoxy in distïnguishing between the two.
He starts by assigning tbree conditions which rnaq2.a must f b U X in order to
be considered vaiid:
l3 Al-Sh@iE, al-Irtig6m, vol. 1, 192. Al-Shatibi contends that importing legal norms into bidca is itself innovation. Bid'a does not tolerate obligation or amalgamated selection (tak%yîî; but it is prohi'bited aU together.
IJ Wael B. H&q, A History of rs2mic Legal Theories An Introduction to Sumi Uw7 al-Fiqh (Cambridge: Cambridge University Press, 1997), 40-4 1.
1. M q l a @ a is attested to by the SharfCu in virtue of its essential
suitab- and epistemology this is what lends it authenticity.
Furthexmore there is no indication that theTe was any disagreement
over this fact Otherwise, al-SMDiT says, nzqZ&z would mean
contradicting the Shurïra One example of mqlaha at work is in the
orciinance of pend retaliation (&CS) which is applied in order to
safeguard Life (hzB al-nafs) .
2. If there is a clear indicant of the Shan-'a rejecting it, mqlaha is
clearly invalid. This is because + suitability (mun&aba) or iack of it,
is not seen £hm the standpoint of human reason per se, but rather in
terms of the indicants (adillq sing. daltl) of the SMa. Thus, al-
Shatibï insists, =the meanhg of rna+Z&a for us is based on the
rationalie of its function, in which knefita to mankind are promoted
and hanns averted; therefore, the capacity of reason jn its
understanding is dependent on the Sharik O n the other hand, i f it is
not afkested to by the SurFu in its commission and omission, the
agreement of Muslims is applied for its rejection."Is
' 3. The use of nuqla&z is aiiowable if the Shar'iindicant neither points to
its acceptance nor rejects it. In any such case, says al-Shatibi,
~ E a @ a must meet two conditions to be valid:
a. The case should rely on the indicants of the text in which the
suitability is maintained. For instance, someone guilty of
murdering the person h m whom ne or she stands to inherit is
barred fkom receiving his or her proportion of the inheritance.
b. There should be a suitability between the case and the rationai
meanhg of the even fiough in fact it may not be
sustained by a certain dam (indicant]. In such instances, al-
Shaw asserts, this process is c d e d the act of al-meàiih al-
Ai-ShEtibT's mariage of reason and the Shari'-'a in order to make the ïaw
more dynamic on the one band, while preserving ifs authenticity on the other,
when the n w s is silent, he appears to ciiffer h m Iiis predecessors such as al-
m, whose theory of rnqdc&a is more ufditarian and tends towa.113 LiberaEsm.17
Al-Sh- insists that the S h - C a is s a supenor to reason a fact that ensures
that mazikind wil l not indulge in innovation when precedent cannot be found in
Najm af-D-in ai-rn (d. 716) as we have noted, is much more Lierai in bis
empIoyment of mas* For exampIe, he considers ~2~ applicable to a,.U
rnundane matters, such as mrEmalat (social relations), whether attested to or
aot in the nczss. However, he rejects its use in matters of 'ibâdcZ?, which are
clearly spelIed out in the na&a The mujrahid, he says, undertakes his inquiry
I6 Al-Shâtibi, ai-Ir*6m, VOL 2, 1 14- 115.
'' Religious utZtarianism and liberalism, we bomw fom Hallaq's tenn, are to indicate the function of I s W c law as merely seen for the benefit of mankind in this world as public interest and rather sometimes manipulated for the sake of advantage. At the end, rezigious principles are ody seen in substantive assumption. See Hallaq, A ~ i s t o r y of lslamicLegal ~ h e o r y , 2 14-2 16 ; 231-233,
'* M-ad Mus- ShaIabi, Ta%Z al-A@kàim (Caire: Matba'at ai-Azhar, 1947), 292-293.
a for the benefit and on behRlf of those who are mukalIaj5z (who possess a sound
mind). in other words, he saw -la. as œpromoting benefit and averting
harm" @zlb naf aw daf dararf for the good of m-d in this world and in the
Before elucidatïng his main argument in support of ma@Qha as an
acceptable source of Iaw, al-TUfi tries to explain how the notion was interpreted
by al-Qara% and al-Ghazali. The former divided rn-2- intn three types. First,
lu@ which is similar to @yu3 in that the rulings of law cari be derived
through the ratio legis i b rn the mss; second, rnc@&a which is irrekvant and
contradicts the nw$; and -y, mu+lcz& mursala, for which the indication of
its rejection or acceptance is not clear in the n m . Al-GhazaIi, however,
asserted that m @ a ~ functioned according to the category of (necessity).
a Al-m, then, concludes that m@@a is not precluded but is even used
according to the demands of zjtihci-d. For, he reasons, if i s omitted,
zvd automatically becomes void.20 His theory of ~ a h a , however, is only
applicable to mundane matters (custorns), whereas ïbC&7 are certain and f d
under the prerogative of God.21
The concept of ~ l @ u z promulgated by al-m, however, is perhaps too
iiberd. He, for example, sets aside the three sources of law (the Qur'k, the
Sunna and ijm3 in favor of the Prophetic report "do not W c t injury or repay
I9 Najm al-I3-Zn al-m, Sharh Mukhtcqar d-RauiQu, ed. 'Abd AUah b. <Abd al-M-sin al-TurH, 3 vols. (seirut: Mu'assasat al-Risala, 1989), III, 204.
" Mohnmmnd Hashim Kama PrVLdpIes of Islamic Jurisprudence (Cam bridge: Islamir_ Texts Society, 199 l), 275.
one injury with anothef (K darar wa lE dirci?j2* in supporting his theory of
mc+la&z23 In short, if we compare it to ai-ShapK's theory of -laha, which is
predicated on the ends of the Shan'a itsex, d-TUfi seemiagly acknowledges the
supremacy of reason in cases of public interest.
The efficacy of mwiaha, according to al-Shzp'bi, is certain and is
essentialy different from the adjudication of cases by reason. For, as he
fiequently States, the seeds of bid'a stem h m its reliance on rational
judgement which sets aside ShwT justifkations. Judgement based merely on
reason, if applied to SharTmatters, kads to prime bidca24
To support his idea of the Merence between q l a @ a mursala and bidca,
al-Shatib'i cites ten examples of m ~ s l - introduced by the Companions and
pious %lama? in response to cases not clearly mentioned either in the Sunna or
the Qu?&. For our purposes, we shall look at the five examples which al-
S h a w elaborates upon in particuh. First, there is the agreement of the
" As quoted by Nazly Hanum Lubis in her M.A. thesis 'al-ms Concept of M a s l a ' this Prophetic report is narrated by more then one narration and categorized as @asan wbich was reported by AbÜ Safd b. MiSk b. Si& al- Khudx? and the chah of authorities extending firom the narrator to the Prophet. Nazly Hanum Lubis, u a i - ~ s Concept of M ~ s l u & c A Study in I s W c Legal Theow ( M A Thesis, McGill University, 1995), 47-50. As puoted by ber, see also 'Abd al-Wahha3 RasMd SàXh, S m al-Arbapm al-Nawawiyya (Cairo: DSr al-Bashr, 19881, 366.
WaeI B. Hallaq, A History of Islamic Legal l7zeories, 150-53. Hallaq argues that al--ifi employs the concept of ma$a@cz superseding consensus, even the Q u i k and the Sunna by maintaining three reasons. First is the efficacy of m@~@a is in agreement among all mankjnd, while consensus and its authontativeness are subject to disagreement Second, the textual evidence in the Qur'àn, the S u m and consensus is varied and at times conmdictory, leading to severe disagreements among jurists. M@@a, however, is subject to no disagreement. Third, the historicai evidence showed that Companions abandoned the evidence of the texts in favor of public interest d v e d by their opinions.
Al-Shatibï, al-IC~cFim, vol. 1, 359.
Companions on the compilation of the Quf* Ï n order to preserve it for
posterit-. This action was obviously neither assigned by the Prophet nor
attested to in the Qur'anic injunctions. Second, there is the setting of the
penaky for intoxication to eighty ïashes (falda), Third, there is the prison
sentence set for a person accused of a crime, even though prison is usually
reserved for someone who has k e n convicted. Fourth, there is the niling that a
person may be empIoyed as the great irniirn (al-im6m al-kubrG), even though be
may not be quaEfied as a mafiahid or mufi due to the iack of a quaiified
candidate for this position. Fifth, there is the agreement reached by the majo*
of 'ulamü' on the penalty for taking property/wealth (ma3 when there is great
exigency for it in Muslim society.25 The aforementioned examples, quoted by al-
Shatibi to support his views on the validity of mursalu, are ail issues
that are not clearly referred to in the texts. They are aiI, however, categorized as
public interest (ma+& mursala) where their compatibility with the ends of the
Iaw ( m a q e d al-ShanLCa) is unequivocd2fi
Before passing judgement on the fact that mu+ZahQ mursala is different
h m bidcq al-Sfiàtib? declares that public interest was aïways given the highest
consideration by the Companions. The compilation of the Qu'En., for example,
was not commsnded by the Prophet. instead, though it was not ordained by the
n w , the Companions took the initiative for the sake of pubfic interest, making
it therefore la- Furttiermore, al-Sha.l's justification of public interest is
'' Al-SMF perceives the existentid puipose of the Sh&'a to be the protection and promotion of three legal categories, which he cals darzZriyyEt (necessities), &iiyyàt (needs) and ta@hiyy6t (improvernents). These aims are intended to ensure that the interests (mcqdih) of Muslims are preserved in the best fashions in this world and in the hereafter. Sec Kaïiaq, A Uistory, 168.
limited to 'Cdiyyüt (customs) and excludes "ibÜdEt.27 Al-Shatibï in these
instances probably intended to rnake the law flexible enough to meet the
demands of human beings within the constraints of the means (wasa7iI) of
achieving the ends of the Shanca (rnqwd al-Shan'a). The ends of the Shrfra
itself, however, are crucial to preserving the authenticity of the iaw and to
ensuring that the benefits to mankind in this world and in the hereafter are
maintained. In support of this he quotes the sayuig of Huthayfa "every 'iba2la
not pedormed by the Cornpanions is nuli and void ... and take the path of your
predecessors?s
StilI on the topic of the essence of public interest, al-Shatibi insists that
the systematization of Arabic grammar rilm al-n*w) be Spined as rnqwa,
not bidca w6jïba as proposed by ?zz al-D-m b. 'Abd al-Salam (d. 660) .29 Arguing
against 1Izz al-D-Zn's position, al-Shap'bi insists that its introduction was not
based on evidence either h m the Qur'Sn or the Sunna. Rather, al-ShatibT
categokes such practices on the part of his predecessors as a necessity (&m.ii]
in the field of the means (wasà'il), and not that of the mc~qcï$id (the ends), of the
ShTa3*
Al-Shàp'b9, furthermore, asserts that cases involving customs ('Ediiyyüt)
have their basis in reason, such that their benefit or harm can be understood
logically. Rovided, he reminds us, the application of ma+lcz@a mursala should
" ~ l - s h a ~ , al-Ict&fm, vol. 2, 131-132.
29 'Izz al-D-rn - b. 'Abd &-Salam, Qawa5d al-AmÜm fi Me- al-Anüh, 4
a vols. (Caùo: Mafba'at al-IstiqEma, n.d.1, II, 173.
30 AI-Shiitibi, al-I't&ch, vol. 2, 133-34.
be in Line with the ends of the Siuurca and that does not contradict the roots of
the Iaw.31
This advanced theory of law wfiich protects the benefits of the servant of
God (ma+am al-%a-d) is also put forward by Ibn Qayyim al-Jawziyya (d.
75 1/ 1350). Ibn Qayyim contends that faturai can change according to changes
of place, time and condition. In fiis mind, the SharFa itself operates for the
henefit of mankind in this world and the hereafter on the basis of r a & ~ (God
blessing), rnqi@m and hikma (wisdom of God). None of these, he insfsts, Ieads
mankind into hardship.32
From the examples cited above, al-ShaQiï cornes fo a conclusion wfvch
has certain ramifications for his legd theory. For him, mastaha as practiced by
his forefathers (such as Companions) has two facets. First, its conformity with
a the ends of the ShcuPa does not fundamentally contradict its roots (-1) or its
indicants (ddü'il, pl. daQ. Second, public interest deals witù matters r a t i o d y
understandable and touching specincally on customs (2ZdiyyÜt). This is because
customs are unlike '&&da which are transcendent and incapable of
rationalization -- examples king, according to al-Sha.i, wzidu7 (ablution) and
m . (pilgrimagej. 33
To distinguish the fundamental bases of 'ib6dcft (whîch are beyond
human reason) and of 'Çiaiygüt (which are accessible to human intellect), al-
Al-Shàtibi, al-ICtisÜm, vol. 2, 133.
32 Ibn Qayyim al-Jawziyya, I l a m al-Muwaqqi'in 'an Rabb al-'~hnr'in, 4
a vols. (Cairn: Matbacat al-Sa'ada, 19551, III, 14- 15.
" Al-Shâfibi, al-Icti@n, VOL 2, 129.
Sh-gi positions himseif in the wadition of the MuMtes34 in chbing that
reason has no place in the domain of 'ibüdcff, This i s because '*a-dcFt (Eke
ablution, for instance, which is irrationd) are talcen for granted as submission
to God, he insists. Cleansing oneseîf after menstruation, for example, is
equivalent to submission (tarabbuci). Therefore, zjtihc5d has no business in tryhg
to understand any hidden rneanings in %&Kt, On the c o n t r q , The objections
of 'a3iyyÜt (customs] are clear, ie., to preserve benefits (rncz@ih) and avoid
hatms (maf&d), whereas those of 'ibc%ft rnatters are unclear.Js In other words,
al -Swbi insists that %&id& being ce- and perfect, need neither addition
nor subtraction, wh2e 'Üdiyyd are rational and may be modified according to
necessity or need. Deviations in the performance of 'ib6dât wbich are alien or
not attested b by a S M indicant are counted as real bid'a, and therefore are
to be absolutely rejected?
M ~ f c r . mursalu, therefore, amounts to protecting the constraints of
&.nFi-f (necessity) and averting difnc- in religion. In s k a g this, ai-ShZtibi
contends that a certain element (probably maqlczlp mursalaj should be uicluded
in a relevant case if its exclusion might otherwise lead to imperfection. This
theory, known as nui-26 yatimrn al-waJib illcfbih, is an indispensable facet of the
34 Mu'tazilites argue that reason ineluctably brings humans to a knowledge of God and thus to the knowledge that what wills is necessary for salvation. Reason is the means for knowing that what the QuiZn and the Sunna require of humans (takEtfJ is good. See Richard C. M d J Mark R. Woodward and Dwi S. Annaja, Defenders of Reason in Islam Mu't~zz'lisrn fiom Medievd School ta Modem Symbol (Oxford: Oneworld, 19971, 17.
36 See chapter two under the subtitle bid'a IpzqC@yya (red bid'a).
means of pursuing the ends (maqû$id), rather than constituting innovation. The
philosophical basis of this outIook is intended to avert hardsbip.37
Al-Sha@iiï agrees that there is a suitability iuherent in the maq-
constituted of necessity, need and improvement, which function as a kind of
human attempt at understanding the SharPa The suitability of these ends is
unequivocally in line with the roots of universaiity (24d al-kulliyya), which
ensure that the benefits in this world and in the hereafter wiU not transgress
these limits. Such constraints and Wtations, al-Sha@bi insists, are not oniy
described in the QUT>zb but are aïs0 elaborated in the Sunna38 This foundation
ensures that as long as there is textuaf evidence in the Qur'ân and the Sunrra,
applicable legal nilings shouid always be taken as the basis of on argument,
not neason done. If a certain textual basis of the SMCa is silent, then the
employnient of mela@a mursala is acceptable as long as it conforms to the
ends of the SharFa and their indicants.39 This position shows u t the
superior3y of Sharr"a to reason helps to protect the community flom
adjudication of matters leading to bid'a. This rationale leads to the conclusion
that innovation itself emerges through rationai assumptions drawn h m
matters for which the precedent of evidence is Jaclcing.
Judging by the moderate position taken by al-.Shaw, we codd say that
he was not himself reluetant to use reason ('aql) as the basis for legal decisions.
He, nevertheIess, tried to place himself in an intennediate position between naql
(Srna)--immutable by virtue of the certitude of divine Law--and reason ('a@)--
37 Al-Shatibi, QI-I%+am, vol. 2, 133.
" Al-Sha@ïï, al-Muwùfqüt; vol. 4, 20.
39Al-Shà-tibï, al-M~w&f~Üt, VOL 1, 26-27.
which tends toward reïativity. EIsewhere, he ascertains that reason is inferior to
the Shan-ccz, since the latter is universally certain. He repeatedly states that
good and bad in the Sfiru cannot be decided solely on the basis of reason,
since justification on the basis of reason that something is good or bad is
relative, whiie the SharPa is cel.tain.40
As Fazlur Rahman noted, al-ShEtibi was convinced tbat human
know1edge based on reason and experience cannot be trusted at aU and,
therefore, cannot lead to action31 Put dinerently, al-Shatibi accepted rationai
judgement if based on universal truths (kulliyüt) or on a multitude of probable
instances or particular statements (juzJigyat). One example of this is his theory
of ~l~ mursda which is fùndamentally rational though based on his
theory of the ends of the law (mqQlsid d-shafica). Wael B. Hallaq notes that he
even went beyond his predecessors in developing a 1ega.l theory of induction, by
remahhg f a i m at the same time b the estabfished theos. of tawdur as the
basis of his general theory.42 He nevertheless exercised caution by rejecting
arbitraxily ratioXial judgement which can ultimately lead to innovation (bid'a).
His efforts may be described as an attempt to reconciie the two extremes
represented by the SharfCa and reason, though he gave preference to the former.
Al-ShStibi achowledged that the SMca does .not elaborate on ail rulings in
detail, but gives universal guidance in many cases; therefore, it is left to the
' Al-Shà@bi, al-I%+cim, vol. 1, 184. He cettainly afEnns that good or bad in the domain of S W a is unequivocdy h m by the S h k
" Fazur Rahman, Islamic Meihodology in History, 2nd EEdition (Islamabad: Islamic Research Institute, 1984), 153.
a " Wael B. Hallaq, '<On Inductive Comboration, Probability and CertaUity in Su- Legal Thought," lslamic Law and Jurispnidence, ed. Nicholas Heer
0 mujtahid (mujtahd -3 to use his reason in the exercise of ~ ~ d . 4 3
Furthemore, ai-Shz@bi betieved that the vaiidity of ma+lN mursala and
isti@sin, for instance, as sources of law, is unequivocaI, though neither is
explicitly referred to in the Q u i a and the Sunna However, their compatibility
with the universal roots (TA@ al-kulliyya) is obvious, in that they both benefit
human beings in allowing them to perform God's ordinances.?4 Accordingly, the
role of reason in the aforementioned process is indispensable. Al-Shatibi,
however, insists that adjudicating good or bad in the 'ibcZd6-t is the prerogative
of the ShacCa, whereas in rnundane e s , where logic piays a pester role,
reason may be fàvored.
Having reviewed the legal principles held by al-SIiatibi, we will look in
what foilows at the Werent arguments of other scholars which lean one way or
the other in the contest-between the Sh&a and reason. Our account wiii show
that al-Shawï is certainly more objective in the sense that his middle way
reflects a more reasonable balance between the rational and the scriptural
camps.
Unlike the MCEkites, for whom rm@a&z mursala could be employed as
a source of law in the cornpiete absence of textual indicants, the -tes, and
especidiy Ibn m, strenuously objected to such an approach in reiigious
matters.45 The rigidity of Iba Ij&m on tbis topic strictly delunited the role of
(Seattle: University of Washington Press, 1990), 30. Reprinted in Hallaq, Law ancl LegaZ Theory in C k s i d and M e d i e v d lslcun (Aldershot: Varionun, 1995).
" Al-Sh@ihZ, ai-Muwàfaqtft, vol. 4, 66-76.
-
" Noor-U1-Amin Leghari, "The Maliki Doctrine of Masma Mursaîan (MA. Thesis., McGiU University, N84), 8 1-88.
reason in understanding divine Law. He equated the practice with ra'y (reason),
basing himselfon the Qur'anic passage "obey Aiiah, and obey the messengerAf
ye have any disputes. ..refer it to Allati and the messenger 46 and 'Umar's saying
"beware the people of m'y (ahl al-ra'y)" as objectionable due to the possïbility of
contradictiug the divine law and creating innovation: how then does one resolve
the ncqq which is stiil universai or ambiguous? And how does one negate tacZiZ
(ratio legis)47 which is counteà as legai principle? On the contrary, we can argue
that the ShanCCa is not eneeely based on %cidüt, which are certain, but aiso on
customs ('Kdiyya't), which have to be eiaborated in confodty with the benefits
and harms that face human beings. As Fazlur Rahman contends, the SmCa,
whether in the forrn of 'ibüiiüt or muCÜmalat (social relations), is not devoid of
'illa (ratio legis) and @dcma (purpose). For the Qur'En, he a۟rms, usualiy gives
an explicit or implicit reason for a pronouncement when it concerns a moral or
legal judgment or principle. Therefore, the reason underlying legal
understanding is ma, whicb is a bearer of benefit (-la@) for maakind.48
" It was quoted by Leghari that Ibn I$mn says %e do no t say that ail the Sh6a rules are revealed for certain usbab (reasons). W e sa. that none of them was revealed for any cause except the one the Iaw @ver has speciticciuy mentioned. It is not permissible for us to ask about any of His d e s , why it was revealed like this? Therefore aU causes stand repudiated." Leghari, 'The Mà5.ki Doctrine," 84. See also his quotation of Ibn m, aLWm fi Uw7 al-A@kcEm, 8 vols. (Egypt Mamarat al-XmEm, ad.), Vm, 1 130.
'' Fezlur Rahman, Towards Reformulaiing the Methodology of Isiamic Law," New York University Journal of Intemational L a w and Politics, 12, 2 (1979): 219-224. Majid Khadduri furthermore sees that every ruling kias an inherent "'illa* and W. The distinction of the two lies in the fact the former indication is direct or objective cause while the latter is indicating the indirect or underlyiug reason. See Majid Khadduri, The M a m a (Public tnterestj and
0 Wa (Cause) in Isiamic Law," Nau York University Jaumai of International Law and Polifia 12,s (1979): 201-217.
Al-Sh5tibi too fkequently proclaims the m a q w al-sharfra as universai
mots (uq? al-kulliyya) and as the legal basis j u s m g the ~ Z a @ a approved in
the practices of the Cornpanions above. Yet, he dso tums his attention to
ânother theory besides ~~ mursala whkh is likewise not counted as
innovation. This is isti+n (jwistic preference), which can be utüized as a legal
means. Thus while bid'a, which is not based on the ends of law and even
contradicts the Shania, is entirely rejected, in the eyes al-Shaw,
which respects these ends and confirms the SMca, is acceptable. Unlike bid'a,
i s w n may be adopted as a method of reasoning, and is espoused by al-
ShagiK himself as a tool of legal argument
B. Bidca and IHS?)saul
Like -lam mursala, isti@sGUL ouristic preference) generally is accepted
as a subsidiary source of iaw in Islamic jurispmdence, though its position is
still opposed by some jwists, such as the Shiifiïtes. What is important for our
purpose however is ai-Shatibi's view on in connection with bid'a For
al-Shiitibi, isti@cüz, in terms of litesal meaning ie., to presume something to be
good or bad, was utilized by the people of innovation (ah2 al-bidra) as their
argument. Unlike pure isti@ih, which is somewhat a r b i m in detennining
what is good or bad, the Shan's 1eaves no doubt about its position. Any
assessrnent of good or bad (or pure isti@scCn] in Shar't matters which is not
based on a certain dalZ (indicant) constitutes innovation (al-bid'a al-latr'
t a s t e i n ) . 49
" Al-ShaGbi, al-Irtii;Üin, vol. 2, 136.
Bearing thïs arbitrw use of i s t i ek in minci, Al-Shapi'bi nevertheless,
characterizes it as a legitimate source of law applied in cases where the n w is
silent. For him, the use of sound istilpün is not based on one's own feelings or
speculative reason On the contra.Iy, istiea-n espoused in Islamic jurisprudence
must be seen nom the perspective of the objective of the law @ver (q-d al-
Sh-n').so The vaiidity of isti@xi-h, according to hkn, is recognjzable in cases
where there is a duality between relying on necessiS. (d-Fi) on the one hand
and using @y& on the other. Exclusive r e h c e on the latter in a given case
may, however, lead to hardship, and therefore is to be avoided; instead, isti@s&
CjuRstic preference) shouZd be used. For exampIe, the Car&ycf contract by which
UIlTipe dates on the palm-tree are bartered against their value calculated in
terms of edible dried dates, is considered l a d . If it were left to q i y k , it would
be irnlilwfbi, but due to great exigency and hardship, the solution by isti@cin
makes it Iawfùi. In tbis particuiar case, isti&aan promotes a particular m l M a
in maintaining the universal dam ("al-aWldh bi-mu+la@atin juz'iyyatin f
muqübalat dciiiZin quliiyyïnn) -5'
The vaüdity of isti@Üh as a 1ega.ï principle was also defended by Al-
ShlraZi (d. 476/ 1083). He selectively accepted istilpckn (jwistic preference) as
long as it was approved by an indiant (dam and when the use of qzyk was
less than certain. He, however, rejected istibaiz when deemed to be a limitation
of the 'illa (ratio legis) by a dalil (takh@$ al-'illa bWaliI). The former is austrateci
'' Al-Shàm, ui-MuwQfqÜt, VOL 4, 149. According to Sarakhsi, the abandonment of @y& can be vaIid by basing on the mss, consensus (zjmi3 and necessity (dunZE)if there is a strong reason. See M-ad b. -ad Abü Sahl al-Sarakhs?, Qù7 al-Sarakhsi; ed. Abu al-WafS al-Afghani, 2 vols. (Cairo: Dar d-Kitàb al-'Arabi, 1373/ 1954), II, 202.
by the example of a person who out of forgetfüIness pmceeds to eat something
when he is supposed to be ksting. Qiy& (ratio legis) dictates that the fhsting
would become void, for the fundamental consideration in qiy& is that food has
entered his body, whether intentiody or not This judgement is however
abandoned on the basis of a Prophetic report which declares fastkg to be valid
if the eating was the result of forgetfulness. This Prophetic report is thought to
be "prefemd" because it takes into account a text that would not otherwise
have been employed in qiy& and which results in a different nrle.52
The above example is regarded by al-Shi66 as a suund is-aan, given
the weahess of @y& in this case. Al-Sfiaii, however as we have seen, objects
to limiting the by d a Is@zsÜn in this case is not tolerated and must be
regarded as unsound. in addition, for him, the use of istilpcïn is based on the
Prophetic report "what Muslims deem good, it is good before God" (mKraJ6--hu
al-mustim-n hasarzan f h w a 'ind AIZaX &zsanun). The report, according to al-
ShUiikï, connotes the goodness which may be identined through the consensus
of 'ulamâ; not individual preference. Any justifZcation by rationai preference
witbout a dd'l is in emr. @yu%, accordingIy, is onLy to be used as a tool if no
explicit text pronounces on the relevant matter. 53
A similar argument which rejects ist@sa'n when it involves Ijmitation of
the ratio legis (t- al-CilIu) is also made by Sarakhsi (d. 490/ 1097). He cites
52 Abu I s ~ Ibratum al-SbiraZiy Sha+ ai-Luma: ed. AWel Majid Turki, 2 vols. (Beirut: D e al-Gharb al-IsliM, 1988), II, 969. See also Hallag, A Wistory of lslamic Legal Zbories, 107- 1 1 1.
53 A l - S M , S- al-luma: 970-974. To bolster his argument on the
a rejection of unsound isti@&, al-SliïrâG quotes the Q. 4:59; 42:lO. For him, @y& stands above juristic preference in adjudicating ruïings. If isti@Ün is employed arbisarily, therefore the position of laie and leamed people is equal.
the case of the Merence between predatoxy animais and predatoq birds. The
beak of the Latter is anaiogized as bone, which therefore cannot transmit
impurity to the food. The former, however, use their tongues when eating and
consequently hansrnit impurities to the food they consume. This example, al-
Sarakhsi says, is not to be regarded as t- al-'illa (the Limitation of ratio
legis) but rather as a "preferred @y&' (al-@y& al-mcsta&san). This is because,
he concludes, the use of isti@cEn follows the Qur'iin, the Sunna and pious
predecessors.54
Isti@san55 in Malikite dockine, according to al-Shi?ibï, is equivdent to
+la& mursaia (public interest); such isti~ün, therefore, is not &en to
stipulated indicants (muqtadcf adilla) .% in making such a statement, al-ShZpi'i
may have been trying to stress that isti@ân itseif is different fkom arbitrary
rationai judgement in instances where textual evidence is lacking, and therefore
it is not to be counted as innovation (bidra). For, according to al-Sha@E's
understanding, legal cases shouïd primariiy be in Iine with the ends of Law
(muqmd a l - ~ ~ ~ u ) , rather than with pure reason. The ends of the iaw, where
- ---- - -
Since both the former and the latter altogether axe able dictate some thing merdy basing on their reason (ra'y) .
" Al-Sarakhsi, UwZ, 204-208. Al-Sarakhsi quotes the Prophetic saying ' ma ra'ahu al-mslimzZn hasman fahuwa Lind Allah husanunn (what Muslims deem goodj it is good beside God). See also, Hallaq, A History, 107-111. H&Q notes that the argument of isti@aR in the beaks of predatory birds analogizing with the revealed stipulation that the use of the bones of dead Animals is l a a .
" Isti&Ün as the tool to deem sornething good or bad is employed by Hanafite and Malikite. Both schools use particukuization of universal by either dalrl findicant), textual or contextual. M a t e , then, espouses isti@s&n by ~aying with mursa2a (public interest), while HanafZte takes as istiMcEn by solitaq report (khabar ahad). N-Sha.bi, al-Muw5faqrit, vol. 4, 150-5 1.
a necessity (d-E) is a key element, depend on divine wisdom ( .kma) ,57 a solid
basis on which to draw when there is Iack of conformity between q i y k (ratio
legis) on the one hand and isti@air on the other.
As the difference between %a-düt and mundane matters ('awa7icQ is a
fundamentaI. point in al-ShZtibi's view, the function of isti@s&n in these two
domains has to be treated separately. As we have seen, 'ibcGd6t are considered
penect in Islamic iaw as weiï as impossible to justify on the sole basis of reason.
Muadane matters, however, are not only rationall. understandable but may
ais0 change in accordance with t h e , place and condition. Al-SWtibi, therefore,
tolerates the use of ist@sCn in mundane matters insofar as the da22 neither
stipulates nor contradicts the SharFa Employing istimQn in the Shan'a without
any daiil is categorized as innovation (bidca). For in al-Shatibi's words, not every
istibûn is true.58 The cases of istilpan which al-Shaw rejected appear to have
been efforts at using pure reason to judge actions as good or bad without a
dalil. O n the contrary, if isti@sin is rded as conforming to a certain dala it is
lawful.
Ibn 'Arabi, as quoted by al-Shatibi, demes isti@ân as setting aside a
certain dalr'l temporarily on the condition that lmrdship is present or as an
exceptional solution when the ïaws applyhg to a certain case are ambiguous;
on the one hand applying a particular Iegal norm can lead to difficulty, while on
the other the reduction of hardship is of prime importance. For these reasons,
ist-ai can be applied as law in the foilowing instances: fïrst, in matters of 'uf
" Hallaq, "Inductive Corroboration," 28.
" AI-Shatibi, al-ltigüm, VOL 2, 136. Al-Shà@ says, cZaysa kull istilpün hwl's'
a (local custom); second, in mc@a& third, in order to ease human burdens; and
fourth, to elimiriate hardship. Ibn Rushd, moreover, characterizes istwcin as
abandoning ~ycrS where reliance soIely on the latter may lead to transgression
of the iaw.59 Having elaborated the issue of isti@saiZ as it is treated by these two
Anddusian-hm scholars, al-Shaw concludes that isfihscin is in conformity
witu the universal indicants (dlca, sing. dd2) of the Shan'a insofar as no clear
dalr? fkom the QUT'Zn or the Suma is expressed. Indicants function to bring
cMty to words which have a plethora of meaxüngs such as when the meaning
of the Quian is specined by the S t ( m 6 0
AI-ShEtibi agrees that reason can be employed to interpret the Sh&'a
when used in conjunction with istï@sQn. He, however, rejected the use of
istiljsk where rational judgement is allowed to dominilte the Seca. This is
0 . because the Companions, he insists, only employed reason if there was no clear
inacarit h m the nass and only by referring it to the3 understanding of the
roots of the S h 7 a They never came to the point of saying T decided thk
because m y muid tended towards this ~onclusion".6~ The subjectiviiy of pure
istifpüh, al-Sbam states, lies in the fact that decisions as to what is good or
Al-Shâ?ibZ contends that the definition presented by Ibn 'Arabi and Ibn Rushd 'is inter-related each other. It, therefore, is in h e with law. See al- Shàplbi, a l - I f ~ Ü h , vol. 2, 139. Al-Sh&lG fkequently draws the univerd roots ( ~ 7 al-latZE) as the basis principle in the SharFa Therefore, when there is no express dam in the n-s, the work of zjtihciid shouId be in con for mi^ with universal roots: &nGri; t-and hafi See Wael B. Hallaq, The Primacy of the Quian in Sha!ibï's Legal Theory," in Islamic Studies Resented to Charles J. Adams, ed. Wael B. Hallaq and Donald P. Little (Leiden: E.J. Brill, 1991), 85-88. Reprinted in Hallaq, ~ a w and Legai Theory & CZassical and ~edievul Islam
0 (Aldershot: Vario-, 1995).
6L Al-ShEtibi, al-Ic@àm, vol. 2, 150.
bad in the human mind may change depending on purposes and conditions.
This was evidenced by the people of innovation who rejected the search for
truth in the ShurfCa. They resented the people of science (ahï al-'üm) because of
the iattefs consistency in applying the Shan'a62
Just as reason is a subjective factor in pmnouncing on ShmT matters,
al-ShanOT also doubts the vaiidity of the heart (qalbf when used as a measure to
just* good or bad ip the sight of the SharïCa Arguing against the Prophetic
report "ask your heart" (istafti qalbak), he declared he couid not see a third
facet to the SeCa other than the Qui511 and the Sunna Any third means of
j u s m g good or bad, he insists, probably refers to those issues which are
beyond religious concerns.63
AI-Shatibi's rejection of the heart's judgement when the n c q is silent is
based on four considerations. First, where a case arises for which no certain
nws can be found, the judgement should be based on a relevant indicant ( d a 4
as derived h m the SharFa A fatwà alqalb @twC of the hem, however,
cannot be used as a dam Second, ail the cases disputed by Muslims should be
referred to the QWSn and the Sunna, not the fatwii of the heart. Third, it is
agreed among Muslims that cases which are not solved should be referred to
the people of knowledge (ah2 al-dhibj. Finally, al-Shatibi draws the conclusion
that every man should take bis lesson fiam God's signs in conformity with His
indicants in the Qu.r'Z1.64
62 ALShatibI, al-ICti@in, vol. 2, 15 1.
" Al-Shâtibi, al-IW.@k, VOL 2, 157.
Al-Shiitibi, a l - I C t i g 6 ~ vol. 2, 157-158. For the nnet remark, al-Shatibï insists on the rectitude of God's oneness through understanding with Godk
AI-ShafiE's consistency in championing the supremacy of the Sh&kz is
not only reflected in his concept of bidca, but it is also conveyed in his effort to
preserve the authenticity of the Shafica fkom any deviations. Tt is true that he
acknowIedged the vaiidity of istimàjn in spite of its king severely opposed by al-
Shafi'i (d. 2O4/82O) . The Merence, however, between these two schoiars lies in
the fact that al-Sh5tibi accepted ist3jscùL insofar as it was in line with the
indicants and rejected those who treated refigious matters on the basis of pure
i s . rScÜz (reason). AI-Shafi?, on the other hand, rejected istifpaan altogether,
arguing that the use of isti&xZn in the Sh&a is simi'lsr to taking pleasure
(taZadhdhudh).6s In addition, al-Shafi'i sees isti@Qn as equivalent to ra'y
(opinion) and hence cannot toIerate it. Legal judgement in the SharïCa,
according to him, can only be based on the Qur'axl, the Sunna, ma' (consensus) and @y& (ratio legis). To admit opinion not based on these sources
means accepting the reasoning of non-specialists.66 It is reasonable to assume
that al-SW'i was playing it saCe when fie rejected istiljsfi by equating it with
ra'y (opinion). This position, which he espoused in the latter half of his career,
was probably insplied by a wish to condemn those in "the ancient schools"67
- - - -- - . - - -
sign from the Qur'k, not fkom the heart, in that, he quotes the QUI?&~ verse saying that " do they not look at the camels, how they are created," [Q. 88: 17).
65 Maammad b. I d n s al-Shan5, al-RisaTa, ed. Mu&mmad Sayyid Kaylani (Cairo: Mus.fE al-Bàb al-Halabi, l969), 220.
" Joseph Schacht, The Origins of Muhmnmadan Jurisprudence (Oxford: The Clarendon Press, 1950), 12 1.
6' This statement used by Schacht is to indicate aI-ShiSTs critique against his predecessor's position in using reason. See Schacht, The *gins of
a Muhamrnadan, 120. Schacht notes that al-Sm5 in his earfiest period uses ra'y in the same loose way as the ancient schools. Schacht, however, does not ekborate in detail which the ancient schools belonging to. But it is probably directed to Ifaaafïte and Mu'tazilite schools.
and those among his contemporaries who were too fixe in their use of reason,
In other words, al-Shan'i's polemics are obviously against ist@scin and arbitr-
zjtihad and in favor of disciplined @y& as a corrective for those who juxtaposed
reason and the SharFa Yet, al-ShSi was ultimately forced to recognize that
one has to make decisions on points of detail for which there is no clear
evidence fkom the ms+8
In short, ra'y, which is sigmlZcant as an expression of rationaList and
utilitarian tendencies, was wholly opposed by al-Shan'% this was wbat fùeled
his vehernent opposition to istiJp& Nevertheless, whiîe he unequivocally
insisted on the ovemding status of the Qur'Sn and the Sunna, he stili tolerated
certain elements of ra'y and molded them into arguments that could be used in
the law, but oniy insofar as they derived the* premises fkom revelation.69
a AZ-Shaw, on the other hand, accepted istiNa3 as long as it did not
deviate fimm the indicants of the Swca Fonowing the example of Ma1iIr, the
" Schacht, The On'gins of Muhamrnadan, 120.
69 Wael B. Hahq, Was ai-Shani the Master Architect of Islamic Jurisprudence," in International Journal of Middle East Studies, 25 (1993): 597. Reprinted in Hallaq, Law and Legal Theoq m Classicatl and Medieval islam (AIdershot: Variorun, 1995). Al-ShW, here, obviously represents himseif to place in the middle position between the revelation and reason expressed by qryis. Indeed, al-Shan5 tries to argue against his predecessors who paid little attention to the Sunrza. Therefore, he forms qyàk and assigns it as a role subsidiary to that of the revealed sources although it rernains an essential part of bis methodology. Al-Shii'fi'i, therefore, can be deemed as to synfhesize the early ra'y liberalism and the later 2-e conservatism. See Haïiaq, " W a s ai- s-5 the Master architect of Islamic Jurisprudence," 597-98.
'O Màlik b. A n a s as quoted by al-Shatib1 designates that isti@CUL is deemed as nine-tenth of human knowledge. Msiik's characteristic statement
a grasps the tnie essence of [email protected] as a methad of finhg better and more equitable alternatives to existing probIems both within and beyond the confines of 4iy& (ratio legis). AI-Shalpii, al-I?Qxi-in, VOL 2, 138. See dso, Hashim Kamali, Ainciples of Islcunic Jurispnrdence, 26 1.
eponymous founder of his schooi, al-ShZ@S deemed its suitabrzity to be
unquestionable, provided its injunctions in SharTi matters are not based on
personal judgernent or speculation. The soumi isti@sKn which ai-SMtibi agreed
with had the characteristic of relying upon the end of the kw-giver (q-d al-
sh5ny, such as setting aside @y& (ratio legis) in favor of a sironger -&a or
to avert a greater danger. Such istimcùi, is seen, al-Shatibi states, h m the fact
that its efficacy clearly promotes the ends of the SharfCa, danZ (necessity),
(need) and twnï (improvement). This is because, according to h, in some
cases reliance on a rule merely on the basis of qiy& (ratio legis) might give rise
to some sort of harmful consequence for human beings. Al-Shatibi, however, is
s t . convinced that it can be undertaken in perfect consistency with the
foundational texts and without any intrusion of merely human proclivities
(dhawq). 7 1
Having discussed the differences between bid'a (innovation) and istilpün
as perceived by al-Shaw, we can say that his aim was, on the one hand, to
presexve the authenticity of the SMa, and on the other to ensure that the role
of reason is well defïned in Zine wïth the spixit of the law. The sound isti@sÜh,
for instance, is regarded by al-Shatibl as one means of performing z ~ h ~ d This
legal principle, however, can be used on the condition that connictuig indicators
exist. Isti@àn itself, we c m assume, is a procedure rather than an indicator in
its own righc al-'hidi (d. 630/ 1232) after all refers to it as t e al-adiIIa (the
" Al-ShEtib?, al-Muw&faqc& VOL 4, 148-49. See also, Beniard G. Weiss, The Spint of lslamic Law (Athens: The University of Georgia Press, 1998), 87.
a Bernard G. Weiss notes that ail jurists are not so sanguine in this matter. He sees that this further Iimit of juristic interpretive endeavor, the textualist outlook reigned supreme.
preponderance of the indicants)? The pure isti@&, howeves, if used
arbitrarily. can lead to the subjectivity of human judgement. While the ShmTCa
is deemed as the superior reference for legal injunctions, the people of
innovation (ahï al-bidca) take the opposite position by using isti@s& on the
basis of pure reason to j u s t . bidra practices.73
Both the violence of bidca and the rejection of pure isfilpan (reason) were
also proclaimed by the Syrian-boni reformer MuQammad RasZd Ri@ (ci. 1935).
Prefacing his position on bidra and arbitréuy reason, Rida points out that
opinions on legal rnatters can be divided into three categories: first the valid,
second the invalid, and third the ambiguous opinion. Of these we are most
concerned wi th the second one. In spite of his censure against bidca, which he
regarded as invalid or evil opinion, Ri@i convincingiy. rejects arguments based
solely on assumptions of good or bad bure ist .sKn) in ShmT matters.74
Isti@sCUL, he insists, which is not based on sound qiyc3 (ratio legis) or which
fails to promote mqlaha or avert danger is counted as unsound isti@xG~, and
therefore foreign to the Sha$a.7s
- - - -
'' Bemarci G. Weiss, The Search for God's Low (Salt Lake City: University of Utah Press, 1992),673.
Ahmad Haris, %novation and Tradition in Islam: A Smdy on E?idcu as an Interpretation of the Religion in the Indonesian Expenence" (Ph.D. Diss., Temple University, 1998), 233. The attitude of innovator in treating such isti&àn ùi the reLigious matters has ken critïcized by al-SMtibT as the unsound isti@6n in which human reason is more dominant than the SharfCa see al-Shatibi, al-Ict@Ü?n, VOL 2, 136.
" Mulpmmad RasMd Ridâ, Yusr al-Islüm wa U$Ù7 al-TashnhnC al-%-mm (Cairo: Ma$bacat NahQa Misr, 1956), 42-43.
75 Ri@, Y u a al-Isllam, 72. In this case, R.a seemingly treads the footsteps of al-Shaw in treating isti&6n as can be sound and unsound. The former is counted as valid, wh3e the latter is iavalid to which the rational
As the ends of the Iaw (maq@id al-shan"a) are the hRllmark and
characteristic of al-Shzo'bi's Iegd theo~y, the vaJidity of [email protected] mursala and
isti@sân is dso tied to this concept These two rnethods of reasoning are
essentially ciiffixent fkom pure reason. Moreover, bidta strictiy spesiking is
idenor to these two kgal princip1es. For bidca absolutely disregards the ends of
the law in favor of pure rational judgement. Al-ShZDiï only tolerates rational
judgement in mundane matters insofar as it is in accordance with human
weIfare and averts danger. h SharTmatters, however, he is in f a i m with the
superiority of the n w over reason. His position is probably based on his
understanding that "between human reason and the iaw of God there stretched
an essentially unbridgeable gap? This gap Iies in the fact that not all divine
laws are Iogïcal or clear to human understanding.
a judgement is domihant This is to the Iatter the innovator frequently espoused unsound isti@air as his/ her justification.
76 Weiss, lRe Spirit of I s l a ~ c Law, 37.
CONCLUSION
AI-Shatibi's period c a n be characterized as one in which jurîsts and
alIowed their standards to decline, Ieading to their adoption of uncharacteristic
positions. O n the one hand, jurists were too Ienient in substantiating and
articulating the law, wme on the other =fss were overly rigid and unduly
demanding in its application. Their attention to religious practices, therefore, O
was sometimes distorted f b m the authentic ïnjunctions prescnied in the
Qur'Sn and the Sunna It was al-ShatibT who opposed these trends by insisting
on the supremacy of the Sharïra over reason in order to resist bid'a (innovation)
permeating into religion, and by emphasizing respect for the ends and the spint
(innovator).
was al-Shatib1's
of the fact that he was himseif accused of king a nubdf
which deals extensively with the issue of bidca [innovation)
response to the charges directed at him; it was also his
the concept of bid'a on the basis of the epistemology of legd
theory. By appe*g to this methodology he placed himseif in a middle-of-the-
road position between the two camps of his predecessors, led by Ab6 Bakr ai-
-SE (ci- 4741 1 O8 l) and Ibn T a m a (d. 728/ 1327), respectively. On the
one hand, schoiars had stated that bid'a applied ody in cases of innovation in
'ibàdd, whde on the other they clajrned that bid'a uccurred both in 'ib6dcZt and
'âdiyyüt (customs). Neither group, however, ofiered sufEcient justification or
bothered to develop a new legai or philosophical paradigm. It was al-Shatibi
who synthesized the positions of the two parties by defining bid'a based on the
epistemology of legd theory.
AI-ICti.;6m elaborates extensively on the doctrine of bid'a, a prime concem
of al-Shapii at the tirne the work was writîen. He begins by dividing matters of
pure 'ibüdcfit Çom the exclusively customary. The former are taken for granted
as submission (tacabbucl) to God, whiIe the iatter can be modified according to
human need and consensus. He then subdivides bidca into two types: real bid'a
(bidca @aq5Qiyya) and relative bidca (bidca iqkifryya). Real bidcu (&bidca al-
~ q ~ y a ) is defined by al-Sh&ïbï as detrimental to the Sh&a in that its
construction is not evidenced by textual precedent in either the Qur'ân or the
Sunna. Such bidca applies unreservecüy in the domain of 'ibcZd5-t which
represent God's own stipulations. Relative bidca (al-bid 'a al-idüfiyga) , however,
is defïned first of ali as irinovation rooted in a clear textuai indicânt, such as in
the case of congregational prayer on the night of Ramadan, and second, as
innovation based on ambiguous indicants or on no indicants at aiI, such as in
the case of habituai zikr expressed by chanting.
Of these two defInitions, which supposedly fa under the heading of
'ibÜdQ't and custorns, respectivefy, he divorces the notion of bicica fkom
muMatha (novelty) in customary matters. The latter in his eyes should not be
regarded as iInliiwfU, sinnce noveky in custornq matters can and bave
changed fkom the .tirne of the Prophet to the present and even vary fkom one
place to another. 'Ibadat, however, are certain and need neither addition nor
subtraction, and therefore do not tolerate innovation at dl. Acceptbg the
Prophetic statement that all bidac are biameworthy (kull bidca bQIa7a), al-Sh-
concludes that the censure of bidca is universal, and that quaWying it as good
or bad, or defining it by any of the five legal norrns, is intolerable. The key point,
therefore, is that &idca pretends to the authority of the ShanFa, when in fact it is
not stipuiated by SharS indicants (adiIla al-shnr'iyya). In this sense, al-Shâpoi's
approach to the subject is jundical rather than theologicai.
Al-SMtibi furtherrnore critiques the efforts at subdividùig bidca into the
five of legal noms such as w ü j and m d z i b , and good or bad bidca as a kind
of innovation within innovation itself ( a m muWztara3. He, however, indirectly
offers an alternative legal solution by validating ma$dpz mursala (public
interest) and istifpan (juristic preference). He sees bid'a (regarded as good and
bad) as different h m these two legal arguments. [email protected] mursala and
isti&* according to him, are based on the indicants and the suitabiiity of the
Shurïca, whereas bid'a is not only foreign to the Sharfca but is also contradictory
to its indicânts. In addition, for him, bid'a itself is certajdy opposed to the
Sunna (which can be good and bad).
M e n the tematevidence is Iacking, the justincation of cases entifely of
a customaq nature (i.e., not matters of "ibüdüt), therefore, should be based on
legai argument Le., ma+- mursala and isti@cin, rather thRn bid'a. For,
TM&& mursala and istilpcUr are legay based on the hdicants extant in the
universal mots (uwi kulliyya) of the Shan7a. Using the concept of bid'a as a
iegd argument, by implication, is legay weak and paradoXical as well.
Fin*, we may conclude that al-ICfi$Üin, although on the whole
concerned with the issue of bidca, was prixnariJy designed as a response to al-
ShiXtibi's adversaries who stood for excessive application of the law on the one
haad, and a Iâx attitude in applying the law, on the other. Either of these
positions ran the risk of introducing innovation (bidca). Yet E s work was not
only meant to cnticize; rather, and more importantly, it champions the SmCa
while at the saxne time respecting the role of reason.
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