Literalism, Empiricism, And Induction - Islamic Law's Maqasid Al-shari'Ah, Jackson

Citation: 2006 Mich. St. L. Rev. 1469 2006

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LITERALISM, EMPIRICISM, AND INDUCTION:APPREHENDING AND CONCRETIZING ISLAMICLAW'S MA QASID AL-SHARI'AH IN THE MODERN

WORLD

Sherman A. Jackson*

2006 MICH. ST. L. REV. 1469

TABLE OF CONTENTS

INTRODUCTION ......................................................................................... 1469I. LITERALISM, JURISTIC EMPIRICISM, AND JURISTIC INDUCTION ......... 1471II. JURISTIC INDUCTION AND THE MAQ,4SIDAL-SHARi'AH ...................... 1476III. PRESERVATION OF REASON (HIFZ AL- 'AQL): ONE OF THE MAQ,4SID AL-

SHA R 'AH ............................................................................................ 1478IV. AL- 'AQL: BEYOND FALSE UNIVERSALS ............................................. 1480V. CONCRETIZING HIFZAL 'AQL IN THE MODERN WORLD ..................... 1482C ON CLU SION ............................................................................................ 1486

INTRODUCTION

It was in the nineteenth century that the "scientific" study of Islam ap-proached maturity in the West. This was also the period during which thehegemonic rise of the hard sciences and "higher criticism" in religious stud-ies opened a new chapter in the age-old conflict between "reason" and reve-lation. Among the most important by-products of this development was therise of religious Fundamentalism, in which Christian-more specificallyProtestant-scholars and theologians moved to erect a dike of literalismaround the Bible to stave off doctrinal erosion and compromise.' To their

* Professor of Arabic and Islamic Studies, Visiting Professor of Law, The Univer-

sity of Michigan. Ph.D., University of Pennsylvania; M.A. University of Pennsylvania;B.A., University of Pennsylvania.

1. The term "Fundamentalism" is taken from a twelve-volume series entitled, TheFundamentals, published by a group of conservative Protestant scholars and theologiansbetween 1909 and 1919, financed by two brothers, Wyman and Milton Stewart, in responseto liberal re-interpretations of Christianity. There were five main fundamentals: (1) the inspi-ration and infallibility of Christian Scripture; (2) the deity of Jesus (including his virginbirth); (3) the substitutionary atonement of Jesus' death; (4) the literal resurrection of Jesus;and (5) the literal'second coming of Jesus. For a good introduction to fundamentalism, seeED DOBSON ET AL., THE FUNDAMENTALIST PHENOMENON 48-49 (2d ed. 1986).

Michigan State Law Review

opponents, secular and Christian "progressives" alike,2 literalism came torepresent the antithesis of both modernity and reason. This attitude wouldsoon permeate the academy where it informed the study of religion in gen-eral and Islam more particularly. As the Western academy settled into itsnew "post-religious" identity, almost every criticism that could be directedat religion in general was assumed afortiori to apply to Islam. Literalism,in this context, as the Believer's last-ditch effort to find refuge from thedeluge of modem secularism, came to be identified with any and every seri-ous commitment to Islam.

Literalism, certainly as institutionalized in Western Fundamentalism,assumes that meaning is restricted to the strictly lexical sense of words andthat allegorical, figurative, or metaphorical interpretations are most oftenattempts to escape or distort the true meaning of scripture. Similarly, theidea that science, history, church authority, ijmd' (Unanimous Consensus),or social reality might suggest or compel non-literal renderings is regardedwith suspicion if not contempt. On this understanding, any move by mod-em Muslims towards more felicitous interpretations of Islam is commonlyassumed to require a move away from literalism. Literalism, in otherwords, is assumed to be the root-cause of Islam's maladjustment to moder-nity.

It is in this context that the approach to scriptural interpretation thatproceeds from what classical jurists identified as the maqdsid al-shari'ah,(broader aims and objectives of the law) has acquired almost panacean ex-pectations among modem Muslims. This is based on the belief that inter-pretations that are violent, intolerant or misogynistic, or culturally, eco-nomically or politically stultifying or ineffective are almost invariablygrounded in a literalism that cannot stand in the face of appeals to thebroader aims and objectives of the law. These expectations, however, areroutinely thwarted by two interrelated oversights. The first is the failure todifferentiate between literalism, on the one hand, and what I term "juristicempiricism," on the other. The second is the inability to move beyond thepre-modem jurists' abstractions of the maqdsid al-shari'ah to practical con-cretions that are responsive to the realities of the modem world.

This Article attempts to undo this confusion between literalism and ju-ristic empiricism, allowing for the introduction of the notion of "juristic

2. A pristine example of this is reflected in the important and controversial sermon,"Shall the Fundamentalists Win?" delivered in 1922 by the then most prominent leader ofemergent Christian liberalism, Harry Emerson Fosdick. See Harry Emerson Fosdick, "Shallthe Fundamentalists Win?": Defending Liberal Protestantism in the 1920s,http://historymatters.gmu.edu/d/5070 (last visited May 15, 2007).

3. Indeed, aspects of this bias were even retrojected back into medieval times,where it informed our perception of the substance, value, and significance of the Traditional-ist movement. For more on this point, see SHERMAN JACKSON, ON THE FUTURE OF THEOLOGY

iN BLACKAMERICAN ISLAM (forthcoming).

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Literalism, Empiricism, and Induction

induction" as the theoretical basis of the maqdsid al-shari'ah. The Articlethen moves to a more functionally pragmatic concretion of one of themaqdsid, namely hifz al-'aql (preservation of reason). This shall entail anumber of interrelated questions: What is the meaning of 'aql and how ex-pansive or restrictive a construct is it? Is 'aql a mere paper tiger, invokedprimarily to insulate existing doctrine, or is it a more generative principlecapable of moving the law beyond the status quo? Are received notions of'aql adequate? If not, what adjustments might render hifz al-'aql a moreuseful tool for interpreting Islamic law in the modem world?

I. LITERALISM, JURISTIC EMPIRICISM, AND JURISTIC INDUCTION

My use of the term "juristic empiricism" is derived from the epistemo-logical theory of empiricism, according to which only sense-observationand experiment can decide our acceptance or rejection of a proposition. Inthe same way that philosophical and scientific empiricists deny all knowl-edge beyond the senses and restrict it to a posteriori observation, juristicempiricists look askance at all a priori claims to knowledge of shari'ah thatgo beyond and cannot be explicitly documented in the sources.

To be sure, there is a thin line between literalism and juristic empiri-cism, inasmuch as both seek to promote the primacy of texts and to banishextra-textual biases, hunches, speculation, and presupposition. Literalism,however, can also be placed in the service of another approach to legal in-terpretation, namely "juristic induction." Here the aggregate of a number oftexts, literally interpreted, point to a meaning that transcends each text indi-vidually but implicitly inheres in the group, the whole equaling more thanthe sum of its parts. Literalism and juristic empiricism meet in their com-mon tendency to uphold the self-sufficiency and finality of individual texts.With juristic induction, however, literalism actually generates meaning be-yond the individual texts. These different applications of literalism may belikened to the difference between direct and alternating electrical currents.While both constitute electric power, where electrons flow from negative topositive, alternating current has characteristics (for example, distance andease in adjusting voltage) that make it more advantageous for many morecommercial and domestic applications.

To demonstrate the difference between these two applications of liter-alism, take a series of commands, for example, to open the window, fetch afan, turn off the lights, and pour a glass of water. One can separate thesecommands, interpret them literally, and stop at that. Or one can combinethem and interpret them literally, in which case they might generate a cumu-lative meaning to the effect that, "It's hot!" On this understanding, it wouldbe proper to do anything that could effectively counter the heat (for exam-ple, buy an air-conditioner) and to do nothing that might increase the heat(for example, turn on the oven). In neither case, however, does the status of

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these ancillary actions depend on any explicit command or prohibition. Nordoes it depend on any figurative interpretation of any of the commandsthemselves. Rather, the propriety and impropriety of these ancillary actionsreclines upon a literal interpretation of the original commands in the aggre-gate. It, in other words, the illocutionary force that is produced by aggrega-tion, not the semantic possibilities opened up by figurative interpretation,that allows (or perhaps even compels) us to go beyond these commands.

The point here is that literalism is not the antithesis of juristic induc-tion, even if the latter is capable of producing results that transcend the for-mer. Juristic induction, however, is the antithesis of juristic empiricism.For, according to the latter, everything one did to counter or increase theheat in the above example would require an explicit text that commanded orprohibited these actions, respectively.

These two interpretive modalities, juristic empiricism and juristic in-duction, along with their respective relationships to literalism, reflect a ma-jor fissure in the Islamic legal tradition that has persisted from its early cen-turies. It reached crisis proportions in the time of al-Shafi'i (d. 204/819-20), one of the eponyms of the four Sunni schools of law, who wrote thefirst known work on legal theory, al-Risdlah (The Epistle) in large part as adirect response to this fissure. Contrary to the traditional view, however,still maintained in some circles,4 classical legal theory (usfil al-fiqh) was nota mere extension of al-Shdfi'is thesis. In fact, it was a reaction against al-Shdfi'i's rather crass nativism.' Closely examined, al-Shdfi'i's writingsreveal a deep concern over the presence of what he deemed to be "interpre-tive viruses," which he feared were going undetected because they weresublated into the realm of "plain speech" by peoples whose language wasnow that of the Arabians but whose interpretive presuppositions were em-phatically not.6 In al-ShAfi'i's view, many of those who now swelled theranks of the Muslims-Arabicized non-Arabs-could be justifiably toldwhat the philologist and narrator of one of the seven readings (qird'ah) ofthe Qur'dn, 'Amr b. al-'Ala' (d. 154/770), told the proto-Mu'tazilite, 'Amrb. 'Ubayd (d. 144/761): "You are a non-Arab (a jami), not in your languagebut in your understanding .... ." Given his recognition of the role of inter-pretive presuppositions in legal interpretation, al-Shafi'i understood that the

4. Notable exceptions include Sherman A. Jackson, Fiction and Formalism: To-wards a Functional Analysis of Usfil al-Fiqh, in STUDIES IN ISLAMIC LEGAL THEORY 177,186-92 (Bernard Weiss ed., 2002) and Wael B. Hallaq, Was al-Shdfi'i the Master Architectof Islamic Jurisprudence?, 25 INT'L J. MIDDLE E. STUD. 587 (1993).

5. For more on this point, see Jackson, Fiction and Formalism, supra note 4, at186-92.

6. See, e.g., 2 AL-UMM passim, 4 AL-UMM 134, 141 (Cairo: al-Ddr al-Misriyah lial-Ta'lif wa al-Tarjamah, N.d.).

7. See AHMAD B. YAHYA B. AL-MURTADA, TABAQkT AL-MU'TAZILAH (DIE KLASSENDER MU'TAZILITEN) 83 (S. Diwald-Wilzer ed., 1961) (translated by author).

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meaning of a statement, for example, "The thief, male and female, cut offtheir hands," was as contingent upon prior notions about the "character" ofGod as it was upon the words themselves. In this light, he wanted to ensurethat the primordial presuppositions of the Arabs, or more properly the Ara-bians, continued to reign supreme. Otherwise, a command to amputate thehands of thieves might be interpreted away by those whose inherited notionsof God preempted the possibility that He might actually sanction literal am-putation.

The reaction to al-Shdfi'i, however, was ultimately to reject his thesisin favor of an interpretive theory that was grounded in linguistic formalism,according to which meaning was restricted, mutatis mutandis, to the observ-able features of language (morphology, syntax, grammar). This was thebeginning of what Prof. Bernard Weiss referred to as "exotericism" in Is-lamic law, according to which all biases, hunches, and presuppositions wereto be extracted from the realm of subjective consciousness, packaged in theguise of objective language, and presented as the plain dictates of revelatoryspeech.8 The implication here was that all presuppositions-Arabian andnon-Arabian alike-were equally suspect and equally threatening to theintegrity of scripture.9 As such, legal arguments were to be judged solely onthe basis of their linguistic fidelity to sources and heuristic methods locatedin the public domain, where they could be assumed to be equidistant fromand equally accessible to everyone. This trend, which came to dominateusfil al-fiqh, had the ultimate (and in my view plainly intended) effect ofleveling the playing field between those who began versus those who endedtheir genealogy as Arabs.

In this context, the main thrust of classical usfd al-fiqh came to consti-tute a consciously-maintained form of the above-cited juristic empiricism.Indeed, Islam developed not simply into a nomocratic civilization, but intowhat might be termed, to borrow W.W. Bartley's nomenclature, a "justifica-tionist" one. 0 In this culture, all assertions of legal doctrine, legal rights,and legal obligations had to be justified or authenticated on the basis of ob-jective legal proofs.

8. Bernard Weiss, Exotericism and Objectivity in Islamic Jurisprudence, inISLAMIC LAW AND JURISPRUDENCE 53-71 (Nicholas Heer ed., 1990).

9. One wonders, in this regard, if the palpably less-developed state of such sciencesas Asbdb al-Nuzfil (Occasions of Revelation) or even Sirah (Prophetic Biography) may alsobe a reflection of the attempt to downplay everything that would result in a possible interpre-tive advantage for those who hailed from Arabia. Even if no authentic body of materialexisted on, for example the Occasions of Revelation, if the science itself had been as valuedas much as, for example hadith, certainly there would have been a more cogent attempt toinvent material, just as is claimed to have occurred with hadith.

10. See WILLIAM WARREN BARTLEY III, THE RETREAT TO COMMITMENT 73, 88, 91-92, 97, 98, 102 (2d ed. 1984).

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Yet, Islam's subscription to juristic empiricism has been routinelymistaken (both in Western scholarship and under its hegemonic influenceby Muslims of various stripes) for a commitment to literalism. Nowhere,perhaps, is this more clearly manifested than in the ubiquitous tendency toidentify the movement known as Zdhirism as an expression of "Literal-ism."" Carefully examined, Zdhirism reveals itself to have been neither anaberration nor unduly committed to literalism. It was merely a more en-trenched (and perhaps consistent) commitment to the already establishedand increasingly hegemonic principle of juristic empiricism. The Zdhirites,as is well known, went furthest in rejecting a priori presumptions in legalreasoning, including those underlying the method known as qiyds (anal-ogy)! 2 They were equally diligent in rejecting all mediating factors thatwere external to scripture, such as the Unanimous Consensus of the jurists(though not that handed down from the Prophet himself, which they clearlysaw as a constituent of scripture, part of the Prophetic Sunnah) or the opin-ions of individual Companions. 3 Meanwhile, the only complete work onZihirite legal theory that has come down to us, al-Ihkdm fi Usil al-Ahkdmof the Spaniard Ibn Hazm (d. 456/1064), clearly establishes that Zdhirismwas ultimately no more literalistic than any other legal school.14

If they say, 'How do we know what diverts a statement from its apparent mean-ing?' It is said to them, and by God the Exalted is success, 'We know this by in-formation we gain from the apparent meaning of another text, or by an absolutelycertain Unanimous Consensus handed down on the authority of the Prophet, God'sblessings and salutations be upon him .... 15

In the same work, Ibn Hazm expands this when dealing specificallywith the topic of literal verses' metaphorical meaning (haqiqah wa majdz).Here he denounces those who deny the use of metaphorical language in theQur'in and insists that:

Whenever we have certainty, based on a univocal text (nass), a UnanimousConsensus (ijmd) or natural reason (tabi'ah), that a word has been diverted

11. See, e.g., N.J. COULSON, A HISTORY OF ISLAMIC LAW 71 (1964); N. Calder, Law,in 2 THE OXFORD ENCYCLOPEDIA OF THE MODERN ISLAMIC WORLD 450 (John L. Esposito ed.,1995); KHALED ABOU EL FADL, SPEAKING IN GOD'S NAME: ISLAMIC LAW, AUTHORITY ANDWOMEN 309 (2001); WAEL B. HALLAQ, A HISTORY OF ISLAMIC LEGAL THEORIES 207 (1999).

12. See, e.g., IBN HAZM, 8 AL-IHKAM Fi UsOL AL-AHKAM 2-123 (A.M. Shikir ed.,Dfir al-Affiq al-Jadidah, 1403/1983) [hereinafter AL-IHKAM F USUL AL-AHKAM].

13. See, e.g., 2 AL-IHKAM Ff USOL AL-AHKAM, supra note 12, at 12-21.14. Devin Stewart has extracted parts of a Zdhirite work by the son of the founder of

ZAhirism from the writings of the Isma'il jurist, al-Qadi Nu'mdn (d. 363/974). However,these parts do not appear to include treatment of such topics as literal versus figurative mean-ing. See Devin Stewart, Muhammad b. Df'id al-Zahiri's Manual of Jurisprudence: Al-Wusal ild Ma'rifat al-Usid, in STUDIES N ISLAMIC LEGAL THEORY 99-158 (B. Weiss ed.,2002).

15. 3 AL-IHKAM F1 US.rL AL-AHKAM, supra note 12, at 41 (translated by author).

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from the meaning it was coined to have in the language to another meaning, wemust interpret it thus (wajaba al-wuqff 'indah).'6

This is quite standard among the schools of law. All begin with a primafacie deference to literal meaning, only agreeing to set it aside on the basisof other textual or non-textual justifications. In this regard, Zahirism wasright in step with the mainstream. Where Zdhirism departed from the main-stream was in its rejection of analogy and Unanimous Consensus. But thiswas related not to literalism but to its more emphatic and uncompromisingcommitment to juristic empiricism. In other words, the whole point of re-jecting these synthetic accoutrements was to promote and preserve the pri-macy of scripture by insulating it from any and all potential competitors,explicit or implied, subversive or well-meaning.' 7

Meanwhile, mainstream, classical legal theory's acceptance of qiydsand ijmd' was essentially an attempt in the same direction. This was aimedat curbing the speculative, a priori forays of the jurists, binding them todeductions from scripture. In other words, even the reaction to Zdhirismreflected a shared, prima facie commitment to the principle that knowledgeof the law was (ideally) limited to the locutionary dictates of texts and couldgo little beyond this.'8

All this leads to a conclusion of far-reaching implications for modemMuslim legal discourse: contrary to popular belief, Islamic law neither pro-duced nor recognized a literalist canon of the Western Fundamentalistgenre. Muslim jurists only produced an empiricist canon. The confusion,however, between these two modalities is a major impediment to the pro-duction and acceptance of modem interpretations that purportedly reclineupon the maqdsid al-shari'ah. This is because literalism is essentially afalse problem in whose resolution the real challenge, juristic empiricism,remains in full effect. On this oversight, interpretations that transcend liter-alism via reliance upon the maqdsid al-shari'ah leave in place the require-

16. Id. at 28. For example, he notes that the verse, The Holy Qur'an, Sura al-Isra17:24, "wa' khfad lahumd jandh al-dhulli min al-rahmah," can only be taken to mean thatwe must incline in humble mercy to our parents, not that humility literally has a wing. See 3AL-IHKAM F USOL AL-AHKAM, supra note 12, at 29.

17. As far back as 1883, even without the benefit of Ibn Hazm's al-Ihkdm, the cele-brated Hungarian Islamicist Ignaz Goldziher was able to discern that Zdhirism was not at allabout literalism but constituted an attempt to combat ra'y, that is, "what the individual in-sight of a legist or judge, in real or apparent dependance [sic] on those indisputable sources,recognizes as truth emanating from their spirit." See DR. IGNAZ GOLDZIHER, THE ZAHIRS:THEIR DOCTRINE AND THEIR HISToRY 3 (Wolfgang Behn trans., 1971).

18. This is not to deny that such interpretive instruments as dalil al-khitdb (disjunc-tive inference), fahwd al-khitdb (a fortiori inference), and even al-'dmm yurddu bihi al-khusfis (general expressions used for restricted referents) invest in the illocutionary force ofwords. But these are quite limited by the range of what the conventional use of Arabic lan-guage allows, as a means of controlling how much can be invested in a purely figurativeinterpretation.

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ment of justification by reference to specific, individual texts. Thus, to re-turn to the hypothetical example, any claim about the propriety of purchas-ing an air-conditioner or the impropriety of turning on an oven would bemet with the unfulfillable demand to produce explicit (individual) texts tosubstantiate these claims.

II. JURISTIC INDUCTION AND THE MAQSID AL-SHAR'AH

Historically, juristic empiricism has dominated and marginalized allother approaches to law. From surprisingly early on, however, there was agrowing recognition of some of its drawbacks and limitations. Early Hanafiattempts to vindicate istihsdn (equity) are a clear manifestation of this; 9 soare the efforts of such later Hanbalis as Ibn Taymiyah (d. 728/1328) and IbnQayyim al-Jawziyah (d. 751/1350), as reflected, for example, in their gal-lantly anti-empiricist work, al-Turuq al-Hukmiyah fi al-Siydsah al-Shar'iyah;2° so are the ubiquitous Mdliki and other (for example, Najm al-Din al-Tfifi (d. 716/1316)) attempts to vindicate the principle of maslahah(public utility).2' Even Shdfi'i's, for example, al-Ghazali, would devotewords to the anti-positivist, extra-empirical instrument of maslahah, andlater Shafi'is would go so far as to engage in outright induction. Al-'Izz b.'Abd al-Saldm (d. 660/1261), for example, explicitly proclaims such acts ascursing the Prophet or smearing feces on the Ka'ba to be "the greatest ofmajor sins, even though the religious law [read individual texts] does notexplicitly identify any of this as a major sin.12

Still, where such efforts were not marginal, they remained invariablyapologetic. It was against this backdrop that the now much celebratedIbrahim b. Mfisd al-Shdtibi (d. 790/1388) would launch his campaign tovindicate and gain more formal recognition for an alternative, or perhapsmore properly, supplemental, means of apprehending the law. Al-Shatibi's"juristic induction," literally istiqrd', as he called it, sought to break the nearmonopoly of the reigning juristic empiricism and go beyond its uncompro-mising deductive syllogism, which read something like the following: All

19. However, as M.H. Kamali observed, none of these attempts are convincing, forclearly istihsdn is not a form of analogy but a reaction to it. Juristic empiricism could onlyaccommodate methods that were sufficiently bound to the a posteriori dictates of scriptureand thus sought, through a tortuous logic to cast istihsdn as such a move. See MOHAMMADHASHIM KAMALI, PRINCIPLES OF ISLAMIC JURISPRUDENCE 344 (3d ed. 2003).

20. (Cairo: al-Mu'assasah al-Arabiyah li al-Tibd'ah wa al-Nashr, 1381/1961).21. RISALAH Fi RI'AYAT AL-MASLAHAH (Cairo: Dar al-Misriyah al-Lubnniyah,

1413/1993).22. 1 QAWk'ID AL-AKAM F MASALIH AL-ANAM 23 (T.A. Sa'd ed., Dar al-Jil,

1400/1980).23. This is confirmed by the modem jurist Ibn 'Ashfir. See IBN ',sSH&R, 2 MAQASID

AL-SHARi'AH AL-ISLAMiYAHV 119 (M. T. al-Misawi ed., Amman: Dar al-Nafa'is, 1420/1999).

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X's (and only X's) are binding; Y is an X; Y (and only what can be validlyconsidered Y) is therefore binding (where X represents Qur'dn and Sunnaand Y represents individual texts of these). For al-Shdtibi, a text's weightwas to be based neither on its substance nor its authenticity alone but on itsrelationship to a universe of meanings and values that were inductively ex-trapolated from an aggregate of texts. On this understanding, legal matterswere to be resolved by reference to inductively-established values and prin-ciples, even in the absence of explicit texts.24

We should note, however, that it was not al-Shdtibi's aim to executean act of "epistemicide," whereby juristic empiricism would be denied allvalidity. On the contrary, he readily recognized that juristic empiricism wasintegral to the very process of juristic induction itself, for it was through astraightforward reading of an undetermined quantity of actual texts that thebroader aims and objectives of shariah were to be inductively established."In other words, al-Shdtibi's primary commitment remained to a text-driven,as opposed to a purely speculative, approach. His aim was simply to vindi-cate juristic induction or istiqrd' as a valid legal epistemology, such thatjuristic empiricism, as a particular way of reading texts, would not be theonly basis for arriving at or judging legal conclusions.

Through this process of juristic induction or istiqr', pre-modern ju-rists (al-ShAtibi being simply among the most emphatic) extracted and vin-dicated the so-called maqdsid al-shariah. Al-Ghazdli, for example, makesa point of clarifying that the maqdsid are known "not on the basis of anysingle proof-text (dalil) nor on the basis of any specific principle but on thecumulative strength of proofs too many to enumerate. 26 In a similar vein,al-Shatibi declares that

The entire Community agrees, nay all religious communities agree, that the reli-gious law was instituted for the protection of the five absolute necessities: religion,life, progeny, property and reason.

This Community (i.e., the Muslim Community) has unassailable (darfrt) knowl-edge of this. But this has not been established on the basis of any specific proof-text nor confirmed by any specific principle that we could isolate and invoke.Rather, its appropriateness to the religious law is simply known on the basis of anaggregate of proofs too numerous to count.27

24. IBRAHIM IBN MusA SHATIBI ET AL., 1 AL-MUWFAQAT FI USUL AL-AHKAM 36-40(1388) [hereinafter AL-MUW.FAQT].

25. This is almost certainly the point behind al-Shfitibi's banning anyone who hadnot mastered traditionalfiqh and legal theory from reading his work. See 1 AL-MUWAFAQAT,

supra note 24, at 87.26. AL-GHAZALi ET AL., 1 AL-MUSTASFA MIN 'ILM AL-USUL 295, 311, 313, passim

(Bfilaq: Amiriyah Press, 1322/1904). Indeed, al-Ghazdli's whole point in this section is tovindicate inductive reasoning from the grip of judgments and criteria of validation that aregrounded in juristic empiricism.

27. 1 AL-MUWAFAQAT, supra note 24, at 38.

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III. PRESERVATION OF REASON (HIFzAL- 'AQL): ONE OF THE MAQiSIDAL-

SHAPJ'AH

On the above approach, typical vindications of the preservation of rea-son (hifz al- 'aql) as one of the maqdsid point to the depth and breadth ofscriptural prohibitions on consuming intoxicants. Al-Qarffi (d. 684/1285),for example, derives the value of hifz al- 'aql from the fact that, "God TheExalted has never (in any dispensation) sanctioned ... the abuse of one'sfaculties by allowing drunkeness."28 In a typical display of circumspection,he adds that even religious communities that allow the consumption of al-cohol, do not countenance inebriation.29 Meanwhile, the famed Fakhr al-Din al-Rdzi insists "reason . . .is protected via the prohibition of intoxi-cants, and God The Exalted has alluded to this via such statements as, 'Sa-tan simply desires to sow dissention and hatred among you through intoxi-cants ... "'30 Earlier, al-Ghazdli had neatly summed up the matter by sug-gesting that, "the imposition of prescribed punishments upon those whoconsume intoxicants is a means of protecting the faculty of reason, uponwhich all legal responsibility (taklit) hinges."'"

Directly or indirectly, all of these writers implicate induction in theprocess of establishing hifz al- 'aql as a maqsad. When we turn, however, tothe actual application of this principle, we are confronted with a strange anddebilitating paradox. Hifz al-'aql is supposed to be a maqsad, a "broaderinterest" inductively extracted from the aggregate of prohibitions on con-suming intoxicants. This mode of extrapolation presumably takes hifz al-'aql beyond the more conservatively-deduced 'illah (ration essendi) or hik-mah (underlying rationale) involved in the process of analogy (qiyds).32

Indeed, the whole point of inductively validating hifz al- 'aql would seem tobe to authenticate conclusions that could not be supported on the basis ofqiyds. Yet, for all the hopes and expectations modem Muslims place in themaqdsid, this is precisely what we tend not to find in the actual applicationof the principle, hifz al- 'aql.

In what is perhaps the most widely cited (if not most authoritative)work on the subject by a modem jurist, Maqdsid al-Shari'ah al-Isldmiyah(The Broader Aims and Objectives of Islamic Law), the late Muhammad al-

28. AHMAD IBN IDRIS QARAFI ET AL., SHARH TANQIH AL-FUSUL FI IKHTISAR AL-

MAHSUL FI AL-USUL 392 (1306).29. Id.30. SHIHkB AL-DIN AL-QARAFi, 4 NAFk'IS AL-USOL Fi SHARH AL-MAHSUL 166 (M. A.

'Atfi ed., Beirut: Dfir al-Kutub al-'Ilmiyah, 1421/2000).31. 1 AL-MUSTASFA, supra note 26, at 287.32. The 'illah of the prohibition on consuming intoxicants would be that the latter

intoxicate. The hikmah would speak to the underlying wisdom behind this, that is, whyintoxication itself is bad.

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Tahir Ibn 'Ashr (d. 1393/1973), spelled out the practical implications ofhifz al- 'aql as a maqsad in the following terms:

The meaning of preservation of reason (hifz al-'aqi) is to prevent damage from be-falling the minds of people. For damage befalling the minds of people leads togreat corruption, in the form of their losing control over their actions. Damage be-falling the minds of individuals leads to micro-cosmic corruption, while damagebefalling the minds of groups and nations is greater still. Thus it is as necessary toprevent individuals from becoming intoxicated as it is necessary to prevent intoxi-cation from spreading among nations. Likewise, it is necessary to prevent thespread of such corrupting agents as hashish, opium, morphine, cocaine, heroin andsimilar substances whose use has become wide-spread in the 20 th century.33

It is difficult to discern, the point of this exercise, for none of theseprohibitions require anything approaching the kind of juristic induction thatIbn 'Ashfir (like al-Shdtibi and others before him) claimed to be the verybasis of the maqdsid. Indeed, if this is the sole or universally-recognizedapplication of hifz al- 'aql, it is unclear that juristic induction offers any realadvantage over mainstream (to be distinguished from Zdhirite) juristic em-piricism.

We should note, however, in fairness to Ibn 'Ashr that this particularapplication is not exclusive to him. On the contrary, it represents the onlyapplication of hifz al-'aql that I have ever encountered-wa 'adam al-'ilmlaysa 'ilman bi al-'adam. Among its most obvious redeeming features isperhaps its universality (which Ibn 'Ashr and others cite as one of the cri-teria for a valid juristic induction).34 In other words, what sustains this ap-plication is the fact that it-and perhaps only it-is recognized as the appli-cation that is relevant and suitable to all peoples in all times and all places.As such, it satisfies, in its own way, the surreptitious yet enduring criterionof objectivity (read juristic empiricism) that extends, as we have seen, allthe way back to the reaction to Imam al-Shdfi'i.

At any rate, what we end up with is a universal, a "kulliyah," "hif al-'aql," which, if applied as such across time and space, turns out to be sub-stantively and practically empty. This very idea and value of universality isintimately indebted, however, to juristic empiricism. Its function is to ne-gate the impact of time, space, and perspective-the implication being thatin the absence of these, our conclusions can be solely and justifiably attrib-uted to texts. However, what we gain in the way of theoretical neatness andempirical justification, we lose in the way of concrete, practical utility.Moreover, the entire arch of meaning generated by our inductive reading ofthe sources is sacrificed to an undetected addiction to juristic empiricism.

This problem of universalism (keeping in mind its indebtedness to ju-ristic empiricism) is far more pervasive and problematic than may initially

33. MAQAsiD, 221.34. See, e.g., IBN ',SHGR, 2 MAQ,&SID 184.

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meet the eye. Typically, rather than negate perspective, claims to universal-ism tend only to disguise it. Elsewhere, I have referred to this conflation asthe problem of the false universal, according to which only those who shareone's specific concretions of "justice," "reason," "beauty," etc., are justifiedin laying any claims to these.35 The false universal conceals itself in thehabit of speaking as if the shape that one's values assume in concrete social,political, or interpersonal contexts is not grounded in cultural, historical, oreven ideological perspectives but is reflective of a natural order that is obvi-ous to all, save the stupid, the primitive, or morally depraved.

Several modem critiques, from Afrocentrism to Feminism to post-modernism, have succeeded in exposing the false universalism in the hege-monic claims of the modem West." Less apparent is how Muslim articula-tions of such constructs as maqdsid al-shari'ah are also prone to this ten-dency. This is precisely what is reflected, however, in the tendency towarda uniform application of hifz al- 'aql, despite the racial, ethnic, cultural, andhistorical differences separating modem Muslims from one another andtheir past. Such unanimity reflects a belief in the irrelevance of history orperspective and suggests the propriety of subsuming the massive diversityof the modem Muslim community under a single application of the princi-ple, "preservation of reason."

As an alternative, I propose a position already marked out by the Han-balite jurist, Ibn Taymiyah, according to whom abstract universals, qua uni-versals, exist only in the mind and that the only meaningful manifestation orapplication of a concept, value, or principle is in the concrete.37 On thisunderstanding, taking Ibn 'Ashfr's "preventing damage from befalling themind"38 as our abstract universal whose status and validity is grounded ininduction (which means that its purpose must reach beyond the prohibitionsand exhortations of specific texts), this principle's actual concrete applica-tion must assume different modalities, qualities, and characteristics for dif-ferent times, places, and peoples.

IV. AL- 'AQL: BEYOND FALSE UNIVERSALS

Part of the difficulty in settling on a functionally meaningful applica-tion of hifz al-'aql is connected to traditional definitions of 'aql itself.Typically, 'aql is equated with the faculty for a priori conceptualization and

35. See, e.g., Sherman Jackson, Islam(s) East and West: Pluralism Between No-Frills and Designer Fundamentalism, in SEPTEMBER 11 IN HISTORY: A WATERSHED

MOMENT? 113 (Mary L. Dudziak ed., 2003).36. See, e.g., MOLEFI KETE ASANTE, AFROCENTRICITY (1988); LINDA ALCOFF &

ELIZABETH POTrER, FEMINIST EPISTEMOLOGIES (1993).37. On this point, see WAEL B. HALLAQ, IBN TAYM1YYA AGAINST THE GREEK LO-

GICIANS xxii-xxiii (1993).38. IBN 'AkSHfR, 2 MAQSID 184.

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synthesis. Ibn 'Ashir's (d. 1040/1630) standard mnemonic text on the ba-sics of Islamic law and jurisprudence, al-Murshid al-Mu 'in 'ald al-Daririmin 'Ulfm al-Din, provides a classic example:

*A rational judgment (hukmnd al-'aql) is one *Whose validity is confirmed by

neither custom nor convention.39

In his commentary on this text, Mayydrah (Muhammad b. Ahmad al-Ffsi(d. 1047/1637) explains that any judgment or assignment of a relationship(for example, the world is temporal) not based on experience or revelation isa rational judgment.0 In other words, the essence of reason is the ability togo beyond the senses and construct and sustain logically consistent, abstractjudgments.

To be sure, Muslim tradition-most specifically the rationalist theolo-gians, who exerted a disproportionate influence on Islamic legal theory-developed the habit of conflating the ability to use reason with particularuses of reason, such that only those whose views confirmed a particularregime of reason, for example Mu'tazilism or Maturidism or Ash'arism,were recognized as having any justifiable claim to 'aql. On this conflation,it appears that the damage to be prevented from befalling the mind, for ex-ample, by banning all species of intoxicants, is a damage that would impedenot one's ability to employ reason on the common sense understanding butto engage in systematic theology or law.

It is questionable, however, whether this particular notion of 'aql canbe reconciled with the content of the texts from which hifz al-'aql as amaqsad is presumably extracted. The Sunnaic material on intoxicants isquite explicit in targeting not the ability to engage in abstract reasoning, butthe propensity towards violence and bellicosity. The Qur'dnic material con-firms this,41 and further implicates, inter alia, ego, social anxiety, and cul-tural convention in the corruption, suppression, or misuse of 'aql. "Haveyou seen the one who takes his undisciplined passions as his god? Are youto be his caretaker? Or do you think that most of them hear or use theirreason (ya 'qilfin)?' 42 "God has not sanctioned any dedications to the idols,Bahirah, Sd'ibah, Wasilah, or Ham. But those who disbelieve invent liesagainst God, and most of them do not use their reason."'43 "And when it issaid to them, 'Follow what God has revealed,' they say, 'Nay, we follow

39. MATN IBN 'ASHIR AL-MUSAMMA BI AL-MURSHID AL-MU'IN ALA AL-DARURi MIN

'ULUM AL-DiN 3 (Beirut: Dr al-Fikr, 1416/1996).40. HASHiYAT AL'ALLAMAH ABI 'ABD ALLAH MUHAMMAD B. AL-TALIB 'ALA SHARH

AL-'ALLAMAH MUHAMMAD B. AHMAD AL-F,5S (Cairo: Mustaf-a Bfbi al-Halabi, N.d), 1:17-18.41. See, e.g., The Holy Qur'an, Sura al-Maeda 5:90-91.42. The Holy Qur'an, Sura al-Hujurat 49:4.43. The Holy Qur'an, Sura al-Maeda 5:103.

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what we found our forefathers following.' What? Even if their forefathersunderstood (ya 'qilfin) nothing and were not guided?" 4

It may be, however, that the ancients, in their own time and place,given Islam's general triumph over paganism and the pervasiveness of de-centralized, "weak" states that were incapable of engineering "nationalcharacters" or "indigenous cultures," simply isolated self-induced intoxi-cants as the most meaningful target of the Qur'dnic and Sunnaic prohibi-tions. In the end, though, however they may have reached their conclu-sions, it is we, the custodial generation, not they, the transmitting genera-tion, who have the ability to turn their specific concretions into universallyvalid and binding prescriptions.

V. CONCRETIZING HIFZAL "AQL IN THE MODERN WORLD

In attempting to arrive at a more meaningful modem application ofhifz al-'aql, I introduce alternative constructions of both 'aql and hif.These modifications are informed by my own historical context in the sameway that the constructs invoked by the pre-modern jurists were informed bytheirs. In this context, my approach can be seen to be procedurally consis-tent with that of the ancients.

Beginning with 'aql, rather than define it as the ability to engage in apriori abstraction, I endorse the more general and common-sense descrip-tion suggested by Ibn Taymiyah that 'aql is simply the primordial, instinc-tive ability (gharizah) to "know" or "understand."'45 As for hi f, rather thanrestrict it to potential internal, self-induced corrupters such as drugs or alco-hol, I consider the possibility that external, that is, socio-political and orcultural factors may be equally or perhaps even more corruptive. In myeffort to concretize these adjustments, I take the socio-political experienceof Blackamericans as my point of departure. Such referencing should beunderstood, however, as merely the beginning, rather than the ultimate, ob-jective of my approach.

Students of religious studies are familiar with Rudolph Otto's conceptof mysterium tremendum, which referred to that inscrutable awe and trem-bling that accompanies the experience of encountering the divine.46 Accord-ing to Otto, mysterium tremendum lay at the heart of all theistic religion,from primitive times down to the present.47 In an insightful addendum to

44. The Holy Qur'an, Sura al-Baqara 2:170.45. See IBN TAYMiYAH, 1 MUWAFAQAT SAHiH AL-MANQUL LI SARiH AL-MA'QUjL 83

(Beirut: Ddr al-Kutub al-'Ilmiyah, 1405/1985).46. See Charles H. Long, The Oppressive Element in Religion and the Religions of

the Oppressed, in SIGNIFICATIONS: SIGNS, SYMBOL AND IMAGES IN THE INTERPRETATION OF

RELIGION 180 (Charles H. Long ed., 1995).47. See id.

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Otto, however, the American scholar Charles Long wrote of a spurious orfalse mysterium tremendum that befell America's enslaved Africans andtheir descendents during the course of their induction into the New World. 48

This was a mysterium tremendum in which the awesome, fear-inspiring,inescapable other was not God but the white man and the critical categoriesof modernity he created: civilization, (biological) race, culture, primitive-ness, I.Q., and so on.49

In a real sense, blacks in America, like all other orphans of modernity("Third-Worlders," "primitives," or even "Middle Easterners") were "cre-ated" by the forces of white supremacy and the theoretical disciplines of the(French) Enlightenment. This "second creation" had the cumulative effectof placing between blacks and primordial knowledge a normative regime ofsense that was sponsored and controlled by the dominant group. At thesame time, the invisibility of whiteness (only non-whites were raced) placedwhites in the position of being "just people," who could speak not only inthe name of their specific group, but also for humanity as a whole. This hadthe effect of conferring upon their fears, assumptions, proclivities, preju-dices, and specific genius, the status of "normal." In effect, this reflected atranscendent natural order, whose validity was obvious to all, save the stu-pid, the primitive, or the morally depraved.

The tacit (or in some instances, not so tacit) requirement that blacksrecognize and conform to this normative regime of sense and "normal" be-havior translated into a socio-cultural order I refer to elsewhere as "normal-ized domination." Normalized domination occurs when humans are re-duced to such a state of self-doubt and or self-contempt that they internalizethe vague but inextricable feeling that they can only redeem themselves byliving up to the norms and expectations of those who seek to exploit them.When this happens, their ability to engage in reasoned critiques of the pre-vailing order is drastically reduced, because the feelings of triumph thatoccur as they approach redemption tend to obliterate any recognition of theprovenance or falseness of the criterion upon which their redemption isbased. In this context, ontological and even meta-cognitive truths that con-tradict the reigning paradigm are confronted agnostically, and one is givenover to formalized ideologies, popular morality, or simply "the ways of theforefathers."5

Elsewhere, I identified normalized domination with the Qur'dnic con-cept of"fitna."' At bottom, fitna turns on the simultaneous recognition and

48. See id.49. See id.50. For a more in-depth treatment of these issues, see SHERMAN A. JACKSON, ISLAM

AND THE BLACKAMERICAN: LOOKING TOWARD THE THIRD RESURRECTION 172-83 (2005).51. See, e.g., Sherman A. Jackson, Islam and Affirmative Action, 14 J.L. & RELIGION

405 (2000).

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exploitation of the human condition and the contingent nature of much ofhuman knowledge. Humans cannot really know how smart, dumb, hand-some, or unattractive they are without other subjectivities to confirm this.This has obvious and far-reaching implications for any ability to "know."For in the context of any regime of normalized domination, even the mostobvious truths can evade acknowledgment or be undermined. This seems tobe the clear implication of any number of Qur'hnic verses. 2

In sum, regimes of normalized domination achieve in psychologicaleffect what politically predatory regimes achieve in behavioral effect,namely acquiescence that seeks to mollify itself by equating itself with thesimple acceptance of truth. This is painfully captured in the crowning sceneof George Orwell's classic, 1984, where the state wants to be assured thatthe protagonist, Winston, sees reality only as it wants him to see it. To thisend, Winston is placed in a "pain chair," and the state-official holds up fourfingers and asks, "How many fingers am I holding up, Winston?" Winstonanswers, "Four," but the official insists that there are five and continues totweak the dial on the pain-chair until Winston exclaims that he is trying toabandon his senses and see five fingers! 53

To the extent that regimes of normalized domination exist, clearly thepreservation of "reason," or "the ability to know," would have to go beyondthe mere proscription of drugs and alcohol. For the ability to know isclearly affected by more than the essentially private acts of self-administered corruption of the mind. Indeed, regimes of normalized domi-nation corrupt reason on a far grander scale and provide in many instancesthe very incentives for drug and alcohol abuse. In this context, hifz al- 'aql,if it is to be effective, would have to take on a much more public and politi-cal dimension. It would have to deal not simply with individuals but withpolitical, social, cultural, educational, and economic institutions.

This conception and application of hifz al-'aql is in no way limited tothe plight of Blackamericans or the socio-political reality of the UnitedStates. White supremacy is now a global phenomenon-however reluctantMuslims in the Muslim world may be to say so out loud (which is perhaps aconfirmation of the depth and degree of normalized domination). More-over, white supremacy is now a force that can call to its service a techno-

52. "If you ask them, 'Who created you?' they will exclaim, 'God!' How, then, arethey given to lies?" The Holy Qur'an, Sura al-Zukhruf 43:87. "Say [0 Muhammad]: Whoprovides you with sustenance from the heavens and the earth? Is it He who dispenses hear-ing and sight? And who draws life out of the dead and death out of the living? And whoorders the affairs (of the universe)? They will say, 'God.' Will they not, then, be God-conscious?" The Holy Qur'an, Sura Younus 10:30-31. "If you ask them, 'Who sent downrain from the sky through which the earth is brought to life after death?.' They will say,'God.' Say, 'Praise be to God.' But most of them do not reason (ya'qilm)." The HolyQur'an, Sura al-'Ankaboot 29:63.

53. GEORGE ORWELL, NINETEEN EIGHTY-FOUR 253 (1949).

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logical capability unprecedented in human history, providing it with theability to produce, sustain, and disseminate ideas and images of itself and ofothers as never before. Through these instrumentalities, Muslims-and,indeed, non-Muslims-are today routinely afflicted with the mental diseasethat W.E.B. DuBois famously referred 4 to as "double-consciousness."Commercially, socio-culturally, and politically crafted images of what itmeans to be "modem," "civilized," or "liberated," place them in the positionof having to struggle, on the one hand, to be Muslims and, on the otherhand, against being Muslims, that is, if they are to be redeemed as modem,reasonable, or civilized. In such a context, the enterprise of acquiring orapprehending bona fide "knowledge" about Islam-again, for Muslims andnon-Muslims alike-becomes extremely difficult, if not moot.

The Western tendency to invoke false universals may be the mostfeared and widely felt, but it is by no means the only instantiation of thisreality. The Muslim world (read Middle East) is equally prone to the ten-dency to promote false universals whenever the subject is Islam or Islamiclaw. Routinely, the realities and priorities of the Muslim world are passedoff as the proper object of legal contemplation for Muslims everywhere.And it is the conclusions reached in contemplation of these realities that aredeemed to constitute the norm, other realities being dealt with not directlybut analogously on the basis of these. As a result, it is often through onlythe most tortuous logic and years of back and forth that legal precepts com-monly invoked in the Muslim world55 find any meaningful, concrete appli-cation in the West.56 Hifz al- 'aql is no exception in this regard.

54. W.E.B. DuBoIs, THE SOULS OF BLACK FOLKS (1968).55. For example, "absolute necessity renders the unlawful lawful (al-darardt tubih

al-mahzfirdt).'"

56. For example, the now defunct Shari'ah Scholars' Association of North America(SSANA) held a conference in Detroit in 1999, where several Muslim jurists from the Mus-lim world were invited to discuss the pressing legal (fiqhi) questions confronting Muslims inAmerica. Among these was the question of home mortgages, the problem being that West-ern banks typically deal in interest, which many equate with the Qur'anically banned institu-tion of ribd. The suggestion that owning a home in America was an "absolute necessity(darfirah)" was strongly resisted if not rejected outright, because the presence of alternatives,such as renting, negated any absolute necessity. "Absolute necessity," in other words, incontemplating Western reality, was equated with matters of life and death. Meanwhile, in astandard textbook on Mdliki law, still used at al-Azhar today, AL-KAwAKIB AL-DURRIYAH F!

FIQH AL-MALIKHYAH, 2, 160ff (Cairo: al-Maktabah al-Azhariyah li al-Turdth, 2001), therequirement that sellers and buyers know the exact quantity of each counter exchange, as partof the ban on ribd, is relaxed in cases of "absolute necessity." None of the examples givenhave to do with "life and death." Rather, all relate to the realities of an agrarian societywhere counting certain counter-exchanges, (for example, the ears of corn in a corn-field),would simply be impractical. Now, based on such rulings, Muslims in the West could freelyestimate in sales of corn-fields, though this may technically entail ribi. But they could notfreely determine home-ownership through mortgages to be an absolute necessity, home-mortgages incidentally being the exception rather than the rule in the Middle East.

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1486 Michigan State Law Review [Vol. 2006:1469

CONCLUSION

On an inductive reading of the sources, it would appear justified toequate 'aql with "the ability to know" and to direct the value and imperativeof its "preservation," or hifz, towards things (whether internal or external)that most fundamentally and systematically threaten the human ability toknow. What this translates into in terms of concrete rules and principleswill depend on the realities on the ground in the various contexts in whichhifz al-'aql is concretized. On this understanding, the maqdsid al-shari'ah-or at least one of them-might be converted from a largely inert,mental abstraction into a concrete instrument for transforming the modernworld, particularly those aspects that appear so impervious to the instrumen-talities provided by and insisted upon by the reigning juristic empiricism.

Literalism, Empiricism, And Induction - Islamic Law's Maqasid Al-shari'Ah, Jackson

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