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e

ABU ISIJAQ AL-SHATIBI'S REFORMULATION OF THE

CONCEPT OF I ~ A STUDYOF HIS
AL-ITI.SAM"
A thesis
submitted to the FacuIty of Graduate Studies and Research
in partial firlfillment of the requirements o f ~ e degree of
Master ofArts
By
Asep SaepudinJahac
Institute of Islamic Studies
McGill University Montreal
Canada
Asep Saepudin Jahar 1999
1+1
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Author
Title
Department
Degree
ABSTRACT
: Asep Saepudin Jahar
: Ah Isqaq al-Shatib's Reformulation ofthe Concept of Bid(a:
A Study of His
: Institute of Islamic Studies
: Master ofArts (M.A.)
This thesis looks at the concept of bid(a as defined by al-Shatibl (d.
790/ 1388) in his al-I(ti$arn. It begins by setting this definition in the context of
his time, which was an era of rapid change, and in the context of the criticisms
leveled at aI-Shtibi by those who accused him of introducing innovations into
the Iaw. His analysis of bid(a was written in response to this situation and it
was also an exercise in reformulating concept on the basis of a strict legal
methodology. Our investigation therefore includes a survey of the fundamental
features of bid(a, defined by al-Shtibl as having two aspects: al-bid(a al-
f).aqfqiyya (reaI bid(a) and aI-bid(a al-iq.afiyya (relative bid(a). This taxonomy will
in turn he considered in the light of his division of the ShaTi(a into 'ibadcit
(religious matters) and 'cidiyyat (mundane matters). Furthermore, it aIso
analyzes al-Sluitib's distinction between the basic character of Tna$la1].a
mursala and istil],scn on the one band, and bid(a on the other. Having

concluded that the latter is essentially prohibited, he was concemed to validate

the first two, which he realized were vital sources of the Iaw. The investigation
will aIso investigate al-Shpb's rejection of the possibility that bid(a couId he
divided into good and had, and bis objection ta assigning the five Iegal values ta
this concept.
Auteur
Titre

ii
: Asep Saepudin Jahar
: La ReformuIation du Concept de Bidra par Ab
al-Shatibl: Une tude de Son
Departement: Institut des tudes Islamiques: Universit McGill
Diplme : Matrise s Arts (M.A.)
Ce mmoire Jette un regard sur le concept de bid/a tel que dfini par al-
Sluijib (mort en 790(1388) dans son La recherche tablit au dpart
cette dfinition en considrant l'poque de l'auteur. qui tait une priode de
changement et dan un contexte des critiques adresses al-Shatibl
par ceux qui l'accusaient d'avoir introduit des innovations dans la loi. Son
analyse du bidra fut crite en rponse cette situation et son fut aussi
un exercice dans la reformulation du concept, en se fondant sur une stricte
mthodologie lgale. Notre enqute va donc inclure un sUIVol des
caractristiques fondamentales du bid(a. dfinies par al-Shatibl comme ayant
deux aspects, soit le al-bid(a al-1J.aqfqiyya (le vrai bid(a) et le al-bid(a al-iq.cff1.yya
(le bid(a relatif). Cette taxonomie sera son tour considre selon sa division de
la Shcui(a dans IUibcidtit (les affaires religieuses) et (cidiyyat (les affaires
sculires). De plus, la recherche analysera la distinction d'al-Shtibl entre,
d'une part, le caractre fondamental de la T1U1.$la1].a. mursala et l'istifJ,san et,
d'autre le bidra. Ayant conclu que ce dernier est essentiellement prohib,
al-Shtibi tait soucieux de valider les deux premires caractristiques. qu'il
considrait comme tant des sources vitales de la loi. La recherche enqutem.
aussi sur le rejet d'al-SMpbI de la possibilit que le bid(a peut tre divis en
bien et mal ainsi que de de l'auteur l'assignation des cinq valeurs
lRales ce concept.

Hi
ACKNOWLEDGMENTS
l would like ta extend my deep appreciation to those who assisted me in
the course of my graduate studies at the Institute of IsIamic Studies, McGill
University Montreal. 1 wouId first of aIl Iike ta express my sincere gratitude ta
my academic advisor and thesis supervisor, Proi Wael B. Hallaq, without whose
guidance and encouragement this work couId not possibly have been
accomplished. His brilliant mastery of the subject of Islamic lawand !ife-long
commitment to scholarship have been an inspiration to me. 1 owe a debt ta him
that 1 will never he able ta discharge.
l wish also to express my thanks ta Proi A. ner Turgay: Director of the
Institute of IsIamic Studies, for his support throughout my time at the Institute.
Thanks are aIso due" to CillA (Canadian International Development Agency) for
my scholarship grant and to the staff of the Indonesia-Canada Higher IsIamic
Education Project.
1 also want to express my gratitude to my colleagues Masdar Hilmy,
Chuzaemah Batubara: Su'aidi Asy'ar4 Munir: Mujiburrahman: Andi Ali:
Kusmana and Lia for their support, valuable intellectual exchange and sincere
friendship during my academic stay in Montreal. 1 would also like to thank the
staff of the Islamic Studies Library, especially Salwa Ferahian and Wayne St.
Thomas, who assisted me in obtaining sources for my thesis; Jane Trembley
who has translated the abstract into French. The efforts of Reem Meshal and
Steve Millier: who patiently helped me in editing the language of earlier drafts of
this thesis into readable English: are very much appreciated as weil.

iv
l would like to express my appreciation ta my parents and parents-in-
Iaw, who always supported and prayed for my success in this endeavor. Special
and sincere gratitude is due to my late grandmother who tirelessly protected
and supported me since childhood. 1 regret that l could not see her before she
passed away wbile l was in the midst of writing the last chapter of this thesis.
To my family who always encouraged me ta pursue my graduate studies
abroad, l owe you all a very great debt
Last but not least, 1 am indebted to my beloved wife, Tati Nurqomaryati,
who has always given me her support and encouragement. Withaut her
patience at living so far away from me, this thesis couId never have been
accomplished. It is to her that l humbly dedicate this thesis.
Montreal, May 1999
A.S.J

v
NOTES
Throughout this thesis the sources of reference have been placed in
footnotes at the bottom of every page. For example, Ab Is:q.q al-Shap.b, al-
I C ~ a m ed. Mu.qammad Rashd Riq., 2 vols. (Cairo: Maktaba al-Tijariyya al-
Kubr, n.d.), I, 192-197. While each source bas been referred ta in full detail at
its first occurrence in. a particular coopter, from its second occurrence on, only
the author, the title (in short Conn with. quotation marks), and the (volume and)
page number were recorded. Later references will use a shortened form of the
work, such as al-Shatib, al-Icti$am, voL 2, 131.
The system of transliteration of Arabie words and names applied in this
thesis is that used by the Institute of Islamic Studies, McGiIl University. The

table of transliteration is as follows:

b = ~ dh
=j
t
=.,1, l =J
t =0 r
= ~ ~
=Ji, m
=j
th = ~ z
- .
=t.
n
=CJ
~
j
= ~
s
= ~
gh
=t
w
=."
If
=r.
sh
...
f =J h =A
=1.1"
kh
=c.
~ = ~
q
=J y
"'!!
d = ~
eJ. =if
k =.d :::::
~
Short; a i =
u ==
Long :a
=
, =
..J
Diphthong : ay = 1 aw = JI
t.!

vi
TABLE OF CONTENTS
Abstract. i
Rsum
ii
lT
Table ()f Contents ' vi
IntroductioIl 1
Coopter 1: THE SIGlOFICARCE OF THE DEVELOPMENT
OF AL-SHATIIii'S LEGAL THEORY
A. Ab Isq.aq al-Sluip.o's Life and Work 7
B. $UJfs and Jurists in Andalusia 11
C. From al-Muwcifaqat ta aI-lt'f:i$cim. 26
Chapter il: WITHIN THE FRAMEWORK OF AL-sHA"ml's THEORY
A. 13cit'cz f>rior t()
B. Ab Isq,aq C()ncept of Bidt'cz.
1. Al-Bid,t'cz aI-Ffaqlqiyya. ................................................. 57
2. Al-Bidt'cz aI-lq.czflYYcz. ........ ......................................... 58
Chapter li: BIDCA ARD AL-SHATDi'S ARGUMENT REGARDING MA$LA1!A
MURSAlA AlU) rsTU1sAN
A. Bidt'cz and Mursczlcz. ......................................... ...
B. Bidt'cz and Isti1).san. 87
COIlclusion " 99
Bibliogra.phy 102

INTRODUCTION
Ab Isl7aq al-Shatibi (d. 790/1388) was one of the most influential
scholars of the MaIiki school in Andalusia in general and Cordoba in
particular. l His significance lies in bis contnbution to the reformulation of
Islamic legal theories, particu1arly the notion of bidca (innovation). One of bis
most important works on IsIamic law is which expounds in particular
the relatianship between the notions of aI-Tn.a.$Ial].a al-mursala and istif}.san ta
bid'a.
2
In this wor14 he discusses the nature of the latter in Islamic law
7
and
argues that bid'a was strictly forbidden. Prior ta al-Shatibl, al-Turtslll
(d.474/1081) also rejected bid'a but did not differentiate between a novelty and
an innovation (m:u.1].d.atha and bid'a).3 However, al-Shatibl's distinction between
'aaiyycit (customs) and 'ibaacit (rituaI practice) allowed him ta restrict the scope
of bid'a, by redefining its concept into bidt:a 1).aqiqiyya (reaI bidCa) and bid'a
it:j.afiyya (relative bid'a).4
Al-I'f:i$a-m was written in response to charges by bis contemporaries that
he was an "innovator", i.e., someone who deviated from the true path of religion.
'Maribel Fierro, "Al-Shatibl/' in The Encyclopaedia of new edition.
Whe a MaIiki schoIar, al-Shatibl aIso wrote treatises on grammar, poetty and
theology as weil as Islamic jurisprudence.
2Ab Isbaq al-Shat.ibl, ed. Mu1}ammad Rashld Riq 2 vols.
(Cairn: al-Maktabat al-Tijariyya al-Kubra, n.d.). This book is closely related ta
al-MuwaJaqatft al-Sharita. The latter is mostly concemed with legal theoty.
3Ab Bakr Al-Turtsh, Kitao al-lfawcdith wa al-Bida', ed. &Alxi al-MBJd
al-Turk (Beime Dar al-Gharb al-IsIam.4 1990), 31-2. Turtshi contended that
novelty or innovation in &a-dat and 'ibadat which was nat stipulated in the
Qur'an. and the sunna is prohibited.
.. al-I'ti$aTT4 voL l, 286-287.

2
In this al-Stibi does indeed seek to formulate a novel epistemology of
bidca in which he rejects the notion of bidca f].asana.
5
To compensate for this,
however, he borrowed the concept of sunna f].asana (a good tradition).
6
His
argument in al-/'ti$am is interrelated witb. bis earIier work on Legal theory, aI-
Muwafaqat. While bis unique approach ta the concept of bid'a was not limited
ta the Legal field, its implications for innovation in the Sharica were especially
profound, and entailed greater reIiance on reason and human hurnanistic
.
considerations.
7
The theory of al-mcL$Iaf].a al-mursala and for example,
are seen as compatible with the Sharica; and cannot he categorized as bidCa
f].asana. However, the main purpose behind bis writing of this theoretical
exposition was ta criticize the $U]fs for what he believed ta have been a rigid
and unduly demanding application of the law on the one band, and the jurists
who were too lenient in issuing fatwo.s on the other.
8
In response ta this
situation al-Shapbi's theozy, therefore, aimed at restoring the law which he
thought had been corrupted by two extreme practices: the Iax attitudes of
SMohammed Talb4 "Les Bida'," Studia 12 (1960): 66.
6Al-Shatrb, al-I't:i$cm, 142. Bid'a J;.asana, unlike sunna !).asana, al-
Shap.oi contends, is prolnbited because it is often used to justi:fY personal
desires resembles the ShaTf'a.

7Al-Shatibi, 83.
8Wael B. Hallaq, A History of Islamic Legal Theories (Cambridge:
Cambridge University Press, 1997), 162-72. Hallaq elucidates the bistorical
background of al-Shatibl's works, and al-Muwayaqcit, which
challenges the contemporatY $U]is and jurists who accused him of being mubdi'
(innovator). Hallaq highlights particu1arly three accusations: first is the
stringency of bis legal views; second, bis inimica1 attitude toward the $u"]fs; and
third, bis deviation from the jama
7
a (religious community).

3
jurisconsults, and the excessive Iegal demands imposed by the majority of
contemporary $cifis.
9
Al-Shatibl divides into two types: The first is an innovation in
religion that resembles the way of the Sharica; the second is an innovation in
Ccidiyyat with an intention simila
r
to that of the Shan-ra. Whenever innovation
deals with reIigious matters ('ibcidct) without any clear indication (dalil shari)
from the Sha:rica, it should he considered bidca. Whenever the novelty
(mu1:uiatha) deals exclusively with caayya-t (mundane matters), it cannot he
considered bidCa. 10
Al-Slultibl, furthermore, does not consider an mu1].dathas as prohibited.
Whether they are or not hinges on the intention (niya) and the correct
understanding of the purpose of the ShariCa. Il If the act and the intention
conform to the purpose of the Shari(a, the act is vaIid. On the ather hand, if act
and intention violate the Shan-ra, the act is invalida If only the intention
conforms to the and the act does not, the act is qualified as bidca. If the
act conforms but the intention does not, the act falls into the category of
hypocrisy.12
Al-Shatibl disagrees with jurists who identify al-mQ..$la1].a al-mursala and
isti1J.san as According to him, bath al-nta$laf:z.a al-mursala and isti1].san.

A History, 163.
lOAl-Shatibl, vol. 1, 36-42. He differentiates between muJ:uiatha
and bidca. The former has a broader meaning either religious or mundane
matters, while the latter pertains to specifie matters in the Shari(a.
IlAI-SMp discusses nfya (intention) and correct understanding in bis
aI-Muwayaqcit. See Ab IsQ.iq al-ShS:pb, aI-Muwayaqcit fi U$U1 aI-Sharfta, 2 vols.
(Beirut: Dr al-Kutub al-'IJmiyya, n.d.), II, 31-9l.
12Shatib, AI-Muwafaqat, vol. 2, 253.

4
and bidca are opposed ta each ather. AI-MW?lal]..a al-mursala and ist}san. are
compatible with the and therefore do not fall under the heading of
bidCa. 13 Al-Shatibl thus showed that acceptable mQ.$a1i1J. cannat he equated
with bidca and that they are not limited ta the categary of 4anIn,14 as some
jurists maintained. In fact, the above elaboratian on aI-ffl.a$Ia1J.a al-mursala
conforms ta al-Sha:t:ibl's concept of which is of fundamental
significance to bis doctrine of maqc#id al-shan-Ca. 15
Al-Shap.el elsewhere confirms the primacy of the Qur'an over ather
sources of Iaw. Even the Sunna seems merely a foatnote ta the Qur'an.
16
Mareover, al-Shatibl admits that the nature of caa.iyyat acts, which are not
specified and prescribed in these two sources, might change according ta time
and place. Furthermore, while the Sharica remains infalhble and is based on the
lJIn this case he refers ta Malik, who upheld al-mursala as a
legal interpretation. He also mentions the concept of murulsib of Ghazli.
Conceming al-Tnmila1].a aI-mursala, he gives ten exa.mples in support of bis
opinion that bid.ca is not the same as aI-TnQ$Ia1).a al-mursala. Al-Slulpbl, al-
]cti!?am, 112-13.
14rn bis aI-MustCl$fci; GhazaIi elaborated the adaptability of mQ.$la1).a on
the ground of 4arun (vital necessity), qatCiyya (clear-cut certainty) and kulliyya
(universal). See Ab F:famld Mu1}ammad b. Muhammad al-Ghazli, al-MustCL$fa-
min 2 vols. (Cairn: MUQammad Press, II, 139-41.
For more detail see also al-GhazaIi, Shifa-' al-Ghalil fi Bayan al-Shabah wa al-
Mukht1 iua Masa1ik al-Tacm, ed. Fjamd aI-Kabls1 (Baghdad: Matba'at aI-Irshad,
1971), 205-224.
ISMlIbammad Khalid Masud, Islamic Legal Philosophy: A Study of Abu-
Ishaq aI-Sht.,tibPs Life and Thought (Islamabad: Islamic Research Institute,
1977), 302-3.
lWael B. HaUaq, "The Primacy of the Quran in Shatibl's Legal Theoxy,"
in Islamic Studies Presented to Charles J Adams, ed. Wael B. HalIaq and D.P.
Little (Leiden: E.J. Brill, 1991), 88. The Qur'an, according to aI-Shap.el, provides
the kulliyyar of the while the SUnna only interprets it and sometimes
entaiIs uncertainty like surrounding the soIitary of prophetie traditions.

5
unchanging principles of nonetheless the al- al-
janya bayn al-khalq (social customs) may change.
As long as we know, there are severa! scholars who have studied al-
Shatibi's works which mostly concentrated on legal theozy. They include the
work of A1}mad Raysn, al-Maqci$id 1nd al-Imam al-Shtfibf
(Virginia: The International Institute of Islamic Thought, 1995), I:fammadi al-
Ubaydi, al-Shc.tibf wa Maq$id al-Sharf(a (Tripoli: al-Jamamr 1992)
and Muhammad Khalid Masud, Islamic Legal Philosophy: A Study ofAbu- Is1].aq
al-Shc.tibf
'
s Life and 11wught (Islamabad: Islamic Research Institute, 1977).
These works, focusing on legal theoty and aI-Shapbl's thought in general, do
not touch specifically on the question of the concept of a subject with
which al-Shalibi was greatly concemed. This study is, therefore, the first
attempt to delve into al-Shtibl's standpoint on the concept of bid(a as
expressed in bis book
This thesis is comprised of three chapters. The first deals with the
purpose and significance of in terms of al-Shapbi's legal theoty. This
is set in context by a discussion on bid(a up to al-Shalibi's time. It also focuses
on its relationship ta bis earlier work, al-Muwcifaqat Moreover, it elaborates on
al-Shatibi's response ta bis critics on the subject of bid'a.
The second chapter discusses the conceptual framework which al-
ShatIoi warked out for bid(a. It the different distinctions he made
between certain acts of ritual practice ('ibc:idc:it) and customs
However, ShB:tibi also difIerentiated between real (1).aqiqiyya) and relative
(iq.afiyya) a distinction which forms the main tapic of our discussion in
this chapter. The third chapter focuses on the compatibility of al-tna$la1).a al-
6
mursaIa and isti1).san with Islamic law (the Shan.-ra) according ta aI-Sluipb's
understanding. This matter pertains to bis contention that mCL$lal].a mursaIa
and isti1).sa-n do not retain the cbaracteristics of bidca.
The conclusion seeks ta answer the questions of whether or not al-
Shap.ol's concept of bidra in al-Icti.$am in fact reveals a new epistemology
compared ta that of earlier scholars.

CHAPTERONE
THE SIGNIFICANCE OF THE DEVELOPMENT
OF AL-SHAl'IBI'S LEGAL THEORY
This chapter deals with the juristic and $U]iStic practices prevalent in
Andalusia during the time of al-Shatib, focusing on the engagement of $jfs in
excessive spiritual practices and the official phenomenon. This took the form. of
indictment by orthodox theologians on the one hand, and the 1ax attitude of
jurists of Islamic law on the ather. The purpose is nat ta judge $u]is or jurists,
but ta attempt a general review of the scholarship, circumstances and means by
which al-Slultib responded ta these phenomena in
A. Ab Isqaq LICe and Works
As our concern is to scmtinize the position of al-Shatibi's schalarsbip in
relation ta the $UJfs and jurists of bis time, it will he useful ta glance at bis Iife
and works. His full name is reported as Ab Ibrahim b. Msa
b.Mul7a
mm
ad al-Lakhm al-Shatibi. The details of bis early life, however, are
not knawn. His name, al-ShaJib, is apparently derived from the town of Shtiba
(Xativa or Jativa) from which the family hailed. Al-Shpbi was barn in fi. 730
A.H. and died in 790 A.H. in Shatiba, but grew up in Granada where he spent
bis days pursuing a traditional religious education.
l
Auspiciously, bis career
1 I:Iammadi. al-CUbaydi, al-Shapbi wa MaqC?d aI-Sharita (Tripoli: al-
Jamahir 1992), 12-13.
8
caincided with the reign of Sultan MulJammad V al-Gharii BilIah, a glalious
period in the histary of Granacla.
2
Al-Sluitibl was well-knawn as a mujtahid, a faqih, a traditionist
(mu1J.addith) and a linguist.
3
He studied the Arabic language in same depth witb.
the master grammarian in Andalusia., Abu C:Abd AIIah MUQammad b. 'Ali al-
Fakhar al-BIn. His close relationship with the latter continued until al-B"ui's
death in 745/1353.
4
His second teacher in Arabie was Ab al-Qasim al-Sabfi
.
(d. 760/1358), who was well-lmawn for bis commentary on the of
I:faztm. In fiqh, al-Shatibl benefited from the instruction provided by Abu Sa'id
b. Lubb. It was to the latter that al-Shalibi most indebted for the bulk of his

legal training. Nevertheless, al-Shatibl engaged in severa! disputations with Abu

Sa'id b. Lubb teacher, on a number of issues.
5
2 Mul)ammad V had condueted a series of campaigns against the
Christians to establish himself as the defender of Islam. Due ta intemal
troubles in the Christian kingdoms, Muryammad Vs tenure was generally
suceessful in repulsing Christian attacks. See Lisan al-Dn Ibn al-KhatTh, al-
I1J.c.ta fi Akhbcir Gh.a.rn.a.ta, ed. 'Abd Allah Gbinan (Caira: Al-Shirka
fi al-TiMea wa al-Nashr, 1974), 26-65.
3 A4mad Baba al-Tanbukfi (d.963/1036), Nayl al-Ibtihaj bi-Tatnz al-Dioaj,
ed. 'Abd al-I:Ianiid 'Abd Allah al-Harama, 2 vols. (Tripoli: Kulliyyat al-Dawa al-
IsIamiyya, 1989/1398), II, 48. Baba reports tbat al-Shatibi was a man whose
engagement in religious matters ranked him as one of the most reputed imaTns
among MaIikite jurists especially in the religious sciences. His command offiqh,
1).adith, Qur'amc commentary and the Arabie language served bis reputation as
a sophisticated jurist in issuing fatwas ta questions put ta hitn.
4 Abu Isqaq al-Shap.1Jl, al-Ifcdct wa al-Inshcdct, ed. Mullammad Ab al-
Ajfan (Beirut Mu'assasat al-RisaIa, 1983), 98. See also, Ab al-'Abbas al-
Maqqarl, Nafl).. al-'JYb, ed. Muqammad Mu4Y al-Dn 'Abd al-I:famid, 10 vols.
(Caro: Sa'ada, 1949), VII, 276-270; 279-301.
S Mul!ammad al-MakhIf, Shajarat al-Nr al-Zoldyya, 2 vols. (Cairo:
Salafiyya, 1930), l, 108, 230. For exam.ple, Al-Shap-bi was disagreement with
Abu Sa'id b. Lubb in the practice of dufa (prayer) after five a day. The
former allows sueh practice as a la.wful while the latter prohibits and claims it

9
Ab cAbd Alliih al-Maqqai (d. 758), the author of wa al-
fi al-TC1.9awwuf, was the man responsibIe for introducing al-Shap.lji ta
as weil as ta al-fiqh-
6
Al-Shap.bi became acquainted with traditional
and rational sciences through al-Sharlf Ab cAbd Alliili. al-TilimsanI (d.
771/1369), who aIso boasted the title of mujtahid. 7 The aforementioned account
makes it clear, therefore, that al-Sh:pbI studied a very rich range of topics
extending from the Arabic language to the rational sciences. His interest in. Iegal
theory as weIl as in the Arabic language was thus kindled at an early stage.
While $U]fs and jurists played a significant raIe during al-Shpbi's life
time either in seIVing the community or in regulating it, the former were often
accused of upholding notions which contradicted the Qur'an and the principles
of the Sunna. In bis al-Shapb attempted to elaborate on religious
and mundane matters as substantiated in the In his words:
1 started with the principles of religion al-din) in theory and in.
practice and branches based on these problems. It was fuis period that
made apparent ta me what was bida
C
and what was lawful and what was
note Comparing and collating this with the principles of religion and fiqh
(law), 1 urged myself to he with the group whom the Prophet caIIed al-
sawaa (the Prophet, the Companions and bis followers who
avoided bida1. 8

as an innovation, which has no mots in the Prophet tradition or bis

Companions". See, Vbaydi, al-Sha.,tibwaMaqC!d al-sharifa, 21-22.
6 It is stated in Naf1J. al-Tfb that al-Sb.B:t:ibl discussed al-.fiqh [on
universal (Camm) and particuIar matter] with al-Maqarrl which was not
dealt with by other schoJars. Al-Maqqarl, Naft). al-'{ib, vol VII, 187-88, 232-249.
7 A1?mad Baba, Nayl, vol. 1,49.
g Abu Isl}aq al-ShP.bI, al-rti$cim, ed. Muryammad Rasmd Riq,a, 2 vols.
(Cairn: al-Maktabat al-Tijarlyya al-Kubra, n.d.), I, 25. See also, Muhammad
Khalid Masud, Islamic legal Philosophy A Study of Abli Is1].Qq al-S1u,.tib's Life
and Thought (Islamabad: Islamic Research Institute, 1977), 102.

10
Although al-Sha1:ib was known as a jurist, bis profession was never
clearly defined. It is regarded, however, tbat he seIVed as a khatib or a m:u.ft in
a certain masque. Holding office did not, in fact, appear to agree with bis
contrary temperament, since we learn that he was later dismissed from the post
on the charge that he was a mubd1."C, even though he bimself opposed the
practices of bida'.9
During bis lifetime, al-Shatibi wrote severa! books on the Arabie
language, grammar and jurisprudence. Alpnad Baba, in bis Nayl al-Ibtihcij,
reports that al-Shatibi wrote a commentaIy on grammar entitIed Sharf}. al-
fi al-Na1].w. This book, written as a commentaIy on Alfiya of Ibn MaIik,
consists of four partS.IO Other works of bis inelude 'Unwcfn al-Ittifaq fi 'flm al-
Ishtiqaq and Kitao al-Na1].w. Il Besides bis fatwas, collected in the Mi'yar of
al-Wansharlsi, he wrote the jurisprudential al-Majlis, a commentary on
the section on saie in the $a1):z7]. of al-Bukhari. He aIso wrote aI-Ifaaat wa al-
Inshaiat ta which Maqqarl and A4mad Baba resorted when quoting their
information on Muslim. scholars. Finally, bis best known work in legal theory is
bis al-Muwcfaqatfi U9U1 originaIlyentitled 'Unwcin al-Ta'rff bi Asrar

9 A4mad bin Yal}ya al-Wansharlsl, wa al-Jcmi' al-

Mughrib Fatawa Vlarna' Jfrfqiyya wa al-AndaIus wa al-MagfJrib, 13 vols.
(Beirut Dar al-Gharb al-IsIam, 1401/1981), XI, 139-42. Al-Shatib wrote a
letter ta bis calleagues saying that bis position was regarded as strange (ghanD)
or even "heretica1" among bis contemporary 'ulamc due to bis consistency in
following the authoritative classical.fiqh rather than the modern one. His
rejection of modem fiqh was because of bis ignorance with the author or its
reliability. Al- Wansharlsl, al-Mucrib, vol Il, 141-42. See aIso, Masud,
Islamic Legal Philosophy, 103.
10 Alpnad Bab, Nayl al-IbtihtiJ, voL 1, 49.
Il Kh.aJ..id Masud mentions bath books: Nayl al-Ibtiha] of A4mad Baba and
Shajarat al-Nr of Mu.11ammad Makhlf. see Masud, Islamic Legal Philosophy,
110.

.-

11
al-TaklIf.12 AI-Icti$tm however is the only work in which al-Sh:pb elucidates bis
notion of bidca or innovation. Ahmad Baba does not:, however, mention this titie
except for stating that al-Shape wrote a noteworthy book on 1)awcdith
(novelties) and bida' (innovations). 13
Reading carefully al-Muwafaqat and reveaIs al-Sluipb's
concern for bis milieu and for the 'ulama of bis time. Both books present a
sophisticated Legal construction in a consistent attempt at preserving the
authentic Sharira on the one band, and at following the Malikite school on the
other. It is the probably to be identified as $UJfs and jurists, who
become the main target of his criticism due to their deviation from the Sharfca.
B. $u7Cs and Jurists in Anclalusia
The great traveler Ibn Ba1:ta (d. 779/ 1377) reports that Andalusia, and
especially Granada, was famous for the numbers of jurists and $jfs. Among
them the most famous jurists were M1J.am.mad b. Ibrahim al-Bayyan, Abu Sa'id
ibn Lubb (who became al-Shapbl's teacher) and Ab al-Qasim al-Sabti.
According to him, the people of Granada were not only engaged in constant
juristic debate but were much given to practicing in mystical orders. It was the
ztwiyas which served as the centers for tQ.$awwuf activities.. The famous $u1i
and ztwiya leader was 'Abd Allh Mul1a
rnm
ad b. Ma.Q.nlq. His zaWiya was well-
known as Z<wiya Baraka located. on the mountain 'Uqqab. Moreover, Ibn
Batt:a notes that Granada attracted groups of faqfr $jfs originally from
12 Makhlf, Shajarat, voL 1, 247. This book was epitomized by QaeJi Ab
Bakr b. (d. 829) who was also known as al-Sha1ibl's disciple.
13 A1}mad Baoo, Nayl, vol. 1, 49.

12
Samarqand, among them Iike Ab cAbd A.lhih al-Samarkandi and from
Khurrsan like al-I:l:j I:lusayn al-Khurrasam.
14
Historically it is difficuIt for us to delineate exactly the lOsition" of the
$u]is orders in Andalusia. For as we shaIl see in the particular case of Islamic
Spain, $lIfts were often targeted by jurists. This was probably due ta their
different approaches ta manifesting the orcJinances of Gad and the Sunna of the
Prophet. Both camps, however, claimed ta he servants of Gad and ta be
complying with the principles of the Our discussion will therefore deal
specifically with those $uJfs adjudged as being extreme on the one band, and
the jurists who were reproached by al-Shatibl for being Jax, on the others.
Before describing the attitudes and jurists in Andalusia, it would be
useful ta look at the issues they raised in the broader context of IsIa.mic
thought. The case of the great reformer of $ffsm and juristic thought, Sayyid
A4mad Sirhindi (d.1034j 1624), is instructing given that he reconciled these two
ways of implementing the mIes of God. In bis nrind, tW?aWUJUf and fiqh were
inseparable, for knowledge of Gad could only be attained through bath the
tariqa and the 1].aqlqa. Bath concepts were, for him., subseIVient to the Shan-a,
or its derivative concepts of ikhlC?, irruin and camai.15 He, furthermore
contended that the rapture and ecstasy which $lIfts were not,
ultimately, the goal of For him, these were the myths and fancies with

14 Ibn Bamta, RiJ:aIbnBa#.ta, ed. Karam. al-Bustarii (Eeirue Dar Beirut,

1980), 671-72.
15 Muhammad Abdul Haq Ansari, $7Ijfsm and Shari'a (London: The
Islamic Foundation, 1986), 221-22. Sirhindi noted the hallmark was
proceeding in the way of obedience. Tarfqa and 1].aqlqa are the main ways of
realizing its third part, sincerity Therefore, the procedure, for him, is ta
fulfill the Shari'a, Dot to cODsummate something beyond the Shari'a.

13
which the novices of $z.fftsm are fed. Ikh1C$, the essence of the Shari', could
only be attained by following the path of the $jf.16
From Sirhindi's point of view, the intention ta ohey God is the ultimate
and superior goal, not the experiences of rapture in themselves. Some $jfs
engaged in even more indulgent practices, which led ta the corruption of
doctrine and earned the antagoIsm of jurists who decIared such practices to
he strange (ghano) innovations without basis in the Sunna of the Prophet or bis
Companions. To the jurists, therefore, any form of worship ('ibalct) without
clear basis in the Qur'an or the Sunna was bid'a.
17
Jurists were also anxious that the excessive differences between the
tariqas in performing dhikr (invocation) and meditation would serve as an
indictment of the authenticity of the Shar'i way. As such, they often questioned
and even condemned the $U]fs themselves as heretical bid(a. 18 As esoteric
devQtees, the $UJis espoused a metaphysical approach ta the Qur'an and the
Sunna which gave them the widest possible latitude in its interpretation. $!Iffs
often went further, espousing a unitive metaphysic couId he regarded as
lti Ansari, $]1STn, 223.

17 Ignaz Goldziher. Muslim Studies. trans. C.R. Barber and S.M. Stern. 2
vols. (London: George Allen & Unwin Ltd, 1971), n, 34.
18 Marshal G.S. Hodgson. The Venture of Islam. 3 vols. (Chicago: The
University of Chicago Press, 1996), II, 218-20. Al-Qushayrl (d. 465/1072-73),
for example. introduced mystical states ta Ash'arf kalm. Such approach was
intended to compromise between the way of the ~ s and the way of jurists
when observing the divine law.

14
primmy, significant for itself and dispensed from any way of life. Its "full
appreciation could be seen as the very goal of the mystical discipIine."19
Jurists (fUqahci), according ta Bernard Weiss, tended ta he more
concerned with the al-laf? (exoteric meaning). Such a meaning can he
discovered with the aid of lexicography, grammar, and other sciences concetned
with the exploration of the inner workings of the laft:. By contrast, the esoteric
meaning subscribed ta by $lIfts cannot he accessed through philological
investigation, but must he sought from wholly private sources or through
consultation with individuals privileged enough ta possess it.
20
is an
ideology based on mystical experience and cannot, therefore, rely solely on the
?Q.71ir meaning of the the law written in the Quran or the f].adfth.
Ibn 'Arabi (d. 638/1240), the great AndaIusian $UA criticized jurists for
what he saw as their depeI.1dence on qiyd:s and their rigidity in interpreting the
letter of the Iaw without regard for its inner meaning.
21
Moreover, he felt that
jurists were hypocrites who fabricated fatwas in the interest of power and
wealth.
22
Unsurprisingly, the relationship between the two factions was not
19 Hodgson, The Venture, voL 2, 462.

20 Bernard Weiss, "Exotericism and Objectivity in Islamic Jurisprudence,"

Islamic Law and Jurisprudence, ed. Nicholas Heer (Seattle: University of
Washington Press, 1990), 58. The way of tCL$awwuf or is directed to
seek the experience and taste of faith in the hearth, devoid of rational facts. Us
objective is ta reach the spiritual light (al-nr al-ru1Jhiyya) and the truth, or
become annihi1a.ted in it. See, Muqammad Yasir Sharif, Falsafat al-Ta!?awwuf
al-Sab'fni(Damascus: Manshnit Wizarat al-Thaqafa, 1990), 97.
21 Mu1}yi aI-Dn Ibn 'Arabi, Al-Futuf].t:it al-Makkiyya, 4 vols. (Caro: B
11
q,
1329), fi, 69. See WiUjam C. Chittick, Th.e $lIft Path of Knowledge (Albany:
State University of New York Press, 1989), 201-2.
22 M. Chodkiewicz, "Ibn 'Arabi: la. Lettre et la Loi," Acts du le Colloque:
Mistique, Culture et Societ, ed. Michael Meslin (Sorbonne: Universit de Paris,
1983), 29. Burckhardt aIso informs us that the Andalusian jurists were quite

15
always harmonious. Jurists condemned $jfs for these transgressions in ritual
practice and their innovations (bidCa), while the latter claimed that jurists were
too rationalistic, ignoring the crux of ribaaat. The evidence shows that and
jurists were, to sorne extent, upholding the rulings enshrined in the Qur'an and
the Sunna while also deviating from the path laid by their predecessors.
bas been consistently criticized by classical and medieval jurists
alike, among them al-Shafi'i (d. 204/820) and A!p:nad b. l;Ianbal (d. 241/855).
The former denounced the extreme $lIfts and their way of rituals, e.g., dhikr, or
singing and dancing as he had witnessed in Baghdad.
23
Ibn I;fanbal likewise
condemned the $u]f path and the practice of zuhd (asceticism) in its extreme
form.
24
The sharpest charge came later and was leveled by a I:Ianbalite jurist,
Ibn Taymiyya (d. 728/1327). He condemned the .tan-qa al-bata-'iJJiyya al-
as deviations from the true His reasoning was that, "although
they ($..ffs) identified themselves as Muslim...their practices aIso led to shirk
(association with Gad), transgression and innovation in the Shan--ra."25
In Shap.bl's opinion, $lIfts and certain fuqa1W. urists) under the
influence of tQ.!?awwufcontradicted the mainstream of mashhur al-:fiqh (Malikite

close ta the rulers. In effect, the former were fabricating laws sometimes ta the
benefit of rulers. Titus Burckhardt, moorish Culture in Spain, transe Alisa Jaffa
(New York: McGraw-HiIl Book Company, 1972), 38-4L
23 'Abd al-Ra4man Abd al-Khatiq, al-Fikr al-$fifi I)aw
J
al-Kitao wa al-
Sunna (Kuwait: Maktaba Ibn Taymiyya, 1986/1406), 449.
24 Abu al-Faraj 'Abd al-Ralplum b. 'Ali b. al-Jawz1, Talbis Iblis (Cairo: Dar
al-Fikr, n.d.), 166. b. Ijanbal rejected $U]fs behavior on waswa-s
(temptation) in 'ibaa.at which was not practiced by Companions.
2j cAbd al-Kluiliq, al-Fikr al-$uJf, 391-92; 449-50. In Ibn Taymiyya's
words," wa inkcinu- muntasibin ila- al-Islam.. ..fa yu]ad ayq.an fi min al-
shirk... wa min aI-ghuluww wa al-bida
l
fi aI-Islam. .."
16
fiqh) by performing rituals which he considered to he due ta their adverse
effect upon the authoritativeness ofjurisprudence (fiqh) and His critique
is probably directed at the extreme performances of $U]fs of an esoteric nature
that seemed alien ta juridical principles. According ta Weiss, this seemed them
a public rejection of a body of doctrine objectively arrived at. thus became
their opponents, rather than their colleagues. at times, seemed to
threaten the structure of theology and law promoted by jurists and built upon
the foundations of the dall and the dat laf:?i.27 Marsba11 Hodgson,
however, attempting ta reconcile them through an epistemological approach,
highlights the points on which $u]fs (observing the inwaxd meaning) and the
jurists (observing the outward meaning) fulfill the divine law. Bath are
completely valid and necessary, he concludes, complementing rather than
contradicting one _another.
28
26 Masud, Islamic Legal Philosophy, 106-107. Al-Shap, objected to the
practice of submission totally to a Shaykh to he initiated into a discipline.
Rather, for him, discipline could he known from books. He affirmed bis notion
refening to a $tffimaster Ibn "Abbd of Ronda (d. 792/1389) on the matter. The
latter agreed that submission was an essential fact of journey on the path of
tQ.1?awwuf. However, he distinguished between Shaykh al-tarbiyya (educator)
and Shaykh al-ta (instructor). The fonner was essential for everyone while
the latter was not. Reliance on "educator" Shayk, for Ibn 'Abbad, was
introduced by later $U]s (muta'akhirih), while the ancients relied on "instructor"
Shaykh. See also, Ibn 'Abbad, al-$ughra, ed. P. Nwiya (Beirut:
Imprimerie Catholique, 1958), 106-107.

See Weiss, "Exotericism and Objectivity," 57-59. Weiss maintains that

"Dam brings the abject inta the public domain by anchoring the object
within a rational understanding of the world which all mature persons of sound
mind possess. Dam laftI, on the other band, is used as an instrument to
manifest the exoteric as a categozy or level of meaning. "
28 Hodgson, The Venture ofIs1am., voL 2, 219. The justification of
according ta Hodgson, with respect to does not depend on dialectical
subtleties or on rigoristic rules, but on a frank la'bor division. The 'ulamc taught
the the way of daily life; the $lIfts taught the .tarfqa, the way of mystical
Iife.

17
Legally speaking, it is not possible ta say that aIl $jf practices violate
the Sh.aii'a. The problem lies, as Weiss notes, with the extreme $fts who ignore
the :anir al-laft of the rta.:?$. More commonly, jurists elaborated the as a
way of daily Iife and $lIfts carried tbat order into effect in the .tarfqa. In other
words, the $U]i path is presupposed by the Shan""Ca. After all, it was widely
recognized that no person couId attempt ta become a $UJi until tirst confirmed
in the way of the juristS.
29
Despite Andalusians adhered in the main to the Malikite school, they
were also devoted ta $lIft orders such as the one led by Ibn Sabm (d. 669/1270)
and, later, by bis disciple al-Ijasan al-Shushtarl (d. 668/1269). Moreover, it
was reported that the development of such $jf orelers owed much to the influx
of immigrants from India, Samarqand, Tibrlz and Khurasan.
30
The flourish of
was" reported that people gathered in the houses of certain $ulfs,
especially ta recite the Quran, perform dhikr and listen to poets like al-I:Ia.lliij.
Such practices were later followed not just by the $Ujfs but, also, "by jurists who
tried to blend their exoteric mode offiqh with the esotericism of tCL$awwuf. Such
customs among some $Lijfs and jurists were regarded by al-Slup.b as a bid(a
al-4ala1a (erroneous innovation) which had no precedent in the time of the
Prophet or bis Companions.
Generally speaking, mystical practices were performed by groups of
$tijfs. Al-Shatibl believed that gat:p.erings for the purpose of dancing and
mystical singing were not only foreign to the Sunna of the Prophet but had also

29 Hodgson, The Venture, voL 2, 219.

30 Ysuf Shukrl Ghamt.ta.lf Bani al-Alpnar (Beirut: Al-
Mu'assasa li-al-Dinisa wa al-Nashr wa al-Tawz1', 1982), 153-56.

18
been censured by the pious $Ujf al-I:Iasan The latter condemned every
religious act that deviated from the salafaI-!?cil:J. (the pious predecessors).31
The $Ufl movement in Anda1usia. is supposed to have been founded in the
lOch centuIy by groups offaqir $jfs in the reign of Granada.
32
Among others,
the most remarkable $rIft leader was Sicfi Abu Ibrahim who was
considered to possess considerable baraka (blessing). 33 Ibn al-Khafib records
that some AndaIusians were aIso devoted to the rbif:a ($Ufl order) led by Abu
A4mad JaTar. This arder focused on the recitation of the Qur'an, dhikr and
poetry readings of al-Ijallaj. Such practices were beyond the pale of the
according to Many jurists. This camp was considered extreme, for its members
would engage in spiritual sessions involving ecstatic chanting. More often than
not they went about almost naked, awaiting God's illumjn ation.
34
Al-Wansharisi (do 914) reports in greater detail on the growth of $lIft
practices and orders in the Andalusia of bis day. The camps or centers of these
mystics varied in structure and in name (kha-nqa.h, ribcit or faqiT) from one area
ta another. Such $UJfs were severely condemned by fuqah who accused them
of being responsible for the spread of bid(a. Their gatherings where they
31 Al-Wansharls, al-Mu(rib, voL Il, 40. Malik b. Anas severely
censured the habit of singing and dancing. For him, the innovation on
that matter is counted as al-bid(a aI-q.alcila (erring innovation) which may only
he perfarmed by kids and insane people. Al-Wansharls, al-Mi(ycr al-Mu(rib, vol.
Il, 41.
]2 Rachel Ar, Musulmane, L}Espagne Musulmane au Temps
des nCl$rides 1232-1492 (paris: De Boccard Imprimerie, 1990),420-21.
33 Ari, L'Espagne Musulmane, 420-23. The miraculous of Ab was
admired for bis ability ta cure illnesses which puzzled doctors.
J4. Ari, L'Espagne Musulmane, 422.

19
danced, sang and recited dhikr sometimes moved them to the point of weeping.
Such practices were considered an indictment to the Shan-ra and categorized as
bidca by Anadalusianjurists such as 'Izz al-Dm. b. 'Abd al-Salam. (d.1260/660)
and Ab Faris 'Abd al-'Aiiz b. MulJammad al-Qayrawan:L35
The sharp censure which deviant $lIft practice elicited was reiterated by
Abu Zayd Sayyidi 'Abd al-RalJman al-Waghlis"i. Basing bis conviction on fue
opinion of Imam Malik (do 179/795), who severely rejected the practice of
cIapping hands and dancing in spiritual dhikr, al-Waghlisl argued that such
activities had never been indulged in by pious $jf predecessors in the dhikr or
'ibaia1. However, he admitted, if the practice was intended as a defense against
the dangers of corruption (daf al-mafcsid) and not as a form of worship
{'ibada}, it could he counted as part of Ccdct and legally he followed.
36
Responding ta these charges, argued that no evidence or proof
could he found to justifY barring the .tarfqa. They pointed out that the jurists
who implicitly gave approval, legitimized and attended performances reinforced
these practices. Had they deviated from the true path of the Shan"'a, these
jurists would never have taken part in them.
37
Al-Shap.bl, however, dismissing
the presence and attendance of jurists at these functions, delivers a severe
critique of dhikr gatherings s forms of prolnbited bidca. He resorted to the
35 Al-Wansharis, al-Mucrib, vol. Il, 29-34. Al-QayrawanJ warned
against the danger of such practices. Dance and song in dhikr were, for
more dangerous than poison contarnjnating a body. His severe condemnation of
it rendered it a bigger sin than zin (adultery), robbery and others. For,
according to him, the two big transgressions are obvious, while $jfs-
performance threatens the fai'th of the Iayman.
36 Al-Wansbrls, al-Mucrib, vol. Il, 34
37 Al-Wansharlsi, al-Mu(rib, voL Il, 39-40.
20
historical evidence of the Prophet and bis Companion who did not engage in
such practices.
38
The development of the $rIft orders was not generally accepted either by
jurists, especially the extremist orders. Ibn Sab'in's teachings, for exa.mple,
claimed that or $awm (fasting in RamaeJan) for those who had reached the
level of real 'ulamci (sing. a1im) was unnecessary. Moreover, bis direct challenge
to Malikite jurists coqtained an indictment against the readiness of jurists ta
permit men ta have more than four wives, which was forbidden by the mashh:u-r
al-fuqaJu:
J
, and ta allow the consumption of alcoholic beverages.
39
For Ibn
Sab'in, the blend offiqh, theology (kakim), and philosophy is important.
Fiqh is the mad to the the road ta theology and $Ufism the
road ta God's 1J.aqfqa. For Ibn Sab'in, jiqh is not the ooly path to that reality
(1J,.aqfqa), for it is based on reason aIone, particularly qiyci:s (ratio legis), and
hides, therefore, God's light from His servants. By bis logic, therefore, it is
jurists who have gone astray.40
We have seen, however, that it wasfiqh that was considered the mst step
in understanding the divine lawof God and, therefore, the precursor to
tQ.$awwuf. But in Ibn Sab'in view, the foundations offiqh --linguistic and divine
Iaws based on reason for those of sound mind (mukaIlajJ-- are

38 Quoting the" 1J;adith of the Prophet, al-Sluipb confirmed that the

renowned tradition reported: "whoever makes an innovation in our for
which there is no clear textual evidence is absolutely rejected" (man a1).dathafi
arnrinci malaysa minhufahuwa raddun). Al-Wansharlsl, vol.
Il, 40.
39 Sharif, Falsafat 114-15. Sharif also refers ta the book
wrirten by Dhahabl in bis Tcitikh al-Islam.
40 Sharif, Falsafat al-Tjawwuf, 141-44.

21
erroneous. His charge ta jurists, in this case, was not proportionately true. For,
he generalized the error of ail jurists without distinguishing between the "piaus"
or qualified jurists and the Jax jurists in issuing the law.
Ever sinee the tenth centluy, the mIe of jurists had no longer been
restricted to religious affairs only, but had also come ta include political theory.
Once established in a given territoxy, their support was usually reserved for a
particular ruler. Indeed, it was true of bath jurists and $U]is that they were
present in every corner of the Muslim world and were generally in a position to
support one ruIer over another. By implication, their raIe was not merely
religious, for it also encompassed the indoctrination of rulers. For example, the
Friday sermon was more than a religious rituaI; it was aIso a political one in
view of the fact that the names ofrulers were invoked routinely.41 This distorted
approached ta the Friday sermon led al-Shapbl to condemn it as bid(a. Some
Andalusian jurists, such as Wansharlsl (d.914), generally felt that reciting the
names of rulers or su.(tcns during the khu.tba was forbidden. 'Izz al-Dm CAbd al-
SaIam., for exam.ple, called it bidca and detested it42 Nonetheless, the proximity
of some jurists to rulers lead them to adopt Jax attitudes when implementing
the 1aw, an offense which earned them the contempt of both pious jurists and
$Ufis
41 M'hammad Benabood, "Socio-Political RaIe of Andalusian 'Ularna
During Sth/11
th
Century," Islamie Studies 23,2 (1984): 117-18_

42 Al-Wansbarlsl, al-Mi'yar al-Mu'rib, vol. 2, 469-70. 'Izz al-Dm

enumerated the things possibly mentioned in khutba. The khutba can only
contain praise to God, praying, reminding people ta fear and ask for blessing
from Gad and reciting the verses of the Quran. 1t is preferred, he added, merely
to recite du'a for the Prophet MuJ1.ammad.

22
The emergence of the practice of in Andalusia. was often
associated with the decadence of morality and the religious impiety found
among some jurists and rulerS. 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 principles.
43
In the era of the MurbiJ:n, when the school of Malik predominated, the
speculative movement, however, was viewed with considerable suspicion.
The dissociation of from recogn.ized religious leaders had a1ways been a
cause for suspicion and resentment from the jurists. In contrast ta the latter
who seemed to welcome their grounding in reality, participation in esoteric and
mystical congregations, such as those for listening to mystical songs, chanting
was regarded as violent to the orthodoxy.44
For their part, the $!Iffs' relationship with the govern.ment or rulers was
far from harmonious. In fact, their vety presence was regarded as a threat ta
these latter, who often imprisoned $u./fs on the grounds that they deviated fram
the Sharica. It was the jurists, ultimately, who were appointed as the $U]is'
judges and executioners, a position they exploited in the interests of the ruling
powers. For this reason even the jurists were characterized as corrupt given
43 Ibramm al-Qadirl Btasmsh, aI-Maghrib wa al-Andalus fi al-
MuraiJipln (Beirut Dar al-TaRea li al-Tiba'a wa al-Nashr, 1993), 126. Rippin also
noted. that the early mystical practice challenged the manipulation of religion by
"the ruling powers for their own purposes". Andrew Rippin, Muslims Th.eir
Religious Beliefs and Practi.ces, 2 vols. (New York: Routledge, 1990), l, 122.
44 Btasmsh, AI-Maghrib, 133. Tw1sh regarded the $u}fs as mubtadi
c
due ta their deviation from the SUnna and religious principles. See also, J
Spencer Trimingham, The SUfi Orders in Islam (Oxford: Oxford University Press,
1998), 8-9.

23
that they functioned not only as reIigious officials but as advocates for the
political interests of rulers.
45
$uJadepts aspire to a "state" of inner experience which implicitly entails
the possession of an esoteric knowledge, bath unique and irreducible,
unquestioningly recognized by the faithfuL The rapid spread of $rIft teachings
was probably aided by the rigidity displayed by some Malikite jurists in
responding to the changing needs of society. Fazlur Rahman MaY he correct in
so far as he identifies the rigidity of the their system of legal casuistry
and empty theological pedantry drove the more serious minded men of religion
into the $u]i foId.
46
It cannot he denied for instance that some Andalusian
jurists were enamored of $uJi. doctrine. This sparked a reaction from al-Shatibl,
who deplored the Jax attitudes which permitted jurists to amalgaIJ;late the
exoteric with the esoteric. This did not mean that had no place in Islam
or in juristic doctrine. Extreme practices, however, such as singing,
dancing and other orgiastic rituaIs, were generally abhorred. claim to
lead adepts to direct communion with Gad, was challenged by the juristS.
47
Because the jurists also served as qu.q.al (sing. qcf4i), it was common
practice to amalgamate religion with politics. The khutba (Friday sermon) as
mentioned above, for exampIe, was used as a forum for the pronouncement of

45 Btaslsh, AI-Maghrb, 153-55.

46 Fazlur Rahman, Islam, 2
nd
ed. (Chicago: University of Chicago Press,
1979), 142-43.
47 Rahman, Islam, 150-51.

24
the caliph's nam.e.
48
Jurists thus, ta some extent round themselves in direct
opposition to $ufls, in both the religious and political spheres. This schism can
he detected in the words of an Andalusian $u]i who migrated ta Tunis, Ibn
Sabfu {d.669/ 1270}: "jurists are true ta the roots of the However, they
digress in issuing fatwcs, reasoning merely on the basis of their own desires,
and acting ditrerently from what they proclaim.."49 This critique was probably
aimed at those jurists who were perceived as being prepared ta issue fatwas in
accordance with the needs of Mers.
The polemic over both $u]i and juristic practices was vigorous during al-
Shtib's time. The entire debate, it must he remembered, only occurred
because of efforts by certain $fis and jurists to amalgamate the two paths ta
the truth. The former often practiced asceticism with a certain lega)istic element
while the latter mixed mystical methods with their own. This phenomenon
was particuIarly characteristic of Spain. and provoked many intriguing
consequences. Al-Sluil:ibl describes how people who claimed ta he $u]is wouId,
professing poverty, congregate at night in a home. "The gathering begins with
some communally recited invocation (clh.ikT). Then they move into singing,
clapping their bands, and making ecstatic utterances until dawn......Some of
the jurists participate in their gatherings, so that if anyone questions them

48 Manuela Marin,- "Muslim Religious Practices in al-Andalus (2

nd
/8
th
-
4
th
/lO
th
Centuries)/' in The Legacy of Muslim Spain, ed. SaIma Khadra Jayyusi
(Leiden: E.J. Brill, 1992), 880-81.
49 SaJlli4 'Alif al-$uJiyya fi al-Islam (Beirut Dar al-Kitao
al-Lubnam, 1985), 508. Ibn Sab'in says: "bi annahu- $cilif]. al-W?l fasid al-fari
$cdiq al-jins kcidhib yatakallamu 'an nafsih. .."

25
about their behavior and the permissibility of their meetings, they merely
respond that the jurists wouId not attend ifthey were illicit."50
In :;;fism, God and the world of man are perceived differently. The $fi
perception of the existence and unity of Gad underlies its unique brand of
spiritual practice. Ibn KhaIdn (d. 1406) states that $Li./f assumptions are
identical to those of the lmamiya Shi'a concerning their Imam. The latter
believed in two ways in which the oneness of the Deity with the imam was
achieved. First, the essence ofthe primeval Deity is hidden in aIl created things,
including bath sensibilia and intellegibilia, and are one ta either perception.
Second is the bellef in absolute oneness.
51
The $lIfts, moreover, considered the
"saints" to be the "pole" of ma'rifa (gnosis) which revolves around them, a
doctrine reminiscent of the Shi'a tradition on 'Ali.
$u]i.s were not, in fact, distinguishable from their fellow Muslims on the
of any particular reIigious practice, but were merely particuIar modeIs of
religion and asceticism.
52
Even in al-ShatIbl's time, the Jax attitude of jurists
who practiced and the $u]f extremists who held to the tradition of
intuitive experience, rendered the position of the Shari'a (Islamic law), and
more specifically fiqh precarious. $Lift. 'ibdt were not categorically rejected by
the jurists, but those methods which were not clearly mentioned either in the
Qur'an or the 1;tadfth were condemned as heretical (bid'a). Innovation of this
50 Ibn 'Abbd, Ibn 'Abbcid of Ronda Letters on the $U]f Path, transe John
Renard (New York: Paulist Press, 1986), 223.
51 Ibn KhaldD, The Muqaddimah, transe Franz Rosenthal, 3 vols. (New
York: Kingsport Press, 1958), m, 85-6.
52 Ibn Khaldn, The vol. 3, 93-4.
26
grpe was unacceptable ta sorne pious muftls and jurists, in part due to their
disdain for the intuitive experience.
53
The $lIft concept of incarnation was, as Ibn Khaldn notes, in
consonance with that professed by the neo-Ism.c'iliyya Shi'a extremists. The
latter believed that the incamated Imcims could reappear, a doctrine not known
to the early [sm'iIiyya. Such concepts of incarnation and oneness later
received more profoUI\d treatment in Andalusia at the band of Ibn al-cArab
(d.642/1240) and Ibn Sab'in. ft was also in. that the theory of poles
(qu.tb) was artieulated. This theozy 1:hat the chief gnostic cannot be
chosen from among those who seek it, until Gad bas taken him. into Himself:
This theoty was rejected by Ibn KhaldD because of its intuitive and irrational
basis and because it deviated from the religiol1s laW.
54
Al-Sha1ibi's al-rti$am, written in response to the issue of innovation, is
an indicator of the development of bis legal theory after al-Muwcfaqlit in view of
its concern with a particuIar religious praetices and the problems of bid'a which
the author perceived as permeating IsIamic O'rthodoxy. The specifie aim of al-
['ti!?am was to challenge the divergences from religious law and to refonnulate
the concept of bid'a using a more epistemological Iegal approach.

c. From al-lIIuwafaqat to
Between bis al-Muwa]aqt and al-Shatibl responds ta and
criticizes deviations from religious law in Muslim intellectual circles, basing bis
argumentation on the Shari'a. His landmark work, al-MuwaTaqat, focused on
53 Ibn Khaldn, The Muqaddimah, vol. 3, .83.
54 Ibn Khaldn, The Muqaddimah, vol. 3, 92-93.

27
legal discourse, demonstrating on the one band the digressions of jurists in
applying the Iaw too lenientlyand the other the undue difficulties created by
$u]is. Eisewhere in this work, he provides a discussion of the way in which
fatwas were used by bis contemporaries to meet their own needs, desires and
interests, and not the requirements of the law.
5S
For al-Shltibl, the Iaw applied for all rrwka.llajfn and was of equal weight
for men and women, whether dictated by the Sunna of the Prophet or the
Quran. There shouId he no distinction between MusIims who are of sound
mind (mukallajJ. No person can he absolved ofits ordjnances, argues al-Shtib.
His intention seems also to have been ta correct what he saw as the $jfs
misconception of the ends (maqC?dJ of the law. He described the $U]fs' attitude
towards the question of paying the alms-tax as ambivalent. These
insisted on the one band, that the refusal was in conformity with the $ufl
school, while on the other it depended on the school of the petitioner. al-
Slupb says, conceived of themselves as superior to ordinary folk, whereas by
nature all sound people (mukallajfn) are subject ta the Iaws of Gad without any
distinction. Al-Shatib says, "that because $U1fs considered themselves distinct
they were allowed ta do things not open to non-$Ufis."56
When he cames to discuss whether the benefits of zuhd are
recommended (manduo) , al-Sh1tibl divides it into three categories. The term

SS Wael B. Hallaq, A History of Islamic Legal Theories (Cambridge:

Cambridge University Press, 1997), 163; 173; 206. See also Abu ISQaq al-
Sluipb, al-Sharita, 4 vols.(Beirut Dar al-Kutub al-'Ilmiyya,
n.d.), il, 189.
56 Al-Shatibi, al-Muwayaqcit, voL 2, 189. Hallaq notes that the significance
of this assertion was to provide, par exellence, an elucidation of the aims of the
Iaws that were corrupted by $U]7s who claimed to be superior to the ordinary
members of the community. Hallaq, A History, 172.

28
was employed by $jfs in a more meticulous sense than by jurists. Though
zuhd is lawfu1 as a form of a deep spiritual training, its excessive, habituai
performance couId result in reprehensible or even prohibited (mamnu-,
behavior. For instance, clothing and food can he abandoned for a given period
of time, but to abandon them forever would he prohibited.
57
Zuhd of the first
category, al-Shatibl says, applies to those ordinances which the law prescnoes
should be negIected. The second, favored by most pious people, including the
Prophet and bis Companions, consists in abandoning only things categorized as
bad, under circumstances rendering them more beneficial than harmful. The
third category is abandoning permissible things either intention does or not. If
the intention does not, it lies under forgetfulness, thus lawful. On the contrary,
if the intention does on the ground of worIdly it is not counted as zuhd;
if it is on the religious matters, this can he counted as far/ila (goodness).
-Quoting al-Ghazali (d. 505/1111), al-Sbatibl opines that "zuhd is the departure
from the sheer desire to the better alternative."58
As $Ujfs were generally considered more pious and more possessed of
miracuIous powers than ordinaIy beings, people in Andalusia often sought
their help. Al.-Shatibl denounced tbis activity arguing that the miracuIous
should ooly be sought in the Prophet and bis Sunna. Legitimate miracles

.57 Hallaq, A History, 174. See Al-ShB:1ibl, al-MuwaYaqat, vol. 1, 87-93. This
part contains al-Shatib's elaboration on the five norms: wa]ib (obligation),
1)aram (prohibited), mubcih (permissible), mandu"b (recommended) and makrh
(reprehensible), of which he palaces the greatest emphasis on the category of
the permissible. These categories he classifies under the commands incumbent
upon one with a sound mind (mukaUafJ .
58 Al-Shapbi, al-Muwajaqat, vol. 1, 86. In bis words, al-Ghazali says: "al-
zuhd can al-raghba (an ilamahuwa khayr minh."

29
(karcma) ,59 he insists, do oceur and can he aecepted as long as they do not
eontradict the basis of the SUnna of the Prophet. Nevertheless, the Shan-ra, he
argues, is superior and should he used to refute bath superstition and personal
elaims ta elevated. status. The Shari'a, for him, was the only criterion for
judging the validity or legality of all human actions, including the existence of
miraculous saints.
sO
Obviously, al-Sha:tib believed that the Shari(a
subordinates al! Muslims ta its guidelines regardIess ofwhether the person is a
not.
Before elueidating the distortions whieh overtook the interpretation of the
ends of the Iaw, al-ShaP.Dl di.trerentiates between Cj,bcida and 'cida.
The former, for him., is performed for the sake of submission (tatabud) and
without any question as ta whether the pertinent act is reasonable or not. The
latter, however, is subjeet ta such questions and may he perceived through
reason. 'Ibcida, therefore, is absolute and certain and needs neither addition nor
subtraction. Though cda falls under the rubric of Cfbaaat, it is generally subject
ta reason (TTl.CL$1a1J.a) in its implementation.
61

'9 Karama is a title held by awliyc (sing. wali) "the friends of Gad" and
granted by God. "These miracles Most usually consist of unnatural happenings
in the corporeal world, or else of predictions of the future, or else interpretation
of the secrets of hearts, etc." Karama is different from muJiza which is and
attribute held by Prophets of God. AIthough. in nature both involve a "breaking
of the hatura! arder of things" (khaTiq al-tada), muJiza, however, is a public act,
preceded by a "proclamation" (da'wa) and a "challenge" by means of
which the prophet demonstrates incontrovertibly the "impotence" ('ajz) of bis
hearers te reproduce, Iikewise, the miracle thus brought about, while karama is
a simple, persona! favor. See L. Gardet,"Karama," EncycIopaedia ofIslam, new
edition.
60 Al-ShB:tibl, al-Muwcfaqcit, voL 2, 197-199, 224.
61 Al-Shatibi, al-Muwcifaqct, vol. 2, 228-241.

30
Having cliscussed the two categories of divine ordinance, 'ibda and ccida,
al-Shatibi turns bis attention to jurists whose treatment of the aforem.entioned
topics may be deemed circuitous. From bis perspective, bis fellow jurisconsults
(muftis) were far too lenient in applying the lawand too quick ta pursue their
own personal nterests. Jurists, for instance, often supported their
interpretation of the law with legaI stratagems (1]iyaI; singe 1)i1a). lfila, al-Shap.b
says, "emanates from the exemption of a m:ukallaf from his/her obligation to
make something lawful which is otherwise prohibited by law."62 Before al-
Shatib"i, Ibn Qayyim. al-Jawziyya 63 (d. 751/1350) elucidated the dangers of
stratagems (J:uta) used as a method of issuing fatwas. For him the use of a 1)i1a
in deterrnining the law violates the Sharica's jurisdiction by blocking the means
(sadd al-dharci
C
tl of averting da,nger.
64
Though Al-Sluitibl agreed that
stratagems provoked havoc, he did not reject the use of 1]a outright, but
accepted it in cases where they confonned to the Iawand its ends An
example of a lawful1p.1a is the confession as of one as a kfr (infideI) in the case
of self defense. The Sharica, al-Sha:tibi insists, aims at implementing benefits
which are universally applicable. Resorting to unlawful stratagems (1)iyaij or
combining the doctrines of more than one school in an arbitraty manner
defeats this purpose and wreaks havoc on the universal provision of the law.

62 Al-Shatibl, voL 2,288.

63 Ibn Qayyim. divides unlawful stratagems into three categories: first,
making lawful what is unlawfu1; second, regulating matters permissible by
nature in order to prohibit them; third, making the unIawful ta be lawful in the
Shai'a. Ibn Qayyim. al-Jawziyya, IClam al-MuwaqqicIn (an Rabb al-c.Alamfn, 4
vols. (Egypt: Matba'at al-Sa'ada, 1955), m, 346-347. See aIso Joseph Schacht,
"Ijiyal," Encyclopaedia ofIslam, new edition.
64 Ibn Qayyim., l''lcim al-Muwaqqi"n, voL 3, 171.

31
Recognizing as he did these shortcomings, al-Shatib not only tried to
revive the sound traditions (al-sunna al-1).asana) by resorting to the Qur'an and
SUnna, but he aIso criticized the jurists and $tifts of bis time for having deviated
from the true Sharira. This is substantiated by Wael B. Hallaq whose studyof
al-Shatib's legal theoty bas led him to conclude that aI-SluPbl's goal was ta
establish a middle course between considerations of persona! benefit on the one
band and the undue difficulties caused by its absence on the other.
65
The
former position was the one taken by jurists, the latter by $jfs.
Al-Shap.'bl's criticism of $ltjfsm was not merely meant ta provoke, for it
aIso went ta the root of the indicants (adilla; sing. dalUJ of 1)aqiqa (reality) and
majaz (metaphoric) in divine Iaw, the Quran and the Sunna. The language of
law, including haqiqa and majaz, he contends, are bath terms which refer ta
real and proper indicants which are not open ta ambiguity. Inebriation (sakarj,
for example on the part of mukaIlaf is the "cause" that invalidates any prayer
($alat) that he may perform. In this context, insists al-Srup., the meaning
cannat he interpreted metaphorically, Le. desire (shahwa) for weaIth.
Inebriation (sakj, defined as shahwa (desire), says al-Sha1ibl, often
experienced by $u]fs, during prayer, is not permitted. For him, the metaphorical
meaning in this case was not known ta Arabs of the classical period only the
real one.
66

6S Hallaq, A History, 173.

66 Al-Shap.b, aI-Muwat'aqat, voL 3, 39-40. The use of metaphoric imagery
was often used by eUtis. The random use of the two terms by $UJfs is not
explicitly mentioned byal-Sfuitibl himself but by the editor of al-Muwcifaqt. It
is, however, believed to he true, that al-Shatibl confessed in his aI-rti$am that
he was accused of ~ n r s (literalism) for interpreting the ward according ta
real (1).aqfqa) meaning which he did not regard as metaphorical. See also Q.
4:43.
32
As a celebrated jurist, al-Sp tailors bis argumentation in
on the basis of the legalistic approach he took in al-Muwafaqat He
acknowledges, at the beginning of al-I
c
t:i1?am, that he was accused by the 'ulamc,
and especially, by the $lIfts, of isolating bimse1f from the jama"a of the mashluTr
al-'Ulam (famous and reputed CzLlama).67 In preparing bis defense, he classifies
under six headings their reason for accusing bim of being mubdf. The :tirst and
the second categories contain charges that he neglects various forms of dura.
The third charge is their accusation of al-Shp.b as isolated from the im.cims
(a'imat aI-madhhib), due ta not mentioning their names during khutba. As al-
Shapl himself states: "they alleged that l was not accustomed ta performing
congregational dura after $alaf'. Moreover, he was also accused of abandoning
the ways of the Companions, a charge that must have originated in the $lIft
camp which resented bis omission of the names of the four Companion during
bis Friday sermon.
68
The fourth, fifth and sixth charges are vividly articulated by Hallaq who
bas treated al-Shap.b's apologia in detail in bis ground breaking A History of
Islamic Legal Theories. As Hallaq indicates, the fourth charge clearly emanated
from the jurists' camp, which regarded al-Shatibl as having been stringent in
bis legal views, and as having demanded the application of laws that led ta
hardslp. expIains that "their accusations arise from my consistency
in issuing legal opinions which confonn ta the dominant and widely accepted
(mashhu-r) doctrines of our (Mlikite) school; but they transgress the limits of
67 Al-Sluipbl, voL 1, 26-27.
68 Al-Shatib, al-Itti!jam, voL 1, 27-28.

33
the school's doctrines by issuing legal opinions which deviate from the
mashhu-r, opinions agreeable to the people and their pleasures."69
The fifth charge directed at al-Srup. is that he publicly preached
against some $u]ls who held to "heretical" practices which deviated from the
Sunna. Finally, he was accused of deviating from the religious community
(jamcta). To borrow Hallaq's words, al-Shapo realized that "this accusation was
based on the assumption that the community, which must he fol1owed, is
[defined as] that of the majority. They [his accusers] do not reaIize, however,
that the upright community is that follows the example of the Prophet,
bis Companions and their followers. "70
It is clear that the era in which al-Shatib lived was full of $rIfts and
jurists whose interpretation of the Shara was adulterated and corrupted. On
the one hand, $rIfts sawthemselves as the revivers of the Sunna when, in actual
fact, they imposed excessive legal demands, whiIe on the other jurists tended ta
he Jax in applying the paradigmatic doctrine (ma.dhhab) of substantive Iaw. Al-
in this case, occupied a middle-of-the-road position between the two
extremes.
Before elaborating on objections to bida
t
(sing. bidta) on the basis of
textual evidence, al-Shap.1J enumerates five ways in which it subverts the
Sharita. First, he asserts, human mtellect is Iimited in its ability ta perceive the
69 Hallaq, A History, 163. For more details see al-Shatib, Al-rti:g;cm, vol.
l, 28.

70 Hallaq, A History, 164. See also Al-Shatib, al-[rti9am, vol. 1, 28. No less
than six accusations were directed at al-Sluitib. As a Mlikite jurist who held ta
the sound SUnna and the traditions of the Companions, he was also charged
with having Qade21'i; Rafat:fi, Mu'tazillearnings..
34
reaI meaning of the world and its (public interest). The use of reason iri
preference to revealed evidence whether in mundane or 'ibalat matters is the
seed of The divine law, therefore, is the only vehicle for solving problems
of legal relativity while avoiding reliance on personal whim, al-Shap.o insists.
Second, the Shari(a represents thorough and absolute virtue, needing neither
addition nor subtraction. Third, involves the assumption of an attitude
which bas no roots or basis in the with its unequivocal methods and
paths. Any transgression of this path, al-Shapbi contends, is unlawful
Fourth, he continues, when the primacy of the (who is ruled by reason
or desires) is established over the divine law, tend to perpetuate unlawful
habits in 'ibadat. Finally, as the is absolute and real to al-Shatibl, any
desire to subsU1Il:e the latter to reason thwarts the Prophet's Sunna and thus
constitutes a primmy source of 71
To demonstrate the dangers of bid'a, al-Shatibl furnishes six proofs. The
first, and most important, is Qur'amc evidence in the form of verses entailing
either certain (mu/:1kam) or ambiguous (mutashbih) meaning.
72
Censure, al-
Shap.bl says, applies to those who neglect the mu.1J.kam (certain meaning) in the
Qur'an while upholding ambiguous passages (mutashbih). The tendency ta rely
on the ambiguous verses is identified as a path of error. Al-Shatibl gives the
exam.ple of Q. 6:153 which describes the right path as the way ($ira:tJ of Gad
and the others as paths (subul; singe sabilJ of desire or evil. By basing
themselves on the ambiguous (mutashbih), innovators are quickly led astray.73
71 Al-Slutibi, aI-l'tf$cirn, vol. 1, 47-53.
72 See (Q. 3:7)
7J Al-Shatibi, aI-rti$cirn, vol. l, 53-60.

35
Second, al-Slut:::ibl cites the Prophetic SUnna. condemning innovation,
which consists in fact in a single 1].adfth reported by 'A'isha, the wife of the
Prophet; "who brings the innovation into our religion without any roots (in our
tradition) is rejected."74 This 1]adith clearly indicates the Prophet's disapproval
of those who based their interpretations on considerations which deviated from
the Qur'an and the Sunna. 75
Third, al-Shapbi looks for evidence in. the reports narrated by pious
predecessors (aI-salafal-$aL].), the Companions and their followers. In bis view,
the violence perpetrated by bida' on the was unequivocal, an opinion he
substantiates by referring to Ab Bakar and Umar b. KhattaD's severe
condemnation of it. The latter, whom al-Shapbi often quotes, reminded
Muslims to aware of those who produced traditions which contradicted the
Qur'an or the Sunna. In short, al-Shalibl felt that all the pious predecessors
had emphasized the significance of upholding the Qur'an .and the Sunna and of
limiting innovation. 76
Fourth, Al-Shatibi turned bis attention to the notion of the mashltur and
the pious $u]fs in an attempt to dissuade followers of the innovative $liftS.
While the pious $jfs condemned acts of innovation, others of their persuasion
were less stringent, and were excessive in their mystical practices. Ironically, al-
Sh:t:ibl asserted, the innovative $Lifts presented themselves as zuhtd (sing.
za71.id) who performed Iawful even though they were, in fact,

74 a1).dathafi arnrinci htdhci mci lays minhfahuwa radd." Al-Shapbi,

aI-rti$am, voL 1, 68.
75 Al-Slupbi, voL l, 69-77.
76 Al-Slupbl, al-rti$am., voL l, 78-88.
36
misleading people and erring. Al-Shattbi states that there were only slightly
more than forty pious and credible $u]fs who firmly upheld the Quran and the
Sunna of Prophet and who, more importantly, abhorred the dangers of
innovation. He counted among the pious $jfs, Ab al-Qasim al-Qushayrl,
whose genuine referred to him. Although he was a knowledgeable and
pious $uA he did not consider himself above obsen7fug the law stipulated by
. Iegalistic speciaIists. Thus it was not from the pious $u]fs al-Shapbi suffered a
hackIash, but from the pseudo-$u]iS.
Fth, al-Shapbi addresses to the innovators and their habituaI elevation
of reason over texte Though reason is an important part of the legal process, it
shouId function in consonance with the taxonomy of legal mIes. OtheIWise,
reason will lead to the flourishing of unlawful innovations which are based
neither on a Iawful foundation nor on the Qur'an and the Sunna. 77 Unlike those
who insist that the rejection stems from the innovator's speculation on the
aI-Shap."b goes further and tries to demonstrate the actual. harm done
to the sacred law. The most significant examples are interpretations of U$U1 or
furii' which have no foundation in the Quran or the Sunna. 78 On the whole, he
concludes, the interpretation of the basing on its regulations is valid,
whereas speculation based on desire is wrong.
Finally, al-Shapbi ponders the transcendental rewards stipulated in the
reports narrated by the Companions. In bis final remarks, he informs
TT Al-Shap.e1, voL 1, 99.
78 Al-Shatib, vol. 1, 102-3.
37
innovators negligent of 'baddt, $alat, fasting, haff and so forth that their
supplications will not he rewarded.
79
It should he obvious to us that al-Shapbl does not indict all $lIftS. He
did, however, condemn $U]is who practiced a pseudo-$fism which not only
contradicted the pious $u]i predecessors but also corrupted the true Sunna.
The pious al-Shatibi states, are knowledgeable in .fiqh and 1].adth and
legitimately follow the virtuous sciences of the SharfCa. 80
Describing the situation in Andalusia specifically, aI-Shatib implicitly
states that ritual practices aIien ta the Sunna of the Prophet or lawful &dat
were common. The local population regularly engaged in ritua1 practices
eibada1) which sometimes transgressed the limits of the Sharfca, and followed
jurists or $u]is who deviated from the practice of the Prophet and his
Companions. Al-Shapbl gives one example of this when he points to the
habituai dhikr recitations after prayer or at a set evening location. Such
practices, he confirmed, were never mentioned in the SUnna of the Prophet or
the tradition of the Companions. If: however, it is practiced ooly once instead of
habitually the act is permissible and lawful.
The sources of rectitude can be derived through bath reason and divine
revelation, concludes al-Shatibl. Reason, although used as a means ta the
extraction of textual evidence (the Qur'an and SUnna), is limited to that which is
observable. Beyond conventional matters ealiyyat), however, meaning can only
arrive at by means of the Qui'an, Sunna, ijma-c or qi.yas. The intervention of
reason in the realm of divine revelation, an often ambiguous area, should he
79 Al-Shpb, vol. 1, 106-7.
10 Al-Shatibl, al-I'ti$am, voL 1, 98-99.

38
limited to the textual meaning; otheIWise, its interpretation on the basis of
reason would produce a subjective result. When this occurs, the h r ~
procedures are abandoned and its tenets are interpreted ta suit persona!
pleasures. For al-SlutibI, the precedence of reason over revelation (al-dal al-
naqliJ was the seed of bidta. A reasoned interpretation was subject to individual
preferences as weIl. as limitations. Unlike 'ibaaat, Al-Shapo stressed, mundane
matters can he regulated by the community's agreement and needs across time
and pIace.
81
Our analysis shows that in al-Shtib's time, IsIamic law had far from
failed to meet the needs and challenges of socio-economic change in
eighthjfourteenth-century Andalusia.
82
On the contraty, bis works merely
reveal a paradox in the attitude displayed by contemporm:y $(Iffs and jurists
who on the one band demanded respect for the law to an undue degree, and
those who were tao lenient in their approach to the Shari(a.
81 Al-Shatib, al-Itti$am, voL 1, 47-53.
12 Masud, Islamc Legal Philosophy, 101. Masud elaborates here on the
degradation of Islanic law in the time of al-Shatibl. Our understanding of al-
Shalib's two books, al-Muwafaqar and al-Itti$am, however, shows bim ta he
responding to the transgression of some $u]fs and jurists in practicing
traditional rites that VIere alien ta the Sharifa.

CHAPTERTWO
BIDCA W1TRIN THE FRAMEWORK OF AL-SRATIBI'S
THEORY
This chapter is devoted ta a discussion of al-Sluitib's understanding of
bidca in an attempt to show how he articulated the concept. ft will he argued
that al-Shatib did not just respond to the accusation that he was a mubdf, but
reformulated the concept of bid''a based on an epistemology of Iegal theory. In
this he differed from bis predecessors who relied on arguments founded on
dogma.
1
We attempt in the present chapter ta show that al-Shapoi did not
imitate bis predecessors on the concept of bidca, but instead reformulated its
precepts by devising a formula based on Iegal epistemology.
A. i d ~ Prior to al-Shatibl
As we saw in chapter one, al-Shap.o was accused of "heresy" by
contemponuy jurists and $Ujf:s. In al-!''t!?CTn, he reviews the IsIamic legal
philosophy underlying the concept of bid'a in arder to defend himself against
the charges directed at him, and constructs bis own theozy--one wbich difIers
in a number of ways from that of bis predecessors.
1 "Dogmatic" is the term used to describe a belief or doctrine, which is
taken for granted as being true without seeking for its rational basis. It is said
that dogmatic can he interpreted as "proceeding upon a priori. principles
accepted as true, instead of being founded upon experience or induction." See
J.A. Simpson and E.S.C. Weiner, The Oxford English Dictionary, 2
nd
edition, 20
vols. (Oxford: Clarendon Press
7
1989), IV, 929.

40
Bid'a 2 (innovation) and m.u1Jdatha (novelty) are concepts that have much
in common and are sometimes used interchangeably to denote practices foreign.
to IsIamic tenets, and therefore subject ta censure. The fonner term. is more
specific while the latter tends to have a broader definition. Historically, it is .
difficult to trace exactly when the concept of legal and theological bidCa was
formulated. One may conjecture, however, tbat the doctrine of bid'a was
developed during the disputes which arose over the question of innovation
versus authenticity in Islamic dogma. Mohammad Talbi, for instance, contends
that the doctrine of bidca was recognized in matters of dogma before any of the
recognized principles of fiqh were fully articulated. This may have been the
resuIt of excessive, distorted religious practices and nave veneration. The
veneration of persons regarded as saints is one such example.
3
Bid'a may also have developed in response ta social changes in the
community which, ta sorne extent, intruded inta the domain of the Shar'a by
merely altering the patterns of lffe. Modern examples include changing styles of
costume or the introduction of the radio. The latter was widely rejected by
2 J. Robson describes bidia as "a belief or practice for which there is no
precedent in the time of the Prophet." He maintains that bid'a is the opposite of
Sunna and is a synonym of mulyiatha or 1].adath.. He explains that there are two
positions on the tapic, one wanting to prohibit every innovation and the other
allowing it ta proceed. for the sake of adapting to changing circumstances. See
J. Robson, "Bid'a," in Encyclopaedia ofIslam, newedition, 9 vols. (Leiden: E.J.
Brill, 1960), l, 1199. See also Bernard Lewis, "Some ObseIVation on the
Significance of Heresy in the History of Islam," StudiaIslamica 1 (1953): 43-63.
3 Mohammed Talbi, "Les Bida'," StudiaIslamica 12 (1960): 43. The spread
of veneration of individuaIs in Islam. was closely linked ta the growth of $u.]fsm.
The fonn of veneration which is counted as bidCa is extreme submission ta $lIfts
or Shaykhs as spiritual leaders. See M Geijbels, "Aspects of The Veneration of
Saints in Islam, with Special Reference to Pakistan," The Muslim World 68
(1978): 176-186.

41
extreme opponents of bidca who abhorred innovation or novelty of any kind, he
it in religious matters or otherwise.
4
Our discussion of tbis issue will focus on al-Shatib"i in which
the bulk of bis discourse on bidca is ta he found. In arder ta pro\ride a general
survey of bidca, however, we will preface our account of al-Shatibi's doctrine
with. a survey of the concept of bidCa as constructed by bis predecessors. It is in
fact essential to our discussion to determine whether or not our author's
scholarship was a direct response ta the circumstances of bis time. rt may he
the case, as Wael B. Hal1aq points out, that there is "a close link between the
strikingly impersonal style and seemingly monolithic, repetitive content, on the
one hand, and the particular reality of the author's worId on the other."5 It will
he seen that al-Shatibl not only responded ta the charges of his contemporaries
who accused him of being a but also reformulated the concept of bidca
ta reflect a distinctive character that owed much ta the epistemological and
juridical principles ofbis theoty.6
Among classical Islamic scholars MuIJammad Ibn Wa4eJ.a4 al-Qurtub"i (d.
287) was one of the tirst to condemn bidca as a clear violation of what he
understood ta he religious dogma. He argued that its intrusion mto this area

4 Ignaz Gold.ziher, Muslim Studies, transe C.R. Barber and S.M. Stern 2
vols. (London: George Allen & Unwin Ltd, 1971), II, 33-34.
S Wael B. HalIaq, "The Primacy of The Qur'1 in Shatibl's Legal Theory,"
in Islamic Studies Presented to Charles J. Adams, ed. Wael B. Hallaq and
Donald P. Little (Leiden: E.J. Brill, 1991), 69.
6 Ab Isqaq al-Slutibl, 2 vols. (Cairn: Maktabat al-Tijariyya al-
Kubra, n.d.), l, 27-29. See also, Wael B. HalIaq, A History of Islamic Legal
Theories (Cambridge: Cambridge University Press, 1997), 164. Hallaq notes that
al-Shapbi's work was written in response ta the charges directed at him, as weIl
as ta expose the prevailing tendency towards innovation and degradation in the
law.

42
was potentially more dangerous to the faith than a :tire destroying a mosque. He
furthermore contended that novelties of a1l kinds were unlawfuL
7
Upholding the
Prophetie report which states that only one of seventy-three parties is
acceptable in God's eyes, Ibn al-Jawii al-Baghdadi (d.597) said that tIie notion
of bidta pertained to customs not attested ta in the SUnna of the Prophet or bis
Companions. He purportedly rejected every novelty toucbing on custom and
religious rites. He contended that the restrictions of the SUnna were to he
preferred ta reliance on ijtihcd in ambiguous matters.
8
The notion of bidta and the Sunna was ta evolve further as it came to be
acknowledged that every notion, by nature, cantains negative and positive
connotations. Devoting oneself ta the Sunna conveys the sense of following a
true path (Sharfta) taught by the Prophet or bis pious Companions to the
Muslim community, whereas bidca was of a legs certain quantity.9 Quoting al-
Shafi'i (d. 204/821), TaIbi explains that bidta in the first place represents
unlawful innovation which clearly contradicts the Qur'an, the Sunna or ijmd
7 Muhammad Ibn WaQ-claJ+ al-Qurtubl, Ma fi al-Bida
t
, ed. Badr b.
'Abd Allh al-Badr (Riyaq.: Dar 1996), 61; 83. In his censure, Ibn
Wa444 argues that illicit bdta is not only essentially subversive, but rather
difficult to amend ta the real law. His stance, therefore, was based on the
Prophetie report which stated 'the worst things are those that are novelties,
every novelty is an innovation, every innovation is an error.

8 Ab al-Faraj al-Ralpnan b. Ibn al-Jawii, Talbfs Iblfs (Cairo: Dar

al-Fikr, 1368), 5-23. Of the seventy-three parties supposed to have emerged
after the Prophet, Ibn al-Jawz elaborates that an are in error, except one which
is made up of those who follow the Sunna. In Ibn al-Jawzi's eyes, the ening
groups are the protagonists of bidta and the corrupters of Sunna.
9 The Sunna of the Prophet was absolutely opposite to bidta. Preserving
the Sunna means following the true path as prescned by the Prophet, whereas
performing bid(a is to act the otheIWse, thus prohibited. See Mu4ammad Ibn
Yzid Ibn MJa, Sunan Ibn Maja, ed. KhaIil Ma'mn S1ii.qa., 5 vols. (Beirut: Dar
al-Ma'rifa, 1996), I, 137-138.

43
(consensus). Such innovation is qualified as error and is absolutely censured.
In the second place, is a form of innovation which is not attested to in
either the Qur'an, the SUnna or ijm but is nonetheless lawful due to the
positive changes it effects in human life.
lO
It is unlikely however that al-Shafi'i
would have tolerated any mu1J.datha which touched on 'ibcdct. In this case,
Talbi seems to agree with al-Shafi.1. who considers bid'a as good or bad.
The Malikite jurist al-'J;uI1:shi (d. 474/1081) also censures bid'a as an
unlawful practice. For him, there is no difJerence between novelty (muf].datha)
and innovation (bid'a). He maintains that all acts which can lead to or
pose a threat to human welfare, whether in the area of (customs) or
'ibcidcit, are unlawful. In the area of custom, for instance, he rejects the
tradition of people giving up work on Friday, since for him tbis resembled the
practice of Jews resting on Saturday. In the area of 'ibcidct, he condemned
those who simply memorized the words of the Qur'an without understanding
their Likewise, he censured the habituai act of non-obligatoty fasting
($awm) at fixed times which was not prescIibed by the Shari'a. Al-Turtsm's
condemnation of bid'a, however, although it touched on legal issues, was
certainly not part of an in-depth evaluation. Unlike al-SluItib, whose
elaboration is proficient and detailed in its Legal epistemology, al-Turtsh's

10 Talbi, "Les Bida'," 62. The two types of are classed by al-Shafi'i as
ma.1).rrw.aa (praiseworthy) and madhnuima. (blameworthy). The latter type, in
essence, contradicts the Sunna, and is therefore unlawfuI. Mu1J.datha (novelty),
however, has a broader meaning than does unlawful bid'a. As with bid'a, he
also classifies it into two categories. First, mu1).datha (novelqr) that clearly
violates the Quran, the Sunna, ijrru' (consensus) and ctha-r (the Prophet's
reports), which. This is maintained to he erroneous (al-bid'a al-c#a1a1a);
and second, nave1W that cantains a beneficence which does not violate the
aforementioned texts, and which is therefore not blameworthy. See, 'Izzat 'Ali
'Atiyya, al-Bid'a (Beirut: Dar al-Kitao aI-'Arabi, 1980), 160.

44
analysis is tao general, relying as it does only on textual evidence either from
the Qur'an or the Sunna.
11
Bath al-Sh:tlOl and al-1-"UrtUshi, however, although
they lived in different eras (about three centuries apart), resemble one another
in recording some of the more innovative features of their times. This may he
due to the fact that bath lived in Andalusia., where innovative practices were
quite prevalent.
In line with al-'J'tn1.shi, the Shafi'ite scholar Ibn Abl Sluma (d. 665)
defines bidca (innovation) and mu1].datha (novelty) as matters which have no
precedent in the Quran, the Sunna and ijma"T. He does, however, develop the
notion of TTU).datha in accordance with understanding.
12
According
to him mu1).datha can he designated as licit (bidCa musta1].sana) and illicit (bidCa
mustaqba1).a). The former is novelty which is in conformity with the principles of
the Sharl'a. The latter, however, pertains to the persistence of rituals either
con1Tadicting or deviating from the SharfCa. 13
Bidca mustaqba1J.a, in the eyes of Ibn Abl Shama, cao itself he divided
into two: the first is prohibited bidca (bid."a mu1).alTama) or reprehensible bidCa
(bidCa makru1ta) and the second ambiguous bidCa (bidia mushtabiha). Prohibited
bidca, for example, includes the religious behavior dispIayed by certain faqfr
$lIfts which, according to him, deviates from the true religions principles. He
notes that similar orders transgress the ShaTica by neglecting $alcft (prayer)
11 Ab Bakr al-'furtsh, Kitao al-Ifawcdith wa al-Bida', ed. cAM al-MaJd
al-Turki (Beirut Dar al-Gharb 1990), 35-37; 164-170; 189-198.

12 See note no 10.

13 'Abd al-Ral]mn b. Isma'il Abu Sbama, Inkcir al-Bida
C
wa
al-Ffawaiith, 00. Uthman 'Anbar (Cairo: Matba'a al-Sa'da, 1978), 19-
20; 22-28. See also note 10.

45
and $awm (fasting) in the manth of Ramaq.an.14 Ibn Ab Shma seems ta
characterize as ambiguous all non-obligatory Cfbada, like recommended
$awm or $altit which is habitually and excessively performed. For him, such
practices emanate from an interpretation of the Shari'a whlch relies heavilyon
reason rather than the indicants (adilla, singe daliI) of the Sharf'a. 15 Most
notable in. this attempt at classification is bis use of legal categories to evaluate
the Iicitness of bid'a., In short, Ibn Ab Sluima's elaboration of bid'a represents

an effort ta synthesize the concepts of predecessors like al-'fw1sm and al-

Shafi'i in a Legal manner. He is, however, somewhat legs than systematic in the
way he does SO, in spite of bis attempt ta approach the subject in a more
comprehensive manner.
The I:Ianbalite jurist Ibn Taymiyya (d. 728/1327) defined bis notion of
bid'a by basing himself directly on the Qur'an., the Sunna, ijmc' (consensus)
and qiyas (ratio legis). He claimed that all foreign anniversaries and festivities
should he counted as objectionable, Bince these were based on the practices of
non-Muslims and had no basis in either the Qur'n or the Sunna..
16
A similar
line on bid'a, one which did not difIerentiate between religious or mundane
matters, was adopted by al-Ghazali (d.llll) and Ibn l:Iazm. (d.456j 1062). It is
14 Ibn Abi Shama, al-Ba"7ith, 25. This 'Jarfqa and athers like it were, for Ibn
Abl Shama, the seeds of paganism or the associates of evil (shaytan) which cao
destroy Islam.
15 Ibn Abi Shama, 28-31. He affirms that we are only required ta
perform what God bas stipuJated, without addition or subtraction.
16 Taqi al-Dm Ibn Taymiyya, Iqtiq.ti' al-$irrit al-Mustaqfm Mukha1afat
A$1J.tib al-Ja1)im, ed. MlI'Jammad I:iamid al-Faq (Cairn: Matba'at al-Sunna al-
Muqammadiyya, 1950), 267.

46
reported that according ta the former, bidCa is any act which is nat attested ta
in the Sunna or which is fareign ta the Shari'a. Ibn!jazm aIso used the same
formula ta censure evety act violating or contradicting the Qur'an and the
Sunna. 17
Refuting those who claimed that bid'a could he divided into two
categories (licit and illicit bid'a), Ibn Taym.iyya argued that this notion
contradicted the Prophetic saying ta the effect that"aIl fOIms of bid'a are error."
This f].adith of the Praphet, he contended, connoted a refutation of the proposai
that some bid'a is lawful. The rejection of bid'a, for him, encompasses the
refutation of good or bad bid'a, even though the clear indicants (adULa, singe
dalilJ are silent on the subject In addition, Ibn Taym.iyya stresses that
introducing bid'a in the service of public interest (7Tl.CU?IaJ:l.a) is contradictozy to
the Prophetie 1).adith cited above.
18
In his sharp censure of bid'a, Ibn Taymiyya based himself on the
prescriptions of divine law and sometimes on the customs of the pious
Companions in defining the true path of the Sha.Ti'a. He rejected 'cdiyyat
(customs), even though their validity was approved by the arguments of ijmci:
(consensus). He claimed that the Shar['a is perfect and Iiable neither ta
subtraction nor to addition. The sound 'ulama"s prescription, or the SUnna of
the aJ al-Madina (the people of Medina), he added, functioned as a measure of
judgement, not as the tradition of a community.19 Has insistence on the
universality (k:ulliyya) of bid'a which does not tolerate particuIarization
11 'Atiyya, 16l.
18 Ibn Taymiyya, lqti4a-' al-$ira.t, 270-7l.
19 Ibn Taymiyya, lqti4a-' al-$irc.,t, 271-273.
20 Ibn Taymiyya,lqtiq.a-' al-$irc(t, 273-74.
21 Ibn Taymiyya, Iqt:i.4a-' a I ~ a . t 275-76.
47
48
In one sense, he rejected the particularization of bid&"a into good and bad, while
on the other he accepted in the Iinguistic sense al-lughawi) such,
as in the case of the congregational prayer on the night of Ramaqan. Ibn
Taymiyya, however, was still. consistent in declaring the indicants (adil[a, sing.
dall) of the as the basis of his censure of bid(a.
On the subject ofnovelqr (mu1)datha), Ibn Taymiyya contends that it can
be defined as being different from bid(a. Only if the exigencies of life and a
community's Tna$lal].a (public interest) are at stake, can novelty be introduced
as a Iawful alternative. Its allowance, however, is subject to the condition that it
does not set a precedent, that it can he shown ta conform. ta the Prophet's
exaJl1ple, and that it in no way violates the stipulated law of GOd.
22
Ibn
Taymiyya is tb;nking here, it would seem, of novelty in mundane matters and of
phenomena which can he tolerated within the confines of the Shari'a or which
serve to preserve its existence. For instance, in the eyes of Ibn Taymiyya, the
war of the first caliph Abu Bakr (d. 13/634) against those who refused to pay
alms tax (zakcit) was a tolerable novelty. War against Muslims is forbidden but
in the interests of the Sharf'a, even this sort of innovation is lawfu.l.
23
Our survey of the development of bid'a shows that Muslim scholars, on
the one band, held that bid,a applied only to while on the other, they
distinguished between 'ibaacit and 'cidiyyat (customs). On this very point, 31-
Shtibj's reformu.1ation is worth scrutiny, for from bath legal and
epistemological perspectives, al-Shapbl placed himself midway (al-tawassut)
between these two positions by basing bis theory of bid/a on the epistemology of
22 Ibn Taymiyya, Iqti4c al-$irci.t, 279.
23 Ibn Taymiyya, Iqti4ci 280-285.
49
legal theory. In doing so, he retained the notion of developed by bis
predecessors, on the one band, and reformulated it on the basis of legal
epistemology, on the other. We now turn ta al-Sh1ibrs concept of bidra.
B. Ab IslJaq Al-SluitibI'. Concept of
Before embarking upon an elucidation of bidCa within the framework of
bis legal philosophy, al-Shapbl like bis predecessors, reaffirms the argument
against bidca, stressing reliance on the Quran, the SUnna, ijma' (consensus),
qiyas (ratio legis) and the doctrines of pious $u]fs.24 He then goes on to cite
three categories of legal rulings: command (al-arnr), prohIbition (al-Nahy) and
amaIgamated selection (al-takhayyur). Of these he takes the most trouble ta
define prohibition, which he further subdivides into prohibition against doing
. that which is expressly and prohibition against doing anything that
contradicts the Sharfca, whether it is forbidden in so many words or not. This
scheme is mirrored in bis subdivision of bidra itself into two categories: first,
innovations in religious matters falling under the heading of 'ibtdat; and
second, innovations in religious and mundane matters intending ta resemble
the At the same time, he makes it clear that Mere novelty (m:u1J.datha)
in mundane matters does not count as bid
c
a.
26
Thus anything that serves to
24 Ab Isl},aq al-Slutibl, 2 vols. (Cairo: al-Maktaba al-Tijariyya
al-Kubra, n.d.), l, 53-89. The long discussion on this matter bas been dealt with
in the tirst chapter under the heading cfrom al-Muwafaqct ta 7J

23 The first definition is "'Wcirat tan tarfqajf al-dfn mukhtariratan tuq.hf al-
shariyya yuq$ad bi al-sulu1c calay1u::i al-muba1agha fi al-tarabbud li-Allan
sub1).anah.7J The second which includes and is c.tarfqa fi al-dfn
mukhtarltatan tuq.tiJ aI-shariyya yuq!?ad bi aI-sulu1t ralayhcf ma yuq!?ad bi al-
tari"qa aI-shariyya.7J Al-Sluitibl, aI-I
c
tf1?am, vol. 1, 37.
26 Al-Sha1ib, aI-rti!?cm, voL l, 36-7.
50
SUpport understanding of the such as Arabic grammar em al-n.a1J.w) or
U$UL al-.fiqh, is Iawful, 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 Dot known at the time of IsIam's first appearance.
As we sha1l see, al-SbApbl's work on bidca is intimately tied in with the
epistemology of Islamic legal theory, and is based on such concepts as the ends
of the (maqC$d Such a marriage between the domain of
bidca and the ends of the Shan-ra renders al-Shatib's concept of bidCa distinct
and identifies hi.m as the proponent, if not the master architect, of al-
shariCa. There is an obvious reIiance on the rational process on the part of 81-

Shatib when dealing with tbis question, yet the Shari'a is unequivocally seen
as occupying first place.
Reason is an tool for understanding the Shari'a; it is not,
to he used to nterpret the texts independently. This is because reason
itself, according ta al-Shatibi, is quite limited in its ability to fathom the
purposes of the divine laW.
28
The Sharica, on the other band, is perfect, needing
neither addition nor subtraction. Any attempt at using reason to interpret the
27 Al-Shatibl was not the first to speak of the science of maqc:i$id al-
Sharica; Islamic scholars before bim, such as the Shafi'ite jurist 'Izz al-Dm b.
'Abd al-Salam (d. 660) who wrote on al-a1).kam' (the of principles of
rulings) and the Ijanbalite scholar Najm al-Dm al-'ffi (d. 716/ who
composed on a treatise of m:ursala anticipated this issue. Al-Shitib,
however, develops the theory. His work on the subject of maqf:?id. al-ShaTi'a is
principa.lly based on two standpoints: the first is the primacy of the Qur'n as
the first authoritative source, and second, on the subject's dependence on the
principles of U$Ul.fiqh (for examples: intentions, the ends and ijtihai, and the
universal aim of See Hammam 'Ubaycfi, aI-Shti.tibi wa aI-
Sharfca (Tripoli: al-Jamhriyya 1992), 134-138. See aIso Hallaq, "The
Primacy of The Qur'an in Shapbi's Legal Theory."
28 Al-Shatibl, voL 1, 46-47.

51
Shan-ra which goes beyond its teaching or transgresses its stipuJated ruIes,
Ieads to according ta al-Shap.ol.
Snce ijtihd 29 relies on rationalization within the framework of juridical
procedure, it is, therefore, not ta he regarded as bdt"a. For as long as it is
employed as it should he, the activity of ijtihtd will avoid trespassing on
amhiguous matters (aI-mutashbih), al-Shatib affirms. As such, a pious and
qualified mujtahid never falls into error there is a clear indicant derived from
.
the textual evidence.
30
The position of a rrwjtahid, ipso facto, is different from a
muqtadin (follower). Nevertheless, al-Sluitib"i insists that the follower of the
people of innovation (ah! al-bidaj should, due to his fanaticism (tat"assub), be
himself quaIified as a mubdf (innovator). This is because the follower is
29 Ta practice ijtihaa, according al-Shatibi, a mujtahid must meet two
qualifications: the fust is to he able to understand clearly the ends of the
Sharit"a, and the second ta have the Im.owledge required ta derive conclusions by
bis own abilities. Ab al-Sbap.b"i, aI-Muwafaqcit fi al-Shari'a, 4 vols.
(Dar al-Kutub al-'I1.miyya, n.d.), IV, 76. Wael B. HaIlaq defines ijtihad as "the
maximum. effort expended by a jurist ta master and apply the principles and
rules of u$U1 al-fiqh (legal theory) for the purpose of discovering God's Iaw." See
Wael B. Hallaq, "Was The Gate of JjtiJud Closed?," International Joumal of
Middle East Studies 16 (1984): 3-41. Hallaq challenges Schacht's thesis that the
door of ijtihcd was closed by the beginning of the fourth century of hijra (about
AD. 900) in An Introduction to Islamic Law (Oxford: The Clarendon Press, 1964)
especially on pages 69-75. Hallaq be1ieves that theoretically and practically
speaking the door of ijtihtd was never clased. His monumental article, basically
a concise summazy of bis Phd Dissertation bas been reprinted many times. See
in Ian Edge, ed. Islamic law and Legal Theory (The International Library of
Essays in Law and Legal Theory, series editor Tom D. Campbell) (Hampshire:
Dartmouth Publishing Co., 1993); also reprinted in HalIaq, Law and Legal
Theory in Classical and Medieval Islam (Aldershot: Variorum, 1995). Hoebink
tries ta reconcile the position of Schacht and Hallaq on ijtihcd by saying that
the two are basically two halves of the same truth. Schacht, according to
Hoebink's view, is referring ta the ijtihcd of the independent mujtahid (mujtahid
mustaqiIrj, while Hallaq includes the affiljated mujtahid (mujtahid ghayr
See Michel Hoebink, 'fuJo Halves ofThe Sam.e Tro.th: Schacht, Hallaq,
and The Gate ofIjtihtd (Amsterdam: Middle East Research Associates, 1994).
30 Al-Sluitib, al-ft"'Wicim, voL 1, 145-46.

52
effectively a mu:ttabt"C who knows the ratio legis of the Iaw but instead merely
bases himself on rational vindication in ambiguous matters.
31
The censure of bidta, according to al-Shatib, is absolute and leaves no
room for concession. Denying that there is any such thing as good or bad bidta,
al-Shatib explains that in this sense bidta is different from Sunna, which can
admit of both good and bad. Following good Sunna is in consonance with the
Sharita, while to do otheIWise means following an unlawful path not attested ta
in the text.
32
On the contrary, bidta cannot he counted as good or bad, for any
attempt ta divide it thus is rejected by the Shan-ca. Good or bad can only he
measured by the Sha.ri!a per se, contends al-Shap..
33
Al-Shlib was convinced that bidta was universal in meaning and could
never be interpreted as partia1ly good or partially bad. The universality of bidta
led h.im ta emphasize the doctrine of error (q.ala1) connected ta the concept of
:lI Al-ShapbI did not see the laity ('awwam) as being the same as the
people of innovation (ahl al-ibtidaj. The former, due ta their ignorance of how ta
derive rulings from the law, are following the truth as defined by 'ulamei' and
are searching for rectitude in the Sharlfa, Dot engaging in ambiguity. The
follower (muqtadin) , on the contrary, is quaIified as a muttabi', i.e., one who
knows the sources of law, but he himse]L in the end, sets aside sound reason
or textual evidence, relying instead and to an excessive extent on a master.
Therefore, he is counted among al-ibtida-r (the people of innovation). See al-
ShtIb, al-r't:}am, vol. 1, 163-65. See Q. 5: 104.

32 The SUnna is subdivided into two: good and bad Sunna. Such Prophetie
report is descnbed by Abi Jul1ayfa: " man sanna sunnat 1).asana. ..wa man
sanna sunnat sayyi'a..kcna talayh wizr wa mithl awzarihim min ghayr an
...shayJan." Ibn Maja, Sunan Ibn Maja, vol. l, 136.
33 Al-Shpl, voL1, 184-87. The relativity of reason in judging
good or bad in the Shar7matters is declared by Ab al-Waf' Ibn 'Aql (d. 513{
1119). He maintains that the Sharitais better placed to determine what is good
or harl. Reason, on the other band, is inferior to the Sharita. See Ab
Ibn 'AqTI, al- If al-Fiqh, ed. George Makdisi, 1 voL (Stuttgart: Franz
Steiner Verlag, 1996), 12.

53
universal (kulliyya) in Islamic Legal theoxy.34 In other words, the division of bidca
into either good or bad is a logical and legal paradoxe This is but one example of
how al-ShatibT's expertise in Islamic Legal epistemology gave him a unique
perspective on the discourse of bid/a. 35
The ku.lliya of bidca, according ta al-Shatibl, is substantiated on four
counts. First, the term bidCa is, on the evidence of the absolute and
universal, leaving no room for exception (istithnc:i'iJ. Second, once the principle
of the term is subsumed under the heading universal (kuliyya) or the universal
of the S11.ar indicant is dictated, the function of the universaI is certain and
constant, as long as there is no qualification (taqyid). Third, it was the universa!
consensus among the pious Companions and their followers that bidCa is error,
pure and simple. Fourth, as bidca is rationally defined as an act violating the
Sharica, it becomes, in the eyes al-Slutrb, impossible to divide into
praiseworthy or otherwise. Thus, to accept good or bad bidca when it is
universally understood that bidca is a digression from the Iaw is simply wrong.
35
Although the censure of bidca is universa1, al-Sha1:ibl assumes that the
sinful acts on bidca can vary depending on the degree of severity. Bidca, he
argues, can he categorized as major (kabfra) or minor ($aghfra). The former
category includes the innovation introduced under the heading of necessity
.34 Al-Shalibl, al-Icti:?cim., voL 1, 141.

3S Al-SluItib believed that the error (4ala1) of bidca is universal. If 50,

according to him., bidta itself defies division into good or bad. "In the sharicd' he
says, "the great of particulars (constituting a ku11iyya) are considered
tantamount to a conclusive general, since the instances diverging from a
kulliyya cannat constitute another ku.lliyya which can then compete with the
first established kulliyya." See Hallaq, "The Primacy of The Qur'an," 87. Al-
Sluitib, al-Muwafaqat, vol 2, 37.
36 Al-Shatib, al-]tti$am, voL 1, 141-42.

54
(4aruTi) matters religion (dih), whereas beyond this type is quaIi:fied as
minor. The persistence on the $aghfra, nonetheless, will result in the kabfra, he
reminds.
37
Al-Shap.bl's classification in this matter is parallel to the degree of
human sins classified by theNh.
Al-Shatibi was particu1arly insistent in bis position that bidfa is
prohibited because it invents practices not attested to in the ShaTifa. This is
shawn in bis rejection of those who tried to cIassitY bidfa according ta the five
values nonnally assigned ta Sharff ruIings: wajib (obligatory), 1).arcm
(prohibited), m.ak:ru11. (reprehensible), manduD (recommended) and mub'JJ.
(permissible). This had first been attempted by 'Izz al-Dm b. 'Abd al-Salm. (d.
660/1261) and Shihb al-Dm al-Qarafi (d.684/1285) who sought ta establish
this approach as a permanent feature of.fiqh (Islamic jurisprudence). AI-Sp.bl
. states however that al-QanUi was wrong to adopt this position, for in doing 50
he was treating bidfa as though it was part of the legal values. Al-Shatibl would
oolyacknowledge that bidfa can he defined as reprehensible or forbidden; the
other categories represent a contradiction in terms.
38
For al-Shatibi, any
37 Al-Shatibl maintains that there are four qualifications in which bidfa
$agh1ra can turn into bid/a kabfra. 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 its violence. Al-Shatibi, al-I'ti;;am., vol. 2, 57-
63; 65-72. See Vardit Rispler, "Toward a New Understanding of the Term
Bidca," Der Islam, 68, 2 (1991): 325-326.

38 Muhammad Khalid Masud, Islamic Legal Philosophy: A Study of AbU

Is1J.aq aI-S1u:Z.tibf's Life and T1wught (Islamabad: Islamic Research Institute,
1977), 303. Al-Shatibl contends that 'Izz al-Dm b. 'Abd al-SaJam and al-Qarati's
position regarding bid1a 1].asana is alien to the context of and that it is the
manifestation of iftihcd on U$Ul al-Shan-ra (mots of the Sha.r1
f
a), like istiJ).san
uristic preference) and TTl.Q..!?a?i1J. mursala (public interests). al-Sfup.bi
insists, is the act deviating or contradicting the principles of Shari'a which bas
no any basis either in the Quran or the Sunna. Therefore, for al-Shatibl, bidta
cannot he counted as /:tasana (good). See f,Iamadi Ubaycfi, al-Sha]ibf wa
Maqa$id al-Sharita (Tripoli: al-Jamahiriyya 1992), 113-114.

55
attempt ta link bid'"a to the values of the Shan'ora is an invented action (amr
mukhtara1, which is itself nothing less than bid'a and is, therefore, unlawfuL
Furthermore, he states that al-Qarafi was wrong to attnbute these notions to
bis master 'Izz al-Dm b. CAbd al-SaIam, since, according ta him., the latter had
rejected al-mD.$la1].a al-mursala (public interest) as a form of bid'a. 39
The division of bid'"a according ta the legal values of Islamic
jurisprudence is also attempted by Turkum.n1 (fl.1397). He contends that bid'a
can he counted as permisSlble (mubC).), reprehensible (makru1t) or prohibited
(1).aram). Furthermore, he maintains that bid'a can he categorized as bad or
good. Examples of the latter, according to him, include celebrating the
anniversary of the Prophet's birth or building schools for social or educational
purposes.
40
Any attempt however ta subsume bid'"a under such qualifications is
misleading according ta al-Shapbi, for to categorize bidta as amalgamated
39 Al-Slupbl, al-I'ti:;am., voL 1, 188-92. See also, Talbi, "Les Bida'," 66.
Before elaborating on how bid'a encompasses the five legal values, Izz al-Dm b.
'Abd al-Salam defines bid.la as an activity not attested ta in the time of the
Prophet. He then justifies the division as follows. First, bid'a wajiha (obligatory
innovation) is substantiated in the creation of Arabic grammar ta understand
the words of God. bid'a muharrama (prohibited innovation) is identified
with the creation of the Qadariyya and Jabariyya schools. Third, bid'"a makrha
(.rep.rehensible innovation) is exemplified as any attempt to decorate a masque
or the Qur'an. Fourth, bid'a mubci1).a (permissible innovation) is typified by the
practice of sbaking bands after $Ub1J. and 'Q$r prayers. Finally, bid'a manduoa
(recommended innovation) is seen in the construction of bridges and schools.
'Izz al-Dn b. 'Abd al-Salam, Qawa-rid al-A1]Jca-m fi MaI?a1iJ). al-Anam, 2 vols.
(Cairo: Matba'at al-Istiqama., n.d.), il, 172-74.
40 Idris b. Baydakn Turknman, al-Luma.c fi lfawaaith wa al-Bida', ed.
Subhi Labib, 2 vols. (Cairn: Dar !4ya' al-Kutub al-'Arabiyya, 1986), 1, 37-43.
Turkumarii's division of bid'a counted as good or bad was probably influenced
by the classification of Ibn Abl Sh8ma in 'al-Bci'ith [nkeir al-Bidal wa al-
lfawaaith.'

56
selection (takhayyurj or obligation (wa]ib) contradicts the universal nature of its
erroneousness, and besides creates new innovations initself {amr mukhtara1. 41
On the basis of this general criticism of al-Sbatibl develops for it a
two-tiered classification: real (al-bidca al-1).aqfqiyya) and relative (al-
al-i4ajiyya). Regarding matters of aI-Shp.b contends that the
unIawfulness of innovation in this area is recognized by all 'ula.m.a:, whether in
questions of faith or merely in practical matters (al-umu-r al-jawcri1).). On
the other band, the disagreed over the issue of 'cdiyyal: (customs). This,
according to al-Sruitib, was due to the ambiguity resulting from confusion of
the customs that existed in the time of the Prophet with bis rea1 CZbaa.ct 42
Before al-Shap..bi explains how innovation in 'iba-dct and 'aaiyyat
(customs) can or cannot he counted as bidca, he reaffirms the principles of the
and especially the legaI epistemology of 'ibcida and 'ala. 'Ibcida, he
pertains ta matters whose prohibition and command is rationally not
understood, such as $ala1 (prayer), (fasting in Ramacf.n) and 1J.aii
(pilgrimage). 'ACia, on the ather band, should be understood ta denote public
interest in its benefit (manfaCa) and its harm (mafsada) and the like, including
traditions affecting sale, marnage and crime. 43
Addressing the issue of in 'cidiyyat, al-Shapbi cites the introduction
of custommy practices into those of 'ibadtt and vice versa. For him, the two are

41 Al-Shatibi believes that bidca is universal in its censure and violation.

As such, he merely divides bid'a into real (1J..aqfqiyya) which either clearly
and d.irectly violates the textual evidence or relative (i4a]i.yya) which is the
indirect means (sabab) leading to real See al-Sfuipbi, voL 1,
192-197.
42 Al-Shatibl, al-Yti$am, vol. 2, 73-74.
43 Al-Shtibl, al-I'ti$am, vol. 2, 78-80.

57
interchangeable when performed in obedience to Gad (for the sake of God's
ordinances). If certain 'cidiyycit are ta he counted as CWcidct, Iike those involved
in marriage (nik1).), then any innovation in such a case, according to al-Sluip.ol,
is' unlawful.
44
In marriage (nika!J.), for instance, the Sharica requires that a
dower he paid as the symbol of a religious contract having been agreed. The
festivals associated with the practice of nika1J., on the other hand, which are not
considered "sacred" transactions (snch as ijao and qabu7} falI under custom. In

this instance, the Shartt construction is fixed and never changes. Customs, on
the ather band, do change, and can differ from those observed in the time of the
Prophet. 4S Thus, al-SrutIbl classifies bid'a into two aspects: first, real bid(a (al-
bidca al-1).aqfqiyya), which is contradictoty and in clear violation of the Sharica;
and second, relative bid'a (al-bid'a al-i4aftyya), which is ambiguous and may
either he counted as bidCa or not. ft is the latter that al-Slulpbl discusses
extensivelyand develops into a brilliant rapprochement oflegal phiIosophy.
1. Al-Bidca al-QaqCqiyya
Like bis predecessors, al-Slupol defines al-bidca al-J:taqiqiyya as
innovation which is not attested by the Qur'an, the Sunna or ijma.'. Such
innovation is categorized as unlawfu.l, for it was not approved of by the ah! al-
Cm (the people of knowledge) either in the universal or in the particular sense.

44 Al-Shapbl, a l - I ~ a m vol 2, 79.

4S Masud argues that al-Shapb saw 'awa'id as being subject ta change.
The Sharca, however, is based on unchanging principles of 'awa-'id, which are
thus called al-
c
awa
7
id al-shariciyya. Nevertheless the 'awa'id pertaining ta
human beings (al-Cawa'id al-jc:iriyya bayn al-khalq) are subject to
transformation. Masud, Islamic Legal Philosophy, 305. See also Al-Shapol, al-
I ~ ~ a m voL 2, 77-78.
58
For him, there is no concession ta the constraints on real bicIta, as
elaborated above, no attempt to make it permissible or ta associate it with
lawful indicants. As for the claim that can even he good or permitted, he
sees it as fundamentally erroneous in that it either contradicts the indicants of
lawor is not attested ta in the Qur'an or the Sunna. 46
Bid'a 1].aqfqiyya applies unreserved.ly in the domain of since this
area of the law was regarded as God's own stipulation, even though it may
contain some rational provisions. The goal of 'ibcidat is not to perform an
empirical function; since its effect is quite generaI.
47
His elucidation of the field
of real however, is not extensive, for he merely approves the verdict of bis
predecessors and affirms their discourse by tying it into the Quran and the
traditions of the Prophet as weIl as legal theory. As he states, the subversive
nature of bid'a f).aqiqiyya has been amply defined in the textual.evidence and its
treatment by the pious 'ulamcf_ This allows bim. ta devote fuller attention to the
subject of relative bidra al-f.t:!.ciftyya), which is the more tendentious
subject.

2. Al-Bid
6
a
Relative bid'a, for al-Shatibi, consists of two categories. First, there is
innovation rooted in a clear textual indicant (dalilJ, which can he regarded as
good only insofar as it does not result in unlawful bid'a. For instance, the
innovation introduced by Umar b. al-Khattao regarding congregational prayer
46 Al-Sluitib'i, vol l, 286.
47 Al-Slutibi, al-Muwcifaqat, vol. 2, 303-4.
59
on the nights of Ramaqan may he counted as an acceptable innovation. The
second is innovation based on ambiguous indicants, or on no indicants at aIl.
The second type is to be censured and rejected, says al-Shapb, since it is
based merely on speculative justification. 48 These two types of relative bidra
generate a quasi-unIawft bidra which resembles the SUnna on the one hand,
and one that is sirni1ar ta al-bidra al-fJ,aqiqiyya on the other.
49
Al-ShB:1ibi assumes that every ambiguous act for which there is a 1Jukm
(the ru1e), whether innovative or not, can he categorized as relative bid(a (bidra
iq.fiyya) and should therefore he avoided. The prolnbition against dealing in
ambiguous matters (mushtabahal) , he contends, is a cautionary measure
against this. Thus, refraining from doing sa is preferable to the danger of falling
inta real bid(a. An example of this would he abstajning from the consumption of
meat which is suspected of having been unlawfully slaughtered; this would he
preferable to its consumption, whatever the truth may be, al-Shatibi insists.
50
In tbis example, the ambiguity of the case is isolated as the important factor.
Since refusing ta exercise ].tiya.,t (caution) in the relevant case traps the subject
inta acting, he/she would effectively he perpetrating bid
r
a.
51
Al-Shap.ol, finally,
indirectly advises the reader ta avoid such traps by practicing three things. The
first is tawaqquf (suspension) from the case, if at least two of the indicants of
liability are not expressly mentioned. The second is tawaqquf in conjunction
48 Al-Shapol, voL 1, 286-294.

49 Al-Shapbl admits that bis attempt ta divide relative bid(a into two is
meant ta illustrate the distinction between truth and deviation in customs
('adiyyat) and rituals ('ibact) matters. Al-Shat:ibl, al-I(t:i.$tm, voL l, 287.
$0 Al-Sh:pb, vol. 2,6.
'1 Al-Slupbl, vol. 2, 7.
60
with a search for the truth which is based on clear indicants, when two parties
of 'u!a.ma-' reach a contradictory 1)ukm on the Iawfu1 and unlawful nature of a
case. Finally, it is only in following what is stipuJated and ordained in the
Sunna of the Prophet that bid'"a may he avoided.
52
In al-Shapbi frequently employs the ends of the
(maqci$id al-Sharffa) as a taol to develop the concept of bid'a. As long as the
performance of 'iba-dtit, especially non-obligatory 'ibcida, is not made a hAbit or
a longstanding cultural practice, the act is lawful. On the other hand,
(particularization), such as designating the time for non-obligatory 'ibada when
none is stipulated by a dalfl (indicant), or praying a certain number of times on
each occasion or fasting a certain day in the month, shouId he regarded
as tashri' za"'id (creating additional al-Shatibl decIares.
53
It is
understandable that al-Shap.b"i would want to preserve the integrity of the
Sharffa by keeping maqC$id al-sharf'a at the fore of the discussion. The aim of
this in tum. is to ensure that the interests (mQ$tiIif.z.) ofMuslims are preserved as
much as possible in this world and in the hereafter. For Gad, al-Shapbi insists,
acts according ta the best interest of His subjects. "The ShaTi(a was instituted
for [the promotion of] the good of believers" (al-Sharf'a. .....wr.u!i(at li-1TUL$a1i1). al-
ribad).54

52 Al-Shalibl, al-I'ti$am, vol. 2, 7-8.

53 Al-Shatibi confirms that, originally, tashfi' itselfwas forbidden (nafs al-
tashTi' 1w.wa nafs al-mamn'). See al-Shatibl, voL 2, 12, 8 L
54 Hallaq, A History of Islamic Legal Theory, 168. AQ.mad Raysn,
al-Maqd$id rind al-Im.am al-Shti.tibf (Virginia: The International
Institute of IsIamic Thought, 1995), 344-349.

61
The application of bidra in Cibaaat, whether recommended or obligatory,
shouId confOrIn ta certain requirements and rulings. Its perpetuai or temporal
effect on a relevant command can, to some extent, he regarded as either lawful
or unlawfu1. On the one band, it is lawful if it conforms to its requirements and
principles (arkan) and is unIawfu.l if it deviates from its indicants on the other.
As such, the consent of God (ric:j.wc:n Alltih), was treated by al-Shatibj as an
important part of Cbadat.
55
As an example of how Cibdcit can he affected by relative bidra, al-ShaP.O!
points ta the ascetic practices depicted in Q. 57:27. Drawing on this verse, he
tuIns ta the theory of sharj: (condition) ta support bis argument. He states: "the
practice of monasticism, of negiecting mundane atfairs, in toto, can he
categorized as unIawful bidra, ifnot based on a condition of the Sharira (al-shart
al-mashniJ. Likewise, if a certain rituaI is subject ta a certain condition (shart),
neglecting such condition is affiliated, automatically, ta bidrd'. Persistence in
performing the act without relying on its sha.rJ, the consent of Gad (riq.wCT1.
Allch), al-Shtib insists, is real bid
r
a."56 The invention of monasticism,
therefore, is a primary example of bidra, since it had neither divine sanction nar
precedent.57

55 Al-Shalib, al-l'ti$cm, vol l, 288-89. Rilwcn Allh, according to al-

Shapbi, can he classified as sh.art. sahrt, therefore, is inherent in 'ibcidcit.
56 Al-Shap.O, al-rti$tm, voL 1, 289.
57 Wael B. Halla.q, "Innovation (bidra, mu1Jdath)," The Encyclopaedia of
Qur'a-n (Leiden: E.J. Brill, forthcoming). 1 am grateful ta Prof. Wael B. Hallaq for
making this article available to me and allowing me to use it for my research.
Fierro notes that this innovation could he understood as partially or totally
negative. Maribel Fierro, "The Treatises Against Innovations (Kutub al-Bida1,"
Der Islam, 69, 2 (1992): 204-246. See bis elaboration especially page 205.
62
With respect to obsetving non-obligatary ordinance in obedience to Gad
(umu-r al-tatawwura1), al-Shp.lji distinguishes within it two aspects. On the one
hand, it is subject to the indicant (dalil) of one's ability ta perform it and not
practiced on a habituai basis. On the other, it can under certain circumstances
be counted as a duty, making its habituai performance obligatary. In support of
this conclusion, al-Shap.b cites Q. 49:7 and various Prophetie 1).a.dfths. Unlike
the Prophet, who showed the most pious submission ta God in ail matters,
MusIims are only ex.pected ta do so to the best of their abiIity. Gad, after all,
imposes no burden on mankind that is beyond human capacity, insists al-
8ha:tib. Al-8hap.bl quotes the report narrated by Ibn 8a1ama which declares
that habituai practice of non-obligatory ordinances will lead to hardship. And
where there is hardship, this cantradicts the philosophical entity af the law,
which is to avoid difficulty and create ease for human beings, aI-Shap.bi
contends. 58
Quoting the 1).adfth narrated by aI-Tirmid.b, al-Shap.bl says that the ease
of non-obIigatory CWaaat is different from real 'ibcida and its iftihaa. 59 Al-Shatibi
furthermore contends that the report means that hardship due to the habituaI
practice of non-obligatory rituals is to be abandoned, for imposing non-
obligatory 'ibaaa as a habit on the one band, and leading ta hardship on the
other, is clearly rejected.
60

58 Al.-Shap.b, aZ-Irt?am., vol. 1, 294-98.

$9 AI-Shatibl, voL 1, 298.
60 AI-8hatibi, voL 1, 298-299.

63
The practice of non-obIigatoxy Cfbciia as a habit, al-Shap.o says, can
however stem from a vow (nadhr). 61 For al-Slup.o, the characteristic of nadhr in
non-obligatory I:ibaia results in difficulty for somebody, as on the one band one
ought to do what one bas sworn to do, whereas, on the other, one may be faeed
with the burden of implementing it continuously. Such an intention, in faet,
contradicts the philosophical entity of the which does not ordain that
humans should perfopn acts which are beyond their capacity or Iimits. In
tIying to persuade those who tried ta imitate the Prophet in all matters, al-
Shap.b quotes the Prophetic report, "I am unlike you, for while 1 am sleeping
my God feeds and waters me." 62
With regard to the habituaI practice of permissible acts, whether due to
nadhr or not, this tends to resemble the obligatoxy CWcdct when performed
regularly. Constant practice in such voluntaIy matters, al-SM.tibi asserts, is
reprehensible, as it leads ta a prohibition (man.hiyy ranh). He reasons that God
only ordains what is easy for His seIVant to perform., thus averting hardship.
Another reason for allowing certain faImS of non-obligatory habitual practiee,
he insists, is to avoid engaging in repetition or reprehensible acts.
63
61 The vow (nadftt) originally cames from the tradition ofpre-Islamic Arabs
which was then taken over into Islam and underweIlt modification by the new
religion. The idea of dedication is associated with the mot n-dh-r, which also
found in South Arabian, Hebrew and Aramaie and to sorne extent in Assyrian.
abligatory and recommended I:ibcda, like 1').ajj rites and i'tikaf, are also the
objects of a nadhr. Nadhr, however, is treated by 1Jadiths which urge the
Dllfillment of vows as weIl as those tbat forbid them. See J Pedersen, "Nadhr,"
Encyclopaedia ofIsla7Tl., new edition, 1993 ed.
62 f&Innf lastu kahay#atiku.m, inni abit t'inda rabbf wa yusqinf." Al-
ShB:tibl, vol. 1, 301.
63 Al-Shatibi, voL l, 299-300.

64
Be that as it May, the middIe position (tawassut) remains a significant
feature of fibalct as asserted aIso by the Shafi'ite schoJar Ibn &Alln (d. 1057).
The latter states that the ends of fibcda are obedience toward God without
excessive ritual which may lead to tedium.
64
Furthermore, and probably more
importantly, the prohibition against habituai practice is meant to avoid
excesses (ghuluww) in the Sharfla, something wbich is certainly prohibited.
65
After elaborating on the excessive practices in non-obligatory (voluntary)
matters tbat lead ta undue difficuIties, al-Sha1J.bi turns bis attention to
congregational or constant pmyer (dut'al, which was common in Andalusian
masques once the five daily prayers ($ala1) had been said. Constant dut'a,
spoken aloud, was not attested to by any clear indicants. For him., it was
forbidden for anybody to develop a practice based solely on his (reason).
Unless there is a dalil supporting its performance, it is counted as bid
i
a.
66
The same vein of innovation was introduced into the Sharit'a by the
spiritual singing and dancing popular among the $U]fs. AI-Shapb sees this as a
form of innovation not attested ta in the Qur'an or the SUnna. He censured it,
implicitly, on the grounds that it constituted a new fashion of spiritual behavior

64 b. 'Allin, Dalil al-Fcl).fn li-7"uruq Riyeq. al-$li1).fn, 4 vols.

(Beirut Dar al-Kutub al-'Ilmiyya, 1995), l, 281-3. He elaborates
comprehensively, quoting the reports of Prophet under the heading 'Economie
on Obedience' fi al-'ibcida.) that easiness in the ordinances of God is
much more common than hardship. The latter must even be avoided, he states.
His argument based on the Q. 2: 185 (yurd AUch bi-kum al-yusr wa layurfd bi-
ku.m al-rusry and the Q. 20: 1.
65 Al-Sluitibi quotes the 1).adfth" narrated by Ibn 'Abbas saying that, "iyya
kum wa al-g1w.luww fi al-dfn fa innamc:i halaka man ktina qablakum bi al-
ghuluww if al-dfn'" [do he careful of being excessive in the Shariia, for, people
perished before you due ta their excessive indulgence in the Sharit'aJ. Al-ShaJibl,
voL1, 304. See also (Q. 4: 171).
66 Al-Sp,b, al-I'ti$am, voL 1, 359-60.

65
rather than the essence of ducaitselt:
67
Ibn Qayyim al-Jawziyya (d. 751/1350),
however, treats the matter in paradoxical terms. On the one band, dura is
recommended as beneficial, while on the other, certain modes of e.g.,
singing or dancing, are deemed by him ta he harmful to the Shan-ca. In the end,
he concludes that it is more harmfuI than beneficial and is, therefore,
forbidden.
68
It is obvious ta us that al-Shatibi's substantiation of his argument
is fundamentaIly derived from bis theoxy of the ends of the Sha.r['a. For him,
ducd; whether performed as song or in other ambivalent modes, shouId he
examined in the light of the aims of law (m.aqC$id), . e. necessity (qanfrij, need
(1].aJil and improvement (taJ:zsinij. These three principles, in al-Sha!lbi's eyes,
serve as the raison of the law, and hence there shouId be no particular
that stands in opposition one ta another.
69
The censure against singing in general is echoed by the Egyptian Shafi'i
scholar Jall al-Dm al-SuytIt1 (d. 911/ 1505), whether as a matter of 'ibcidcit or
'aaiyyat. For him., such performances typifY diversion (lahw) fram the way of the
In addition, he says that al-Shafi'i himself discredited singing for its
67 A.4mad b. Yal;lya al-Wansharl51, al-MiCyar al-Mughrib wa al-Jcmi.' al-
Mu'rib 'an Fatciwa 'Ularn..cr Ifriqiyya wa al-Andalus wa al-Maghrib, 13 vols
(Beirut: Dar al-Gharb al-IsJanii, 1401/1981), XI, 39-40.
-68 Ibn Qayyim al-Jawziyya, al-Kalarn. tala Mas'ala al-Sima-c, ed. Rashid b.
'Abd al-Ijamd (Riya:q.: Dar 1409), 157-160. Ibn Qayyim drew
an anaIogy between this characteristic with alcoholic drinking, which bas bath
benefit and harm. Its harm, however, is bigger than that of benefit He
condemns those who contend that spiritual singing and dancing entai! a joyous
feature of dutc, for, he says, such a way is a deviation beyond the Shari(a.
69 Hallaq, A History, 169-70. It is ta he noted that al-Shtibi did not
condemn the duta itseIt: On the contrary, he censures the innovative modes
that foreign ta the sharita.

66
tendency to lead a person into error.
70
Al-Suyp's own opinion towards the
censure of singing is less certain, however. For bis elucidation of what category
of action singing falls into is too general to elicit a f];ukm. 'Ulama""7, for instance,
as mentioned above, painstakingly condemned innovation or novelty which
may be counted as subversive to the Sha.ri'a or human welfare. Singing ta the
accompaniment of conventional musical instruments, for instance, is generally
regarded as custom and considered ta he entertainment. Al-Suyp, however,
genera1ized in decIaring singing to he harmful and censured it.
Commenting on the suju.-d al-shukr (bowing before Gad as a gesture
expressing gratitude) 71 approved by Malik b. Anas, al-Shatibl states that if the
divine law and the ijma.' of the Companions are silent on the matter, then
accordingly, it should he discontinued. This follows from bis conviction that the
main purpose of the law is "averting undue difficuIty for people."72 'Adiyycit
(customs), however, are often seen as being in accordance with mG.$lal].a (public
interest), a principle which aligns them with the Shari'a.
With respect to tG:$awwuf ($.fiSm), the path of obedience ta Gad, al-
Shap.D! contends that there is nothing in it which can be counted as bid'a. He

70 JaJal al-D'in al-SuYp., 8aqiqat al-Sunna. wa ed.

&Abd al-MaJd Hasbim (Cairo: Dar al-Insan, 1985), 24-26.
71 Al-Shap.1l1 adopted the example of sujua. al-shukr (bowing before Gad
out of Gad thankfulness), as we are informed by Malik b. Anas. The latter,
however, forbade people from engaging in such practice. For Malik, its
performance was not stipulated by the Shan
9f
a; and if the law is silent on it the
ooly solution is ta abandon it altogether. Al-Shapb, aI-Jit:i$a-m, vol. 1, 362, 364.
Ibn Rushd (do 520/1126) also reaffirmed that suju.-d aI-shukr was stipulated
neither as an obligation nor a recommendation in the Shari'a.
72 In this context, al-Shapb again stresses the distinction between &ibadat
and 'aaiyyat matters. For him., the former is certain and clear, while the latter
is ooly probable Al-Shatibi, al-I'fi.$cirn, voL 1,363-64.

67
attempts a definition of the term prior ta making a clear judgement. For him,
tW?awwuf is comprised of two types of action: first ta act in the way of the
Prophetie Sunna and to isolate oneself from evil; and second, ta annihilate
oneseIf and ta abide only in Gad. These two definitions actually denote one
meaning. Al-Shatib, however, contends that the former is simiJar to and
conforms ta the commandment (taklfIJ of juridical mIes while the latter is the
resuIt of the former and can therefore be declared as either lawful or unlawful.
Before issuing his final judgement based on legal epistemology which would
determine the juridical basis of bidca, al-ShRtib concludes, on the one band,
tbat tW?awwuf is lawful insofar as it is defined by and attached to the juridical
rulings attested ta in the Qur'an and the Sunna, and unlawfu1 or counted as
bidca should it contradict or violate the Sharfca, on the other.
73
Al-Shatib's view is seemingly in line with al-Qushayrl's statement that
(tW?awwufJ was nothing more than spiritual fiqh (fiqh al-bci.tin).74 The
former, however, challenges the attitude of total submission ta a shaykh when
seeking ta he initiated into a discipline, since any such discipline can he known
from books.
75
The claims of $U]fs ta he adept at direct communication with God,
13 Al-Sbtib, al-l't:i$am., voL 1, 207-208. He confirms that all acts should
conform. te wg;u.1 a1-shari'a (mots of the Shari'a), for, bidca, is to do the otherwise
act without textual evidence.
74 Abu al-Qasim. al-Qushayrl argues that fiqh is divided into two: fiqh al-
and fiqh al-ba.tn.. The former is substantiated as the ru1ings pertaining to
'ibadat and of mukallajfn and the latter ta the science of dealing with
the acts of hearts (aral al-quluo). Ibn Khaldn, Shifa' al-Sa' li-Tahdhzo al-
ed. b. TaWt al-Tabakh (Istanbul: Osman Yalqin Matbaasi,
1957), 10-11.
7S Masud, IsIamic Legal Philosophy, 107. As quoted by Masud, Ibn 'Abbad
of Ronda maintained that submission to a shaykh is essential in the jowney of
tw;awwuj: Ibn 'Abbad, however, differentiates between the shaykh al-tarbiyya
(educatar) and shaykh al-ta'lim (instructor). The former is Dot likely to he

68
through annihilation and the teacbing of the invisible science ('a"1am al-ghuyuo
wa al-arwa1}.), al-Sluipb insists, should he rejected, as they were not
sanctioned by the pious predecessors (aI-sala[ al-$a1i1J.). 76
It is 0 bvious from al-Sluitibl's own statements that Islamic legal theory
was, for him, more binding than speculative reason, which diverges from the
epistemology of divine law and which can lead ta In adopting this
position, he reformu1ated bis predecessors' concepts of mainly by basing
ms analysis on the epistemology of IsIamic legal theory.
Having discussed al-Shatibl's concept of and that of bis
predecessors, we can conclude that al-Sh:tib differed from both Muslim
classical and medieval schola.rs in bis approach to the subject. The latter did
not provide a sufficient .elaboration from wbich ta develop a new legal or
philosophicaI paradigm. and generally relied only on the evidence of the Qur'an
and the Sunna in formulating a dogmatic position on this issue. Among the
points that distinguish al-Sh1:ibl's discourse on is his development of the
argument on isti1J.sn and Tn.CL!?la1].a mursala, which contrasts with the treatment
of earlier scholars. We shall discuss this subject in chapter three.

essential for the 'traveler', while the latter is necessaIy for everyone engaged in
tQ.$awwuf. It was the modern (muta'cikhirrn) $u.]fs who held educators ta an
approach which al-Shapbl criticized. Al-Slui1:ibl probably disapproved of the
that the shaykh al-tarbiyya who was held ta he an important figure by
contempormy $rIfts rather than the shaykh ta whom the predecessors
relied. See Ibn 'Abbad, al-Rasa-'il al-$Ughrci, 00. Paul Nwiya (Beirut: Imprimerie
Catholique, 1958), 107. See aIso al-Wansharlsl, al-Mughrib, voL 12,
293-307. See aIso the note below.
76 Al-Slup.Ol; vol. 1, 208-211. See aIso Fazlur Rahman, Islam
2
nd
edition (Chicago: The University of Chicago Press, 1979), 152-153.

CHAPTER THREE
BID'A AND AL-SHAl'mI'S ARGUMENT REGARDING
MURSALA AND ISTD!SKN
This coopter deals with the juridical basis of al-Shapb's argument
against those who considered mQ.$la1).a mursala and isti1'].scn to be forms of
innovation. The discussion will examine the efficacy of al-Shitib's distinction
between bid(a (innovation), which is foreign and even contradictory to the
Shar[(a, and the validity of the legal principles of 7TUl.$la1].a rnursala and istifJ.san
as subsidiazy, yet valid sources of Iaw after the Qur'an, the Sunna, ijma' and
qiyas (ratio legis). In addition, we shall try to show how al-Shalib's
epistemological reliance on legal theory distinguished him. from jurists who
shared quite different views on the same matter.
A. and M"",lafla Mursala.
From the standpoint of their lack of an expIicit textual basis in the
bid(a and mCl!?la1].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 scholars that bid(a couid he good or bad. mursaZa, however, was
regarded as a legal argument, even though the text did not elaborate explicitly
on its commandments and prohibitions. Due ta endless polemics over these two
terms, it is necessary for our purpose ta examine them from the angle of legal
theory and especially with respect to al-Shap,b's argument.
As we saw above in the second chapter, al-Shap,b censured bid(a in a
universal sense (kulliyya) and rejected the possibiIity that there could he such a
70
thing as good or bad He, however, believed that could only he
condoned in matters not attested to in the Qur'an or the Sunna. MG.$Ial],a
mursaIa (public interest), on the other band, although not rooted in a certain
dam (indicant), was regarded by al-Shatibi as legal and in no wise to he counted
as Yet he acknowledged that the validity of m:ursaIa is disputed
by jurists.
1
In this section, we shall discuss the argument of al-Shatib against
those who deemed ffl.a$la1).a mursala an example of good bidca (bidCa 1).asana).2
Sorne scholars such as Vardit Rispler have argued that the concept of
good and bad developed as a paraIlel system to the Shan-ra.
3
While it is
true that some early scholars classified bidCa inta good and bad, this position of
course contradicts al-Shatib's bellef that any such classification is Iegally weak.
He felt that its justification was based on a purely rational (and therefore
arbitrary) rather than legal point of view. This was not however the case in his
eyes with Tna:?1a1].a mursaIa and isti1].scn, which were fully integrated by bis time
within the juridical system of the MaIikite and Ijanafite schooIs. Thus principles
such as mCU?la1).a mursala can he used in instances where the Qur'an., the
Sunna, ijma& and qiyas (ratio legis) fail to yield an answer. In other words, there

1 Ab Isqaq al-Sbalib, al-Itti.$am, ed. Mu.1)ammad Rash1d Riqa, 2 vols.

(Cairo: Maktabat al-Tijariyya al-Kubra, n.d.), il, Ill.
2 In this regard, al-Shatibi admitted that he himself was forced ta argue
against those of 'ulama' who deemed mCUila1].a mursaIa as innovation. Al-
Shap.lii, vol. 2, Ill.
3 Vardit Rispler, "Toward a New Understanding of the Term Bid'a," Der
Islam, 68, 2 (1991): 320-328. Rispler stated that C&in order ta open the stagnant
development of Islamic law, the classification of bid.ca into good and bad is made
possible to serve as a parallel ta the Sharica. " While in fact, for our
understanding, bidta itself is not a juridical edifice of system like mQ$la1).a
mursala stood and derived the conclusion from the SharTs matters when the
textual basis is absence. On the contrazy, bidca is a doetrine in which
theologically it is censured by the Prophetie tradition.
71
is no legal or Iogical reason for the use of good or bad bidra as a foundation for
juridical arguments when there is no need to do 50. For, unIike bid"a, TTLa1?1al].a
mursala is legally guaranteed as the outcome of ijtiluid, which by definition
recognizes the superiority of the Sharfra.
mursala is in fact essential ta the correct functioning of the Iaw.
The rulings which are incumbent upon Muslims cannat all he traced back to
the Quran, the Sunna, ijma'"r (consensus) or qiycis (ratio legis), since many
rulings are unspecific in terms of either commands or prohJ.1Jitions.
mursaIa is in this sense very different from bidra. The former is employed ta
arrive at rulings, based on certain indicants, and in deriving legal judgements,
4

while the latter consists in creating a ruling without any precedent or textual
basis.
While mQ.9lal].a mursala is used to implement mQ.9la1J.a (general good) for
human beings when there is no clear stipulation in the text, this aIone cannat
selVe as its onIy claim ta authenticity. This is because its arbitrary use will
result in reIiance on rational standards and the inevitable introduction of
innovation. Therefore, the function of the general good should he based as
much as possible on its conformity with the ratio legis or its suitability. ln ather
words, Tna$la1J.a can he made ta function in. arder to preclude unlawful
innovative actions as long as the constraint of necessity (Qi2ninl exists. Al-Amdi
(d. 630/1232), for exam.ple, asserts that "tbis does not mean that every
TT1.a$1a1).a (general good) is accepted as the basis of rulings; rather it means that
4 Abu al-I:Iasan 'Ali Sayf al-Dm al-Anrldf, aI-ll).kcmfi U$U1 al-A1].kcm, 4
vols. (Cairo: Matba'at 'Ali 1968), IV, 37-38.

72
(sing. mQ-$Ial].a) can be resorted ta only where the necessity is clear-cut
and universal."5
The difference between mQ$la1].a rrw.rsala and bid'a is substantially
rooted in the indicants and the ends of the ShaTi'a. mursala, al-Shatibl
contends, is principally based on the indicants of the ShaTi'a by which the aims
of the latter, i.e., promoting benefit and averting harm, are maintained.
6
For if
mQ$lafJ.a mursala is not rooted in a daEl, this means that one is construing
Shar'i matters as good or bad based merely on reason, which is prohibited.
Malik (d. 179/795), the outstanding proponent of mQ.$la1'].a rrw.rsala, insisted on
adjudicating matters on the basis of the Shari'a, not merely on reason. The
Shari'a, al-Shapbl asserts, never tolerates bid'a at aIl, for there is no good bid'a
tolerable to the Shari'a. On the contrary, pointing ta the universality of the
censure of bid'a ("every bid'a is error and every error is in heU"), al-Shatibi
concludes that aIl bida
C
are bIameworthy.
7
As mQ$lal].a mursala is a legaI principle used when the dalil in the
is absent, al-Sbalibl makes clear the distinction between the domains of 'ibcfdat
and Ccidiyyat (customs), insisting that the former are illogical and require an
intention (nIya) while the latter are entirely logical and need not he prefaced by
an intention (nfya). Therefore, bid'a in a general sense, al-Shatib contends,
consists in the habituai performance of acts pertaining to 'ibadcit (religious
matters) and aimed at association wi'th divined law (mashruj which are not

s Al-'Amidi, al-I1J.kcimfi U$Ul al-A1).kam, vol 4, 215-216.

6 Ijammadi al-Vbaydi, aI-Sht.tibi wa Maqci$id al-Shari'a (Tripoli: al-
Jamahir al-U?ma, 1992), 228-229.
7 Al-Vbaydi, al-Shci.tibiwa MaqC$id, 229.

73
sanctioned by the Qur'an or the SUnna.
8
Thus, all behavior tied merely to
customary matters can legally resort to TTl.a!?la1).a mursala.
In making this distinction, al-Shatibl stands out, in our opinion, from
other jurists.
9
He clearly differentiates between cases reIated to public interest
(T7l.a$Ia1].a mursala) and itself: Of course the former is anived at through
the exercise of as is the latter. But when it cames ta the division of bid(a
into good and badro or the application to it of juridical values, like wcijib and
mandb, this al-Shapoi rejects, since such value judgement in fuis case is
purely arbitrary. The five legal values, after all, are based 0 bjectively on the
Shan-ca and are regarded as a legal obligation (taklffJ for one who possesses a
sound mind (mukallaJJ. TheyaIso cany with them the certainty of the Sharica.
11
lfJidf'a, however, if divided into ruIings by analogy, is ambivalent whether
- logically or legally. Logically speaking, if it is reasonable that it shouId be 50
divided, how can the censure of bidf'a as error (ku.llu bidf'a qalala) in essence he
substantiated? Legally speaking, on the other band, rulings are related ta
8 Al-Ubaydi, al-Shci.tibiwa Maqe?id, 230.
9 MUQammad 'Abid al-Jbirl, al-Vin wa al-Dawla wa Tatblq al-Sharif'a
(Eeimt: Markaz Dir:sat al-Wa4da al-'Arabiyya, 1996), 131-132. Al-Jabirl
argues that al-Shatib's concept of bidf'a is quite clifferent from other jurists. His
uniqueness lies in the fact that he differentiates between 'ibcidat which are
certain and customary ('adiyyat) which are flexible and changeable. Thus, it is
to the latter that al-Sh:t:ibl developed the theory of mG.$la1].a different from
bidf'a.

10 The Indian reformer Sbaykh Al).mad Sirhindi (d. 1034/1624) Iaunches

vigorous attacks against the distinction between good and bad bidf'a. He insists
that either of them is away with the Sunna and therefore should be
scrupulously avoided. See Yobanan Friedman, Shaykh A1J.m.ad Sirhindf: An
Outline of His Thought and A Study of His Image in the Eyes of Posterity
(Montreal: McGill-Queen's Universit;y Press, 1971), 43-44.
JI Abu Isqaq al-Shpb'i, aI-Muwcfaqatfi 4 vols. (Beirut:
Dar al-Kutub al-'IImiyya, n.d.), I, 76-81.
e
-e
e
74
rewards from Gad, whereas the warning of the ca1amity of itself is
universal. Therefore, innovation is undoubtedly a violation of the
whereas novelty in mundane affairs falls under the heading of publie interest
(TT'l.?Ia1).a mursala), not under wa]iba or bid(a manduOa. 12
It would appear that the wealmess in the reasaning behind the division
of bid(a into Legal values lies not only in its contradictory nature but also in its
tendency to introduce ambiguity into Legal argument. Waflo (obligation), for
instance, if attached ta bidta, yields bid(a wcijiba, which consequently entails
the legal norm. of obligation.
13
Bid(a, however, is itself epistemologically
eensured based on the aforementioned Prophetie report. Therefore, it is
misleading to quali1Y bid(a by one of the legal norms such as obligation. For,
obligation (wa]ib) as a legal norm represents "an act whose performance entails
reward, and whose omission entails punishment."14 Obviously, the argument
over whether bidCa can he wa]ib or manduD is debatable from both theological
and Iegal perspectives. AlI this goes ta show that there is a gulf between bid(a
and TTUl.:?1aJ].a rnursala in the eyes of al-Shatib.
To demonstrate how bid(a is unacceptable in lawand TnCl!?1a1).a mursala
allowed, Al-Shatibl develops bis own. theory in distinguishing between the two.
He starts by assigning three conditions which mOr$la1].a must fu.lfill in order to
he considered valid:
12 Al-Shatib
t
voL 1, 192-197.
13 Al-Sh1ibi, al-Pt?am, vol. 1, 192. Al-Shatibl contends that importing
legal norms into bidCa is itself innovation. Bid(a does not tolerate obligation or
amaIgamated (takhy"; but it is prohibited all together.
14 Wael B. Hallaq, A History of lslamic Legal Theories An Introduction to
SunnU$U1 al-Fiqh (Cambridge: Cambridge University Press, 1997},40-41.

75
1. MW?IaJ].a is attested ta by the Shari''a in virtue of its essential
suitability and epistemology this is what Iends it authenticity.
Furthermare there is no indication that there was any disagreement
aver tls fact Otherwise, aI-Sfuip.'bi says, mcI.$1a1).a would mean
contradicting the Sharf'a. One example of TTUL$la1).a at work is in the
oroinance of penal reta1iation which is applied in order to
safeguard Iife (1].ift al-nafs).
2. If there is a clear indicant of the Shari''a rejecting it, rnt11?la1).a is
clearly invalid. This is because its suitability (muncsaba) or lack of it,
is not seen from the standpoint of human reason per se, but rather in
terms of the indicants (adilla, sing. dalil) of the Shan.-ra. Thus, al-
Sha1:ib insists, "the meaning of for us is based on the
rationality of its function, in which benefits ta mankind are promoted
and harms averted; therefore, the capacity of reason in its
understanding is dependent on the Shan"7a. On the other hand, if it is
not attested to by the Sha,n-ra in its commission and omission, the
agreement of Muslims is applied for its rejection. "15
. 3. The use of rrta1?1alJ.a is allowable if the Shar'f indicant neither points ta
its acceptance nor rejects it. In any such case, says al-Sh8:1:ib,
TTUl!jlaJ].a must meet two conditions ta he 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 persan from whom he or she stands to inherit is
barred from receiving bis or her proportion of the inheritance.
15 Al-Shapbi, vol. 2, 113.

76
b. There should he a suitability benveen the case and the rational
meaning of the even though in fact it may not he
sustained by a certain dam (indicant). In such instances, al-
ShatIb asserts, this process is calIed the act of aI-mG.$dlif].. al-
mursala (pl. of mW?laf].a).16
Al-Shapb's marnage of reason and the Sharira in order to make the law
more dynamic on the one hand, while preserving its authenticity on the other,
is quite brilliant. Although he employs TTLa$1a1).a mursala as a Iegal principle
when the is silent, he appears to differ from bis predecessors such as al-
'filli, whose theory of is more utilitarian and tends toward Iiberalism.
17
Al-Shatib insists that the Sharira is still superior to reason a fact that ensures
that mankjnd will not indulge in innovation when precedent cannat he round in
the
Najm al-Dmal-Tfi (d. 716) as we have noted, is much more hoeraI in bis
employment of TT1a$laJ].a. For exa.mple, he considers TTUl$laha applicable ta ail
mundane matters, such as mul'aTnalar (social relations), whether attested to or
not in the na.!$$. However, he rejects its use in matters of libadat, which are
clearly spelled out in the The mujtahid, he says, undertakes bis inquiIy
16 Al-Shtib, voL 2
f
114-115.
li Religious utilitarianism and liberalism, we borrow form Hallaq's term,
are to indicate the function of Islamic law as merely seen for the benefit of
mankind in this world as public interest and rather sometimes manipuIated for
the sake of advantage. At the end, religious principles are only seen in
substantive assumption. See HaIIaq, A History ofIslamicLegal Theory, 214-216;
231-233.
18 Mul]arnmad ShaIab, Tatl[ aI-A1;rkam. (Cairo: aI-Azhar,
1947), 292-293.
71
for the benefit and on behalf of those who are mukallajfn (who possess a sound
mind). In other words, he saw as "promoting benefit and averting
harm" ljalb naj aw daj 4arcu) for the good of mankind in fuis world and in the
hereafter.
19
Before elucidating bis main argument in support of 7TU1.$1a1).a as an
acceptable source of law, al-Tfi tries ta explain how the notion was interpreted
by al-Qanfi and aI-Ghazali. The former divided mQ-$la1].a into three types. First,
Tna$1aJ].a. which is simj
1
ar to qiyas in that the rulings of Iaw can he derived
through the ratio legis from the second, mC2$la1].a which is irrelevant and
contradicts the and finally, Tna$1a1).a mursala, for which the indication of
its rejection or acceptance is not clear in the Al-Ghazali, however,
asserted that Tna$la1].a functioned according to the categoty of Q.a.nfri (necessity).
Al-Tfi, then, concludes that is not precluded but is even used
according ta the demands of ijtiJud. For, he reasons, if TT'La$1a1J.a is omitted,
ijtihai automatically becomes void.
20
His theory of TnQ$1a1).a, however, is only
applicable ta mundane matters (customs), whereas 'ibaltt are certain and falI
under the prerogative of God.
21
The concept of rrl.a$1a1].a promulgated by al-Tfi, however, is perhaps tao
liberal. He, for example, sets aside the th.ree sources of law (the Qur'an, the
Sunna and in favor of the Prophetie report "do not inflict injwy or repay

19 Najm al-Dm al-Tfi, Shar1). aL-Rawq.a, ed. 'Abd. Allh b. 'Abd

al-Mu.4sin al-Turki, 3 vols. (Beirut Mu'assasat al-RisaIa, 1989), ill, 204.
20 Al-Tfi, Shar1']. MukhtQ!?ar, voL 3, 208-213.
21 Mobammad Hashim Kamali, Principles of Islamic Jurisprudence
(Cambridge: IsIamic Texts Society, 1991), 275.

78
one injury with another" (lei q..arar wa lei dira7j22 in supporting bis theory of
In short, ifwe compare it to al-Shap.1>I's theory of ma::?la1J.a, which is
predicated on the ends of the SharfCa al-Tfi seemingly acknowledges the
supremacy of reason in cases of public interest.
The efficacy of mQ.$la1).a, according to al-Shap.1>, is certain and is
essentially different from the adjudication of cases by reason. For, as he
frequently states, the seeds of bidca stem from its reliance on rational
judgement which sets aside SharCf justifications. Judgement based merely on
reason, if applied ta SharCf matters, leads 10 prime bid
t
a.
24
Ta support bis idea of the difference between TTl.a$1a1].a mursala and bidta,
al-Shatibl cites ten examples of Tna$lal].a introduced by the Companions and
pious e.ulama-' in response ta cases not clearly mentioned either in the Sunna or
the Qur'an. For our purposes, we shaIl look at the five exam.ples which al-
Sha:tibl elaborates upon in particular. First, there is the agreement of the

22 As quoted by Nazly Hanum. Lubis in her M.A. thesis 'al-1\ifi's Concept

of this Prophetie report is narrated by more than one narration and
categorized as /:tasan which was reported by Ab Sa b. MaIik b. Siruin al-
Khudrl and the chain of authorities extending from the narrator to the Prophet.
Nazly Hanum Lubis, "al-Tfi's Concept of MQ1?Ia1J.a: A Study in Islamic Legal
Theory" (M.A. Thesis, McGill University, 1995), 47-50. As quoted by her, see
also 'Abd al-Wahbao Rasb1d Shar1J. al-Arbam al-Nawawiyya (Cairo: Dar
al-Bashr, 1988), 366.
2J Wael B. Hallaq, A History of Islamic Legal Theories, 150-53. Hallaq
argues that al-Tfi employs the concept of superseding consensus,
even the Qur'an and the SUnna by maintaining three reasons. First is the
efficacy of Tn.a.$la1].a is in agreement among an mankind, while consensus and
its authoritativeness are subject to disagreement. Second, the textual evidence
in the Qur'an, the SUnna and consensus is varied and at times contradictory,
leading to severe disagreements among jurists. MQ.!?la1).a, however, is subject ta
no disagreement. Third, the historicaI evidence showed that Companions
abandoned the evidence of the texts in favor of public interest anived by their
opinions.
24 Al-Shatibl, al-Icti$cm, vol. 1, 359.

79
Companions on the compilation of the Quran in arder ta preserve it for
posterity. This action was obviously neither assigned by the Prophet nor
attested to in the QuraIDC injunctions. Second, there is the setting of the
penalt;y for intoxication to eighty lashes (jalda). Third, there is the prison
sentence set for a person accused of a crime, even though prison is usually
reserved for someone who bas been convicted. Fourth, there is the ruling that a
person may he employed as the great imcm (al-imam al-kubr), even though he
may not he qualified as a m:ujtahid or mujfi, due to the lack of a qualified
candidate for this position. Fifth, there is the agreement reached by the majority
of on the penalty for taking property/wealth (m.a1) when there is great
exigency for it in MusIim. society.25 The aforementioned examples, quoted byal-
Shipbi to support bis views on the validity of Tn.Cl$1aJ).a mursala, are all issues
that are not clearly referred ta in the texts. They are alI, however, categorized as
public interest mursala) where their compatibility with the ends of the
law (maqC$id al-Shan-ra) is unequivoca1.
26
Before passing judgement on the fact that TTlQ.$laha mursala is different
from bidta, al-Shapbi decIares that public interest was always given the highest
consideration by the Companions. The compilation of the Quran, for example,
was not commanded by the Prophet. Instead, though it was not ordained by the
nC2$$, the Companions taok the initiative for the sake of public interest, making
it therefore lawfuL Furthermore, al-Shap1>i's justification of public interest is
2S Al-Shalibi, al-Itti:?am, vol. 2, 115-127.
26 Al-ShatibI perceives the existential purpose of the Sharita to he the
protection and promotion of tbIee legaI categories, which he calls q.aniriyyat
(necessities), 1)Lijiyyat (needs) and ta1).sfniyyat (improvements). These aims are
intended to ensure that the interests (TnC2$li1].) of Muslims are preselVed in the
best fashions in this world and in the hereafter. See HaIlaq, A History, 168.

80
Iimited ta 'aaiyyat (eustams) and exeludes 'ibaaat.
2
Al-Shatib in these
instances probably intended ta make the 1a.w flexible enough ta meet the
demands of human beings within the constraints of the means af
achieving the ends of the Shari'a al-Shari'a). The ends af the Sha.rf'a
itself, hawever, are crucial ta preserving the authentieity of the Iaw and ta
ensuring that the benefits ta mankjnd in this world and in the hereafter are
maintained. In support of tbis he quotes the saying of Ijuthayfa "evezy ttbada
not performed by the Companions is null and void...and take the path of your
predecessars."28
Still on the tapie of the essence of public interest, al-ShapbI insists that
the systematization of Arabie grammar al-na1).w) he typified as mQ1?la1].a,
not bid''a wa]iba as proposed by 'Izz al-Dl b. 'Abd al-Salam {do 660).29 Arguing
against 'Izz al-Dm's position, al-Shp,o insists that its introduction was not
based on evidence either from the Qur'an or the Sunna. Rather, al-Shatibi
categorizes such praetices on the part of bis predeeessors as a neeessity (4a.runl
in the field of the means (wasci'il), and not that of the maqC$id (the ends), of the
Shan-Ca. 3q
Al-Slullo, furthermore, asserts that cases involving customs ('adiyyat:)
have their basis in reason, such that their benefit or harm can he understood
logieally. Provided, he reminds us, the application of rTl.a91a1J.a mursala should
27 Al-Shatibi
f
al-I'ti:;am, vol. 2, 131-132.

28 Al-Shapbi, vol. 2, 132.

29 'Izz al-Dm. b. 'Abd al-Salam, Qawar.zd al-A1J.kam fi al-Anam, 4
vols. (Cairo: Matba'at al-Istiqama, n.d.), fi, 173.
30 Al-Shapb, al-I'tjam, vol. 2, 133-34.

81
he in line with the ends of the Shatica and that does not contradict the mots of
the laW.
31
This advanced theory of Iaw which protects the benefits of the servant of
God (Tn.al?a1i1;r. al-cbal) is also put forward by Ibn Qayyim al-Jawziyya (d.
751/1350). Ibn Qayyim contends that fatwas can change according to changes
of place, time and condition. In ms mind, the Shanca itself operates for the
benefit of mankind in this world and the hereafter on the basis of ra1].ma (God
blessing), mQ.!?la1).a and 1]ikma (wisdom of God). None of these, he insists, leads
mankind into hardship.32
From the examples cited above, al-Sfuipbl cames to a conclusi.on which
has certain ramifications for bis legal theoty. For him, m a ~ l a 1 a as practiced by
bis forefathers (such as Companions) has two facets. First, its conformity with
the ends of the Sharf(a does not fundamentally contradict its roots (U$U1) or its
indicants (dalasil, pl. dali1J. Second, public interest deals with matlers rationally
understandable and touching specifica1ly on customs (Cadiyyct). This is because
customs are unlike cbada which are transcendent and incapable of
rationalization -- exa.mples being, according to al-Shatibl, W1.ul-' (ablution) and
fJ.a.ii (pilgrimage). 33
To distinguish the fundamental bases of fibadt (which are beyond
human reason) and of 'adiyyat (which are accessible ta human intellect), al-

31 Al-Shatibl, al-]ct?cm, vol. 2, 133.

32 Ibn Qayyim al-Jawziyya, I?a-m al-Muwaqqi7n (an Rabb al-cMamfn, 4
vols. (Caire: MatbaCat al-Sa'ada, 1955), m, 14-15.
33 Al-Shtibl, aI-Icti$am, voL 2, 129.

82
Shatxbl positions himseIf in the tradition of the Mu'taziIites
34
in c1aiming that
reason has no place in the domain of This is because (like
ablution, for instance, which is irrational) are taken for granted as submission
to God, he insists. Cleansing oneself after menstruation, for exa.mple, is
equivalent to submission (ta'"abbudJ. Therefore, ijtihaa bas no business in trying
ta understand any hidden meanings in 'ibt:dc:it. On the contrazy, The objections
of 'aaiyyc:it (customsJ are clear, ie., to preserve benefits (mQ.:?a1i1].) and avoid
harms (mafsid), whereas those of 'ibc:id.at matters are unclear.
35
In other wards,
al-Sh:tibi insists that 'ibcidt, being certain and perfect, need neither addition
nor subtraction, while 'aaiyyat are rational and may be modified according to
necessity or need. Deviations in the performance of 'ibcidat which are alien or
not attested ta by a Sh.a.r indicant are counted as real bid'"a, and therefore are
to he absolutely rejected.
36
MQ.$Ia1].a therefore, amounts to protecting the constraints of
q.an.fri (necessity) and averting difficulty in religion. In stating tbis, al-Sha:tibl
contends that a certain element (probably mursala) should be included
in a relevant case if its exclusion might otherwise lead ta imperfection. This
theozy, known as rru Ici yatimm al-wc:ijib illc bih, is an indispensable facet of the
34 Mu'tazilites argue that reason ineluctably brings humans ta 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 Qur'an and the
Sunna require of humans (taklffJ is good. See Richard C. Martin, Mark R.
Woodward and Dwi S. Atmaja, Defenders of Reason in Islam Mu'tazilism from
Medieval School ta Modern Symbol (Oxford: Oneworld, 1997), 17.
35 Al-Shatibl, al-Muwafaqat, vol. 1, 146.
36 See chapter two under the subtitIe bid'a 1J.aqfqiyya (reaI bid1a).

83
means ofpursuing the ends { m q ~ rather than eonstituting innovation. The
philosophical basis of this outlook is intended to avert hardship.37
Al-Shap.e'i agrees that there is a suitability inherent in the maqci$id,
constituted of necessit;y, need and improvement, which function as a kind of
human attempt at understandng the Sharica. The suitability of these ends is
unequivocally in line with the roots of universality (U$U1 al-kulliyya), which
ensure that the benefits in this world and in the hereafter will not transgress
these limits. Such constraints and limitations, al-S1up.b insists, are not only
deseribed in the Qur'an but are aIso elaborated in the Sunna. 38 This foundation
ensures tbat as long as there is textual evidence in the Qur'an and the Sunna,
applicable legal rulings should always he taken as the basis of on argument,
not reason alone. If a certain textual basis of the Sharica is silent, then the
employment of Tn.a$1aJ].a mursala is acceptable as long as it conforms to the
ends of the Sharifa and their indicants.
39
This position shows that the
superiority of Sharifa ta reason helps to proteet the community from
adjudication of matters leading to bidca. This rationale leads to the conclusion
that innovation itself emerges through rational assumptions drawn from
matters for which the precedent of evidence is lacking.
Judging by the moderate position taken by al-.Shapb, we couId say that
he was not bimself reluctant ta use reason (faqq as the basis for Iegal decisions.
He, nevertheless, tried to pIace himself in an intermediate position between n.aql
(Shan'7a)--immutable by virtue of the certitude of divine Iaw--and reason (faqij__
37 Al-Shapbl, al-Icti$am, voL 2, 133.
38 Al-8hatibl, aI-Muwcifaqcit, vol. 4, 20.
39 Al-Shatib"i, al-Muwcifaqat, vol. l, 26-27.

84
which tends toward reIativity. Elsewhere, he ascertains that reason is inferior to
the Sharira, sinee the latter is universally certain. He repeatedly states that
good and bad in the Sharira cannot be decided solely on the basis of reason,
sinee justification on the basis of reason that something is good or bad is
relative, while the Shar'a is certain. 40
As Fazlur Rahman noted, al-Shap.bl was eonvineed that human
knowledge based on reason and experience cannat he trusted at all and,
therefore, cannot lead ta action.
41
Put differently, al-Shapbl accepted rational
judgement if based on universal truths (kulliycit) or on a multitude of probable
instances or particular statements (juz3iyycit). One example of tbis is bis theory
of mQ.:?lai].a mursala which is fundamentally rational though based on bis
theory of the ends of the Iaw (maqc:i$id al-sharf'a). Wael B. Hallaq notes that he
even went beyond his predeeessors in developing a Iegal theory of induction, by
remaining faithful at the same time ta the established theory of tawatur as the
basis of his general theory.42 He nevertheless exercised caution by rejecting
arbitrarily rational judgement which ean ultimately lead to innovation (bid'aJ.
His efforts may he described as an attempt ta reconcile the two extremes
represented by the Sharf'a and reason, though he gave preference to the former.
Al-Shapbl acknowledged that the Shan-ra does .not elaborate on all rulings in
deta.il, but gives universal guidance in many cases; therefore, it is left ta the
40 Al-Slutibl, al-I't?c:im, vol. 1, 184. He certainly affirms that good or bad
in the domain of ShaTira is unequivocally known by the Shari'a.
41 Fazur Rahman, Islamic Methodology in HistoryJ 2
nd
Edition (Islamabad:
Islamic Research Institute, 1984), 153.
42 Wael B. Hallaq, "On Inductive Corroboration, Probability and Certainty
in Sunn Legal Thought," Islamic Law and Jurisprudence, ed. Nicholas Heer

85
rrwjtahid (mujtahid 1).a.qjiJ ta use bis reason in the exercise of ijtud. 43
Furthermore, aI-Sha1J,b"i believed that the validity of mursala and
isti1).scin, for instance, as sources of Iaw, is unequivocal, though neither is
explicitly referred to in the Qur'an and the Sunna. However, their compatibility
with the universal raots (U$U1 al-kulliyya) is obvious, in that they both benefit
human beings in allowing them ta perform God's orrH
n
a
n
ces.
44
Accordingly, the
raIe of reason in the aforementioned process is indispensable. Al-Shatib,
however, insists that adjudicating good or bad in the CZbcida1 is the prerogative
of the whereas in mundane affairs, where logic plays a greater raIe,
reason may he favored.
Having reviewed the legaI principles held by al-Shatibi, we will look in
what follows at the different arguments of other scholars which lean one way or
the other in the contest.between the Shan.-ca and reason. Our account will show
that al-Ship.b is certainly more objective in the sense that bis middIe way
reflects a more reasonable balance between the rationa! and the scriptural
camps.
Unlike theMaIikites.forwhomTn.Cl!?la1].a mursala couId he employed as
a source of law in the complete absence of textual indicants, the and
especiaIly Ibn I:fazm, strenuously objected to such an approach in religious
matters.
45
The rigidity of Ibn I:fazm. on this topic strictly deIimited the raIe of
(Seattle: University of Washington Press, 1990), 30. Reprinted in Hallaq, Law
and Legal Theory in ClaSsical and Medieval Islam (Aldershot: Variorum, 1995).
43 Al-Shapb, al-Muwcifaqat, vol. 4, 66-76.
44 Al-Shatib, al-Muwrfaqat, voL 4, 148-158; voL 1, 27-34.
45 Noor-ill-Amin Leghari, "The MaIiki Doctrine of Mursala" (M.A.
Thesis., McGill Universit;y, 1984), 81-88.

86
reason in understanding divine law. He equated the practice with ra (reason),
basing himself on the Qur'nic passage "ohey Allah, and ohey the messenger...if
ye have any disputes...refer it to Allah and the messenger 46 and 'Umars saying
"beware the people of (ahl al-ra'y)" as objectionable due to the possibility of
contradicting the divine law and creating innovation: how then does one resolve
the which is still universal or ambiguous? And how does one negate ta'l
(ratio legis)47 which is counted as legal principle? On the contraIy, we can argue
that the is not entirely based on 'ibcdat, which are certain, but aIso on
customs (fcidiyya1), which have ta he elaborated in conformity with the benefits
and harms that face human beings. As Fazlur Rahman contends, the Shari'a,
whether in the foIm. of 'ibcidcit or mu'c:imaIat (social relations), is not devoid of
cilla (ratio legis) and 1).ikma (purpose). For the Qur'an, he affirms, usually gives
an explicit or implicit reason for a pronouncement when it concerns a moraI or
Iegal judgment or principle. Therefore, the reason underlying legal
understanding is 1).ikma, wmch is a bearer of benefit (Tna$1aJ:z.a.) for mankind.
48
46 Q. 4:59.
471t was quoted by Legbari that Ibn F;Iazm says "we do not say that al! the
Shari'a rules are revealed for certain asbao (reasons). We say that none ofthem
was revealed for any cause except the one the law giver bas specitically
mentioned. It is not permissible for us to ask about any of His ruIes , why it was
revealed like this? Therefore a1I causes stand repudiated." Leghari, "The MaIiki
Doctrine," 84. See also bis quotation of Ibn I;fazm, al-I1).kt::imfi U$U1 al-A1).kcm, 8
vols. (Egypt: Matba'at aI-Imam, n.d.), VIII, 1130.
48 Fazlur Rahman, "Towards Reformulating the Methodology of Islamic
Law," New York University Journal of International Law and Palmes, 12, 2
(1979): 219-224. Majid Khadduri furthermore sees that evezy niling bas an
inherent '''ilIa" and "bikma". The distinction of the two lies in the fact the former
indication is direct o"r objective cause while the latter is indicating the indirect
or underlying reason. See Majid Khadduri, "The (Public Interest) and
WB. (Cause) in 1slamic Law," New York University Journal of International Law
and Palmes 12, 2 (1979): 201-217.

87
Al-Sluitibl too frequently proclaims the maqC$d as universal
mots (U$lJ1 al-kulliyya) and as the legal basis justifying the fn.?1a1J.a approved in
the practices of the Companions above. Yet, he also turns bis attention to
another theory besides Tna$1.aJ).a mursala which is likewise not counted as
innovation. This is isti1Jsan (juristic preference), which can be utiIized as a legal
means. Thus while which is not based on the ends of law and even
contradicts the is entirely rejected, istiJ)scin, in the eyes al-Shatibl,
which respects these ends and confirms the is acceptable. Unlike
istiJ).scn may be adopted as a method of reasoning, and is espoused by al-
SbAp.ol himself as a tool of legal argument
B. and rsttJ,.sct
Like m:ursala, isti1)scn (juristic preference) generally is accepted
as a subsidiary source of law in Islamic jurisprudence, though its position is
still opposed by some jurists, such as the What is important for our
purpose however is al-Shatibl's view on istiJ)Scin in connection with For
al-Shapbi, isti1].scin, in terms of literaI meaning i.e., to presume something to he
good or bad, was utilized by the people of innovation (ah! al-bidi"a) as their
argument. Unlike pure isti1).san, which is somewhat arbitrary in detennining
what is good or bad, the leaves no doubt about its position. Any
assessment of good or bad (or pure isti1].san) in Shar7 matters which is not
based on a certain dalfl (indicant) constitutes innovation (al-bidCa al-Zan
tastaJ:tsin).49

49 Al-Shatibl, al-[i"fi:?cim, vol. 2, 136.

88
Bearing this arbitraIY use of isti1).sen in mind, Al-Spbl nevertheless,
characterizes it as a legitimate source of Iaw applied in cases where the nQ.$$ is
siIent. For him, the use of sound isti1').san is not based on one's own feelings or
speculative reason. On the contrary, isti1).scfn espoused in Islamic jurisprudence
must he seen from the perspective of the objective of the Ja.w giver al-
Sheinj.50 The validity of isti1).sa-n, according ta hm, is recognizable in cases
where there is a duality between relying on necessity {4aniiiJ on the one band
and using qi-ycis on the other. Exclusive reliance on the latter in a given case
may, however, lead to hardship, and therefore is to be avoided; instead, istiJJ.scin
(juristic preference) shouId be used. For example, the 'artya cantract by which
unripe dates on the pa.Im-tree are bartered against their value calculated in
terms of edible dried dates, is cansidered lawfu1. If it were left ta qiycis, it would
he unlawful, but due to great exigency and hardship, the solution by isti1].san
makes it lawful. In this particuIar case, istiJ).san promotes a particular 17W.!?la1J.a
in maintaining the universal dam {"al-akhdh bi-Tna!?la1].atin fi
muqcibalat dalilin qulIiyyin"J.SI
The validity of isti1].san as a legal principle was also defended by AI-
Sbirazi (de 476/1083). He selectively accepted istiJ).scin {juristic preference} as
long as it was approved by an.indicant (dalil) and when the use of qiyas was
less than certain. He, however, rejected isti1].san when deemed ta he a limitation
of the cilla {ratio legis} bya daIil al-rifla The former is illustrated

50 Al-Shcitibl, al-Muwafaqat, voL 4, 148-149.

51 AI-Shatibl, al-Muwtfaqa1, voL 4, 149. According ta Sarakhsl, the
abandonment of qiycfs can he valid by basing on the consensus (ijmaj
and necessity (qaru-n)ifthere is a strong reason. See Ml]smmad b. AQInad Ab
Sahl al-Sarakhsl, U$Ul al-Sarakhsf, ed. Ab al-Wafa al-Afghani, 2 vols. (Cairo:
Dar aI-KtB:b al-'Arabl, 1373/1954), II, 202.

89
by the example of a persan who out of forgetfulness proeeeds ta eat something
when he is supposed ta he fasting. Qiycs (ratio legis) dietates that the fasting
wouId beeome void, for the fundamental consideration in qiycs is that food has
entered his body, whether intentionally or not This judgement is however
abandoned on the basis of a Prophetie report which deelares fasting to he valid
if the eating was the result of forgetfuIness. This Prophetie report is thought to
he "preferred" because it takes into account a text that wouId not otherwise
have been employed in qiyas and whieh results in a different rule.
52
The above example is regarded by al-Shirazi as a sound istiJ).scin, given
the weakness of qiycs in this case. Al-Shirazi, however as we have seen, objects
to limiting the cilla by daliL Isti1).san in this case is not tolerated and must he
regarded as unsound. In addition, for him, the use of isti1J.san is based on the
Prophetic report "what Muslims deem good, it is good before God" (7'7Ll:ira
3
a--hu
al-muslimun hasanan fahuwa rind Allan 1J,asanun). The report, according to al-
Smrazi, connotes the goodness which may he identified through the consensus
of 'ulaTTU, not individual preference. Any justification by rational preference
without a dalil is in error. Qiyas, accordingly, is only to he used as a tool if no
explicit text pronounces on the relevant matter. 53
A simiJar which rejeets isti1).san when it involves limitation of
the ratio legis al-filla) is also made by Sarakhsl (d. 490/1097). He cites

.52 Abu Isl1q Ibrahim al-Shnzl, SharfJ. al-Luma

f
, ed. Abdel Majid Turki, 2
vols. (Beirut Dar al-Gharb al-Isla
m1
, 1988), II, 969. See aIso Hallaq, A History
ofIslamicLegal Theories, 107-11l.
53 Al-Slniz, Shar1]. aI-Luma
t
, 970-974. To bolster bis argument on the
rejection of unsound isti1J.scin, al-Shirazi quotes the Q. 4:59; 42: 10. For him,
qiyd:s stands above juristic preference in adjudicating rulings. If istiJ:r.scin is
employed arbitrarily, therefore the position of Iaity and Iearned people is equal.

90
the case of the difference between predatory animaIs and predatory birds. The
beak of the latter is analogized as bane, which therefore cannot transmit
impurity to the food. The former, however, use their tangues when eating and
consequently transmit impurities to the food they consume. This example, al-
Sarakhsl says, is not ta be regarded as ta.kh.$iJ? al-Cilla (the limitation of ratio
legis) but rather as a "preferred qiyas' (al-qiycis al-musta1].san). This is because,
he concludes, the use of isti1]scin follows the Quran, the SUnna and pious
predecessors.
54
Isti1].scin
55
in Malikite doctrine, according to al-Slup,bl, is equivalent ta
TTLa!?1aJ].a mursala (public interest); such isti1].scn, therefore, is not alien ta
stipulated indicants (muqtaq.c adilla).56 In making such a statement, al-ShatIo
may have been trying to stress that isti1].san itself is different from arbitrary
rational judgement in instances where textuaI evidence is lacking, and therefore
it is not to he counted as innovation (bidfa). For, according to al-Sluitibl's
understanding, IegaI cases shouId primarily he in line with the ends of law
(m.aqC$id al-sharffa), rather than with pure reason. The ends of the Iaw, where
Snce bath the former and the latter altogether are able dictate sorne thing
merely basing on their reason (raJy).

54 Al-Sarakhsl, ~ 204-208. Al-Sarakhs quotes the Prophetic saying CI:

ma ralhu al-muslimun 1).asanan fahuwa 'ind Allah 1).asanun" (what Muslims
deem good, it is good beside Gad). See aIso, Hallaq, A History, 107-111. Hallaq
notes that the argument of istifJ.san in the beaks of predatoIy birds analogizing
with the reveaIed stipulation that the use of the bones of dead animais is lawful.
55 Isti1).scin as the tool ta deem something good or bad is employed by
I:Ianafite and Malikite. Bath schools use particuIarization of universal by either
dalil (indicant), textual or contextual. Malikite, then, espouses isti1].sn by
saying with 7Tla$1a1).a mursala (public interest), while I:Ianafite takes as isti1).sn
by soIitaly report (khabar a1].ad). Al-Shatib, al-Muwafaqlit, vol. 4, 150-51.
56 Al-Shiitib, al-Muwfaqt, vol 4, 151.
91
necessity (cjaruri) is a keyelement, depend on divine wisdom (1]ikma),57 a saUd
basis on which ta draw when there is lack of conformity between qiycis (ratio
legis) on the one hand and isti1].san on the other.
As the difference between 'ibdat and mundane matters is a
fundamental point in aI-Shatib's view, the function of istif).san in these two
domains bas ta be treated separately. As we have seen, 'ibdt are considered
perfeet in rslamic Iawas weIl as impossible to justifY on the sole basis of reason.
Mundane matters, however, are not only rationally understandable but may
also change in accordance with time, place and condition. Al-Shatib, therefore,
tolerates the use of istiJ)san in mundane matters insofar as the daI neither
stipulates nor contradicts the Shari'a. Employing isti1).san in the Shari'a without
any dalfl is categorized as innovation (bid'a). For in al-Shtib's words, not every
istifJ-san is true.
58
The cases of isti1).san which al-Shatib rejected appear to have
been efforts at using pure reason ta judge actions as good or bad without a
dam. On the contrary, if isti1J.san is ruIed as conforming to a certain dalil., it is
lawful
Ibn 'Arabi, as quoted by al-Shatibi, defines isti1).sa-n as setting aside a
certain dalil temporarily on the condition that hardship is present or as an
exceptional solutio? when the Iaws applying to a certain case are ambiguous;
on the one band applying a particu.lar Iegal norm. ean lead ta difficulty, while on
the other the reduction of hardship is of prime importance. For these reasons,
isti1J.san can he applied as law in the following instances: fust, in matters of 'urf

Hallaq, "Inductive Corroboration," 28.

58 Al-Shafibi, voL 2, 136. Al-Shatibi says, claysa k:ull isti1].san
haqq.

92
(local custom); second, in TTW.$1a1J.a; third, in order to ease human burdens; and
faurth, to eIiminate hardship. Ibn Rushd, moreover, characterizes isti.1)san as
abandoning qiycs where reliance soIely on the latter May lead to transgression
of the laW.
59
Having eIaborated the issue ofisti1).san as it is treated by these two
Andalusian-born schoIars, al-ShaJibi concludes that istiJ'].scin is in conformity
with the universal indicants (adilla, singe dalil) of the Shati'a insafar as no clear
dal from the Qur'an or the SUnna is expressed. Indicants function to bring
clarity to words which have a plethora of meanings such as when the meaning
of the Qur'an is specified by the SUnna. O
Al-Shatibi agrees that reason can he employed to interpret the Sharf'a
when used in conjunction with istiJ;.stin. He, however, rejected the use of
istif],san where rational judgement is allowed ta dominate the Shari'a. This is
because the Companions, he insists, only employed reason if there was no clear
incUcant from the and only by referring it ta their understanding of the
roots of the Shan-r"a. They never came ta the point of saying ur decided this
because my mind tended tawards this conclusian".l The subjectivity of pure
isti1].san, al-Sh:pbi states, lies in the fact that decisions as ta what is good or
.59 Al-shatib, al-I't:?cm, vol 2, 138-139.
60 Al-Shatibi contends that the definition presented by Ibn 'Arabi and Ibn
Rushd .is inter-related each other. Il, therefore, is in line with law. See al-
Shatibi, voL 2, 139. Al-Shtibi frequently draws the universal roots
(U$UL al-kulli) as the basis principle in the Shan-r"a. Therefare, when there is no
express dam in the the work of ijtihal should he in conformity with
universal mots: Q.arri, tal].sinf and haffi. See Wael B. HaIlaq, "The Primacy of
the Qur'an in Sh:p.brs Legal Theory," in Islamic Studies Presented ta Charles J.
Adams, ed. Wael B. Hallaq and Donald P. Little (Leiden: E.J. Brill, 1991)7 85-88.
Reprinted in Hallaq, Law and Legal Theory in Classical and Medieval Islam
(Aldershot: Varloruin, 1995).
61 Al-Shatibi, vol. 2, 150.

93
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 They resented the people of science (ahl al-'iIm) because of
the Iatters consistency in applying the 62
Just as reason is a subjective factor in pronouncing on matters,
al-Shap.bI also doubts the validity of the heart (qalb) when used as a measure to
just.ifY good or bad ll the sight of the Arguing against the Prophetie
report aask your heart" (istafti qalbak), he decIared he could not see a third
facet to the Shari(a other than the and the Sunna. Any third means of
just:ifYing good or had, he insists, probably refers ta those issues which are
heyond religious concerns.
63
Al-ShaJib's rejection of the heart's judgement when the is silent is
based on four considerations. First, where a case arises for which no certain
ntl$$ can be found, the judgement should be based on a relevant indicant (daHI)
as derived from the ShaTi(a. A fatwa aI-qalb (fatwa of the heart), however,
cannot he used as a dam. Second, all the cases disputed by Muslims should he
referred ta the Qur'an and the Sunna, not the fatwii of the heart. Third, it is
agreed among Muslims that cases which are not solved should he referred to
the people of knowledge (ahl al-dhi101. Finally, al-Shatib draws the conclusion
that eveIY man shouId take bis Lesson from God's signs in conformity with His
indicants in the Qur'an.
64
62 Al-Sluitibl, al-I'ti!?am, vol. 2, 151.
63 Al-Shatib, al-I'ti$cm, voL 2, 157.
64 Al-Shatib, al-I'ti$arn, vol. 2, 157-158. For the final remark, al-Sluip.b
insists on the rectitude of God's oneness through understanding with God's

94
AI-Shatibi's consistency in championing the supremacy of the is
not only reflected in bis concept of but it is also conveyed in bis effort to
preserve the authenticity of the from any deviations. It is true that he
acknowledged the validity of istiJ].scn in spite ofits being severely opposed by al-
Shafi'i (d. 204/820). The difference, however, between these two scholars lies in
the fact that al-Slupbi accepted isti1J.scn insofar as it was in line with the
indicants and rejected those who treated religious matters on the basis of pure
isti1J.scn (reason). Al-Shfi.'i, on the other band, rejected isti1)scn altogether,
arguing that the use of isti1).sn in the is simj1ar ta taking pleasure
(taladhdhudh).65 In addition, al-Shafi'i sees isti1].san as equivalent ta ra}y
(opinion) and hence cannot tolerate it. Legal judgement in the Shari'a,
according to him, can only he based on the Qur'an, the Sunna, ifm
c
(consensus) and qiytis (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-Shafi'i was playing it safe when he rejected isti1].scn by equating it with
ra}y (opinion). This position, which he espoused in the latter ha1f of his career,
was probably inspired by a wish to condemn those in "the ancient schools"67
sign from the Quran, not from the heart. In that, he quotes the Qur'anic verse
saying that "do they not look at the camels
7
how they are created." (Q. 88: 17).
65 b. Idrls al-Shafifj, al-Risa1a, ed. MulJammad Sayyid KayIani
(Cairo: al-Bab al-I:Ialab, 1969), 220.
66 Joseph Schacht, The Origins of Muhammadan Jurisprudence (Oxford:
The Clarendon Press, 1950), 121.
67 This statement used by Schacht is to indicate al-Sluifi'i's critique
against bis predecessor's position in using reason. See Schacht, The Origins of
Muhammadan, 120. Schacht notes that al-Shafi'i in bis earliest period uses ra}y
in the same loose way as the ancient schools. Schacht, however, does not
elaborate in detail which the ancient schools belongjng to. But it is probably
directed to and Mu'tazilite schooIs.

95
and those among bis contemporaries who were tao free in their use of reason.
In other words, al-Shafi'i's polemies are obviously against ist).san and arbitrm:y
ijtihad and in favor of disciplined qiyas as a corrective for those who juxtaposed
reason and the Sharfca. Yet, al-Shafi'i was ulti.mately forced ta reeognize that
one bas ta make decisions on points of detail for which there is no clear
evidence from the
In short, ra'y, which is significant as an expression of rationalist and
utilitarian tendencies, was wholly opposed by al-Shafi'i; this was what fueled
bis vehement opposition ta isti1].scn. Nevertheless, while he unequivocally
insisted on the oveniding status of the Quran and the Sunna, he still tolerated
certain elements of ra'y and molded them into arguments that could he used in
the law, but only insofar as they derived their premises from
Al-Shalibi, on the other hand, accepted isti1].san as long as it did not
deviate from the indicants of the Sharica. Following the example of 70 the
68 Schacht, The Origins ofMuhammadan, 120.
69 Wael B. Hallaq, "Was al-Shafi'i the Master Architect of Islamic
Jurisprudence," in International Journal ofMiddle East Studies, 25 (1993): 597.
Reprinted in Hallaq, Law and Legal Theory in Classica1 and Medieval Islam
(Aldershot: Variorum, 1995). Al-Shafi'i, here, obviously represents himself to
pIace in the middle position between the reveJation and reason expressed by
. qiyas. Indeed, al-Shafi'i tries to argue against bis predecessors who paid Iittle
attention to the SUnna. Therefore, he forms qi.yas and assigns it as a raIe
subsidia.Iy ta that of the revealed sources although it remains an essential part
of bis methodology. Al-Shafi'i, therefore, ean he deemed as ta synthesize the
early ra1y liberalism and the later ?ahirite conservatisme See Hal1aq, " Was al-
the Master architect of Islamic Jurisprudence," 597-98.
70 Mlik b. Anas as quoted by al-Shatibi designates that isti1].scfn is
deemed as nine-tenth of human knowledge. MaIik's characteristic statement
grasps the true essence of isti1].san as a method of finding hetter and more
equitable alternatives ta existing problems both within and beyond the confines
of qiycs (ratio legis). Al-Shtib, voL 2, 138. See also, Hashim Kama
Ji
,
Principles of/slamic Jurispro.dence, 261.

96
eponymous founder of bis school, al-Shatibl deemed its suitability to he
unquestionable, provided its injunctions in Sharrz matters are not based on
persona! judgement or speculation. The sound isti1).san which al-Shapbi agreed
with had the characteristic of relying upon the end of the Iaw-giver (qQ.$d al-
shanj, such as setting aside qiyas (ratio legis) in favor of a stronger TnO.$Ia1J.a or
to avert a greater danger. Such isti1).san is seen, al-Sluitibi states, from the fact
that its efficacy clearly promotes the ends of the Shart'a, q.an,[fi (necessity), 1J.eijfi
(need) and ta1).slnz (improvement). This is hecause, according ta him, in some
cases reliance on a rule merely on the basis of qiyas (ratio legis) might give rise
ta some sort of harmful consequence for human beings. Al-Shatibl, however, is
still convinced that it can he undertaken in perfect consistency with the
foundational texts and without any intrusion of merely human proclivities
(dhawq).71
Having discussed the differences between bidCa (innovation) and isti1].san
as perceived by al-Shtib, we can say that bis aim was, on the one band, to
preserve the authenticity of the Shan-ca, and on the other to ensure that the mIe
of reason is well defined in line with the spirit of the law. The sound isti1]..san,
for instance, is regarded by al-Shap.bl as one means of performing ijtihaa. This
legal principle, however, can he used on the condition that conflicting indicators
exist. Isti1).scn t s ~ we can assume, is a procedure rather than an indicator in
its own right; al-'Anudi (do 630/1232) after all refers to it as ta.TJJ.. al-adilla (the
71 Al-Shatibi, al-Muwafaqat, vol 4, 148-49. See also, Bernard G. Weiss,
The Spirit of Islamic Law (Athens: The University of Georgia Press, 1998), 87.
Bernard G. Weiss notes that all jurists are not so sanguine in this matter. He
sees that this further limit of juristic interpretive endeavor, the textualist
outlook reigned supreme.

97
preponderance of the indicants).72 The pure isti1].sQh, however, if used
arbitrarily, can lead ta the subjectivity of human judgement. While the ShaTica
is deemed as the superior reference for legal injunctions, the people of
innovation (ah[ al-bid'a) take the opposite position by using isti1).san on the
basis of pure reason ta justify bidra practices.
73
Both the violence of bidra and the rejection of pure isti1].san (reason) were
aIso proclaimed by the Syrian-barn reformer Mu4am.mad Rasbd Riq,a (d. 1935).
Prefacing bis position on bidCa and arbitrary reason, Riqa points out that
opinions on legal matters can he divided into three categories: first the valid,
second the invalid, and third the ambiguous opinion. Of these we are most
concemed with the second one. In spite of bis censure against bidra, which he
regarded as invalid or evil opinion, Riq.a convincingly rejects arguments based
solely on assumptions of good or bad (pure isti1).scin) in Shar'f matters.
74
Isti1].sn, he insists, which is not based on sound qiycs (ratio legis) or which
fails ta promote or avert danger is counted as unsound istifJ.san, and
therefore foreign to the Shari'a. 75
72 Bernard G. Weiss, The Searchfor God's Law (Salt Lake City: University
of Utah Press, 1992},673.

73 Ahmad Haris, "Innovation and Tradition in Islam: A Study on Bid'a as

an Interpretation of the Religion in the Indonesian Experience" (ph.D. Diss.,
Temple University, 1998), 233. The attitude of innovator in treating such
isti1).san in the reIigious matters has been criticized by al-Sluitib as the
unsound isti1J,scn in which human reason is more dominant than the Shan-ca.
see al-8luitib, vol 2, 136.
74 Mu.l1ammad Rashd Riq,, Yusr al-Islam wa al-Tashri
t
al-tAmm
(Cairo: MatbaCat Nahqa 1956), 42-43.
7S Riq.a, Yusr al-Islam, 72. In this case, Riq,a seemingly treads the
footsteps of al-Shpbi in treating isti1J,san as can he sound and unsound. The
former is counted as vaIid, while the latter is invalid to which the rational

98
As the ends of the law are the baUmark and
characteristic of al-Shap.bl's legal theozy, the validity of mursala and
isti1).san is also tied ta this concept. These two methods of reasoning are
essentially different from pure reason. Moreover, strictly speaking is
inferior ta these two legal principles. For absolutely disregards the ends of
the law in favor of pure rational judgement. Al-Sh:tIbI only tolerates rational
judgement in mundane matters insofar as it is in accordance with human
welfare and averts danger. In however, he is in faithful with the
superiority of the over reason. His position is probably based on bis
understanding that "between human reason and the Iaw of Gad. there stretched
an essentially unbridgeable gap."76 This gap lies in the fact that not all divine
laws are logical or clear to human understanding.
judgement is dominant. This is to the latter the innovator frequently espoused
unsound isti1).scin as his/her justification.
76 Weiss, '!he Spirit ofIslamic Law, 37.

CONCLUSION
period can he characterized as one in which jurists and $u]fs
allowed their standards to decIine, leading to their adoption of uncharacteristic
positions. On the one hand, jurists were tao lenient in substantiating and
articulating the law, while on the other $U]fs were overly rigid and unduly
demanding in its application. Their attention to religious practices, therefore,

was sometimes distorted from the authentic injunctions prescnoed in the

Qur'an and the Sunna. It was aI-Sbatibi who opposed these trends by insisting
on the supremacy of the over reason in order ta resist (innovation)
permeating into religion, and by emphasizing respect for the ends and the spirit
of law, in spite of the fact that he was himself accused of being a mubdf
(innovator).
Al-f'ti$cm, which deals extensively with the issue of (innovation)
was aI-Shatibi's response to the charges directed at him.; it was aIso his
reformu1ation of the concept of on the basis of the epistemology of legal
theoty. By appealing ta this methodology he placed himself in. a middle-of-the-
road position between the two camps of bis predecessors, led by Ab Bakr al-
Tw1:shi (d. 474/1081) and Ibn Taymiyya (d. 728/1327), respectively. On the
one hand, scholars had stated that applied only in cases of innovation in
while on the other they claimed that occurred bath in and
(customs). Neither group, however, offered sufficient justification or
bothered to develop a new legal or philosophical paradigme It was al-Shatib
who synthesized the positions of the two parties by defining based on the
epistemology of Iegal theory.

100
Al-I'ti:?am elaborates extensively on the doctrine of bid'a, a prime concern
of al-Shap.bi at the time the work was written. He begins by dividing matters of
pure 'iba-da1 from the exclusively cust0lIlB.1Y. The former are taken for granted
as submission (ta'abbud) ta Gad, while the latter can he modified according ta
human need and consensus. He then subdivides bid'a into two types: real bid'a
(bid'a f].aqiqiyya) and relative bid'a (bid'a it:j.a]iyya). Real bid'a (al-bid'a al-
f].aqfqiyya) is defined by al-Shatibi as detrimental to the Shari'a in that its
construction is not evidenced by textual precedent in either the Qur'an or the
Sunna. Such bid'a applies unreservedly in the domain of 'ibaiat which
represent God's own stipulations. Relative bid'a (al-bid'a al-icf.afiyya), however,
is defined first of all as innovation rooted in a clear textual indicant, such as in
the case of congregational prayer on the night of Ramaq.an, and second, as
innovation based on ambiguous indicants or on no indicants at all, such as in
the case of habitual zikr expressed by chanting.
Of these two definitions, which supposedly fall under the heading of
'baIat and customs, respectively, he divorces the notion of bid'a from
m.u1).datha (novelty) in customary matters. The latter in bis eyes should not be
regarded as unIawful, sinnce novelty in customary matters can and have
changed from the time of the Prophet to the present and even vary from one
place ta another. 'Iba-dcit, however, are certain and need neither addition nor
subtraction, and therefore do not tolerate innovation at aIl. Accepting the
Prophetic statement that aU bida' are blameworthy (ku.ll bid'a ijala1a), al-Shalibl
concludes that the censure of bid'a is universal, and that qualifying it as good
or bad, or defining it by any of the five legal norms, is intolerable. The key point,
therefore, is that bid'a pretends ta the authority of the Sharica, when in fact it is

101
not stipulated by Shar'i indicants (ad%11a al-sh.a.riyya). In this sense, al-Sp.'s
approach to the subject is juridical rather than theological.
Al-Shatibi furthermare critiques the efforts at subdividing into the
five of legal norms such as wrjib and manduo, and good or bad as a kind
of innovation within innovation itself (amr mukhtara1. He, however, indirectly
offers an alternative Iegal solution by validating rrw.rsala (public
interest) and isti1J.san uristic preference). He sees (regarded as good and
bad) as different from these two Iegal arguments. MtJ1?la1J.a mursala and
isti1).san, according ta him, are based on the indicants and the suitability of the
whereas bidca is not only foreign ta the but is also contradictory
ta its indicants. In addition, for him, bid'a itself is certainly opposed ta the
SUnna (which can he good and .
When the textual evidence is Iacking, the justification of cases entirely of
a customary nature (i.e., nat matters of 'ibdt), therefore, should be based on
Iegal argument Le., mCJ1?laJ:w. mursala and isti1).sciTl., rather than bid(a. For,
TTLa!?la1).a mursala and isti1)sn are legaIly based on the indicants extant in the
universaI mots {u$U1 kulliyya} of the sharica. Using the concept of as a
legal argument, by implication, is legally weak and paradoxical as weIl.
Finally, we may conclude that although on the whole
concerned with the issue of bidca, was primarily designed as a response ta al-
Shapbl's adversaries who stood for excessive application of the law on the one
band, and a lax attitude. in applying the law, on the other. Either of these
positions ran the risk of introducing innovation (bidl'a). Yet bis work was not
ooly meant ta criticize; rather, and more importantly, it champions the Sharil'a
while at the same time respecting the role of reason.

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