American Journal of Islam and Society Vol 38 No 3-4.indb


71

Before Maqāṣid: Uncovering the 
Vision of Contested Benefits (maṣāliḥ) 

in the Classical Shafi‘i School

Y O U C E F  S O U F I

Abstract
This article provides a sketch of the historical antecedent to the 
11th century theory of maqāṣid al-sharī‘a (the purposes of the 
law). I examine the role of human benefit (maṣlaḥa) within the 
classical Shafi‘i school, focusing on the 10th and 11th centuries. 
I show that Shafi‘i law gave consideration of benefit a central 
role in the interpretation of scripture. This is attested to in both 
texts of legal theory (uṣūl al-fiqh) and substantive law (furū‘ 

Youcef Soufi is Postdoctoral Fellow at the Institute of Islamic Studies at the 
University of Toronto. His forthcoming book traces the rise and fall of clas-
sical debate gatherings in Iraq and Persia between the 10th and 13th centuries. 
Previous publications have appeared in The Oxford Handbook of Islamic Law, 
the Journal of Islamic Studies (32:2), Journal of the American Oriental Society 
(141:4), and Islamic Law and Society (28:1-2), among others. His new project is 
on Islamophobia and state surveillance since 9/11.

Soufi, Youcef. 2021. “Before Maqāṣid: Uncovering the Vision of Contested Benefits (maṣāliḥ) in the 
Classical Shafi‘i School” American Journal of Islam and Society 38, nos. 3-4: 71–102 • doi: 10.35632/
ajis.v38i3-4.2990 
Copyright © 2021 International Institute of Islamic Thought



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al-fiqh). Importantly, I also explain how Shafi‘is subjected their 
claims about benefit to contestation and debate, acknowledging 
the limits to humans’ ability to apprehend God’s law. In pre-
senting this classical model of benefit in the Shafi‘i school, the 
essay offers an alternative for reformists who invoke the maqāṣid 
al-sharī‘a today—an alternative that has a deep pedigree within 
the Islamic tradition and promotes the democratization of debate 
over the benefits of the law.

Introduction

The importance of maqāṣid al-sharī‘a to Islamic reformist thought is 
significant.1 For many reformers, the idea that Islamic law serves foun-
dational ends (like the protection of life, property, religion, lineage, and 
reason) holds the promise of correcting premodern laws by providing a 
touchstone from which to judge the validity of all legislation. However, 
invoking maqāṣid has two acknowledged limitations. The first is the 
maqāṣid’s peripheral importance to the discourse of substantive law 
(furū‘ al-fiqh).2 Al-Ghazali (d. 505/1111) articulated the first version of 
the maqaṣid al-sharī‘a in the late 11th/early 12th century, long after clas-
sical jurists had produced texts addressing standard substantive legal 
matters.3 This peripheral status opens reformists up to a critique of 
failed faithfulness to the legal tradition. The second limitation is the 
lack of mechanisms in adjudicating conflicting interpretations about the 
maqāṣid.4 As a consequence of this lack, the maqāṣid theory facilitates 
an authoritarian resolution to legal interpretation where one reading of 
the maqāṣid is given primacy over another. But what if the reformers 
are looking for tools in the wrong period of Islamic history? What if the 
classical period in the two centuries prior to al-Ghazali’s formulation of 
the maqāṣid offered them what they needed to rethink the law in ways 
that do justice to their sensibilities about a merciful God, while over-
coming the two critiques I have outlined above?

In this article, I examine the role that human benefit played within 
the legal thought of the Shafi‘i school in the classical period, particu-
larly the 10th and 11th centuries CE.5 I purposely focus on the Shafi‘i 



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school because Shafi‘is have long been considered champions of tex-
tual authority over the pragmatic approaches of their predecessors in 
Iraq and Medina6—a view which I seek to complicate. My strategy is 
to examine texts both of legal theory (uṣūl al-fiqh) and substantive law 
(furū‘ al-fiqh). I make three claims. First, I argue that Shafi‘is had a plu-
ralistic view of human benefits which they sought to uncover through 
engagement with scripture. Second, these human benefits determined 
how Shafi‘is applied the law. And third, Shafi‘is saw these benefits as 
objects of ongoing debate. These debates took place through the medium 
of books and disputations (munāẓarāt) between jurists. Thus, the Shafi‘is 
considered that the identification of human benefit should always be pro-
visional and open to critique. Uncovering what I call the “classical model 
of contestation” over human benefits within the classical Shafi‘i school 
provides contemporary reformers with an alternative approach to the 
maqāṣid, one that demands that claims about “benefits” or “objectives” 
of the law be open to ongoing scrutiny.

To expand upon the classical Shafi‘i understanding of benefit, 
the article is divided into three sections. The first section examines 
two texts of uṣūl al-fiqh to show the distinction between the Ash‘ari-
Shafi‘i and Iraqi Shafi‘i understandings of benefit. By focusing on Abu 
al-Ma‘ali al-Juwayni’s (d. 478/1085) al-Burhān fī uṣūl al-fiqh, I show how 
the Ash‘ari-Shafi‘is made the concept of maṣlaḥa (benefit) central to 
their method of deriving legal positions.7 In contrast, I show that the 
Iraqi Shafi‘is, exemplified in Abu Ishaq al-Shirazi’s (d. 476/1083) Sharḥ 
al-Luma‘, gave greater preference to a linguistic analysis of scripture 
and to identifying consistency across similar cases in their legal deter-
minations. Despite these different emphases, the Iraqi Shafi‘is agreed 
with their Ash‘ari-Shafi‘i counterparts that benefit could be identified 
in many of the law’s causes of legislation (‘ilal). In section two, I turn 
to examining Shafi‘i substantive law by focusing on the example of the 
dispensation from facing the qibla (prayer direction) during travel.8 The 
analysis reveals that Shafi‘is made wide use of the benefits they identified 
in scriptural injunctions to properly apply the law.9 The third section 
moves beyond the Shafi‘i school to examining juristic debates about 
the necessity of guardianship in marriage. What the section reveals 



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is that jurists of all schools clashed over the function of guardianship 
and subjected their claims to ongoing critique.10 Thus, this third section 
exemplifies the “critical search” for benefit in the classical legal schools, 
providing reformers with a model for the present.

Human Benefit in 10th-11th Century Shafi‘i Legal Theory

In this section, I examine al-Juwayni’s Burhān and al-Shirazi’s Sharḥ 
al-Luma‘ in order to show two competing understandings of benefit 
within Shafi‘i legal theory of the 10th and 11th centuries. Al-Juwayni’s 
Burhān is a mid- to late-11th century text of uṣūl al-fiqh that belongs to 
the Ash‘ari-Shafi‘i tradition. Prior to al-Juwayni, the foremost theorists 
within this tradition were Abu Ishaq al-Isfarayini (d. 418/1027) and Ibn 
Furak (d. 406/1015-6).11 Both al-Isfarayini and Ibn Furak were trained 
in Shafi‘i substantive law in Iraq. Yet both men also became experts 
in Ash‘ari kalām (theology) under the guidance of their master Abu 
al-Hasan al-Bahili.12 The men’s Ash‘arism influenced their uṣūl al-fiqh 
positions. Al-Ash‘ari himself had delved into some questions of uṣūl 
al-fiqh, including for instance the question of whether there is a partic-
ular linguistic form in the Arabic language to express a command.13 But 
for the most part, it was Abu Bakr al-Baqillani (d. 403/1013), a Maliki 
jurist, who had developed Ash‘ari thought into a full-blown theory of 
uṣūl al-fiqh. For this reason, al-Baqillani is often referred to by the simple 
shorthand “al-Qāḍī” in the Burhān.14 In general, these Ash‘ari-Shafi‘is 
were confronted with the need to harmonize the uṣūl al-fiqh positions 
of al-Baqillani with those of the Shafi‘i school, whose elaboration had 
begun with al-Shafi‘i’s Risāla and continued with Ibn Surayj’s learning 
circle in Iraq.15 Sometimes these Ash‘ari-Shafi‘is encountered tensions 
between the two streams of thought. This tension is present within the 
Burhān. ‘Abd al-‘Azim al-Dib, who edited the Burhān, provides a list of 
instances where al-Juwayni departs from al-Shafi‘i’s positions and a 
list of instances where he departs from the positions of al-Ash‘ari and 
al-Baqillani.16 However, it is well to note that al-Juwayni sometimes 
struck a path independently of both thinkers: Taj al-Din al-Subki found 
the Burhān remarkable precisely because of its author’s independent 



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thought.17 The 10th- and 11th- century Ash‘ari-Shafi‘i stream of uṣūl al-fiqh 
would in turn have a great influence on subsequent Shafi‘i authors of 
uṣūl al-fiqh, such as Abu Hamid al-Ghazali, Fakhr al-Din al-Razi (d. 
606/1209), and Sayf al-Din al-Amidi (d. 631/1233). Al-Juwayni ascribes 
to his predecessors among the Ash‘ari uṣūlīs (writers of uṣūl al-fiqh), 
which he designates as al-muḥaqqiqūn (the verifiers),18 the theory of 
benefit (maṣlaḥa) that concerns us here.

Al-Juwayni presents the Ash‘ari-Shafi‘i theory of benefit in greatest 
detail in his section on qiyās (analogical reasoning).19 In particular, al-Ju-
wayni ascribes to al-Isfarayini the view that a valid legal cause (‘illa) must 
bring about a benefit (maṣlaḥa).20 Thus, when a jurist is to perform an anal-
ogy, he is to examine the law of the original case (al-aṣl) and identify what 
benefit this law serves. If he cannot find a benefit, then he must abstain 
from effectuating an analogical argument (qiyās). Al-Juwayni grounds 
his theory of benefit in the practice of the early Muslim community. He 
responds to a hypothetical interlocutor who questions this method, stating 
that “since the Lawgiver (al-Shāri‘) does not bind His law to each and every 
benefit [that humans can rationally identify], and narrators of the past do 
not identify the specific presumptive evidence upon which the compan-
ions relied,” then how can he rely upon the method of identifying benefit? 
Al-Juwayni answers by stating that, “In the times of long ago and the eras 
that followed them, they did not limit themselves to specified ways [of 
determining benefit], rather they reasoned independently in the manner of 
one who sees no end to independent opinion (istarsala istirsāl man lā yarā 
li-wujūh al-ra’y intihā), and they saw the ways of reasoning [on benefits] 
to be without end…when there was a lack of textuality.”21 Two points are 
of prime importance already. First, according to this theory, the Lawgiver 
(i.e., God, but often through the medium of His Prophet) does not always 
make the benefits of his law explicit. Rather, human beings must find them 
using their reason. Second, this theory of benefit imagines that there are 
innumerable human benefits that the law serves which further encourages 
jurists to explore new benefits that their predecessors have yet to identify.

While al-Juwayni focuses his discussion of benefit in the section on 
qiyās, I would argue that the notion of benefit is central to his thinking 
on the law more generally. For one, it appears in other sections of the 



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Burhān. Thus, al-Juwayni invokes the notion of benefit in relation to the 
a contrario (dalīl al-khiṭāb) argument.22 The a contrario argument was 
commonly tackled in books of uṣūl al-fiqh. The argument implies that 
a statement about a group necessitates the contrary for the opposite 
group. For instance, if the Prophet stated that zakāt is owed on pasture 
grazing sheep, then it follows that no zakāt is owed upon the non-pasture 
grazing, or stable fed, sheep. The a contrario argument was controversial 
with some jurists for both theological and logical reasons.23 However, 
al-Juwayni considers an a contrario argument as valid on condition that 
the jurist’s conclusion leads to a benefit. If, however, the ruling does not 
produce a benefit, then al-Juwayni rejects the argument. The notion of 
benefit also appears in discussing laws for which no textual basis exists 
(maṣlaḥa mursala).24

Further, the importance of benefit to al-Juwayni’s reasoning on the 
law is evident in his scriptural hermeneutics. On the surface, al-Juwayni 
abides by what had become a standard Shafi‘i method of interpreting 
scripture by dividing an utterance into categories of relative ambiguity. 
For instance, the meaning of an utterance can be evident or perspicuous 
to an Arabic speaker (a category of textual clarity referred to as naṣṣ).25 
The view that utterances can be perspicuous depends on the further 
assumption that words have standard meanings. These meanings can 
be the product of three different histories: 1) a word’s original use (al-
waḍ‘); 26 2) a word’s changed meaning over time (al-‘urf); or 3) a word’s 
technical meaning within scripture (al-shar‘). While a scriptural source 
that is naṣṣ should not be subject to further discussion, al-Juwayni him-
self recognizes that most of the law is not perspicuous.27 Texts often 
fall within the category of ẓāhir (possessing an “apparent” meaning), in 
which a prima facie meaning could be abandoned upon closer contextual 
examination. But what should a jurist assume is the right context of 
interpretation for the Lawgiver’s utterances? It is here that al-Juwayni’s 
appeal to benefit matters to textual hermeneutics. If the Lawgiver links 
rulings to causes that are beneficial to humans, then benefit is one of 
the proper contexts through which to understand scripture. We can 
see that al-Juwayni interprets scripture through the lens of benefit in a 
famous disputation that took place in 1083 in Nishapur between him and 



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al-Shirazi on the permissibility of forced marriage.28 In the disputation, 
al-Juwayni interprets a ḥadīth through the lens of maṣlaḥa. He rejects 
his opponent’s interpretation of the ḥadīth as legitimating the forced 
marriage of virgin women because he claims that the Prophet’s mention 
of virginity is not a suitable cause, i.e., it produces no benefit for the bride 
or her family.29 The disputation is telling of al-Juwayni’s view of benefit 
as the correct lens through which to derive legal opinions more generally.

Al-Juwayni’s legal method fits with his Ash‘ari theological commit-
ments. The Ash‘aris had long argued against the Mu‘tazila position that 
God is constrained to make rules based on an objectively rational view 
of good and bad (al-ḥusn wa’l-qubḥ).30 Against the Mu‘tazila, al-Juwayni 
argues that right and wrong are culturally relative and that God’s omnip-
otence means that He can impose upon humans any rule He wants.31 But 
as Anver Emon has shown, the Ash‘aris nonetheless thought that God’s 
faḍl (kindness or grace) had created a law that was good for His human 
creation.32 We should thus read al-Juwayni’s commitment to finding 
benefit in scripture as part of a more general understanding of divine law.

Before turning to the Iraqi Shafi‘is’ theory of uṣūl al-fiqh, there is a 
final point in al-Juwayni’s exposition that merits attention. Al-Juwayni 
states that the jurist should not necessarily adopt the first benefit that 
comes to mind when seeking the legal cause for a law. Instead, the jurist 
must subject the benefit he identifies to possible impediments (‘awāriḍ) 
or invalidators (mubṭilāt) that reveal that a purported legal cause is mis-
taken.33 Al-Juwayni, like other jurists, had developed a host of technical 
arguments that could discredit a possible legal cause (‘illa). For instance, 
a jurist might critique the presumed legal ruling (ḥukm) of a jurist (man‘ 
al-ḥukm fī al-aṣl).34 Alternatively, he might find a counter-example where 
the ruling is present but where the presumed legal cause is absent, show-
ing that the ruling is not the product of the legal cause (wujūd al-ḥukm 
ma‘a ‘adam al-‘illa or ‘adam al-ta’thīr). Alternatively, he might find that 
the purported legal cause is present in another case but leads to a dif-
ferent ruling (wujūd al-‘illa ma‘a ‘adam al-ḥukm or al-naqḍ).35 A jurist 
could use these potential invalidators of a legal cause monologically, by 
thinking up potential problems with it. But he could also do so dialogi-
cally with other jurists. Indeed, al-Juwayni also calls these invalidators 



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objections (i‘tirādāt), which gestures towards their use by fellow jurists.36 
Jurists’ objections to a purported legal cause were typically levelled in 
disputations.37

According to al-Juwayni’s student, al-Ghazali, disputations were pri-
marily a means to perform ijtihād.38 Al-Ghazali affirmed two instances 
in which disputations were obligatory for a jurist tackling questions 
of controversy (masā’il al-khilāf). The first was when a jurist was on 
the fence about the merits of legal evidence.39 The disputation became 
a means to test this evidence. The second was to ensure that there did 
not exist definitive evidence like a perspicuous text that would make it 
sinful for the jurist to hold on to a divergent opinion.40 Critique would 
reveal whether there was truly definitive evidence for a given question 
(mas’ala). But al-Ghazali also considered numerous reasons why dispu-
tations were recommended for a jurist. Included among these reasons 
was the ability of disputations to allow a jurist to accede to a better posi-
tion. More generally, al-Ghazali saw the disputation as a recommended 
means of training a jurist to think more effectively on the law. Al-Ghazali 
was far from the only jurist of the classical era to see the disputation as 
an indispensable part of juristic ijtihād. Al-Khatib al-Baghdadi states 
that “the purpose of disputation and debate is to search the truth (ṭalb 
al-ḥaqq)” of God’s law.41 In his summary of al-Baqillani’s legal theory, 
al-Juwayni himself turned to explaining some of the benefits of dispu-
tation, which overlapped with those of al-Ghazali;42 and in his text of 
jadal (dialectic), al-Kāfiya, al-Juwayni affirms that disputation is among 
the most important of obligations because it helps a fellow jurist turn 
away from falsehood towards the truth.43 For this reason, the Kāfiya 
gives sustained attention to the objections against a legal cause.44 Thus, 
we should read al-Juwayni’s statement about subjecting legal causes 
to impediments and invalidators by reference to a historical context in 
which disputations were a standard means of evaluating the evidentiary 
basis of the law. In other words, further scrutiny, often through critique, 
was as important to the identification of a legal cause as considerations 
of benefit.

In sum, the Ash‘ari-Shafi‘i legal theory saw much of God’s law as 
the product of a multiplicity of benefits whose confirmation depended 



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on further investigation. On the surface, this view of benefit appears 
greatly opposed to Iraqi Shafi‘i legal theory. Taking al-Shirazi’s Sharḥ 
al-Luma‘ as exemplary of Iraqi Shafi‘ism, we can see that Iraqi Shafi‘is 
were cautious about incorporating Ash‘ari theology within their legal 
theory.45 Instead of deference to Abu Ishaq al-Isfarayini, al-Shirazi shows 
fidelity to the theoretical positions that Ibn Surayj and his students had 
developed in Baghdad and neighboring cities from the late ninth cen-
tury onwards.46 Although we lack many of the texts that Iraqi Shafi‘is 
composed, this cohort appears to have been less committed to making 
maṣlaḥa a condition for a suitable legal cause.47 For instance, al-Shirazi’s 
section on qiyās identifies several methods of identifying an legal cause 
(‘illa), none of which depend upon benefit.48 Rather, al-Shirazi considers 
that a jurist should seek out the causes for the law through scriptural 
sources that either explicitly mention them, with words like “because” 
(li) following an injunction, or else implicitly gesture towards them, for 
instance by including an attribute (ṣifa) that serves to single out the cause 
of the law.49 If the jurist cannot find a cause in scripture, then al-Shirazi 
provides him with one of two means of extracting the cause of a case. 
First, he can seek to identify an instance where the law is in effect and 
an analogous instance where the law is not, thus permitting him to iden-
tify the variable that is responsible for the law (an operation known as 
al-ta’thīr). For example, the permissibility of grape juice suggests that 
intoxication is the relevant variable accounting for wine’s prohibition.50 
Subsumed under this approach is the process of juristic elimination, 
al-taqsīm, in which the jurist goes through all the possible variables 
that could be the cause for a law and eliminates them until only one is 
left.51 Second, the jurist can survey several other cases where the same 
variables are present to determine if one of these variables is associated 
with the same law.52 This amounts to an inductive examination of the law 
(shahādat al-uṣūl) to isolate legal causes. But the clearest indication that 
al-Shirazi rejects incorporating benefit as a means to derive the law is his 
statement against an anonymous detractor who claims that disputations 
seek to find al-aṣlaḥ (the most beneficial position). Al-Shirazi responds, 
“The most beneficial in regards to welfare (manfa‘a) has no relation to 
the apprehension of legal proofs of the law (adillat al-shar‘).”53 Mariam 



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Sheibani usefully sums up the prima facie position of the Iraqi Shafi‘is, 
writing that “the anecdotal evidence indicates a strong antipathy towards 
embedding legal theory in Ash‘arī theology, and more general misgivings 
about rational theology more broadly.”54

However, a closer examination of al-Shirazi’s legal theory indicates 
that human benefit is inextricable from God’s law.55 Al-Shirazi states that 
legal causes are of two types. First, there are legal causes in which the 
jurist understands the reason for the law (wajh al-ḥukm). Al-Shirazi then 
states: “this is like our saying ‘wine is prohibited because of intoxication 
(al-shidda al-muṭriba)’… we know that intoxication is the cause of the 
prohibition of wine because it leads to corrupt behavior (al-fasād), the 
abandonment of prayer, and the loss of wealth and life.”56 In contrast, 
the second type of legal causes comprises those for which the jurist does 
not understand the reason for legislation. The example that al-Shirazi 
gives is that of the impermissibility of usury on wheat, whose legal cause 
is wheat’s status as an edible (maṭ‘ūm). In al-Shirazi’s estimation, God 
has “hidden [the reason why foodstuff is subject to anti-usury laws] 
within his knowledge (ista’tharahu fī ‘ilmihi).”57 This division between 
two types of legal causes shows that al-Shirazi sees some laws as based 
on rationally recognizable benefits.58

Thus, a careful comparison between al-Juwayni and al-Shirazi reveals 
differences and similarities. First, al-Juwayni posits benefit as a means 
for the identification of legal causes. In contrast, al-Shirazi uses other 
means (i.e. a linguistic analysis of scripture, the isolation of possible 
variables, and an inductive study of the law) to identify legal causes.59 
Nonetheless, both men also understand the law as an interplay between 
fidelity to scripture and a rational search for human benefit. Both accept 
that an unambiguous text should be followed even if the benefit is not 
immediately decipherable. And both consider that benefits inherent in 
God’s laws often reveal themselves through engagement with scripture. 
Lastly, we might note that al-Shirazi as much as al-Juwayni gave great 
importance to subjecting a purported legal cause to critique, dedicating a 
section of the Sharḥ to ten means of showing a legal cause’s incorrectness 
(fasād al-‘illa), and providing an analogous treatment within his book 
of dialectic, al-Mulakhkhaṣ fī al-Jadal.60 The two jurists were therefore 



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part of a culture that subjected legal causes to ongoing contestation. 
The overlap between the Iraqi and Ash‘ari-Shafi‘i view of benefit in 
text of legal theory had significant consequences for Shafi‘i substantive 
law in the 10th and 11th centuries. As we shall see in the next section, 
Ash‘ari-Shafi‘is and Iraqi Shafi‘is approached benefit similarly in their 
substantive legal reasoning.

Before moving to the next section, it is well to ask in what ways 
the foregoing review of Shafi‘i legal theory provides us with a different 
model than that of the maqāṣid. To start, we can agree with Mohammad 
Hashim Kamali that the model of uṣūl al-fiqh and that of the maqāṣid 
both lead to similar regard to human benefit. As Kamali notes, the dif-
ference between the two is procedural.61 Whereas the maqāṣid begins 
by insisting on protecting or securing a benefit, the 10th- and 11th-century 
Shafi‘i model insists on fidelity to textuality first, and then demands 
that jurists seek out the benefit inherent in the command.62 But there 
are also two points of departure already apparent between this model 
and the approach of the maqāṣid. The first is the emphasis on the search 
for human benefits. In this model, there is no attempt to pin down a 
list of objectives or ends that the law serves because the jurists are 
continually discovering the benefits of God’s law through engagement 
with the text. The second is the need for communal critique over these 
purported benefits. The identification of a benefit for the Shafi‘is is not 
enough to secure that benefit’s validity; a jurist must allow his legal 
cause to be subject to objections (i‘tirādāt). In short, the model of the 
classical tradition demands a “critical search” for benefit in the process 
of uncovering God’s law. The next section shows how this search shaped 
Shafi‘i substantive legal interpretation. I leave the matter of critique to 
the third and final section of the article.

The Search for Benefit in Substantive Law:  
The Case of the Qibla in Times of Travel

The standard narrative of Islamic legal history might make us skeptical 
that Shafi‘i substantive law in the 10th and 11th centuries actually paid 
mind to human benefit, regardless of what we find in books of legal 



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theory. The Shafi‘is have long been seen as the paradigmatic textual-
ist school of law. This reputation is partly the result of their rejection 
of “juristic preference (istiḥsān)” and the “practice of the people of 
Medina (‘amal ahl al-Madīna)”—mechanisms associated primarily with 
the Hanafis and the Malikis. It is also partly an effect of the influence 
of al-Shafi‘i in strengthening the textual basis of the law across legal 
schools.63 As Mohammad Fadel noted over two decades ago, it is a truism 
in the historiography that al-Shafi‘i is responsible for critiquing and 
pushing the pragmatic Medinan and Iraqi jurists to adopt methodologies 
that championed textual proofs for their legal positions.64 At first blush, 
the insistence on the textual grounding of the law appears contrary to 
notions of human benefit. It is tantamount to saying that humans must 
follow whatever they find in the text rather than what is best for indi-
vidual flourishing or social harmony. Yet, in line with the legal theories 
of al-Shirazi and al-Juwayni, the reality is that the focus on textuality 
did not obviate juristic attention to human benefit so much as displace 
it onto the text itself. What mattered to Shafi‘is was to understand why 
the lawgiver gave the rules that he did. In other words, textuality became 
the site in which the search for benefit took place. This, in turn, came to 
shape the application of the law.

We can see the attention to discovering human benefits in scriptural 
injunctions when we focus on actual debates of substantive law within 
the Shafi‘i school of the 10th and 11th centuries. The example that I exam-
ine is the debate over the abandonment of the qibla (the proper prayer 
direction, i.e. facing Mecca) in times of travel. The Shafi‘is had always 
affirmed that there are only two instances in which Muslims might pray 
in a direction other than the qibla. One of these instances is the optional 
prayers on a mount during travel (al-nawāfil ‘alā al-rawāḥil). An initial 
glance at any Shafi‘i law manual might mislead the researcher into think-
ing that the obligation is strictly rooted in textuality. Thus, Abu al-Tayyib 
al-Tabari (d. 450/1058), judge and head (ra’īs) of the Shafi‘is in Baghdad 
in the middle of the 11th century, grounds the dispensation from facing 
the qibla in the Qur’anic verse: “To God belongs the East and the West, 
so wherever you turn, there is the face of God” (2:215). Al-Tabari refer-
ences Ibn ‘Umar who said that the verse “was revealed concerning the 



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optional prayer in travel, which is prayed wherever your camel turns.”65 
Al-Tabari then quotes a series of ḥadiths. Among them: “Ibn ‘Umar used 
to pray during travel upon a mount, saying that the Prophet did this”; 
‘Abd Allah b. ‘Amir b. Rabi‘i’s father said that “he saw the Prophet pray 
upon a mount wherever it turned”; and “The Prophet used to pray on his 
mount towards the East, but if he wished to pray the obligatory prayers 
(al-maktūba), he descended and faced the qibla.”66 In short, as we would 
expect, the Shafi‘i position rigorously depends on textuality.

But upon closer examination, one finds that the Shafi‘is’ position 
also depended upon what they understood to be the Lawgiver’s intended 
meaning (ma‘nā) behind his scriptural injunctions or his Prophet’s 
actions. Abu al-Hasan al-Mawardi (d. 450/1058), al-Tabari’s contem-
porary, writes in al-Ḥāwī al-kabīr that were a person prohibited from 
praying on a mount it would lead to one of two unfavorable outcomes: 
either an abandonment of prayer, which would negatively affect their 
devotion to God, or an abandonment of their travel, which would impact 
their worldly prosperity.67 Similarly, al-Shirazi, who was al-Tabari’s star 
student, states that the function of the permission to pray away from 
the qibla is to permit people to travel (lā yanqati‘ al-nās ‘an al-sayr).68 
Later, al-Shirazi notes that the dispensation also allows people to fulfill 
righteous deeds (ḥattā lā yanqaṭi‘ ‘an al-ṣalat fī al-safar). When we turn 
to al-Juwayni’s Nihāyat al-maṭlab we find that al-Juwayni expresses the 
same point of view: “Perhaps the intended meaning (al-ma‘nā) that legit-
imates the optional prayers on a mount is that people cannot do without 
travel and, since the successful one is avaricious with his time and does 
not spend it without thought, if we did not allow the optional prayers 
to be performed on a mount, people would either be cut off from their 
livelihood (la-inqaṭa‘a al-nās ‘an ma‘ashihim) or they would abandon 
their prayers if they gave preference to travel.” Al-Juwayni ascribes this 
same view to al-Qaffal al-Marwazi (d. 417/1026) and al-Qaffal’s teacher, 
Abu Zayd al-Marwazi (d. 372/982), both of whom are associated with the 
development of Shafi‘i substantive law in the North Eastern Persian prov-
ince of Khurasan.69 Across the different branches of the Shafi‘i school we 
see a concern with human benefit through balancing between individuals’ 
worldly prosperity and their spiritual growth. Importantly, nothing in the 



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textual evidence quoted above references spiritual and worldly ends as the 
legal cause for the abandonment of the qibla. At most, one would identify 
from the three quoted ḥadīths that the legal cause is travel. This suggests 
that Shafi‘is approached the text with an eye to the benefit it secured.

At first blush, we might wonder if the Shafi‘is were merely curious 
about the purpose behind God’s commands. Put otherwise, are the bene-
fits they identified mere afterthoughts to satiate the mind rather than an 
intrinsic part of legal derivation? If so, then their exegesis about the rea-
sons for abandoning the qibla would be irrelevant to the actual fatwās they 
gave to their lay Muslim petitioners. Yet, when we examine how jurists 
elaborated the law on the qibla to a variety of circumstances, it becomes 
evident that the benefit they identified determined the proper applica-
tion of the law. In particular, we find that the extent to which a traveler 
experiences hardship (mashaqqa) determines how and when the Shafi‘is 
interpret the permission to pray away from the qibla. Thus, if a person is on 
a boat or on a mount that is large enough for her to turn towards the qibla 
“without any harm” to herself, she should do so.70 For smaller mounts, the 
Shafi‘is likewise used the notion of harm to make distinctions between 
prayers performed while a person is moving (sā’iran) and those performed 
while she is standing still (wāqifan).71 Thus if a worshipper seeks to pray 
while her mount is in motion, the Shafi‘is did not require the worshipper 
to face the qibla since this would disturb her travel. If, however, the person 
prayed while standing still, then they made a further distinction. If this 
worshipper is part of a caravan (qiṭār), then she should pray wherever she 
is facing because it would disturb the group, particularly if they sought to 
resume travelling during her prayer.72 Likewise, if the person is alone but 
on an obstinate mount, then she should pray where she is facing. Only if 
the person is travelling alone with a mount that is pliable enough to move 
with ease should she worry about turning towards the qibla. Finally, the 
Shafi‘is also contended that a person walking should be able to pray in 
the direction of her travels, but she should turn her head towards the qibla 
when starting the prayer (takbīrat al-iḥrām), when bowing (rukū‘), and 
when prostrating (sujūd), because in none of these instances is it difficult 
for her to do so. In short, the application of the law could not be discon-
nected from the benefit it aimed to serve.



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The Shafi‘is argued against Malik, who contended that the dispensa-
tion from facing the qibla was only sanctioned for long travels.73 Since 
the Shafi‘is considered the material and spiritual benefit of abandoning 
the qibla to be present in short travels too, they permitted it. Likewise, 
benefit was the basis for disagreement on the application of the law 
within their own ranks. The Shafi‘i Abu Sa‘id al-Istakhri allowed those 
staying in their location of residence (al-ḥāḍir) to pray their optional 
prayers facing away from the qibla.74 But most Shafi‘is rejected al-Is-
takhri’s position, feeling that it was undercut by the lack of precedent on 
the part of the Prophet combined with the relative ease of prayer while 
not travelling. Their invocation of both Prophetic practice and ease is 
telling of the Shafi‘i attempts to stay true to the precedent laid out in 
text and to the benefit that they identified by engaging with the text.

There are four conclusions from the foregoing. First, we see that 
the Shafi‘is read scripture through the prism of benefit. There is no sig-
nificant difference in this regard between the Shafi‘is of Iraq and the 
Ash‘ari-Shafi‘i position of al-Juwayni. Second, the Shafi‘is used the iden-
tified benefit to determine the law’s application in a variety of instances. 
Third, we see in debates with Malik and al-Istakhri that jurists argued 
over how this benefit can best be secured. Note that the example of the 
qibla pertains to ritual law. In theory, ritual law (al-‘ibāda) is that realm 
of Islamic law whose raison d’être is least amenable to human rationality, 
since jurists have often pointed to how its rules are seemingly arbitrary. 
For instance, there is no reason that the dawn prayer should consist of 
two cycles and the dusk prayer should be four. Yet the jurists did not shy 
away from identifying benefit even on matters of ritual law.

Of course, the case of the abandoned qibla in optional prayers on travel 
is but one example, and may appear limited in scope. Certainly, there are 
laws for which the Shafi‘is did not provide a benefit. For instance, if Shafi‘is 
believed that permitting one to provide an expiation before breaking an 
oath (taqdīm al-kafāra ‘alā al-ḥinth) was beneficial to human beings, they 
did not share how in their books of substantive law.75 Nonetheless, the 
commitment to identifying human benefits is rife throughout much of 
Shafi‘i substantive law. For instance, al-Shirazi affirms that a wife who does 
not received her entitled financial maintenance from her husband for three 



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days can demand the dissolution of her marriage (al-khiyār).76 Al-Shirazi’s 
position is based on his concern for the woman’s physical needs, stating 
that the “body cannot survive” without the food and shelter owed to her.77 
Similarly, al-Shirazi affirms that a Muslim leader must undertake a mini-
mum of one yearly military expedition on neighboring enemies to prevent 
foreign armies from “coveting Muslim lands.”78 And finally, Ibn Surayj 
considers that an intoxicated person’s pronouncement of divorce or the 
manumission of a slave should be considered valid in order to discourage 
individuals from becoming intoxicated and performing harmful deeds.79 
In all these instances, different social and religious benefits constitute 
the prism through which the law is understood and applied. In the next 
section, I will examine a case that is controversial in modern times, with 
the hopes of showing how debate over the alleged benefits of the law was 
essential to the classical tradition. In doing so, I uncover in classical legal 
practice a model of legal engagement that affirms the need for continued 
contestation over human benefit.

Contestation Over Purported Benefits:  
The Case of Marriage Guardianship

I have shown al-Juwayni and al-Shirazi’s commitment to subjecting pur-
ported benefits to the objections of fellow jurists. My aim in this section 
is to examine through example how contestation over benefit took shape 
in the classical period. But before doing so, I wish to return to our earlier 
discussion on disputation. There, I highlighted that disputations played a 
central role in a jurist’s process of ijtihād. Jurists employed the method 
of disputation (munāẓara) to test each other’s legal positions. I want to 
expand on this discussion here and to place particular emphasis on the 
role that epistemological uncertainty played in making critique a neces-
sary feature of classical Islamic law. To begin, the practice of disputation 
emerged sometime in the mid- to late-8th-century Iraq and thus we have 
many reports of al-Shafi‘i debating with the leading Hanafi scholar of the 
time, Muhammad b. Hasan al-Shaybani.80 Reports also speak of al-Sha-
fi‘i’s commitment to finding the truth through debate.81 But by the early 
10th century, the jurists spoke of the purpose of disputations through the 



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prism of their disagreements over juristic infallibility (taṣwīb).82 Those 
that considered that God’s law was to be found in one among the many 
contested positions of jurists (al-ḥaqq fī qawl wāḥid) affirmed that dispu-
tations served to find the truth of God’s law.83 Al-Juwayni and al-Shirazi 
both saw disputations as a means to find this truth.84 In contrast, those 
that saw all juristic positions to be a correct rendering of God’s law 
primarily saw disputations as a means to improve one’s reasoning on a 
legal question. Al-Ghazali, whose ideas we have examined above, was 
part of this camp.85 Despite their differences, both camps agreed that 
disputations were to be limited to legal questions where the evidence 
of the jurist was epistemically uncertain. Al-Shirazi sometimes uses the 
term “adilla khafiyya” and Abu Muzzafar al-Sam‘ani (d. 489/1096) uses 
the term “ghāmiḍa,” both of which invoke the idea that the evidence for 
the law is “hidden” and must be drawn out through close examination.86 
This view of the law as uncertain accords with Aron Zysow’s well-known 
evaluation of Sunni legal theory as accepting the uncertainty of most 
legal evidence.87 Thus, disputations were particularly important because 
the law was an exceedingly tentative enterprise where, for most rulings, 
no one knew God’s law with certainty. By subjecting evidence to cri-
tique through disputation, a jurist could hope to confirm or reject the 
evidence’s soundness. We must keep this in mind as we now turn to 
examining the contestation over the identification of benefit.

Although we possess very few transcripts of disputations, we can see 
the importance of contestation over benefit in classical law by examining 
how these debates took place in books of substantive law. Because of its 
salience to contemporary Muslim reformist thought, let us turn to jurists’ 
debates over marriage guardianship. Marriage guardianship is among 
the controversial laws of Islam today. Marriage guardianship typically 
involves a man, primarily a bride’s father, acting as guardian (al-walī) for 
a woman whose marriage he contracts.88 The notion of guardianship can 
be problematic in modern times because it denies women independence 
in their marital affairs in two respects. First, some legal schools allowed 
a guardian to prevent a woman from marrying a man if he was deemed 
beneath her social status.89 Moreover, the schools also assumed that a 
guardian could coerce some categories of women (namely minors or 



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virgins) into an unwanted marriage.90 For some Muslims, the premodern 
doctrine of guardianship should be followed faithfully today. For others, 
it is gender-biased and must be reformed or abandoned completely.91 But 
I will here suggest that there is a third possibility where the debates of 
jurists on the topic of guardianship should be approached as the begin-
ning of a conversation where nothing is settled and every position is 
open to revision and critique. The rigor of this specific conversation 
has been historically limited because of the exclusion of the insights 
of women and because, as we shall see, misogynistic statements about 
women abound within it. Nonetheless, reformists can find inspiration 
today from the classical jurists’ aspiration to critical rigor, despite their 
coming short of it.

Al-Mawardi’s Hāwī offers a summary of several classical jurists’ 
positions on the necessity of guardianship to a marriage contract. 
Al-Mawardi begins by presenting the Shafi‘i position that guardianship 
is a necessity. Shafi‘is presented several scriptural texts in favor of the 
necessity of guardianship, including the Qur’anic verse “Do not prevent 
women from marrying their spouses” (2:232), which they reasoned would 
be a nonsensical command if women could act as their own guardians.92 
Other ḥadīths are far more direct in their wording, stating that “there is 
no marriage except with a walī (guardian).”93 But the Shafi‘is also spoke 
explicitly about the reasons for their position. The function of guardian-
ship for the Shafi‘is was twofold. First, it offered protection to a family 
against shame and dishonor (al-‘ār wa’l-shanār).94 The Shafi‘is worried 
about allowing a woman to marry a man of lower status.95 Marrying 
a man of lower status meant placing the woman under the authority 
of someone beneath her and it also meant her children would inherit 
their father’s lower lineage.96 The second function of guardianship was 
to protect a woman from a difficult and therefore harmful marriage 
(al-iḍrār).97 One might ask why women were not themselves free to 
make decisions about personal harm and family honor. The answer is 
that some Shafi‘is believed women were incapable of making right mar-
riage choices. Al-Shirazi states that a woman is of “deficient intellectual 
capacities” (nuqṣān ‘aqlihā) and can therefore easily be tricked (sur‘at 
inkhidā‘ihā).98 Al-Shirazi relies on his distrust of women’s capacities 



S O U F i :  B E F O R E  M A Q Ā Ṣ i d     89

to support the need for male authority. In contrast, al-Juwayni denied 
that women lacked the intelligence to make sound decisions.99 For him, 
guardianship’s benefit was to give families a stake in a decision that 
would affect them as much as the bride. Already, we see that the Shafi‘is 
contested benefits in justifying the law.

The contestation over the function of guardianship is more pro-
nounced still when one examines jurists’ positions outside of the Shafi‘i 
school. Abu Hanifa adopted a position diametrically opposed to the 
Shafi‘is by denying the necessity of guardianship. He claimed that so long 
as the bride possesses the maturity and rational capacities (i.e. adulthood 
and sanity) that make her independent in financial matters, she is free 
to contract her own marriage.100 Abu Hanifa’s position suggests there is 
no benefit in preventing adult and sane women from representing them-
selves during a marriage contract. Abu Bakr al-Jassas (d. 370/981) would 
later argue that since men who can manage their financial affairs are 
not in need of guardianship in marriage, neither are women.101 I should 
specify that the Hanafis did not reject guardianship: they recommended 
that a bride have a guardian. They considered that a guardian protected 
a woman from social accusations of impudence (tansib ilā al-waqāḥa).102 
Thus, Hanafis recognized that even as a woman had the right to contract 
her own marriage, she could face social criticism for doing so. In their 
eyes, guardianship protected her as much as her kin. But they departed 
from the Shafi‘is in their rejection of the alleged intellectual deficien-
cies of women. For instance, Burhan al-Din al-Marghinani states that 
a woman’s intellect is complete upon attaining the age of maturity.103

Malik, for his part, reasoned that a distinction ought to be made 
between a woman of high and low status.104 He deemed that a woman of 
high status needs a guardian to ensure the family’s honor is maintained. 
In contrast, a woman of low status is free to contract her own marriage. 
Malik’s reasoning is consistent with the Shafi‘i and Hanafi view that 
guardianship aims to uphold a family’s honor. Malik reasoned that if a 
family has little to no honor to uphold, then there is no harm in allowing 
a woman to contract her own marriage. Al-Mawardi answers Malik by 
stating that no matter how low a woman’s status is, there can always 
be those of lower status, and it therefore becomes necessary to protect 



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her and her family from these individuals. Finally, Dawud al-Zahiri sub-
scribed to the view that a virgin woman requires a guardian but that a 
non-virgin woman does not. He reasons on the basis of a virgin’s lack 
of experience with men—sexual experience, but also more generally, 
relationship experience. Virginity here acts a legal means to distinguish 
between those who are likely to make sound marital choices from those 
who need the direction of their fathers or another man in a protective 
role.105 However, al-Mawardi argues that guardianship is still needed 
after a woman gains sexual experience. In fact, he claims that it is needed 
even more. Al-Mawardi claims that sexual experience leads women to 
making unsound marital choices by placing too much emphasis on sexual 
desires in choosing a spouse. Al-Mawardi here falls into a similar line of 
misogynistic reasoning as al-Shirazi does when he claims that women 
possess deficient rational capacities.

In sum, jurists identified three functions of marriage guardianship. 
The first is the protection of a woman and her family’s honor against 
marrying someone of lower status. The second is the protection of a 
woman from a difficult marriage to someone with physical and moral 
defects. The third is the protection of a woman from slanderous accusa-
tions of being impudent. However, the jurists disagreed about whether 
these three aims raised guardianship to the level of a requirement for 
marriage contracts. The Shafi‘is made guardianship a requirement by 
appealing to women’s deficient rational capacities, their ease in being 
tricked, and their propensity to allow sexual desire to mislead them. 
The Hanafis allowed a woman to represent herself because an adult 
woman possesses full intellectual capacities. Dawud allowed a non-vir-
gin woman to dispense with guardianship because she had enough 
relationship experience to make sound choices. Malik allowed a woman 
of low status to represent herself because her choice had little impact on 
her kin’s status. This overview of debates on the benefit of guardianship 
extends my initial conclusions about the Shafi‘is’ search for the benefits 
of God’s injunctions to other legal schools. Texts are interpreted, qual-
ified, and applied based on understandings of the beneficial function 
they aim to promote. But more importantly, the overview also shows 
that the purported benefit of scripture is the object of constant debate. 



S O U F i :  B E F O R E  M A Q Ā Ṣ i d     91

Each jurist is impelled to respond to the claims of his peers within and 
outside of a school about the function of the law. This need for debate 
was entrenched within a classical legal culture that saw critique as the 
means to ensure that the arguments jurists invoked for their legal posi-
tions were as strong as possible.

It is easy to see how the classical model of contestation over the 
benefit of the law allows contemporary Muslims to continue to engage 
critically with the law of guardianship today. For instance, dismiss-
ing al-Shirazi’s claims about women’s lesser intellectual capacities, 
al-Mawardi’s claims about women’s sexual appetites, or Dawud al-Za-
hiri’s claims about virgins’ lack of sufficient experience to make healthy 
relationship choices bolsters the position that the guardianship of men 
over women in marriage is unnecessary. To say this is less to reject the 
textual basis of the law than to interpret and apply it correctly. Likewise, 
many Muslims might find family honor a strange concept within their 
socio-cultural environment, which would then undercut their need for 
the institution of guardianship completely. Indeed, there is precedent for 
this cultural relativism: the leader of the Shafi‘is of Khurasan, al-Qaf-
fal al-Marwazi, claimed that only Arab families cared about lineage in 
determining the status of a spouse and that, therefore, lineage consider-
ations did not apply to non-Arabs.106 Alternatively, some Muslims might 
critique the assumption that only a woman and her family is affected 
by the status of her spouse. Again, there is precedent here too: al-Ju-
wayni’s father, Abu Muhammad al-Juwayni, contended that a man’s 
status is also diminished by a lowly spouse.107 And, if both men and 
women are affected by the status of their spouse, then guardianship 
of men over women makes little sense. Of course, it may be the case 
that some Muslims today prefer bypassing the classical discussions on 
guardianship altogether. In particular, some might deny that Muslims 
should engage at all with men who belittled women. Does not engag-
ing with them give more credibility to their claims than they deserve? 
Moreover, such engagement risks bolstering a power relationship where 
Muslim women can only speak because of the recognition of men. The 
conferring of recognition from those in power, although often needed 
to effect community change, can also be deeply painful for those on the 



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margins of power. Thus, some might prefer to go back to the Qur’an or 
to the Qur’an and sunna to start a new conversation about the norms 
that should govern the Muslim community.

Nonetheless, even if some choose to jettison the substance of clas-
sical juristic thought completely, they might wish to consider the model 
of contestation over the benefits of the law in their community dia-
logues. This is because this model presupposes that 1) no human has 
full insight into the purpose of God’s laws and 2) the worth of a position 
only emerges through debate. This model is presupposed in al-Juwayni’s 
legal theory, which outlines that the innumerable benefits of God’s law 
must be discovered through both textual engagement and through the 
subjection of legal causes to potential invalidation. But it is also presup-
posed more generally in the epistemological uncertainty that legitimated 
disputation. In turn, two consequences follow from this model of con-
testation for Muslims today. The first is that any community dialogue 
must move beyond textuality to asking what if any benefit do the texts 
gesture towards. The second is that any critique that deepens Muslim 
understandings of the benefit of God’s law should be welcome. Of course, 
historically, Shafi‘is like al-Shirazi were adamantly opposed to the par-
ticipation of lay Muslims in the process of legal derivation, claiming that 
lay Muslims did not possess the necessary training to engage with legal 
evidence (adilla).108 But it seems to me that there is a tension between 
simultaneously upholding the practice of critique as a means to find 
the benefits of God’s law and excluding lay Muslims from this practice. 
For instance, lay Muslims have as much if not greater insight than male 
mosque leaders into whether upholding notions of family honor protects 
or harms them. Thus, the model of contestation over human benefit 
among 11th century Shafi‘is can be invoked to legitimate the partici-
pation of lay Muslims in the critical search over the alleged benefits of 
scriptural injunctions.109 Put otherwise, this model offers support for the 
democratization of critique within Muslim communities.

A final thought: we might wonder if the contestation over benefit 
was more a product of inter-school rivalry than a commitment to allow-
ing one’s position to be subject to critique. Indeed, this article has focused 
on an era where intellectual and political rivalries between legal schools 



S O U F i :  B E F O R E  M A Q Ā Ṣ i d     93

could be intense.110 But at the very least, we can say that jurists presented 
contestation as a good to each other and to their students. Al-Juwayni 
and al-Shirazi called disputation praiseworthy or good debate (al-jadal 
al-ḥasan or al-jadal al-maḥmūd) so long as the jurist sincerely debated 
for the sake of God.111 Considering their discourses about disputation and 
legal uncertainty, we have reason to believe that jurists did not merely 
seek to defend their positions by appealing to and contesting benefit, 
but were also seeking to better understand the law.112

Conclusion

In this article, I have sought to uncover the understanding of human 
benefit within the classical Shafi‘i school. I have focused on the Shafi‘i 
school precisely because it is often identified as the paradigmatic tex-
tualist school. I have sought to push back against the view that the 
Shafi‘is’ fidelity to textuality made them less concerned with upholding 
human goods. I have contended that the Ash‘ari-Shafi‘i theory of the 
law renders human benefit the proper interpretative lens through which 
to understand the function of the lawgiver’s statements (ma‘nā) in all 
instances except the very rare instances of perspicuous texts (naṣṣ). Few 
laws are simply the product of the Lawgiver’s arbitrary commands. I 
have also shown how this model of benefit overlaps with Iraqi legal 
theory, which also recognized that legal causes often reveal a benefit that 
humans can rationally apprehend (wajh al-ḥukm). Through the example 
of abandoning the qibla during travel, I showed that Shafi‘i substan-
tive law functioned through a search for the benefit behind scriptural 
injunctions. This search ended up determining the application of the law. 
But I also showed that this model was one in which jurists considered 
ongoing contestation over the purported benefits of laws as necessary. 
The example of marriage guardianship revealed that Muslims disagreed 
with and debated each other over the benefits of guardianship. No jurist 
was given free rein to claim that a law served human benefit. Rather, all 
jurists were expected to defend their positions through debate.

I now want to return to the question of the relationship between the 
classical model of human benefit and reformist calls to use “the model 



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of the maqāṣid al-sharī‘a” to reinterpret the law today. Clearly, the two 
models have much in common. Like the classical jurists, proponents 
of the maqāṣid model also claim that the law is meant to serve human 
benefit by protecting a series of human goods. Historically, these goods 
were enumerated as life, religion, property, lineage, and reason. However, 
it is evident from al-Ghazali’s examples that he recognized a whole host 
of benefits reflected in the legal causes (‘ilal) of his Shafi‘i school.113 
Likewise, Muslim reformers from the last century, such as Ibn ‘Ashur, 
‘Allal al-Fasi, and Jasser Auda have interpreted the tradition of maqāṣid 
more broadly by asserting that there can be more than the traditional five 
or six ends that the sharī‘a defends.114 In effect, this broadening of the 
number of maqāṣid resembles more al-Juwayni and the Shafi‘i-Ash‘ari 
theory of maṣlaḥa than it does al-Ghazali’s discussion of the maqāṣid in 
the Mustaṣfā. Thus, in some ways, uncovering the classical model of ben-
efit serves to further justify the method of reformers by showing its deep 
pedigree within Islamic law. In other words, behind alleged fidelity to 
textuality lay a deep engagement with how the law fulfils human goods.

But I have also emphasized that contestation over benefit is far more 
prominent in the classical model than the contemporary maqāṣid model. 
The classical tradition showed great concern with the limits of human 
rationality in understanding God’s law. The recognition of the limits of 
human understanding of the law led to the continued contestation over 
alleged benefits of the law in disputations and books. Moreover, the jurists 
did not see this contestation to be bound to a time period. Rather, contes-
tation was an extension of the obligation of ijtihād, which demanded that 
each individual capable of understanding the proofs (adilla) of God’s law 
determine for herself the strongest legal positions.115 Today, the classical 
model not only offers legitimacy to engaging scripture through the prism 
of human benefit (or its cognates, “wisdoms” and “purposes”) but it also 
offers a means for Muslims to rethink how community dialogue over 
the purpose of the law should take place. According to this model, any 
critical insight into the benefit of the law facilitates the duty of ijtihād. 
In effect, the classical model legitimates the democratization of Muslim 
voices today and the necessity of ongoing critique.



S O U F i :  B E F O R E  M A Q Ā Ṣ i d     95

Endnotes
1 Examples in the twentieth century include Muhammad al-Ṭahir Ibn ‘Ashur, Maqāṣid 

al-Sharī‘a al-Islāmiyya, ed. Muhammad al-Ṭahir al-Missawi (Amman: al-Basha’ir 
li’l-Intaj al-‘Ilmi, 1998); ‘Allal al-Fasi, Maqāṣid al-Sharī‘a al-Islāmiyya wa-Makārim-
uhā, 5th ed. (Tunis: Dar al-Gharb al-Islami, 1993); Rashid al-Ghannushi, al-Ḥurriyāt 
al-‘Āmma fi al-Dawlat al-Islāmiyya (Beirut: Markaz Dirasat al-Wahdah al-‘Arabiyya, 
1993), 39; and Tariq Ramadan, Radical Reform: Islamic Ethics and Liberation (Oxford: 
Oxford University Press, 2009), 59.

2 Mohammad Hashim Kamali, “Goals and Purposes of Maqāṣid al-Sharī‘a: 
Methodological Perspectives” in The Higher Objectives of Islamic Law: The Promises 
and Challenges of Maqāṣid al-Sharī‘a, ed. Idris Nassery et al. (Lanham: Lexington 
Books, 2018), 8; Jasser Auda, Maqāṣid al-Sharī‘a: A Beginner’s Guide (Herndon: IIIT, 
2008), 18.

3 This peripheral status is amplified by the modest role that al-Ghazali initially con-
ferred to the maqāṣid al-sharī‘a: the maqāṣid was not first formulated as a theory 
of the law in its entirety. Rather, al-Ghazali conceived of it as a theory for when the 
text is silent (maṣlaḥa mursala); see Abu Hamid al-Ghazali, al-Mustaṣfā min ‘Ilm 
al-Uṣūl, 2 vols. (Beirut: Dar al-Nafa’is, 2011), 1:478.

4 The idea that the law must conform to general principles like the preservation of 
life or religion leaves unanswered “who should determine what are the maqāṣid” 
and “who should determine when they are violated?” See Ayesha Chaudhury, 
“How Objective Are the Objectives (Maqāṣid)? Examining Evolving Notions of the 
Sharī‘ah through the Lens of Lineage (Nasl),” in The Higher Objectives of Islamic Law: 
The Promises and Challenges of Maqāṣid al-Sharī‘a, ed. Idris Nassery et al. (Lanham: 
Lexington Books, 2018), 264-265. 

5 The relationship between maṣlaḥa and the maqāṣid is frequently noted in second-
ary literature. See Adis Duderija, “Contemporary Reformist Muslim Thought and 
Maqāṣid cum Maṣlaḥa Approaches to Islamic Law: An Introduction,” in Maqāṣid 
al-Sharī‘a and Contemporary Reformist Muslim Thought: An Examination, ed. Adis 
Duderija (New York: Palgrave Macmillan, 2014), 2-3. 

6 Joseph Schacht, The Origins of Muhammadan Jurisprudence, Reprinted ed. (Oxford: 
Clarendon Press, 1975), 11; Ahmed El-Shamsy, The Canonization of Islamic Law: A 
Social and Intellectual History (Cambridge: Cambridge University Press, 2013), 69-70.

7 Al-Juwayni, al-Burhān, ed. ‘Abd al-‘Aẓim al-Dib, 2 vols. (np. 1979), 2:798-790. 
Juwayni attributes the position to al-Isfarayini, whose works on uṣūl al-fiqh have 
not survived, ibid., 2:802; For the uṣūl of the other significant Shafi‘i of the era, see 
Abu Bakr ibn Furak, Kitāb al-Ḥudūd fī Uṣūl al-Fiqh, ed. Abdel Haleem, BSOAS 54 
no.1 (1991). 

8 Al-Juwayni, al-Burhān, 2:802-804.



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9 Al-Juwayni justifies the dispensation by reference to two human benefits, namely 
peoples’ livelihoods and their pious pursuits. Al-Juwayni, Nihāyat al-Maṭlab, ed. 
‘Abd al-‘Azim al-Dib, 20 vols. (Jedda: Dar al-Minhaj, 2017), 2:71.

10 E.g. al-Subki, Ṭabaqāt al-Shāfi‘iyya al-Kubrā, 10 vols. (Cairo: ‘Isa al-Babi al-Halabi, 
1964), 4:254, where al-Juwayni and Abu Ishaq al-Shirazi debate over the suitability 
of virginity as a legal cause (‘illa) for forced marriage. 

11 Abu Ishaq al-Shirazi, Ṭabaqāt al-Fuqahā’, ed. Ihsan ‘Abbas (Beirut: Dar al-Ra’id 
al-‘Arabi, 1970), 126-127.

12 Al-Subki, Ṭabaqāt, 4:127-135, 4:256-262.

13 al-Juwayni, al-Burhān, 1:212; Ibn Furak conserves some of al-Ash‘ari’s positions in 
his Mujarrad Maqālāt al-Shaykh Abī al-Ḥasan al-Ashʻarī, ed. Daniel Gimaret (Beirut: 
Dar al-Mashriq, 1987), 293.

14 E.g. al-Juwayni, al-Burhān, 1:219.

15 Joseph Lowry, Early Islamic Legal Theory: The Risāla of Muḥammad ibn Idrīs al-Shā-
fi‘ī (Leiden: Brill, 2007), 13. On Ibn Surayj, see Wael B. Hallaq, “Was Al-Shafi‘ī 
the Master Architect of Islamic Jurisprudence?,” International Journal of Middle 
East Studies 25, no. 4 (1993), 587–605; Christopher Melchert, The Formation of the 
Sunni Schools of Law, 9th-10th Centuries C.E. (Leiden: Brill, 1997), 125–28; al-Shīrāzī, 
Ṭabaqāt al-Fuqahā’, 112; al-Subkī, Ṭabaqāt al-Shāfi‘iyya, 3:21-39. 

16 al-Juwayni, al-Burhān, 2:1443-1448. 

17 Al-Subki, Ṭabaqāt, 5:192.

18 Al-Juwayni, al-Burhān, 2:798-790.

19 Al-Juwayni’s Kitāb al-Talkhīṣ indicates that al-Baqillani did not subscribe to the 
view that a precondition for the precondition for the correct legal cause is benefit 
(maṣlaḥa), which suggests that the theory originated with the Shafi‘is of the Ash‘ari 
stream; al-Talkhīṣ fī uṣūl al-fiqh, ed. Muḥammad Hasan Isma‘il Shafi‘i, 3 vols. (Beirut: 
Dar al-Kutub al-‘Ilmiyya, 2003), 3:247-254. 

20 Al-Juwayni uses the technical language of ikhāla (suggestiveness) and munāsaba 
(suitability) to distinguish a legal cause that is beneficial from one that is not. 
For secondary literature on maṣlaḥa’s use in finding the ratio legis of a case, see 
Felicitas Opwis, Maṣlaḥah and the Purpose of the Law: Islamic Discourse on Legal 
Change from the 4th/10th to 8th/14th Century (Leiden: Brill, 2010), 142; Aron Zysow, 
The Economy of Certainty: An Introduction to the Typology of Islamic Legal Theory 
(Atlanta: Lockwood, 2013), 207.

21 Al-Juwayni, al-Burhān, 2:803-804.

22 Ibid., 1:466-467.

23 Felicitas Opwis, “Shifting Legal Authority from the Ruler to the ‘Ulama’: Rationalizing 
the Punishment for Drinking Wine During the Saljuq Period,” Der Islam 86, no. 1 
(2011): 65–92 at 79–80.



S O U F i :  B E F O R E  M A Q Ā Ṣ i d     97

24 Al-Juwayni presents three opinions on the topic, at al-Burhān, 2:1113-1114; see also 
al-Ghazali, al-Mankhūl min Ta‘liqāt al-Uṣūl, ed. Muhammad Hasan Hitu (Damascus: 
n.p. 1970), 354. 

25 Al-Juwayni, al-Burhān, 1:236. 

26 On the theory of waḍ‘, see Bernard Weiss, “‘Ilm al-waḍ‘: An Introductory Account of 
a Later Muslim Philological Science,” Arabica 34, no. 3 (1987): 339-356; Muhammad 
Yunus Ali, Medieval Islamic Pragmatics: Sunni Legal Theorists’ Models of Textual 
Communication (London: Routledge, 2000), 15-18.

27 On the general theory of hermeneutics of jurists, see David Vishanoff, The Formation 
of Islamic Hermeneutics How Sunni Legal Theorists Imagined a Revealed Law (New 
Haven: American Oriental Society, 2011). 

28 The disputation is reported in al-Subki, Ṭabaqāt, 5:214–18. For more on this dispu-
tation, see Youcef Soufi, “Pious Critique: Abū Ishāq al-Shīrāzī and the 11th Century 
Practice of Juristic Disputation (Munāẓara)” (Ph.D. dissertation, University of 
Toronto, 2017), 197-229; and Sohaira Siddiqui, “Jadal and Qiyās in the Fifth/Eleventh 
Century: Two Debates between al-Juwaynī and al-Shīrāzī,” Journal of American 
Oriental Society 139, no. 4 (2019): 923–44.

29 Al-Subki, Ṭabaqāt, 5:217.

30 Al-Juwayni, al-Burhān, 1:10.

31 Ibid., 1:12.

32 Anver Emon, Natural Law Theories in Islam (Oxford: OUP, 2010), 132, 133. See also 
Zysow’s analysis of luṭf among Mu‘tazilī thinkers in Aron Zysow, “Two Theories of 
the Obligation to Obey God’s Commands,” in The Law Applied: Contextualizing the 
Islamic Shari‘a, ed. Peri Bearman, Wolfhart Heinrichs, Bernard G. Weiss (London: 
I.B. Tauris, 2008), 397-331 at 408.

33 Al-Juwayni, al-Burhān, 2:802.

34 Ibid., 2:943.

35 Ibid., 2:1011. 

36 Ibid., 2:965; see also al-Ghazali, al-Mankhūl, 401. 

37 For more on the practice of munāẓara, see George Makdisi, The Rise of Colleges 
(Edinburgh: Edinburgh University Press, 1981), 128-140.

38 Al-Ghazali, al-Mustaṣfā, 2:901-902. See also al-Baṣri, al-Mu‘tamad fī uṣūl al-fiqh, 2 
vols. (Beirut: Dar al-Kutub al-‘Ilmiyya, 1983), 2:384; and al-Jassas, al-Fuṣūl fī al-uṣūl, 
ed. Muḥammad Tamir, 2 vols. (Beirut: Dar al-Kutub al-‘Ilmiyya, 2010), 2:423. For 
al-Ghazali’s critique of the disputation, see al-Ghazali, Iḥyā ‘Ulūm al-Dīn, ed. 
Muhammad Dali Balta, 4 vols. (Beirut: al-Maktaba al-‘Asriyya, 2015), 1:60-68.

39 Al-Ghazali, al-Mustaṣfā, 2:901.

40 Ibid.



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41 Al-Baghdadi, Kitāb al-Faqīh wa’l-mutafaqqih (Riyadh: Dar Ibn Ḥazm, 2014), 282. 

42 Al-Juwayni, al-Talkhīṣ fī Uṣūl al-Fiqh, 3:325. Abu Bakr al-Baqillani, al-Taqrīb wa’l-Ir-
shād (al-Ṣaghīr), 3 vols., ed. Zunayd (Beirut: Mu’assasat al-Risala, 1997), 1:287

43 Al-Juwayni, al-Kāfiya, ed. Fawqiyya Husayn Muhammad (Cairo: ‘Isa al-Babi al-Hal-
abi, 1979), 24.

44 Our transcripts from al-Juwayni’s disputations with al-Shirazi also show the two jurists 
providing objections to their respective legal causes. Al-Subki, al-Ṭabaqāt, 5:209; 5:214.

45 Al-Shirazi typically gives preference to the views of leading Iraqi Shafi‘is in substan-
tive law over those of al-Baqillani, Ibn Furak, or Abu Ishaq al-Isfarayini. However, on 
questions of epistemology, al-Shirazi tends to more easily incorporate al-Baqillani’s 
thought. See al-Shirazi, Sharḥ al-Luma‘, 146-149. For the relationship of al-Shirazi to 
Ash‘arism, see Éric Chaumont, “Encore au sujet de l’aš‘arisme d’abū isḥāq al-Šīrāzī,” 
Studia Islamica 74 (1991): 167-177. 

46 Youcef Soufi, “Why Study Uṣūl al-Fiqh?”: The Problem of Taqlīd and Tough Cases in 
4th-5th /10th-11th Century Iraq” Islamic Law and Society 28, no. 1-2 (2021): 1-31 at 
6-7; Ahmed El Shamsy, “Bridging the Gap: Two Early Texts of Islamic Legal Theory,” 
Journal of the American Oriental Society 137:3 (2017), 505–15.

47 A cursory examination of al-Shirazi’s Ṭabaqāt, 108-127 reveals that this cohort 
composed several texts of uṣūl al-fiqh. Ahmed El-Shamsy has studied introductions 
to furū‘ texts among this cohort in order to analyze their uṣūl al-fiqh positions; see 
El-Shamsy, “The Wisdom of God’s Law: Two Theories” in Islamic Law in Theory: 
Studies on Jurisprudence in Honor of Bernard Weiss (Leiden: Brill: 2014), 19-37.

48 Al-Shirazi, Sharḥ al-Luma‘, 2:844-846.

49 Al-Shirazi divides ijtihād into al-qiyās al-jallī, which requires no ijtihād because the 
legal cause is identified through a definitive proof (al-qaṭ‘) and al-qiyās al-khafī, 
which can be discovered either through a textual source or through extraction 
(istinbāṭ). See al-Shirazi, Sharḥ al-Luma‘, 2:801-806.

50 Ibid., 2:858-860.

51 Ibid., 2:860.

52 Ibid., 2:860-863. 

53 Ibid., 2:1055. 

54 Mariam Sheibani, “Islamic Law in an Age of Crisis and Consolidation: ‘Izz al-Dīn 
ibn ‘Abd al-Salām (577-660/1187-1262) and the Ethical Turn in Medieval Islamic 
Law” (Ph.D. diss., University of Chicago, 2018), 274.

55 Mariam Sheibani’s dissertation usefully places Juwayni’s Ash‘ari theory of maṣlaḥa 
within a framework that identifies four stages of evolution. She credits Juwayni and 
the Khorasanians with introducing maṣlaḥa into Shāfi‘ī legal hermeneutics.

56 Al-Shirazi, Sharḥ al-Luma‘, 2:843.



S O U F i :  B E F O R E  M A Q Ā Ṣ i d     99

57 Ibid., 2:799.

58 Moreover, in another passage of the Sharḥ al-Luma‘ (2:789), al-Shirazi notes the 
opinion that all of God’s law serves to benefit human beings (al-aḥkām innamā 
shuri‘at li-maṣlaḥat al-mukallafīn), a claim he does not deny. Chaumont notes other 
instances where al-Shirazi seems likewise on the fence regarding whether the law 
is ultimately for human benefit or not; see Eric Chaumont, “La notion de wajh 
al-ḥikmah dans Les uṣūl al-fiqh d’Abū Isḥāq al-shīrāzī (m. 476/1083)” in Islamic Law 
in Theory: Studies on Jurisprudence in Honor of Bernard Weiss (Leiden: Brill, 2014), 
39-53 at 47.

59 Ahmad El Shamsy has made a similar point in “The Wisdom of God’s Law.”

60 Al-Shirazi, Sharḥ al-Luma‘, 2:871

61 Kamali, “Goals and Purposes,” 7, 11-12.

62 Kamali notes that uṣūl al-fiqh’s emphasis on textuality can be problematic in 
modern times because the importance of benefit can often be lost. I agree with this 
assessment but would argue that this is the product of a modern assumption that 
textuality is more often perspicuous than jurists of the past actually believed. This 
then leads to claims that the text must be applied, according to the slogan, “there 
is no ijtihād if there is a text” (lā ijtihād bi-naṣṣ).

63 Murteza Bedir, “An Early Response to Shāfi‘ī: ‘Īsā b. Abān on the Prophetc Report 
(khabar),” Islamic Law and Society 9, no. 3 (2002): 285-311; Sherman Jackson, “Setting 
the Record Straight: Ibn al-Labbād’s ‘Refutation of al-Shāfi‘ī,’” Journal of Islamic 
Studies 11, no. 2 (2000): 121-146.

64 Mohammad Fadel, “‘Istiḥsān is Nine-Tenths of the Law’: The Puzzling Relationship 
of Uṣūl to Furū‘ in the Mālikī Madhhab,” in Studies in Islamic Legal Theory, ed. Weiss, 
161-76 at 161-162. On the influence of al-Shafi‘i on the other legal schools, see Umar 
Faruq Abd-Allah Wymann-Landgraf, Malik and Medina: Islamic Legal Reasoning in 
the Formative Period (Leiden: Brill, 2013).

65 Abu al-Tayyib al-Tabari, al-Ta‘liqa al-Kubra fī al-Furū‘: Min Bāb mā Yufsid al-Mā’ 
Ḥattā Nihāyat Bāb Istiqbāl al-Qibla, ed. ‘Ubayd b. Salim al-‘Umari (PhD diss., Islamic 
University of Medina, 1998-1999), 748.

66 Ibid., 749.

67 Abu al-Hasan al-Mawardi, al-Ḥāwī al-Kabīr fī Fiqh Madhhab al-Imām al-Shāfiʻī: 
Wa-Huwa Sharḥ Mukhtaṣar al-Muzanī, ed. ‘Ali Muhammad Mu‘awwaḍ and ‘Adil 
‘Abd al-Mawjud, 18 vols. (Beirut: Dar al-Kutub al-ʻIlmiyya, 1994), 2:73.

68 Abu Isḥaq al-Shirazi, al-Muhadhdhab fī Fiqh al-Shāfi‘ī, ed. Zunayd, 6 vols. (Damascus: 
Dar al-Qalam, 1992), 1:231-233.

69 Historians of the Shafi‘i school spoke about the formation of distinct Iraqi and 
Khurasanian branches of Shafi‘ism. See Muḥyi al-Din al-Nawawi, al-Majmū‘: Sharḥ 
al-Muhadhdhab, ed. Zakariyya Yusuf, 17 vols. (Cairo: Matba‘at al-‘Asima, 1966), 1:107.



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70 Al-Shirazi, al-Muhadhdhab, 1:231.

71 Al-Shirazi, al-Muhadhdhab, 1:232; al-Mawardi, al-Ḥāwī, 2:73; al-Tabari, al-Ta‘liqa.

72 Al-Shirazi, al-Muhadhdhab, 1:232; al-Mawardi, al-Ḥāwī, 2:75; al-Tabari, al-Ta‘liqa, 
751.

73 Al-Shirazi, al-Muhadhdhab, 1:334. The Shafi‘is themselves invoked the length of 
travels as a condition for other legal questions. For instance, they claimed that one 
could shorten and combine prayers only in travel that was the equivalent of a two-
day journey.

74 Al-Tabari, al-Ta‘liqa, 1:750; al-Shirazi, 1:233; al-Juwayni, Nihayat, 2:72.

75 Al-Shirazi, al-Muhadhdhab, 4:527; Abu al-Muhasin al-Ruyani, Baḥr, 10:393-97; Abu 
al-Husayn al-‘Imrani, al-Bayān fī Madhhab al-Imām al-Shāfi‘ī, ed. Qasim al-Nuri, 
14 vols. (Beirut: Dar al-Minhaj, 2000), 10:585-89.

76 Al-Shirazi, al-Muhadhdhab, 4:614; al-Shafiʻi, Kitāb al-Umm, ed. Rif‘at Fawzi ‘Abd 
al-Muttalib, 11 vols. (Mansoura: Dar al-Wafa’ li’l-Ṭiba‘a wa’l-Nashr wa’l-Tawzi‘, 
2008), 6:235.

77 Al-Shirazi, al-Muhadhdhab, 4:615.

78 Ibid., 5:228.

79 Ibid., 4:279. 

80 For a collection of al-Shafi‘i’s disputations, see Fakhr al-Razi, Manāqib al-Imām 
al-Shāfiʻī, ed. Muhammad Majazi al-Saqqa (Cairo: Maktabat al-Kulliyyat al-Azhari-
yya, 1986), 271-296.

81 Al-Baghdadi, al-Faqīh, 252.

82 For a discussion on taṣwīb, see Aron Zysow, “Mu‘tazilism and Māturīdism in Ḥanafī 
Legal Theory,” in Studies in Islamic Legal Theory, ed. Weiss, 235–65. 

83 Abu Ya‘la b. al-Farra’, al-‘Udda fī uṣūl al-fiqh, ed. Muḥammad ‘Abd al-Qadir ‘Aṭa, 2 
vols. (Beirut: Dar al-Kutub al-‘Ilmiyya, 2002), 2:427; al-Baghdadi, al-Faqih, 286.

84 Al-Juwayni, al-Kāfiya, 24; al-Shirazi, Sharḥ, 2:1054. Al-Juwaynī himself championed 
an intermediate position between fallibilists and infallibilists, stating that while 
God’s law is singular, jurists are correct insofar as they are tasked with engaging 
in ijtihād (i.e. attempting to find God’s law), rather than with actually finding God’s 
law; al-Juwaynī, Kitāb al-Ijtihād, in al-Burhān, 2:1323-1325. Al-Juwaynī’s position 
mirrored that of Ibn Surayj, which al-Shīrāzī saw as a third position in the debate 
on juristic infallibility; see al-Shīrāzī, Sharḥ, 1049-1050.

85 Al-Ghazālī, al-Mustaṣfā, 2:892; al-Jassas, al-Fuṣūl, 2:400; Abu al-Husayn al-Basri, 
al-Mu‘tamad fī Uṣūl al-Fiqh (Beirut: Dār al-Kutub al-‘Ilmiyya, 1983), 2:370, 384.

86 Al-Shirazi, Sharḥ, 2:1063-1064; Abu al-Muzzafar al-Sam‘ani, Qawāṭi‘ al-Adilla fī 
al-Uṣūl, ed. Muhammad Isma‘il al-Shafi‘i, 2 vols. (Beirut: Dar al-Kutub al-‘Ilmiyya, 
1997), 2:308.



S O U F i :  B E F O R E  M A Q Ā Ṣ i d     101

87 For discussions on uncertainty in the law, see Zysow, Economy of Certainty, 1.

88 Kecia Ali, “Marriage in Classical Islamic Jurisprudence: A Survey of Doctrines,” in 
The Islamic Marriage Contract: Case Studies in Islamic Family Law, ed. Asifa Quraishi 
and Frank E. Vogel (Cambridge: Harvard University Press, 2008), 11-45.

89 Ayesha Chaudhry contends that contemporary Muslims inhabit a cosmology that 
assumes the equality of men and women before God. She contends that premod-
ern jurists did not share this view, seeing God, men, and women in a hierarchical 
relationship: see her Domestic Violence and the Islamic Tradition (Oxford: Oxford 
University Press, 2014), 10.

90 Depending on the school, a woman who was a minor (largely, though not entirely 
determined by puberty) or a virgin could be forced into marriage. The Shafi‘is 
limited coercion in marriage to a woman’s father or grandfather. A son who was 
still a minor could also be forced into marriage; see Ali, “Marriage in the Classical 
Islamic Jurisprudence,” 32. 

91 Although dealing with the topic of domestic abuse, Chaudhry’s typology of tradition-
alists, neotraditionalist, progressives, and reformers provides a sense of the different 
ways in which problematic gender laws are treated in Muslim communities today.

92 Al-Mawardi, al-Ḥāwī, 9:39; al-Shafi‘i, al-Umm, 6:31-33. 

93 Al-Mawardi, al-Ḥāwī, 9:40.

94 Abu al-Mahasin al-Ruyani, Baḥr al-Madhhab fī Furū‘ al-Madhhab al-Shāfi‘ī, ed. Tariq 
Fathi al-Sayyid, 14 vols. (Dar al-Kutub al-‘Ilmiyya, 2009), 9:99.

95 For a list of considerations for status, see al-Mawardi, al-Ḥāwī, 9:101-106; al-Shi-
razi, al-Muhadhdhab, 4:131-133. Al-Tabari lists Abu ‘Ali b. Abi Hurayra as the 
Shafi‘i scholar who posited five of the most common measures of kafā’a; al-Tabari, 
al-Ta‘liqa al-Kubrā fī al-Furū‘: Kitāb al-Nikāh ilā Qism al-Nushūz, ed. Yusuf b. ‘Abd 
al-Latif ‘Abd Allah al-‘Aqil (PhD diss., Islamic University of Medina, 2005), 249. For 
the Hanafi position on kafā’a, see Abu Bakr al-Jassas, Sharḥ, 4:251-254.

96 Mohammad Fadel, “Reinterpreting the Guardian’s Role in the Islamic Contract of 
Marriage: The Case of the Maliki School,” The Journal of Islamic Law 3 (1998): 1–26; 
al-Mawardi, al-Ḥāwī, 9:101-102.

97 For example, al-Juwayni, Nihāyat, 12:152–53

98 Al-Shirazi, al-Muhadhdhab, 4:118.

99 Al-Juwayni, Nihāyat, 12 92.

100 Al-Mawardi, al-Ḥāwī, 9:38. Al-Shaybani, Kitāb al-Hujja ‘alā Ahl al-Madīna, ed. 
Mahdi Hasan al-Kilani al-Qadiri, 4 vols. (Beirut: ‘Alam al-Kutub, 1983 (rep. from 
the Hyderabad, 1965 edition)), 3:115. Abu al-Barakat al-Nasafi, Kanz al-Daqā‘iq, ed. 
Sa’id Bakdash (Beirut: Dar al-Basha’ir al-Islami, 2011) 254; al-Quduri, Mukhtaṣar 
al-Qudūrī, ed. Kamil al-‘Awida (Beirut: Dar al-Kutub al-‘Ilmiyya, 1997), 147.



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101 Abu Bakr al-Jassas, Sharḥ al-Ṭaḥāwī, 4: 273-274. But Abu Hanifa also believed that 
families had a right to uphold their honor and for that reason, he believed they 
could object to a marriage after the fact if the husband was of lower status, and 
could petition a court for the separation of the couple. 

102 Burhan al-Din al-Marghinani, al-Hidāya Sharḥ Bidāyat al-Mubtadī, 2 vols. (Beirut: 
Dar al-Arqam ibn Abi al-Arqam, n.d.), 1:231.

103 Ibid.

104 Al-Mawardi, al-Ḥāwī, 9:44. Sahnun, al-Mudawwana al-Kubrā, 16 vols. (Cairo: Matba‘ 
al-Sa‘ada, 1904-1905), 4:20.

105 Al-Mawardi, al-Ḥāwī, 9:44.

106 Al-Baghawi writes: “The Shaykh al-Qaffal said, may God have mercy on him: 
‘Lineage is considered for the Arabs, but not the non-Arabs [al-naṣab yura‘a fī 
al-‘Arab dūn al-‘Ajam]’”; Abu Muhammad al-Baghawi, al-Tahdhīb fī Fiqh al-Imām 
al-Shāfi‘ī, eds. ‘Adil al-Mawjud and ‘Ali Mu‘awwaḍ, 8 vols. (Beirut: Dar al-Ku-
tub al-‘Ilimiyya, 1997), 5:298. Al-Rafi‘i notes that al-Qaffal was not alone in this 
view; Abu al-Qasim al-Rafi‘i, al-‘Azīz: Sharḥ al-Wajīz, eds. ‘Adil al-Mawjud and ‘Ali 
Mu‘awwad, 13 vols. (Beirut: Dar al-Kutub al-‘Ilmiyya, 1997), 7:575.

107 Al-Juwayni, Nihāyat al-Maṭlab, 12:158.

108 Al-Shirazi, Sharḥ, 2:1011.

109 Al-Shirazi recognized that benefits are accessible to all rational minds; al-Shirazi, 
Sharḥ, 2:1055.

110 Richard Bulliet, The Patricians of Nishapur: A Study in Medieval Islamic Social 
History (Cambridge: Harvard University Press, 1972), 31-32; Sohaira Siddiqui, Law 
and Politics under the ‘Abbasids: An Intellectual Portrait of al-Juwaynī (Cambridge: 
Cambridge University Press, 2019), 57.

111 Al-Juwayni, al-Kāfiya, 22-24; al-Shirazi, Ṭabaqāt al-Fuqahā’, 112.

112 Al-Shirazi, Sharḥ, 2:1054.

113 Al-Ghazali, al-Mustaṣfā, 1:478-479.

114 Ibn ‘Ashur, Maqāṣid, 411-519; al-Fasi, Māqāṣid, 225; Auda, Maqasid, 8-9; On Ibn 
‘Ashur, see Felicitas Opwis, “Ibn ‘Āshūr’s Interpretation of the Purposes of the Law 
(Maqāṣid al-Sharī‘a): An Islamic Modernist Approach to Legal Change,” in ed. Idris 
Nassery et al. (Lanham: Lexington Books, 2018), 111-130.

115 On the obligation of ijtihād, see al-Shirazi, Sharḥ, 2:1012-1013; al-Sam‘ani, Qawāṭi‘, 
2:341; al-Juwaynī, Kitāb al-Ijtihād, 2:1339-1341.