American Journal of Islam and Society Vol 40 No 1-2.indb

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Islamic Law and Ethics

H E R N D O N : I I I T , 2 0 2 0 , X I V + 2 0 7 P A G E S .

D A V I D R . V I S H A N O F F ( E D . )

Continuing engagement with Islamic legal scholarship does not seem
to have resulted in satisfactory attention being paid to the interplay of
philosophical considerations and theological principles in relation to the
ethical component of Islamic Law. This explains why any scholarly and
properly guided attempt to extend the frontiers of knowledge on the
subject of Islamic Law and Ethics is always welcome. David Vishanoff’s
edited volume examines Islamic ethics in the context of Islamic law. The
book comprises an introduction by the editor, a foreword by the pub-
lishers, followed by the chapters contributed by the editor and no fewer
than six other eminent scholars on various aspects of the subject, which
are presented in an elegant, lucid, and highly intelligible prose. The edi-
tor’s introduction, Islamic Law and Ethics: From Integration to Pluralism
(pp. ix-xiii) provides the rationale for the book, exposes the gap that the
book seeks to fill, and offers a panoramic picture of the central theme
as addressed by the various contributors in their respective chapters.

The editor’s introduction is followed in immediate succession by his
own chapter entitled “The Ethical Structure of Imam al-Haramayn al-Ju-
wayni’s Legal Theory” (pp. 1-31). This chapter underscores the ethical
dimension of al-Juwayni’s legal theory and relies on his definition of law

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(fiqh) as knowledge of legal values (aḥkām), his interpretive principles,
and others which expose the ethical implications of various Islamic legal
provisions. The author demonstrates an excellent grasp of the subject
as well as remarkable familiarity with the scholarship of al-Juwayni.
This is evident in his engagement with the text of al-Juwayni’s Kitāb
al-Waraqāt, whose translation and analysis he handles with the dexter-
ity of a thorough scholar, especially with regard to the legal and ethical
implications of the book, as contrasted with another notable work by
al-Juwayni, namely Kitāb al-Burhān. However, the author’s claim that
“one remains unsure whether it is the phrase uṣūl al-fiqh that is divided
into two parts, the discipline of uṣūl al-fiqh itself, or the Kitāb al-Waraqāt
fī Uṣūl al-Fiqh, deserves some attention. Relying on Ibn al-Firkah’s recon-
struction of the text and Jalal al-Din al-Mahalli’s commentary, the author
argues that “this ambiguity may be deliberate, because all three are com-
posed of two parts in some sense: the first word in the phrase, the first
part of the discipline, and the first half of the book all have to do with the
roots or sources of the law – the stuff or material of revelation – while
the second part of each deals with the construction of law by reasoning
based on those sources” (p. 6).

While the author’s attempt at a critical engagement with this aspect
of the text of al-Waraqāt is applauded, it should be noted that a care-
ful look at the text in question in its original Arabic version reveals
that the question of ambiguity does not arise, as the reference to “Uṣūl
al-Fiqh” could not have been to do with anything other than the sub-
ject or discipline of Uṣūl al-Fiqh. Hādhihi waraqāt tashtamilu ʿalā fuṣūl
min uṣūl al-fiqh wa-huwa lafẓ muʾallaf min juzʾayn mufradayn…” that
may be concisely translated as “Here are pages comprising sections of
The Roots of Islamic Jurisprudence (the roots of legal science)”, with-
out prejudice to its translation by the author as, “Here are some pages
encompassing information on various subdivisions of ‘the roots of ‘legal
science’” (p. 5). Besides, the author repeatedly refers to the text as Kitāb
al-Waraqāt fī Uṣūl al-Fiqh, whereas it is captured in the literature as Matn
al-Waraqāt. Indeed, it is only described as Kitāb in two instances, namely
where reference is made to its commentary, as is the case in Kitāb Sharh
al-Waraqāt, or where Matn is preceded by the word, Kitāb as is the case

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in Kitāb Matn al-Waraqāt. Thus, the author’s characterization of the
text is not consistent with the tradition and practice. Also of interest is
the author’s claim that “the chapter does not look beyond legal theory”
while claiming at the same time that “the chapter attempts to imagine
what the discipline might look like if it were structured around different
ethical categories” some of which he identifies. One is therefore tempted
to ask how logically sound is the conclusion that a chapter that casts
an imaginative look at ethical concerns over a discipline has not really
crossed the boundaries of legal theory.

In Chapter Two, “Neither Desiring It, nor Transgressing Its Limits:”
Ethical Hierarchy in Islamic Law”, Samy Ayoub examines the intercon-
nectedness of hardship (mashaqqah), relaxation of requirement (taysīr)
and necessity (ḍarūrah) in the late Hanafite juridical tradition. He high-
lights the central place accorded to moral considerations with regard to
the concept of lesser evil in the Hanafite legal formulations concerning
hardship and necessity. In this chapter, two issues seem to have earned
the most attention, and the author himself has not equivocated in iden-
tifying them. These are the boundaries of hardship and necessity, as well
as the place of individual and collective rights in such circumstances
(p. 35). The author demonstrates throughout his analysis how neces-
sitous circumstances permit the unlawful, how hardship brings about
relaxation of a requirement and the hierarchy of hardship, the levels
of relaxation of requirement, as well as the moral dilemmas involved.
The author is at his best where he alludes to Ibn Nujaym’s al-Ashbāh
wa-al-Naẓāʾir, which forms the basis of significant parts of the author’s
analysis in the chapter. While the specific details and relevant examples
provided by the author in his analysis, especially on how mashaqqah
(hardship) is examined and considered in the absence of textual evi-
dence constitute a major strength of the chapter, the author’s excessive
reliance on Ibn Nujaym whose views he often presents uncritically (pp.
39-43) leaves much to be desired. An attempt to subject Ibn Nujaym’s
views to comparative evaluation alongside other leading authorities on
the subject, would have been more deserving of plaudits.

Chapter Three, “Structural Ijtihad: A Radical Paradigm Shift in
Twelver Shi‘i Legal Theory” was contributed by Hamid Mavani, whose

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main argument is that though Ijtihād is generally regarded as a useful
tool for a meaningful response to the challenges of modernity, this opti-
mism and confidence cannot be accepted as valid altogether. The reason
he gives for this concern is that “the traditional ijtihad paradigm that
is in current usage to deal with present-day challenges has reached its
limits and is unable to deal methodically with contemporary contingen-
cies” (p. 52). He argues that the perturbing nature of these challenges
has compelled the traditional ijtihad system to formulate secondary
juridical devices such as public welfare (maṣlaḥah), imperative neces-
sity (ḍarūrah), distress (ḥaraj), and averting difficulty (ʿusr). The high
points of the chapter are the relevant, practical examples cited by him
in demystifying the various technical concepts involved in his analysis.
However, there is a verbatim production on page 55 of content from
page 52, to the tune of almost one full page. There also is a reproduction
on page 62 of a statement from pages 52 and 55, concerning “the risk of
providing only partial, patchy, and petty formal modifications to existing
legal rulings”. Nonetheless, these observations are not sufficient to mar
the quality of the sophisticated chapter.

In Chapter Four, “The Application of Maqasid al-Shari‘ah in Islamic
Chaplaincy”, Kamal Abu-Shamsieh discusses the scope of Islamic spiri-
tual care services and the understanding of the theological foundations
which, according to him, “remain in their infancy, despite the emergence
of Islamic chaplaincy training programs and professional associations
in the United States” (p. 76). In articulating the rationale for the chapter,
the author argues that chaplaincy remains non-existent, underdeveloped,
or misunderstood in Muslim countries. He finds this strange in view of
the enormous provisions for caring, for care seeking, healing, worship
obligations, legal considerations during sickness, as well as ethics of care,
in the rich sources of the Islamic heritage. The author engages critically
and analytically with the sources and purposes of Shariah in the context
of the theory of Maqāsid al-Sharī‘ah, with a view to exposing the inter-
play of Islamic law and ethics. In this chapter, the author’s contribution
to scholarship lies in the key Islamic legal terminologies that shape and
give directions to the services provided by the chaplain to patients. He
is systematic in his approach to the issues involved in the subject of his

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chapter as he addresses related questions in separate clusters, and the
greatest strength of this chapter lies in the author’s successful analysis
of the practices and activities of chaplaincy in the context of the goals of
Maqāṣid al-Sharī‘ah, Islamic jurisprudence, and the Qawā‘id al-Sharī‘ah
principles of ethics.

Chapter Five is entitled, “The Developmentalist Ethic in Islamic
Charity: Fiqh al-Zakāh and the Applied Ethics of Muslim Charity
Organizations in India”, and contributed by Christopher B. Taylor. The
chapter discusses the emerging face of zakāh as a developmentalist
framework for Islamic charity in India. The author addresses the con-
cern involved in the gradual shift from the Islamic teaching that charity
is best given in secret and argues that “this shift to zakāh as develop-
ment is not merely the result of Western influence and imported NGO
practices replacing authentic Islamic rituals, nor is it to be seen as the
kind of inexorable rationalization of religion…” (p. 109). He analyses the
place of zakāh as a major feature of Muslim social practice in India. Yet,
he argues that more Muslims give zakāh worldwide (76%) than perform
daily ritual prayers, even though the researchers who conducted surveys
that reveal such findings did not survey Muslims in India, probably due
to the lack of “political” permission. Nonetheless, Islamic charity remains
central to public discourse in India and has earned considerable atten-
tion. The author deserves plaudits in his analysis of such zakāh related
variables as purification, secrecy, contexts for the purity ethic, as well as
the developmental ethic in zakāh, which covers work ethic (pp. 120-123),
public institutionalization (pp. 123-125), and debating the developmen-
talist ethic in the madrasah (pp. 126-129). There is no denying that this
chapter is an excellent piece that makes an interesting read.

“The Concept of Riḍā in the Qur’an: Popular Misunderstanding and
the Westernization of Jews and Christians” is the title of Chapter Six
and contributed by Asaad Alsaleh. The author makes it clear that the
chapter seeks to investigate the multiplicity of representations associated
with the injunction contained in chapter 2, verse 120 of the Qur’an. He
identifies the Arabic concept of riḍā, which he renders into English as
“approval” as the subject involved in the Qur’anic injunction in question.
It may not be inaccurate to characterize this chapter as an attempt by

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the author to challenge the popular representations of riḍā (approval) in
the verse which has largely promoted the perception that the Qur’an is
not favourably disposed to a Muslim’s friendship or cordial relationship
with a Jew or Christian. According to the author, “both the verse and the
concept of riḍā therein have been taken out context and misunderstood
as part of a reactionary discourse against the West” (p. 136). He demon-
strates the growing instrumentality of the popular view of the verse to
misrepresentations, which have contributed to the contemporary dis-
approval of the West among some Muslims, as well as the implications
of the growing practice of quoting the Qur’an as a political reaction.
His extensive analysis in that regard is followed by an exegetical look
at the concept, which is contextualized in the corpus of Qur’anic exe-
gesis. The author’s versatility becomes visible in the section entitled
‘Contextualizing Riḍā where he draws on on relevant scholarship from
such disciplines as philosophy, psychology, history, Arabic language,
Islamic jurisprudence, Qur’anic exegesis and others (pp. 146-153). The
various questions raised by the author in this section receive attention
later, where he asks, “Is Riḍā a Universal and Timeless Reality?” (p. 153).
Through a rigorous analysis, the author notes that “some latter exegetes,
not the first-generation ones”, posit that it is only the second part of the
verse that is addressed to the Prophet and all Muslims. Yet, he maintains
that al-Baghawi, al-Khazin, Ibn Kathir, and al-Qurtubi are of the view
that the message is for the Prophet and, by extension, the ummah (p.154).

The final chapter is titled, “Social Justice and Islamic Legal/Ethical
Order: The Madinah Constitution as a Case Study from the Prophetic
Period’ is contributed by Katrin Jomaa. The chapter addresses the percep-
tion of social justice from the Islamic perspective and its implementation
in a legal setting. The chapter examines the 47 decrees of the Madinah
Constitution and situates them in the modern context, especially with
regard to how to legally and politically handle or relate to the ques-
tion of diversity in a pluralistic society. With special attention to the
Qur’anic ethical understanding of diversity, the chapter pursues a line
of argument that offers a new perspective on social justice and that the
public manifestation of difference does not affect social harmony, even
though they are not hidden in private. The author challenges John Rawls’

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theory on interaction based on the “veil of ignorance”, which advo-
cates that people’s public interaction in the political realm pay attention
only to their commonalities, while disregarding or ignoring their dif-
ferences to avoid conflict. The author argues that despite the general
acceptance and recognition accorded to the theory in the West, the fact
that it lacks a sense of community, social cohesion, and social justice
for minorities makes it deficient. The author contrasts such a theory
with the Madinah charter, which is replete with provisions for religious
and ethnic diversity in public through the constitution and legal plural-
ism, and maintains common standards among diverse communities. The
author compares and contrasts the Madinah Constitution with Western
Thought under various subheadings such as Community versus Ummah
(pp. 164-170), Decrees Addressing the Believers (pp. 170-173), Individual
versus Collective Responsibility (pp. 173-175), Majority versus Minorities
or Elite versus Marginalized (pp. 175-178), Public Norm and Individual
Choice (pp. 178-180), Decrees Addressing the Jews (pp. 181-185), as well
as Decrees Addressing Ahl al-Ṣaḥīfah (the People of the Constitution).
The author’s insights are remarkable. For instance, she highlights that
the Madinah Constitution implies that the Jews were an ummah ‘along-
side’ the Muslims (p. 164), and that the inclusion of Jews and their law
in the ummah and in the constitution is a reflection of Islam’s desire to
interact with earlier traditions rather than break away from them. This
just one instance of the author’s sophisticated analysis, which makes
her contribution a masterpiece. However, there are several avoidable
repetitions with potential to mar the sophisticated nature of the chapter.
For instance, the first three lines on p.162 are repeated verbatim in the
first three lines of paragraph 2 of p.163. Also, lines 8-11 of page 162 are
repeated verbatim in lines 6-8 of paragraph 2 of p.163. Also, lines 11-14
of p.162 are repeated verbatim in lines 11-14 of paragraph 2 of page 163.
There is a pattern of textual repetition in this highly valued book.

Ultimately, the edited volume deservedly earns the status of a very
useful reference work for scholars of Islamic Law and Ethics. However,
more generally speaking, it has two minor weaknesses for which the
editor might ultimately be held responsible. The first is that each chapter
is replete with long sentences, which have to be read and re-read in order

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to have a grasp of the central idea or message involved. The second one
is a weakness that may also pass for a strength: the fact that despite the
interlinked nature of the chapters that make the work a harmonized
whole as they are conceptually interconnected, each of the seven chap-
ters has a clearly defined specialized audience for which it is of direct
interest. The edited volume is therefore recommended to scholars in
those interconnected specialized disciplines, and general readers with a
voracious appetite for modern Islamic learning.

Saheed Ahmad Rufai
Senior Lecturer

Sokoto State University
Sokoto, Nigeria

doi: 10.35632/ajis.v40i1-2.3123