THE ROLE OF SUBJECT (MUITAHID) IN HERMENEUTIC APPROACH AL-SHAFI'I'S METHODOLOGY: A Mehmet PaCaci Ever since the Qur'an was revealed, Muslims have been making great efforts to understand and live in accordance with it. Within a very short period of time after the Prophet's death, schools of fish emerged in the Hijaz, Iraq, and Syria. They defined the sources of the religion (al-din) and engaged in developing methods to better understand them. By the early part of the second century, more systematic approaches appeared; the roots of the schools that emerged reached back to the Companions of the Prophet as well as to the Prophet himself.' Their approaches repre- sented man's natural tendencies to understanding the din. Many schools appeared only to fade away and be replaced by ones more comprehen- sive in their approach.2 In the late second century, Imam al-Shafi'i (150- 204 A.H.) put forward the first systematic methodology of fiqh. In his work, al-Risdlah, Imam al-Shafi'i offered a methodoIogy for the very purpose of understanding the din. Of course, the methodology took for granted a certain definition of Islam. Even though his methodology drew from prior lines of th~ught ,~ it is widely accepted that as an original methodology, the Imam's theory of fiqh drastically transformed the per- ception of Islam that had hitherto prevailed." In order to change the approach toward the din, he redefined concepts such as Sunnah and ijtihdd. He identified ijtihdd with qiyds; and where- as the term Sunnah had been used for the practice of the Muslim com- munity, the Imam restricted its application to the Sunnah of the Prophet and the companion^.^ In his vocabulary the concept of hikrnuh took on considerable importance. Al-Shafi'i can almost be singled out by his def- inition of the concept of hikrnah from other Muslim scholars. In order to establish and consolidate the authority of the Sunnah on the basis of the Qur'an, he interpreted and defined this Qur'anic concept as being syn- onymous with the Sunnah. Mehmet Pacaci is a professor in the Faculty of Ilahiyat, Istanbul, Turkey. 2 The American Journal of Islamic Social Sciences 14:3 This article proposes to investigate the bases of Imam al-Shafi‘i’s methodology. Furthermore, it seeks to shed light on his understanding of Islam. For this purpose I have chosen three concepts from his vocabu- lary: qiyas, hikmah, and Sunnah (to the extent that it is related to hikmah in the Imam’s methodology). The discussion centers around the question of the subject’s position and role in the Imam’s theory of fiqh. The implications of such a method will also be discussed. First, however, the scope of the ground on which the discussion will be established is examined. This ground is of “under- standing.” The wordfiqh, by which these schools are categorized, liter- ally means “to have profound understanding, knowledge, and intelli- gence of the meanings and objectives of verbal statements as well as actions.”6 For the schools of fish the object of understanding was, of course, the din itself-‘ilm al-din (knowledge of the religion). Accordingly, fiqh was used for all branches of knowledge derived from the roots of the din in the early times of Islam.7 Besides the jurispruden- tial connotation of the term in early times, it was used for the knowledge of the basic principles of the creed, such as belief in Allah and the Hereafter.8 Despite its comprehensive meaning in early times, the term “fiqh” later came to be associated only with law.9 But even with this later limited definition its scope extends beyond a mere legal system, as the western mind would understand it. Fiqh not only covers the ritual prac- tices of faith; “it is also science of law and morality.”1° Here, ethics and religion (din) are inextricably mixed with the law; hence, no human act remains outside of its range.” Yet even mere legal systems are hardly separable from morality. There is an active reciprocal interrelationship between the legal and moral order. Moreover, it is observed that, as the constituents of a more basic realm, the moral values press upon the legal system and influence jurisprudential thinking.12 Within the framework of Islam, these two realms, by their very nature, are intrinsically inte- grated. To understand the dtn of Islam, a methodological discipline, namely, usul al-fiqh (the study of the origins of fiqh), has been developed by Muslim scholars. It has determined the sources of the din and studies the authority of the various sources. Usul al-fiqh distinguishes general state- ments from particular ones and implicit indications from explicit ones in religious language. By means of this discipline, the historical context of particular judgments has been studied under the notion of naskh (abro- gation). Here, the best illustration of usul al-fiqh’s content can be taken from al-Risdah itself. Imam al-Shafi‘i affirms the sources of the dtn as the Qur’an, Sunnah, ijtmi‘, and ijtihcid and discusses their various fea- tures. Through ijtihcid, usul al-fiqh has established the ways of deriving the general principles of the din from the sources and deducing particu- lar judgments from the principles for new situations. Usul al-jiqh has Mehmet Paqaci: The Role of Subject in al-Shafi‘i’s Methodology 3 continued to propose a basic methodology for understanding Islam, even after the late fourth and early fifth ~enturies’~ when it came to be under- stood in the sense of jurisprudence and after the disciplines usul al- hadith and tafsir were fully developed to study, respectively, the hadith and the Qur’an. Usul al-hadith and tufsir have divided the subjects of usul al-fiqh among themselves and utilized methods they share with it. Yet it has kept on elaborating the core problems of understanding Islam and applying the din to life situations.14 The theory and content of fiqh represent a hermeneutic enterprise, especially in the sense of Gadamer’s hermeneutical philosophy, where the ethico-practical judgment occupies a central place. To him, under- standing is a kind of moral knowledge. In this regard, he refers to the concept “phronesis,” taken from Aristotelian ethics. Moral knowledge as described by Aristotle offers a model for under~tanding.’~ Aristotle dis- tinguishes moral knowledge (phronesis) from theoretical knowledge (episteme). In moral knowledge, objectivity cannot be found as it is found in mathernatics,l6 for we cannot exclude the subject from his own action.17 Hermeneutics and, in a wider area, social sciences (Geisteswissenscha~eften) apply this model rather than the model of theo- retical knowledge. l8 The definition of hermeneutical experience does not differ from that of moral judgment. As defined, “judgment” subsumes the particular case under a universal category. Yet here judgment includes the morality of the subject. The objective of moral knowledge is to enable the subject to morally decide upon the right action in a par- ticular situation. l9 Therefore, moral knowledge determines and governs the act of moral being. Through ethical knowledge one can distinguish what should be done from what should not.20 Accordingly, the process of this sort of judgment is called “practical judgment,” “practical rea- soning,’’ or “practical syllogism.” At this point we should indicate that this definition of hermeneutics, or moral judgment, is almost identical to Abu Hanifa’s definition of fiqh. He sees fish as the consciousness or per- ception of what is right and what is wrong: “fiqh is the soul’s cognizance (ma‘rifah) of its rights and obligations.”21 According to A. Fyzee, this is to emphasize the subjective element in fiqh and the primacy of con- science. Thus, before each action one should ask oneself: Is this right or wrong?22 A practical, reasoning person should be guided in his judg- ments by a concept of good. Gaining this concept gradually through his experiences of right judgments and actions, he then applies this concept in his judgments and actions.23 A judge implements the laws that express and enforce this concept of good and justice. He can “from time to time be confronted with cases about which the existing laws yield no clear answer or perhaps no answer at all. In those situations the judge . . . must exercise p h r ~ n e s i s . ” ~ ~ This is, for Gadamer, basically what an interpreter of a text does in understanding it. The person who understands a text 4 The American Journal of Islamic Social Sciences 14:3 applies the universals that he learns from the text to his own sit~ation?~ In the Islamic tradition this sort of reasoning has been called ijtihdd. In a general sense, its definition is to be articulated as the definition of judg- ment (hukm): applying the general to the particular.26 Basically, in ijti- hcrci a mujtuhid applies an ethico-religious principle (of 'illuh [cause, lit- eral meaning, major premise] or ratio legis) that he derives from the text, to a case. He thinks that it is right to do so in a fresh particular case when he cannot find any answer from the source^?^ Imam al-Shafi'i accepted ijtihdd as a way of reasoning within the realm of the din. Considering the historical background in which his method- ology was constructed, this can be considered as a concession of ah1 ul- W i t h (scholars of hadith) to ah1 ul-ru'y (scholars of opinion and judg- ment).28 For him ijtihcrci is qiyds (analogy). His notion of ijtihcid or qiyiis is basically determined by his definition of 'ilm. He classifies the sources of the din under two main categories, namely, khubur (tradition or report) and qiyas. A scholar ('dim) should talk with either a khubur or a likeness (tushbih) to it.29 In other words i j t i M must depend on clear indications (dulz'il) from k h ~ b u r . ~ ~ The ma'nu (meaning) should only be taken from the 'ilm or khubur, i.e., the Qur'an, Sunnah, and ijmd' (the consensus of opinion of the traditional authorities). The outcome of q i y a is also a kind of knowledge but, as a secondary source, it cannot be con- sidered as strong as the khubur even though it is a~thoritative.~~ However, it gains its authority from the k h a b ~ r . ~ ~ Al Shafi'i is regarded as the first scholar to have justified qiyds on the basis of the Q ~ r ' a n . ~ ~ He cites ayah 2:150 for this purpose. With this ayah he argues that one should face the Ka'bah in prayer when it is in sight. But when it is out of sight one should turn to the direction of the Ka'bah instead of the Ka'bah itself. To determine its direction one should act according to indications. These indications are the sun, the moon, the stars, the seas, the mountains, and the wind. People use these indications in their reasoning in order to find out the right direction; likewise, they use the indications in their reasoning to find out the solutions to new cases in which there is no khubur. A scholar searches for the material from the khubar on an uncovered subject and with this material he reach- es a conclusion. The scholar should observe the common principle between the khubar and the new case. Imam al-Shafi'i called this princi- ple m ' n u or us1 (original case). He brings ayah 5:96 as an example to illustrate this aspect of qiyds. According to the verse, in the case of killing an animal while one is performing hajj, this animal should be compensated with a similar animal in size and in kind. Yet the similari- ty of which should be determined by two just judges. Al-Shafi'i adduces this example to defend his stance on ma'nu or, as it is called in later times, 'illuh. The scholar should choose the nearest ma'nu between the Mehmet Paqaci: The Role of Subject in al-Shafi‘i’s Methodology 5 original case (a$) and the derivative case c fa f ) so that the judgment for the former (hukm ul-usl) can be applied to the latter.34 Al-Shafi‘i divides qiyds into two kinds. The first is where the parallel case for which the rule of law is sought precisely bears the meaning of the original case (mu‘na ul-u~Z). For him there is no dispute over such a type of analogy. The second is where a parallel case may have a number of similar original cases (uszir) to it; but the parallel case is covered by a case which is more analogous to it. This type of analogy is disputed amongst the users of qiyds. h a m al-Shafi‘i maintains that the mujtuhidzin might dispute in choos- ing the original case. Therefore, he implies that absolute certainty cannot be claimed in moral judgments. This point can be deduced from the evi- dence that he brought from the Qur’an. In the case of finding out the direction of the Ka‘bah, there may be conflict of opinion among the judges. One may be right and the other wrong. Also, in determining who itre the two just men for deciding the animals’ similarity in size, “muj- tuhidzin inevitably are going to disagree.”35 Two mujtuhidzin may differ in accepting as just one person rather than another. Therefore, he affirms that in qiyds there is no absolute certainty. Even though he suggests that the mujtuhid should choose the most similar original case in qiyds, he knows that disagreement (ikhtildj) will occur among the choosers because they will choose what they think to be similar and because they will arrive at the right answer by their own judgment.36 This point becomes clear after considering that Imam al-Shdi‘i and Abu Hanifa chose two different notions of resemblance (shabuh). The former took into consideration the resemblance in respect to value (mushabuhah j7l hukm), whereas Abu Hanifa took into consideration the resemblance in respect to form ( m u s ~ b u ~ h f i ’ s - s u r ~ h ) . ~ ~ Imam al-Shafi‘i is well aware that lack of certainty and objectivity originates from the fact that, in the value judgment-making process, the subjectivity of the agent is intrinsic to the act of reasoning itself. We dif- fer from others in judging one thing “in accordance with the degree of our knowledge of it and other’s knowledge of it.”38 In fact, qiyiis has been regarded by most of the jkqahd as the act of the r n u j t ~ h i d . ~ ~ Accordingly, their definition emphasized this aspect of its nature. Fakhr &Din al-Razi, e.g., defines qiyds as follows: To establish the like of a rule of a known (case) for another known (case) by reason of their simi- larity in the cause of the rule in the opinion of the one who establishes it?O ’This definition was later borrowed by al-Baydawi?l Thenfiquhrl’, including al-Shdi‘i, could not separate the action of the lpzujtuhid from the determination of similarity between the original and the parallel case?2 Stressing further the action of the mujtuhid in qiyds, they thought that mere similarity between the original and the parallel case did not make up qiyds until a mujtuhid tampered with it and established the judg- 6 The American Journal of Islamic Social Sciences 14:3 ment by his own eff0rt.4~ For al-Ghazali, a parallel case has no cause (‘illah) which is exactly similar to the cause of the original case (usl). Rather, only presumption or probability (ghufubut ul-zunn), which the mujtuhid carries, shows that the parallel case contains the same cause as the original case.44 As far as determining the original principle in qiyci.s is concerned, al-Amidi also stresses the role of the subject in the reason- ing when criticizing an earlier definition of mumsib (determining prin- ~ i p l e ) ~ ~ as a determining principle of the ‘iffuh. He states that this munu- sib may be an authority for the user of qiyiis (mzir) but not for the oppo- nent (munuzir), for he might contend that his reason does not accept the ‘iffuh selected by the user of qiyds. The validation of this ‘illah by the user of qiycis on the basis of what his reason accepts cannot be preferred to the dismissal of the same ‘illah by his opponent. Hence, there is no principle which can determine the preference of one over another.46 In fact, the outcome reached by al-Amidi crystallizes this noteworthy aspect of the nature of ethico-practical rationality regarding the role of subject in this rationality. The subject’s activity in ijtihiid is not deter- mined by any rule. When Aristotle studies his phronesis he underlines the very same aspect of this kind of rationality. In exercising ethical rea- soning we understand the reason why the application of a moral virtue in acting in some particular way is the right thing to do. And there is no rule in exercising this kind of practical understanding of particulars. Aristotle gives the example of a mathematician to explain the nature of phrone- The mathematician who has to construct a triangle should deter- mine the basic elements from which he will begin. But he has no rule to tell him which elements these are:* because every case of exercising is unique in itself.49 Then the soundness of every practical syllogism depends on the person who exercises it in connection to a certain occa- sion. It depends on a particular person because his own good and prefer- ence is defined by major premise in the syllogism. It also depends on the particular occasion, for the occasion (parallel case) constitutes the minor premise. The conclusion of the syllogism is his action. So the practical syllogism differs radically from Aristotle’s theoretical syllogism, which does not accept any reference to a particular person or occasion.50 To take qiyci.s for granted as one of the sources of the din, setting aside admitting the subject’s involvement in the perception of the din, is also necessarily to acknowledge the input of the subject in the din itself. In this mode of ijtihiid personal opinion and hence subjectivity of the muj- tuhid is already effective, both in choosing an original cause and in applying it to a fresh case. This amounts to saying that in the process of making judgment the background knowledge, i.e., earlier experiences, prejudices, perception of the din and culture, historicity, and even psy- chological feelings of the mujtuhid are actively influential in his reason- ing. Imam al-Shafi‘i himself in this respect draws attention to constric- Mehmet Paqaci: The Role of Subject in al-Shafi‘i’s Methodology I tions of subject as the agent of value j~dgment.~’ He warns the mujtahid against being hasty in expressing an opinion, not listening to the opinions of those who may disagree with him, forgetting the necessary knowledge of the Qur’an and Sunnah, being misled by personal bias, being preoc- cupied with one’s own opinion, and not acquiring the proper knowledge of parallel cases on which to apply analogy. He also requires that the mujtahid have mature reasoning.52 This caused him to be more cautious, from a methodological point of view, on the subject. By maintaining qiyds in his methodology, Imam al-Shafi‘i departs from the stand of ah1 al-hadith who treated khabar as impenetrable to the subject.53 However, since he persists in qiyds alone and does not advance beyond it, he cannot effectively leave the circle of ah1 al-hadith. On the one hand, he affirms the involvement of the subject with qiyGs in under- standing the din, and on the other the Imam certainly imposes limits on it. This marginalization of the action of the subject in the methodology is based on how he perceives ‘ilm and, therefore, the din itself. Hence, in his methodology, any value judgment by the mujtahid must depend on the literal meaning of khabar. The literal meaning (zahir) of the text is more appropriate and what is sought by ~j t ihrzd .~~ The agent is ordered to exercise i j t ihd on the basis of the explicit meaning of the text and if he does so he will be forgiven even if he makes a mistake in his ijn7ziid.55 The implicit meaning is known only by God.56 At this point a heavy con- sistency problem should be spotted in the Imam’s methodology. On the one hand he acknowledges that it is not likely to reach absolute certain- ty even in qiyds. On the other hand al-Shafi‘i looks for a kind of certain- ty57 and does not want to leave the absolutely secure framework of khabar. We can see his position more clearly in his refutation of istihsdn which is regarded by Abu Hanifa as another mode of ijtihczd. He rejects it on the basis that istikdn (application of discretion in a legal decision) is not constructed upon ‘ilm and it is nothing but seeking pleasure58 or arbitrary law making .59 Imam al-Shafi‘i, by depending upon the text and by putting restrictions to the involvement of subject, intends to follow a way, as he calls, “more suitable” or “more secure”“ in understanding the din. As defined by al-Shafi‘i, any mode of ijtihid other than qiyds, such as istihsdn and istisldh, is based on more general indications and principles, such as good and justice, which are usually derived from the totality of particular value judgments and experiences of the rnujtahid. The defini- tion of these general principles might not be inferred readily from the lit- eral meaning of particular value judgments, but they are reached through ethical reasoning. Moreover, implementing them requires much more of man’s involvement in the process than in qiyijs. In this case the scope of man’s involvement might be the same as it is in the case of qiycZs, but the process of istihscZn, for example, requires more profound involvement of 8 The American Journal of Islamic Sociai Sciences 14:3 men than that of qiyds. In the former, man needs to penetrate into more and more universal, general, and basic principles and eventually into the ends of the din.61 The telos, here, is to achieve the values and qualities such as justice, human or public good (maslab), and averting evil (&- ~ m i ~ ) ? ~ The agent of ethical reasoning should be guided by the adequate and rationally defensible conception of these values.63 In istibdn, for example, the agent aims at reaching knowledge about the good of an object. When he decides that an object is good, it is right for him to judge on the basis of this knowledge.@ These values and qualities as defined by the din can be achieved by going beyond the literal meanings of particular value judgments and deliberating on them in the aggregate. Here the deliberation follows a chain of “for the sake of’ until it reaches a supreme good. The delibera- tive task is, then, the one that operates in a hierarchical ordering of means to their ends. In this rational construction, subordinate ends constitute the means to the ultimate end.65 In his methodology, al-Shatibi takes basic values and objectives of the din in gradation. He divides m a ~ l a ~ (bene- fit, interest, good) into three types, namely, &rfiri (necessary), @ji (needed), and tahsini (commendable), and sees a hierarchical order among them. The &rziriyydt constitute the basic and universally accept- ed principles of the din, such as the protection of din, nafs (self), and mcSl (property). The @jiyydt are needed in order to expand the objectives of the din and to remove the strictness of literal meaning which eventually leads to disruption of the ma~la&. The third kind of maslab, the tabiniyydt, basically cover morality. These grades are related to one another. In this hierarchical order, the tabiniyydt are complementary to the ejiyydt as the latter are complementary to the &rfiriyydt. Therefore, the disruption of &rfiri necessitates the disruption of other masdlih (pl. of maslab), whereas the disruption of other masdlih does not affect the &rfiri.66 He emphasizes the method of istiqru’ (induction) in reaching the “good.”67 He a f f i i s the method on the basis of the passages from the Qur’an which explicate the objectives of their commands?8 The agent, then, in order to reach a conception of good, needs to experience right ethical j~dgments.6~ In usul al-jiqh these right judgments are pro- vided basically by textual evidence. According to Islam, it is through these right judgments that we achieve definitions of values, and from the values, derive the major premises of the particular judgments. Moreover, to acquire a more adequate definition of the values, the muj- tahid needs to take into consideration his extratextual experiences. For instance, maslab, which is observed as a means of preserving the ends of the din, is known through other sources, such as circumstantial evi- dences and divergences of signs (qara’in ul-ahwal wu tafariq al-amarat) along with the Qur’an and S~nnah.~O Then the content of value defini- tions in the din are not confined to textual evidences. In this respect, al- Mehmet Pagaci: The Role of Subject in al-Shafi’i’s Methodology 9 Shatibi designates a definition of masla& that can be acquired through “experiences and other means” (bi al-tujurib wu ghayriha) after the din establishes its foundations ( ~ u $ u & ) . ~ ~ In a famous example, accepting the leftover of prey birds as pure and, therefore, lawful to use is a con- clusion of istihsGn, unlike that of qiyds. Here reasoning departs from a textual base which regards the leftover of beasts of prey impure and takes the outcome of the experience and deliberation of the case by the agent. Beasts of prey eat or drink with their tongues and mix their saliva with the thing eaten or drunk by them, whereas a bird‘s beak is a kind of dry bone, and birds do not leave anything to make their leftover impure. Al-Ghazali also asserts that human good can be defined by external evidences (bi tafuriq uhkurn wu iqtiran dululut) without being supported by any particular textual evidence. In his illustration, infidels shield themselves with a number of Muslim captives and attack the Muslims. If Muslims do not counterattack the infidels they would all be killed. Even though by the Shari‘ah it is not permitted to kill Muslims, various exter- nal evidences permit the killing of a few Muslims to save the lives of the majority of the Muslims.72 In qiyGs and in other ways of ijtihiid, the muj- tahid formally follows the same stages. He has the original case, the ‘illah produced from the original case or cases, and the fresh case to apply the ‘illah. Yet qiyGs as understood by Imam al-Shafi‘i does not require an adequately accomplished definition of basic and general pM- ciples of the religion and suffices only with the immediate and literal meanings (‘illuh) of the previously given judgments. If in the procedure of ethico-practical judgment it is required to judge with general princi- ples, then the ijtihiid offered by the Imam cannot be regarded as a thor- ough project to understand Islam, for the project does not fully follow the natural process of ethical rationality and, therefore, properly activate and actualize the system as a whole. Moreover, it is very likely to create an unbearable vacuum in the system. Even though the project has a major premise (or ‘illuh) in order to mechanically operate the procedure, the premise and, then, the project itself simply fall short because ethical rationality demands that the definition of basic principles be derived through profound deliberation. Deliberation is also necessary to produce right ethical judgments in accordance with the system because superfi- cially phrased major premises will eventually conflict with the basic and general values of the system, which are never negotiable. Mentioned implications of the Imam’s project, of course, are all because of the idea of holding literal meaning of khubur and restricting the subjective inputs in the perception of the din. Unfortunately, however, this idea overlooks the fact that qiyGs is simply enough to allow sheer subjective and extra- textual inputs in understanding I~lam.7~ The same restricting attitude toward the role of the subject by Imam al- Shafi‘i can be seen in his treatment of the concept of hikmah and Sunnah. 10 The American Journal of Islamic Social Sciences 14:3 He interprets the concept hikmah in the ayats 2:129, 2:151, 3:164, and 33:34 as Sunnah. For him the concept cannot definitely be understood as other than S ~ n n a h . ~ ~ He uses these ayats to supply an authoritative base for the Sunnah of the Prophet. It is accurate to say that he has a unique stance regarding the definition and interpretation of this concept. Lexicographers literally define the word hikma as “to prevent, restrain, or withhold somebody from acting in an evil or corrupt manner.”75 The tafdsir (pl. of tafstr) basically share the meaning given in lexicons. Mujahid (21-103 A.H.) defines it as “understanding [fiqh], reason and correctness [ijdbah] in speech without prophethood [ n u b ~ w w a ] . ” ~ ~ To Ibn Qutayba (213-276 A.H.), hikmah is knowledge (‘ilm) and action (‘amal). Unless a person combines these two in himself he cannot be called hakim.77 Al-Tabari (224-3 10 A.H.) sees that hikmah is taken from hukm which means to differentiate right (haqq) from wrong (b&il)?8 Therefore, if a person is called hak--m or owner of clear hikmah, then it is meant that he is clearly right in his speech and action. These defini- tions and interpretations show that the concept connotes the meaning of ethical reasoning through which the agent reaches in the end a deep understanding and ethical judgment. This is how hikmah works within the finitude of human nature. This is ethical reasoning, and the telos here is “the good” and “the truth.” Within this general meaning the Sunnah of the Prophet covers a considerably important place in Islamic hikmah. To confine the concept, however, only to the Sunnah is not possible or cor- rect. Ibn Kathir (665-738 A.H.) affirms that hikmah cannot be confined to prophethood as hikmah is more general than the latter and prophet- hood is more specific than hikmah.79 The concept covers understanding of the Qur’an by the Prophet as well as by any other believing hakim who is equipped with the basic values of Islam. Yet Imam al-Shafi‘i confines his definition of hikmah to the Sunnah of the Prophet. And he does not stop there. Taking one step further, he regards the Sunnah as a revealed knowledge,80 not an i j t ihd of the Prophet. We will not discuss the nature of the Sunnah in detail here, but because of its relevance in this context, we will briefly touch upon the authority and value of the Sunnah of the Prophet. The Sunnah of the Prophet and, to a certain extent, the judgments of the his Companions, are authoritative sources for right judgment. The Sunnah is, by its nature, the ijtihdd of the Prophet, since as a human (bashar) subject, he could be corrected by waby. This happened during the waby several times and as such is technically called ‘itdb (lit., rebuke; namely, Allah’s warning His Messenger). If we take the Sunnah as rev- elation by nature then it will be very difficult to explain these ‘it& cases.81 This amounts to saying that first Allah sent a revelation to His Prophet causing him to make a mistake and then blamed him because of this very same mistake. The Companions of the Prophet also shared the Mehmet PaGaci: The Role of Subject in al-Shafi‘i’s Methodology 11 privilege of being corrected by waby because they partook in the same historicity as the Prophet. Yet this privilege does not affect the nature of the SUM& and change it from being the Prophet’s ijtihdd; likewise, this aspect of its nature does not diminish the its authority. Imam al-Shafi‘i, therefore, understands the Sunnah and hikmah to be totally different in nature. It is not a kind of practical, ethical and, by its nature, particular judgment of a prophet or believing hakim, but a knowledge revealed to the Prophet and put into his heart to convey to his people. Of course, this is contrary to the accepted definition of hikmah on the basis of consen- sus. Despite his immense influence on USZX al-fiqh, the definition has not been well received by subsequent jurists.82 To conclude, we can make the following points: First, the qiyiis of al- Shafi‘i does not complete the procedure of ethical reasoning.83 If the mujtahid needs to study the particular value judgments in totality to reach the basic values of the din going beyond their literal meanings, then Imam al-Shafi‘i faces in his methodology the risk of not exhausting all the values and qualities in understanding the din and, therefore, under- standing according to this method always bears the possibility of being incomplete. Imam al-Shafi‘i overemphasizes the literal meaning of khabar and marginalizes the role of subject in the perception of the din at the expense of basic, general, universal, and ahistorical values defined by din in toto. Second, this attitude entails ideali~ation~~ of the particu- lar value judgments assigned in textual evidences over values and quali- ties in the din. Regardless of its historicity, the khabar has been imposed upon all other historicities as a unique, universal, and ahistorical frame- work,85 whereas they are realizations and examples of universal values in particular cases within space and time.86 Through the totality of these realizations and examples, the basic definitions of the values of the din can be reached. Third, this negative attitude toward the subject also affects the conception of “good” in the din. According to the necessary implication of this attitude the only “good” in the din is in the literal . meaning of textual evidences and therefore, extratextual evidences are necessarily to be regarded as extrareligious, too. A subject’s experienc- ing other than textual sources are ex-hypothesi, not regarded as good and as entity to be allowed into the religious perception. The destiny of the attitude is eventually and inevitably the dissolution of the integrity of the life of Muslims and the din as a way of life. For here, life is divided into religious and extrareligious parts. The attitude, with its unique definition of hikmuh, creates further problems in the methodology. Fourth, the Imam establishes the authority of the SUM& by rejecting the subjective initiative of the Prophet and hence, fails to penetrate into the real nature of the Sunnah. Last, Imam al-Shafi‘i does not acknowledge the Prophet’s right to exercise his rationality and express his own opinion on any case, for whatsoever he utters is by his definition revealed hikmah from Allah; 12 The American Journal of Islamic Social Sciences 14:3 whereas he allows a believing hakim to exercise his ethical rationality through qiyas even though he does so to a limited extent. Notes 1. The school established in Iraq by Abu Hanifa was attributed to Abdullah b. Mas‘ud and Ali b. Abi Talib. Malik followed ‘Umar and his son Abdullah b. ‘Umar and Abu Bakr. Awza‘i in Syria again relied on Abu Bakr, ‘Umar, and Ibn ‘Umar. See Schacht, The Origins of Muhammedun Jurisprudence (Oxford: Clarendon Press, 1979), pp. 21-34; see also Schacht, An Introduction to Islamic Law (Oxford: Clarendon Press, 1982), pp. 28-36. 2. Ibid., pp. 26-48. 3. Muhammad Abu Zahra, Usul al-Fiqh (Cairo: Dar al-Fikr al-Arabi, 1958), p. 13. 4. This widely held opinion is not accepted by Wael B. Hallaq to the effect that Imam al-Shafi‘i’s line in usul al-fiqh had been adopted only after the intellectual ground became suitable to his line a century later. Yet he confirms that al-Shafi‘i was the first in his synthetic and reconciliatory line. 5. Fazlur Rahman, Islamic Methodology in History (Islamabad: Islamic Research Institute, 1984), pp. 23, 130. 6. E. W. Lane, An Arabic-English Lexicon, 8 vols. (London: Williams and Norgate, 1963-1993), S.V. fqh; Ibn Manzur, Lisan al-Arab, 15 voh. (Beirut: Dar al- Sader, 1955), S.V. fqh; Abu Zahra, Usul al-Fiqh, p. 5; “Fiqh,” Encylopedia of Islam, Vol. 11, (Leiden: E.J. Brill, 1983). pp. 886-891. 7. Ibid., p. 887. 8. Ibid.; also see Abu Zahra, Usul al-Fiqh, p. 6. 9. Rahman, Islamic Methodology in History, p . 131. On the early character offiqh, 10. N.J. Coulson, A History of Islamic Law (Edinburgh: Edinburgh University Press, 11. Asaf Fyzee, A Modern Approach to Islam (Bombay: Asia Publishing House, 12. Wolfgang G. Friedman, Legal Theory, 5th ed. (New York Colombia University 13. Maqdisi gives an early definition of usul al-fiqh: “it may simply mean that the work dealt exclusively with positive law, or with the Koran, the Sunna, consensus (ijmd‘), or analogical reasoning (qiyas), that is with one or another of the sources or ‘roots’ of jurisprudence, not with jurisprudence as a constituted science.” See George Maqdisi, “The Juridical Theology of Shafi‘i Origins and Significance of Usul al-Fiqh,” Studia Islamica, 59 (1984), pp. 5-47. 14. For an effective comparison betweenfiqh and tafsir regarding their character and functions, see John Burton, “Law and Exegesis: The Penalty for Adultery in Islam,” in eds. Hawting and Abdul Kader A. Shareef, Approaches to the Qur’an (Routledge, 1993), pp. 269-284 also, for how usul al-fiqh, keeping its central position, stayed related to the life and the tendencies lived in the course of Islamic history of thought, see Wael B. Hallaq, “Was al-Shafi‘i the Master Architect of Islamic Jurisprudence?’ International Journal of Middle East Studies, 25 (1993), pp. 587-605. 15. Hans G. Gadamer, Truth and Method, 2nd ed., trans. by Joel Weinsheimer and Donald G. Marshal (London: Sheed and Ward, 1989), p. 324. 16. Ibid., p. 314. 17. J. Donald Monan, Moral Knowledge and its Methodology in Aristotle (Oxford, 1968). p. 62f. 18. Gadamer, Truth andMethod, p. 314. 19. Ibid., p. 317. 20. Ibid., p. 22. 21. Quoted in Fyzee, A Modern Approach to Islam, p. 29 f., 32. 22. Ibid. 23. Alasdair MacIntyre, Whose Justice? Which Rationality? (London: Duckworth, 1988). p. 118. see also Schacht, The Origins of Muhammedan Jurisprudence, p. 26f. 1978), p. 83. 1%3), p. 31. Press, 1967), pp. 26-28. 24. hid., p. 119. 25. Gadamer, Truth and Method, p. 324. Mehmet Paqaci: The Role of Subject in al-Shafi’i’s Methodology 13 26. Abd al-Aziz al-Bukhari, Kashf aldsrar ala Usul al-Bazdawi, III (Istanbul: 27. Ahmad Hasan, Analogical Reasoning in Islamic Jurisprudence (Islamabad: 28. S e e I. Goldziher, The Zuhiris, Their Doctrine and Their History, trans by 29. Muhammad b. Idris al-Shafi‘i, a/-Risala, ed. Ahmad Muhammad Shakir (Beirut: 30. Ibid. 31. Ibid., pp. 40, 359, 477; Ahmad Hasan, Analogical Reasoning in Islamic 32. Al Shaii‘i, Al-Risala, p. 23 f. 33. See Hasan, Analogical Reasoning in Islamic Jurisprudence, p. 11. 34. Al-Shafi‘i, A1-Risala, p. 23 f. 35. Ibid., p. 493. 36. Ibid., p. 483; see also h4ajid Khadduri, Islamic Jurisprudence: Shaji’i’s Risalah (Baltimore: John Hopkins University Press, 1%1), p. 292. 37. In the case of the murder of a slave, the killer will not be killed and his price will be paid to the master according to al-Shafi‘i and Malik, who liken a slave to an animal or chattel (mamluk) on the account that both of them are bought and sold. On the other hand, Abu Hanifah and Ibn Ulayyah take him as a free man and stipulate that the killer either be killed or the mice be uaid. See Ahmad Hasan, Analogical Reasonina in Islamic Darsaadat, 1308), p. 268. Islamic Research Institute, 1986), p. 18. Wolfgang Behn (Leiden: E.J. Brill, 1971). p. 20. Dar al-Kutub al-Turath, 1979), p. 507. Jurisprudence, p. 12. Jurisprudence, p.*302. Risalah. D. 291. I Y 38. Al-Shafi‘i, Al-Risala, p. 482; see also, Khadduri, Islamic Jurisprudence Shafi ‘i’s 39. S& Hasan, Analogical Reasoning in Islamic Jurisprudence, p. 107ff. 40. Fakhr al-Din al-Razi, Al-Mahsulfi ‘Ilm Usul al-Fiqh, vol. II (Beirut: Dar ai-Kutub al-Ilmiyya, 1988), p. 239; see also Hasan, Analogical Reasoning in Islamic Jurisprudence, p. 104. 41. Jamal al-Din Ibn al-Hasan al-Isnawi, Nihayat al-Sulfi Sharh Minhaj al-Wusul ila ‘ilm al-Usul, vol. III (Beiml: Dar al-Kutub al-Ilmiyya, 1984), p. 3. 42, See Hasan, Analogical Reasoning in Islamic Jurisprudence, p. 11 1. 43. bid. 44. Abu Hamid al-Ghazali, Al-Mankhul min Ta‘liqat al-Usul, ed. M.H. Haytu (Damascus: Dar al-Fh, 1970), pp. 380,383. 45. This definition belongs to Abu Zayd al-Dabusi: “Munasib is a quality which is acceptable to reason when it is presented to it.” See al-Amidi, Al-Ihkamfi Usul al-Ahkam, vol. IV (Beirut: Dar al-Kutub al-Ilmiyya, 1985). p. 237; %e also Hasan, Analogical Reasoning in Islamic Jurisprudence, p. 25 1. 46. Al-Amidi, Al-Ihkamfi Usul al-Ahkam, p. 237. 47. “That practical wisdom (phronesis) is not scientific knowledge is evident; for it is, as has been said, concerned with the ultimate particular fact, since the thing to be done is of this nature. It is opposed, then, to intuitive reason; for intuitive reason is of the limit- ing premises, for which no reason can be given, while practical wisdom is concerned with the ultimate particular, which is the object not of scientific knowledge but of per- ception-not the perception of qualities peculiar to one sense but a perception akin to that by which we perceive that the particular figure before us is a triangle; for in that direc- tion as well as in that of the major premise there will be a limit.” From Aristotle, Nichomachean Ethics, The Basic Works of Aristotle (New York Ransom House, 1941), 48. MacIntyre, Whose Justice? Which Rationality?, p. 129. 49. Al-Shatibi. Al-Muwafaqat fi Usul al-Shai‘iyya, vol. IV (Cairo: Matbaa al- p. 1142a 25-29. ” - - _ _ Salafiyya, 1341), p. 48. 50. MacIntvre. Whose Justice? Which Rationalitv?. D. 129. 51. Aristotie refers to a number of impediments &f r ib t ethical reasoning. Immaturity is one of them. The young make mistakes due to the lack of experience. The young may also be misled by passion. The other one is lack of education both in the development of good habits and intellectual training. This person fails to attain true telos, and his passion will divert him. “For someone who lives according to passion would not listen to an argument designed to redirect him, nor would he understand it.” See Aristotle, 14 The American Journal of Islamic Social Sciences 14:3 Nichomachean Ethics, The Basic Works of Aristotle, pp. 1093a 2-10; 1095b 4-6; 1179b 52. Al-Shafi‘i, Al-Risala, p. 510f; see also Khadduri, Islamic Jurisprudence Shaji’i’s Risalah, p. 307. 53. The engagement of subject in the rationality has recently located on the center in the dispute between philosophical schools for another time. The Cartesian rationality excluded any subject input from any reasoning to the effect that the reason should work outside prejudices, tradition, and authority. Gadamer, however, holds phronesis or ethi- cal reasoning as the true model of understanding. And he acknowledges the role of sub- ject as an inseparable element for understanding. Gadamer’s stand is against what he calls “romantic hermeneutics” that followed basically the Cartesian rationality in Geisteswissenschafen. This notion of absolute reason overlooks that reason can only operate within historical conditions and a living tradition. “The important thing is to be aware of one’s own bias, so that the text can present itself in all its otherness and thus assert its own truth against one’s own foremeanings.” See Gadamer, Truth and Method, p. 269. 54. Al-Shafi‘i. Al-Risala. 0. 39: see also Khadduri. Islamic Juriswudence Shafi‘i’s 26-27. A . Risalah, p. 78. Risalah. D. 300 55. Al-Shafi‘i, Al-Risala, p. 497; see also Khadduri, Islamic Jurisprudence Shaji’i’s 56. Al-’Shafi‘i, Al-Risala, p. 498; see. also Khadduri, Islamic Jurisprudence Shaji’i’s Risalah, p. 300. 57. Compare the interpretative translation by Khadduri with the original. See. Khadduri, IslamicJurisprudence Shafi ‘i’s Risalah, p. 80, and al-Shafi‘i. Al-Risala, v. 41. 58. Ibid., p. 507. 59. Muhammad b. Idris al-Shafi‘i. Kitab al-Umm. vol. VI. ed. Muhammad Zahra al- Najjar (Beirut: Dar al-Ma‘rifa, n.d.), p. 203. 60. Al-Shafi‘i, Al-Risala, p. 41. 61. Al-Shatibi, Al-Muwafaqatfi Usul al-Shar‘iyya, vol. IV, p. 205f. 62. Hasan, Analogical Reasoning in Islamic Jurisprudence, p. 409ff. 63. For a comprehensive outlook of derivation methods for ‘illah in usul al-fiqh, see Hasan, Analogical Reasoning in Islamic Jurisprudence, pp. 123ff, 233ff. On derivation of major premise see MacIntyre, Whose Justice? Which Rationality?, p. 130f. 64. Abu al-Husayn al-Basri, al-Mu‘tamud fi Usul al-Fiqh, vol. I1 (Beirut: Dar al- Kutub al-Ilmiyya, 1983), p. 297. 65. MacIntyre, Whose Justice? Which Rationality?, p. 13Off. 66. Al-Shatibi, Al-Muwafaqatfi Usul al-Shar‘iyya, vol. II, pp. 7-17. 67. Ibid., vol. 11, pp. 6-7. 68. See, for instance, in the Qur’an 2:183,4:165, 5:6,7:172, 11:7. 69. In fact, there is a circularity in having right judgments and acquiring a conception of good in ethical reasoning. In order to judge rightly we need to know what is good. We can only achieve the knowledge of good on the basis of experience of right judgments. In Aristotle these right judgments are provided by polis, whereas in religion they are given by revelation (wahy). This is a different kind of source for right judgments by nature. Yet the procedure differs in neither of them. For both the ehtical judgments of wahy and that of man follow the same procedure. Both of them are the judgments reached through the process of practical syllogism. This is the only reason why man can under- stand the judgments of wahy. The subject is God. Therefore, the nature of His judgments is different from human judgments. 70. Taj al-Din al-Subki, al-Ibhajfi Sharh al-Minhaj, vol. 111, p. 184. 71. Al-Shatibi, AI-Muwafqatfi Usul al-Shar‘iyya, vol. 11, p. 48. 72. Al-Ghazali gives this example to explain the conditions which he stipulated for the validity of maslaha. As an ‘illah, it should be necessary (daruri), certain (qat‘i) and uni- versal (kulli). See Abu Hamid al-Ghazali, al-Mustasfa min ‘ilm al-Usul, vol. I (Beirul: Dar al-Kutub al-Ilmiyya, 1322), p. 313f. 73. lbn Ham, al-lhkamfi Usul al-Ahkam, vol. VIII (Beirut: Dar al-Kutub al-Ilmiyya, 1985). pp. 555ff. 579f. 74. Al-Shafi‘i, Al-Risala, pp. 32, 86ff. 75. Lane, An Arabic-English Lexicon, 8 vols. (London: Williams and Norgate, 1963-1993), S.V. hkm. See also Ibn Manzur, Lisan a ldrab , 15 vols. (Beirut: Dar al- Sader, 1955), S.V. hkm. Mehmet PaGaci: The Role of Subject in al-Shafi‘i‘s Methodology 15 76. Muhammad b. Jarir al-Tabari, Cami‘ al-Bayan an Ta’wil al-Qur’an, vol. XXI 77. Abu Muhammad Ibn Qutayba, Gharib al-Qur’an (1278/1958), p. 32. 78. Al-Tabari, Cam? al-Bayan an Ta’wil al-Qur’an, vol. I, pp. 557-558. 79. Ismail Ibn Kathir, Tafsir al-Qur’an al-Azim, vol. I (Beirut: Dar al-Ma‘rifa. 80. Al-Shafi‘i, Kitab al-Umm, vol. V, p. 127. 82. Al-Amidi defines hikmah as “the purpose (maqsud) of giving the law.” See al- Amidi, al-lhkamfi Usul al-Ahkam, vol. 111, pp. 180, 212,251, 255. 83. Yet the very nature of this sort of reasoning forced him practically to go beyond qiyas and apply istihsrZn in understanding the din despite his theoretical rejection of it. See al-Amidi, al-lhkamfi Usul al-Ahkam, vol. IV, pp. 391-392. Again, the adoption of istishb by Shafi‘i scholars shows that the nature of the rationality dictated itself in the understanding of the din. (Beirut: Darl al-Fikr, 1984), p. 67. 1983), p. 322. 81. Q~r’an 8:67,9:43, 10:99,66:1, 801-10. 84. Khadduri, Islamic Jurisprudence Shaji’i’s Risalah, p. 43. 85. Hasan, Analogical Reasoning in Islamic Jurisprudence, p. 13. 86. See I. Ragi al-Faruqi: “Whenever the Holy Qur’an makes mention of lower ethico- religious values, or of values belonging to other realms, or of real-existent, it must do so, not for their own sake but for the sake of those higher ethico-religious values which are its prime object. . . . The relevance of the nonethico-religious values and of real-existents in the Holy Qur’an must then be that of an example, of an explanation or clarification, of an instance, real and historical, to be analyzed so as to reveal the realization or violation of the ethico-religious principle in question.” “Towards a New Methodology For Qur’anic Exegesis,” Islamic Studies, 1: 1 (1962), p. 39. I