Al-Tufi's Concept of Maslahah. An Attempt to Apply on the Woman's Inheritance in the Islamic Inheritance Jurisprudence

Table of contents

Introduction
A. Status of research
B. Problem statement
C. Aim of the study
D. Methodology and approach
E. Formalities

1. A short biography of Al-Ṭūfī's Life and Work
1.1. Al-Ṭūfī's Life
1.2. Al-Ṭūfī's Work

2. Al-Ṭūfī's concept of maṣlaḥah 16
2.1. Roots of the ṭūfīan concept in the tradition of the Principles of Islamic jurisprudence (Uṣūl al-Fiqh)
2.2. Introduction to the concept of Al-Ṭūfī
2.3. Authenticity of the ḥadīth (lā ḍarara wa lā ḍirār)
2.4. Interpretation of the ḥadīth (lā ḍarara wa lā ḍirār)
2.5. Preferential consideration of the maṣlaḥah principle
2.5.1. Argumentation
2.5.2. Justification
2.5.3. Restriction to social dealings (muʿāmalāt)
2.6. Refutation of the consensus as a source of law
2.7. Specification (takhṣīṣ)
2.7.1. Definition in the Uṣūl literature
2.7.2. Definition by Al-Ṭūfī
2.7.3. Scope of specification
2.7.4. Method of Specification
2.7.5. Criticism of the specification
2.8. The text (naṣṣ) in the sense of Al-Ṭūfī
2.8.1. Al-Ṭūfī's understanding of the text
2.8.2. The text in Al-Ṭūfī's other works
2.8.3. Which text can contradict the usefulness?
2.9. Collision of Benefits
2.10. Refutation of possible objections
2.11. Reception of Al-Ṭūfī by modern reformists

3. The practice of inheritance law and the ṭūfīan concept
3.1. Introduction
3.2. The position of women in Islamic inheritance law
3.3. Attempts to question the practice of inheritance law
3.4. Approaches to the right of inheritance of women
3.4.1. The Approach of Shaḥrūr
3.4.2. The Approach of Alrahmany
3.4.3. Ijtihād in the division of inheritance
3.4.3.1. The case of ʿAbdullāh ibn Masʿūd
3.4.3.2. The case of ʿUmarīyyatān
3.4.3.3. The Obligatory Testament (al-Waṣīyya al-Wājiba)
3.4.3.4. Participation in wealth accumulation (Al-Kadd wa al-Siʿāīah) in Maliki law

4. Conclusion

5. Bibliography

Introduction

Islamic law plays a prominent role in the life of Muslims. One cannot separate their lives from the norms of Sharia law. Anyone who deals with the reality of Muslims today, both in the predominantly Islamic and in European countries, encounters problems for which Islamic law can provide a solution. Anyone who studies the Principles of Islamic jurisprudence Uṣūl al-Fiqh can immediately see that in the course of its creation and development it was always alive and in constant change. Islamic law has basic principles that have emerged over time and are intended for the common good of the people. For example, the theory of the intentions of the Sharia (Maqāṣid Al-Sharīʿa). This theory, like any other, has gone through a process of creation and development.

The maṣlaha principle is not an independent source of the Principles of Islamic jurisprudence (Uṣūl al-Fiqh), like the Quran, the Sunna, and the consensus, but is applicable in the Islamic tradition in some cases under certain conditions.

Historically, this principle has gone through a relatively long process that began with Abū Al-Maʿālī Al-Juwaynī (d.1085) and his disciple Abū Ḥāmid Al-Ghazālī (d.1111). With the Hanbali scholar Najm al-Dīn Al-Ṭūfī (d. 716/1316) the maṣlaha principle reached its highest level so far. He regards the consideration of the maṣlaha principle not only as an independent source but even as the most important of all sources since according to his concept it underlies the actual intention of the Sharia, namely the common good of the Islamic community.

Al-Ṭūfī developed an innovative method that has been highly controversial since it was first published in the early 20th century. This thesis deals with his maṣlaḥah concept. It tries to present and criticize Al-Ṭūfī's concept and to deal with the criticism of the other scholars who have dealt with it. I chose this topic because during my studies I had the current problems of Islamic law in mind. The topic is suitable for this. Research on this topic is of great importance for Islamic law as well as for Muslims, as it can provide a wonderful solution to current problems such as the controversial oral divorce and the right to inheritance of women. Such problems should be solved because this is very important for family cohesion and equality between men and women. One can well imagine the negative consequences that the separation of a family and the preference of one gender over the other have on the cohesion of society.

The present work consists of a theoretical and a practical part. The theoretical part is divided into an introduction and three chapters. The introduction introduces the research concept of the thesis. Al-Ṭūfī is relatively unknown in the English-speaking world. That is why the first chapter gives an insight into his life and works. The second chapter is the longest and most central chapter of the work. It begins with an attempt to historically follow the roots of Al-Ṭūfī's method in the practice of the Principles of Islamic jurisprudence. Then not only the treatise Al-Ṭūfī's but also both the Sunni and the Shiite discussion of it are presented.

In addition, an attempt is made, for a better understanding of the treatise, to examine the key terms, the common good (al-Maṣlaḥah), the text (al-Naṣṣ) and the specification (al-Takhṣīṣ) from the other works of the author, because the treatise is far too short for that. The chapter closes with the reception of the author by modern reformists. The third chapter represents the practical part of the work. Here the attempt is made to apply the new concept of Al-Ṭūfī to a current problem of Islamic law, namely the right to inheritance of daughters. The chapter first gives an overview of the position of women in Islamic inheritance law. Then the attempts of some Islamic thinkers to question the practice of inheritance law are briefly presented. Finally, the chapter deals with the approaches of two Arab thinkers who, by rereading the authoritative passages of inheritance in the Quran and Sunna, dared to find a solution for cases of inheritance that represent a clear disadvantage for women. It is the approach of the Syrian thinker Muḥammad Shaḥrūr (d. 2019) and that of the Egyptian Islamic scholar Alsayed Alrahmany. The fourth chapter shows the conclusions of the thesis. There it becomes clear that the new concept does not deviate from the tradition of the Principles of Islamic jurisprudence and that it can therefore be used. As usual, the sources of the thesis are listed alphabetically in the bibliography according to the specifications.

A. State of research

Al-Ṭūfī's concept of the consideration of the maṣlaḥah principle has remained unknown even in the Arab-Islamic world for almost 500 years. His commentary on ḥadith No. 32 of the book "Forty Ḥadīthe" (kitāb al-Arbaʿīn) "lā ḍarara walā ḍirār (No harm and no harmful retribution)" was first published by Jamāl al-Dīn al-Qāsimī¹ (d.1914) under the title Resālah fī al-Maṣlaḥah al-Mursalah. Thereupon Muḥammad Rashīd Riḍā² (d.1935) published it in the journal al-Manār in 1906.³ Then Muṣṭafā Zayd d⁴ (d.1977) published, commented on and criticized it in his master's thesis al maṣlaḥah fī al-tashrīʿ al-islāmī which the later scholar ʿAbdul Wahāb Khallāf⁵ (d. 1956) did in his book maṣādir al-tashrīʿ al-islāmī fī mā lā naṣṣa fīhi, only without criticizing it. Finally, Al-Ṭūfī's commentary was published in 1993 by Aḥmad ʿAbdul Raḥim al-Sayeḥ⁶ in a separate work under the title Resālah fi Riʿayat al-Maṣlaḥah. In the Turkish context, Kāṣif Hamdi Okur published the commentary in 2002 with a Turkish translation.⁷

In the Arab context, the new principle has been taken up by many theologians and Islamic scholars since its publication. Muḥammed Ẓāhid Ālkauthrī⁸ (d. 1952) is considered to be the first to critically examine the new maṣlaḥah principle in a collection of articles Maqālāt Alkauthrī (The Articles of Ālkauthrī, where various articles of were collected)⁹ In his dissertation, defended in 1943 and published in a work in 1947, Muṣṭafa Shalabī¹⁰ (d.1998) also expressed himself relatively critical in various places on the treatise Al-Ṭūfī's.¹¹

Muḥammad Abū Zahra¹² (d.1974) also dealt critically with Al-Ṭūfī in 1946. Abū Zahra's criticism hits a very important point for the basic assumption of the present thesis. Other scholars such as ʿAlī Ḥasabāllah (1952), Māḥmūd Allabābīdī (article 1952) and Muḥammad Yūsuf Musa (1953) have also commented on it.¹³

The detailed research on the theory of Al-Ṭūfī begins in 1954 with Muṣṭafa Zayd, who is considered to be the first to have devoted an entire master's thesis (Al-Maṣlaḥah fī al-tashrīʿ al-islāmī Wa Najm al-Dīn Al-Ṭūfī) to the theory of Al-Ṭūfī. Zayd first tried to collect all the manuscripts of the book "Forty Ḥadīthe" (Kitāb al-Arbaʿīn). He then edited what, in his opinion, was the complete version, published it, and attached it to his master’s thesis.¹⁴ Zayd took a critical look at the treatise. Zayd's efforts are great work, but, strangely, he has not dealt with the basic terms of the terms common good (al-Maṣlaḥah), the text (al-Naṣṣ) and the specification (al-Takhṣiṣ) in Al-Ṭūfī's other works, most of which he has listed, at least that is not visible in his book. My preoccupation with this work has shown that some points in it require further research. Muḥammad Al-Būṭī¹⁵ (d. 2013) also dealt with Al-Ṭūfī's treatise in his dissertation Ḍawābiṭ al-maṣlaḥah fī Al-Shariʿa al-islāmīyya in 1965.¹⁶ This work is marked by jumping to conclusions.

Due to the temporal distance to the revelation, problems of Islamic law in the Arab-Islamic world repeatedly arise over time, which is why the new principle became more and more important. Ḥussein Ḥamid Ḥassān¹⁷ (d. 2020) has a completely different opinion about which text Al-Ṭūfī means.¹⁸ With his criticism, he has taken an important step forward, in contrast to the previous scholars. Ḥassān's and Abū Zahra's views hit a very important point for the basic assumption of the present thesis. Another work that is interested in the subject of the present work is that of Āyman Jibrīn Jūwailis, who attempted to look at the treatise from a linguistic point of view in 2010 and seems to have discovered something new in it.¹⁹ Ḥassān's and Jūwailis' linguistic approach is a motivation for the present thesis to look for detailed definitions of the central concepts, which are mentioned in the treatise Al-Ṭūfī's and not sufficiently defined, in his other Uṣūl works, since these definitions are the key to well understand the author. Some works in Shiite literature deal with the ṭūfīan concept. For Example, Al-Saīyyed Muḥammad Taqīyy Al-Ḥakīm also deals with the ḥadīth "lā ḍarara walā ḍirār" and had to deal with the ṭūfīan method.²⁰

In his work on Islamic reform, Malcolm H. Kerr presents the concept of Al-Ṭūfī.²¹ Nazly Lubis Hanum's work on Al-Ṭūfī's concept of maṣlaḥah in is the only work in the English-speaking world that is devoted to the concept of Al-Ṭūfī. It takes a critical look at both the author's career and his treatise and uses it to create a clear presentation of the context in which the author lived and his new concept. What is new about the work is that it also examines the influence of Al-Ṭūfī on the modern reformists.²² Saim Kayadibi presents the treatise in a relatively long article and supplements it with a conclusion.²³ There are also other works from the Turkish-speaking area that focus on certain aspects of the theory of Al-Ṭūfī. Saim Kayadibi makes use of Turkish literature, which has enabled me to provide an overview of the reception of Al-Ṭūfī in the Turkish-speaking area.²⁴ In German-speaking countries, research on Al-Ṭūfī is relatively new. The first work dealing with the ṭūfīan concept is the doctoral thesis published in 2015 by Muhammet Sait Duran on Al-Shāṭībī's concept of the intentions of the Sharia. Duran excellently presents the ṭūfīan treatise, clearly showing the methodological restrictions and the content limit of the new method.²⁵ In his master's thesis, Hesham Ibrahim also deals with the ṭūfīan concept as well as with its reception by Islam reformers in modern time.²⁶

B. Problem statement

Al-Ṭūfī's theory is derived from his explanation of the ḥadith 32 of the Kitāb al-Arbaʿīn "lā ḍarara walā ḍirār no harm and no harmful retribution." The theory arose out of fear about the situation of Muslims at the time during the legal conflict among scholars.²⁷ It concerns the collision between text and utility in case of contradiction. The theory has been taken up by several scholars and scientists, whose works serve as useful sources for this work. Alkauthrī claims that Al-Ṭūfī absolutely prefers the maṣlaḥah principle to the authoritative texts.²⁸ Since Al-Ṭūfī did not succeed in clearly defining key terms such as maṣlaḥah, naṣṣ and takhṣīṣ in his treatise, the task of this thesis is to provide answers to the following questions: Which maṣlaḥah principle and which text Text are it exactly? Does he mean the legally defined common good (maṣlaḥa sharʿīyya) or the rationally justified common good (maṣlaḥa ʿaklīyya)? Is it about the presumptive text (naṣṣ ẓannī) or unambiguous text (naṣṣ qāṭʿī)? Can we find that out from his treatise alone, or do we have to consult his other works as well? Does he (tākhṣīṣ) mean specification or denial (taʿṭīl) and abolition (iftiʿāt) in the sense of abrogation (naskh)? Is Al-Ṭūfī's concept compatible with the main principles of Sharia law or does it deviate from the tradition of legal methodology, as the majority of his critics suggest? Can Al-Ṭūfī's concept provide a solution to current problems of Islamic law like the inheritance of woman? This study deals with these and other questions.

C. Aim of the study

This study aims to find an access point from which one can arrive at a principle that, based on the authoritative sources of Islam, provides a solution to the current problems of the entire Islamic community. The study deals scientifically with the concepts common good (al-Maṣlaḥah), the text (al-Naṣṣ) and the specification (at-Takhṣiṣ) of Al-Ṭūfī to then examine whether this principle applies to current problems of Islamic law how the daughters' inheritance entitlement is to be applied.

D. Methodology and approach

The study proceeds historically, descriptively, inductively, and deductively. Historically, to give an overview of the context in which the author lived. There are a lot of scholars and scientists who have studied the author, from which various opinions and positions have emerged. To pursue these, I proceed inductively and, to show them, descriptively. The deductive approach is also used to examine and compare authoritative and scientific texts to arrive at conclusions.

To be able to pursue the above questions, I have decided to first read the interpretation of the ḥadīth critically, whereby an attempt is made to check Al-Ṭūfī's theory for internal coherence. The central terms of specification, common good and text are sought in Al-Ṭūfī's other works for a better understanding of his treatise. Then I deal with the criticism of the authors who dealt with Al-Ṭūfī or who had its new concept on the subject, to check how they understood the new concept. A short biography of the criticizing authors also follows in the footnotes.

The concept has been the subject of extensive and controversial discussions. Objections to Al-Ṭūfī's controversial concept vary. Sometimes several authors share the same opinion on a point. The works of the respective authors are referred to in detail in the footnotes. I would like to point out that Zayd's objections constitute those of most of the later critics. A Shiite great scholar of the present, who has dealt with the concept of Al-Ṭūfī, was also consulted for a better understanding of the discourse on the reform of Islamic law in the Arab-Islamic world. To simplify the reading for the reader and to reduce the presentation to the most important things, I have, on the one hand, pointed to sources in which one can find more detailed information about the respective point, which is relevant for the understanding of this work, but the processing of which goes beyond the content as well as the intention of this work. On the other hand, I have summarized the core of Al-Ṭūfī's concept, as this work understands it, in points to clearly illustrate how its concept is structured and how it applies to the problem of daughters' inheritance rights. Since the second approach of Alsayed Alrahmany was not written down, but only brought up by the author in a program on Qatari television, the source of the quotation is given as a video source in both the footnotes and the bibliography, in this scheme: Name of the author, Date of publication, television, program title and the place of the respective statement in the form of minutes and seconds. To avoid misunderstandings, the quotes were read by the Alrahmany himself and, if necessary, edited by me.

E. Formalities

The transcription of Arabic terms and names is generally based on traditional requirements. The dates of the classical scholars are given according to Islamic and Christian calendars and those of modern thinkers only according to Christian calendar. All quotations from Al-Ṭūfī's commentary were taken from the edition by Muṣṭafa Zayd. The translation of the most important passages of Al-Ṭūfī's treatise into English was either undertaken by me or mainly quoted from Muhammad Said Duran. The ḥadīths cited in the treatise were searched for in (kutub al-sitta) the six books.²⁹ The translation of the ḥadīthe was partly done by me, partly by other authors, who are then mentioned at the relevant point.

1. A short biography of Al-Ṭūfī's Life and Work

1.1. Al- Ṭ ūfī's Life

There is some information about the life of Al-Ṭūfī in the Islamic composite biographies.³⁰ His complete name was Najm al-Dīn Abū Rabi' Sulaymàn Ibn 'Abd al-Qawi Ibn 'Abd al-Karim Ibn Sa'id At-Ṭūfī. His date of birth is controversial. According to Muṣṭafa Zayd, he was born about 687A.H/1259 in Ṭūfā, a village in the lower part of Ṣarṣar, a suburb of Baghdād.³¹ In 1291 he moved to Baghdād where he studied Arabic, ṣarf (morphology), uṣūl al-Fiqh, farāʾiḍ, manṭiq, and Ḥadīth. He stayed in 1304 for one year in Damascus where he had the opportunity to deepen himself in Ḥadīth and to meet the Ḥanbalī jurist Taqī al-Dīn Ibn Taymīyah (d. 728/1263) and al-Mizzī (d. 742/1277). Thereafter he went to Egypt. Al-Ṭūfī acted there in two cities: Cairo and Qūṣ in Upper Egypt. In Cairo, he could firstly continue his Education by various scholars. After this, he received a job as tutor (muʿīd) at Mansūrīyya and Nāsirīyya during the time of Saʿd al-Dīn Al-H̱ārithī.³² In Cairo, he has also been punished, imprisoned and finally expelled from the city. He went to Qūṣ where he wrote some books and should have had his own library.³³ In 1315 he undertook the pilgrimage. In 1316 he traveled to Palestine where he died in Hebron in the same year.³⁴

During his lifetime Al-Ṭūfī was accused of representing positions of Rāfiḍah, a branch of Shi'ism, and insulting the Companions of the prophet because of his contact with Al-Sakākīnī (d. 721/1344) in Medina. According to many bibliographers, including the Hanbalite Ibn Rajab, he was close to the Twelve Shia.³⁵ Muḥammad Abū Zahra confirms this accusation by saying: "It is a Shiite way to attack the authoritative texts and to justify this by the fact that the texts were abrogated by the maṣlaḥah principle, what Al-Ṭūfī has already done."³⁶ Muṣṭafa Zayd discusses this accusation in detail and comes to the conclusion that Al-Ṭūfī could in no way be Shiite.³⁷

Al-Ṭūfī is known for his theory of the common good (maṣlaḥah), which is discussed below. Al-Ṭūfī did not deal with his new principle in a separate book but wrote briefly about it in his methodological works. He then explained the new principle in detail when he interpreted ḥadīth No. 32 of the book of forty hadiths. Strangely, he has not dedicated a book of his own, or at least a chapter of his other methodological books, to this principle, which is now considered the most innovative principle in the history of the Principles of Islamic jurisprudence. If, according to Muṣṭafa Zayd, it is certain that Al-Ṭūfī wrote his principle shortly before his death and that in his methodological book Sharḥ mukhtaṣar al-Rawḍa he worked on the maṣlaḥah principle as well as the specification and the text then one can assume that his understanding of maṣlaḥah has reached a new maturity over time, but also the final maturity. This assumption is also supported by the fact that the author was concerned about the dissent among law schools and wanted to avoid it.³⁸ From his biography, it can be seen that Al-Ṭūfī had only bad experiences because of his free and courageous way of thinking. If it is also certain that he wrote the book in the Upper Egyptian city of Qūṣ, which he only opened because of his exile from Cairo, then one can assume that he consciously wanted to bring his new concept to light when interpreting a ḥadīth. Wael Hallaq believes that Al-Ṭūfī's theory, by the standards of its predecessors, contemporaries, and successors, was epistemologically inferior to average theoretical discourse, which may be one reason why it was forgotten for centuries.³⁹, which is hard to accept, since this concept is a turning point in the field of the sourced of Islamic law and deserves attention.

1.2. Al- Ṭūfī 's Work

Al-Ṭūfī wrote works in many fields, in Ḥadīth studies, Quran exegesis (tafsīr), speculative theology (kalām), polemics, linguistics, literature and history, which include the following:

- Al-iksīr fī qawāʿid Al-tafsīr
- Al-Ishārāt al-ilāhīyya ilā al-mabāḥith al-uṣūlīyya
- Dafʿ al-taʿāruḍ ʿama yūhim al-tanāquḍ
- Sharḥ mukhtaṣar Al-rawḍa
- Darʾ al-qawl al-qabīḥ bi al-taḥsīn wa al-taqbīḥ
- Al-intiṣārāt al-islāmīyya fī dafʿ Shubah Al-naṣranīyya
- Sharḥ al-arbaʿīn al-nawawīyya
- Taʿāliq ʿlā al-anājīl wa tanāquḍaha
- Ḥallāl al-ʿuqad fī bayān aḥkām al-muʿtaqad⁴⁰

The list of his works as well as their contents indicate the scientific character of the author. He is not only a methodologist, but also a linguist, Quran exegete and philosophical theologian. He is also considered to be one of the few Muslim scholars who dealt directly with the text of the Bible in the Middle Ages, which apparently shaped his understanding of religion, especially the historical dimension of religions. All of this is reflected in his declaration on ḥadīth 32.⁴¹ The book "Forty Hadiths" shows, according to Zayd, the methodological character of Al-Ṭūfī. He does not treat the ḥadīthe with regard to their authenticity and their meaning, but with regard to their methodological and legal-normative content, which is why the book can be considered a methodological work, even if he called it the book "Forty Hadiths".⁴²

2. Al-Ṭūfī's concept of maṣlaḥah

Before going into the ṭūfīan theory, I would like to examine the roots of the relationship between text and benefit in the tradition of the Principles of Islamic jurisprudence.

2.1. Roots of the ṭūfīan concept in the tradition of the Principles of Islamic jurisprudence (Uṣūl al-Fiqh)

Yāḥia Muḥammad⁴³ has attempted to follow the roots of the theory in the Islamic methodological tradition. He cites the following: The Istiḥsān theory among the Malikites specifies the authoritative texts with the maṣlaḥah, even if the specification does not concern the entire scope of the text. Likewise, Al-Ghazālī (d. 505/1111) prefers the maṣlaḥah over the authoritative text and consensus when they contradict each other, provided that the maṣlaḥah is essential (ḍarūrīyyah), unambiguous (qāṭʿīyyah) and comprehensive (kulīyyah).⁴⁴ Even if Al-Ghazālī's theory has brought nothing new to the methodological tradition, its acceptance of the preference of the maṣlaḥah over the authoritative texts and consensus, even if only under certain conditions, means the possibility of a later preference for the maṣlaḥah. The ṭūfīan method can thus be seen as development.

There are also basic legal principles that may have led Al-Ṭūfī to regard the maṣlaḥah as the strongest source of norms, including "The predicaments make the forbidden things permitted (al-ḍarūrāt tubīḥ al-maḥẓūrāt).", "Where there is a maṣlaḥah, there is the Sharia of God."," The Sharia is full of usefulness, either it avoids harmfulness or realizes usefulness" and "distress brings relief"

One of the basic principles of Sharia is to achieve the common good of people. As the legal norms in all areas of fiqh show, the common good must be essential, unambiguous, or comprehensive. The common good was also the subject of the well-known work al-Muwāfaqāt of the Maliki scholar Al-Shāṭibī (d. 790/1388) and he dedicated his method of induction (Istiqrāʿ) to it. Al-Ṭūfī follows the same behavior in his method, concentrating on the sense that the earlier scholars had so far reached, namely that the consideration of the common good in norm derivation is the main goal of Sharia law. Some attitudes of legal scholars can also underlie the ṭūfīan theory, such as the influence of time and place on changes in legal norms. The legal scholars have also recognized the (Ijtihād) of the companions of the Prophet for various reasons, although this sometimes meant a change in the norms derived from the unambiguous texts. They have also sometimes recognized legal opinions that deviate from the authoritative texts because these texts have affected other living conditions and consequently do not necessarily retain their validity by changing the place and time. Finally, it is worth mentioning the rulings of the commander (walīyy al-āmr), which differ from the prophetic approach because of social change. From this, it can be concluded that Al-Ṭūfī's approach goes hand in hand with Islamic legal logic and the Islamic legal tradition. Al-Ṭūfī's theory can in this respect be regarded as a natural product of the historical development of legal methodology, even if he does not explicitly explain this in his treatise. All in all, this means that this theory is not entirely new and finds its roots in the attitudes and treatises of legal scholars. Otherwise, it would be difficult to imagine that a Ḥanbali scholar like Al-Ṭūfī would have had the courage to write this treatise.⁴⁵

2.2. Introduction to the concept of Al-Ṭūfī

One of the most controversial views on the common good is the view of Najm al-Dīn Al-Ṭūfī. He considers it from a relatively utilitarian point of view. Interestingly, the author belongs to the Ḥanbalī School of law, which is known for being conservative. He considers the presumptive authoritative texts, which can be interpreted in different ways, to be controversial, but the consideration of his maṣlaḥah principle is for him undisputed. He had the dissent among the law schools in mind, which is why he was looking for standardization of the norms. The constant interpretation of the texts can lead to contradicting norms. He, therefore, wanted to derive a general principle from the authoritative texts, which is based on the intentions of the Sharia and applies to the people as a model, so that they do not always go back to the texts. Interestingly, the author does not base his new concept on the Quran, but rather on a certain ḥadīth. The other scholars, on the other hand, based their concept (of maṣlaḥah) on the general induction of the norms, although they cite several references from the traditions.⁴⁶ His opinion represents an elementary turning point in the consideration of the norms of the Sharia. He examines the norms for their application and the resulting consequences. He asks himself: Do the norms meet their goal? Due to different living conditions, following the norms can lead to the opposite of their intention. However, he does not name a case where a legal norm contradicts a benefit. Khallāf claims that Al-Ṭūfī opens the doors to the arbitrary interpretation of the authoritative texts by making the norms obtained from the authoritative texts and the consensus abrogable through independent legal finding (ra'ī) and thus the authority of the human mind over the authoritative texts.⁴⁷ In the following, the view of Al-Ṭūfī is presented and it is checked whether the view of Khallāf is tenable.

2.3. Authenticity of the ḥadīth (lā ḍarara wa lā ḍirār)

Al-Ṭūfī begins his treatise with the authenticity of the ḥadīth, which does not have the ṣaḥīḥ degree⁴⁸ and is therefore problematic. He emphasizes that the ḥadīth was passed on through different channels of transmission and that norms can therefore be derived from it. He justifies this with the fact that there can be so many indications for a ḥadīth possibly associated with a weak chain of tradition that it looks like a ḥadīth with a ṣaḥīḥ degree. In doing so, he refers to the goals of Sharia, to which the meaning of this ḥadīth can be traced back. The ḥadīth is as follows:

According to Abū Saʿīd b. Malik Sinān Al-khudrī, may Allah be pleased upon him, said the Messenger of Allah, may Allah bless upen him: “lā ḍarara wa lā ḍirār no harm and no harmful retribution.” It is a ḥadīth-ḥasan⁴⁹, which b. Māja, al-Dāraquṭnī, and others narrated as musnad.⁵⁰ Malik passed it on in his al-Muwaṭṭa'⁵¹ as mursal⁵² after 'Amr b. Yaḥya, from his father, from the Messenger of Allah, but Abū Saʿīd is absent there. However, the ḥadīth has other ways of tradition that support each another.⁵³

[...]

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¹ Jamāl al-Dīn al-Qāsimī (1866-1914) is a Syrian scholar and reformer of the 19th century, whose work included almost all Islamic studies. He was influenced by the well-known Egyptian reformer Muḥammad ʿAbduh and by Rashīd Riḍā. Jamāl al-Dīn al-Qāsimī, Ẓāfir: Jamāl al-Dīn al-Qāsimī wa ʿaṣruh, Damascus, 1965, pp.15-21.

² Muḥammad Rashīd Riḍā (1865-1935) is a Lebanese reformer and influential 20th-century thinker in the Arab world. He worked mainly in Egypt and is considered one of the closest students of Muhammad Abduh.

³ ʿAbduh, Muḥammad and Riḍā, Muḥammad Rashīd: Majallat al-Manār, vol. 9, Cairo 1906, pp.721ff.

⁴ Muṣṭafa Zayd (1917-1978) is an Egyptian scholar who was head of the Sharia department of the Darul al-ʿulūm faculty at Cairo University from 1960 to 1976 and later as professor of Islamic law at various universities in the Arab world, including Damascus and Beirut. Ẓaid, Muṣtafā: Al-Maṣlaḥah fī al-tashrīʿ al-islāmī, commented by Muḥammad Yusrī, Dār al-Yusr, 6th edition, Cairo 2017, p 9.

⁵ ʿAbdul Wahāb Khallāf (1888-1956) is an Egyptian scholar of uṣūl al-fiqh, who taught Islamic law at the Law Faculty of Cairo University from 1934 to 1956. He was also a member of the Academy of the Arabic Language (majmaʿ al-lugha al-ʿarabīyya) in Cairo. His publications are in the area of uṣūl al-fiqh, personal status, and Quran exegesis.

⁶ Aḥmad ʿAbdul Raḥim al-Sāyeḥ is an Egyptian professor of speculative theology and Islamic philosophy. He teaches at the uṣūl al-Dīn faculty of Al-Azhar University in Cairo and the Sharia faculty in Qatar.

⁷ Kayadibi, Saim: Al-Ṭūfī-centred approach to al-Maṣlaḥah al-Mursalah (Public Interest) in Islamic law. In İslam Hukuku Araştırmaları Dergisi, sy.9, 2007, p.72-73.

⁸ Muḥammed Zāhid Alkauthrī (1878-1952) is a turkish legal scholar who was persecuted during the Kemalist period. Thereupon he left Turkey and traveled to Alexandria. For some time he lived in Egypt and Syria and finally stayed in Cairo, where he worked as a Turkish-Arabic translator in the archive house (dār al-Maḥfūẓāt). Alkauthrī spoke Arabic, Turkish, Persian, and Circassian. He wrote works in the field of Islamic law and the Ḥadīth sciences. Cf. al-Subkī, taqī al-Dīn: al-Saif Al-Thaqīl fī al-Rad ʿala ibn Zufīl, al-Maktaba al-Azharīyya li al-Turāth, Cairo, n.y., p.4.

⁹ Ālkauthrī, Muḥammed Ẓāhid: maqālāt ālkauthrī, Cairo, n.y, p. 243-244

¹⁰ Muṣṭafa Shalabī (d. 1997) is an Egyptian legal scholar who taught at the Law Faculty of Cairo University and later became Professor of Islamic Law at the Law Faculty of Alexandria University. He was a member of the (majmaʿ al-buḥūth al-islāmīyya) Academy for Islamic Studies.

¹¹ Shalabī, Muṣṭafa: rīsālā fī taʿlīl al-Aḥkām, Beirut 1981, p. 295

¹² Muḥammed Abū Zahra (1898-1974) is an Egyptian scholar of Islamic law who is well known for his series of bibliographies of the great scholars of Islamic law and speculative theology and who taught Islamic law at al-Azhar University in Cairo, among others.

¹³ See Zayd: al-Maṣlaḥah fī al-tashrīʿ al-islāmī, pp.189-190.

¹⁴ Ibid., pp. 221-257.

¹⁵ Muḥammad Saʿīd Ramaḍān al-Būṭī (1929-2013) is a Syrian-Sunni scholar of Turkish-Kurdish origin who studied at al-Azhar University and taught Islamic law at Damascus University.

¹⁶ Cf. Al-Būṭī, Muḥammad: Ḍawābiṭ al-maṣlaḥah fī Al-shariʿa al-islāmīyya, Muasasat al-Risāla, n.p. n.y., pp. 202-215

¹⁷ Ḥussein Ḥamid Ḥassān (1932-2020) is an Egyptian professor of Islamic finance and a member of the International Union of Muslim Scholars and the European Council for Fatwa and Research. Among other things, he studied Sharia and civil law at the University of Cairo. He later served as the head of the Sharia Postgraduate Studies Department at King Abdulaziz University in Saudi Arabia.

¹⁸ Ḥassān, Husayn Ḥāmid: Naẓarīyyat al-maṣlaḥah fī al-fiqh al-islāmī, Maktabat al-Mutanabī, Cairo 1981, pp. 538-544.

¹⁹ Cf. Jūwailis, Āyman Jībrīn: Mqāṣid Al-shariʿah fī takhṣiṣ al-Naṣṣ bi al-maṣlaḥah wa Taṭbīqatuhā fi al-Fiqh al-islāmī, Dar al-nfāʾis, Amman 2011, pp.183-214.

²⁰ Cf. Al-Ḥakīm, Al-Saīyyed Muḥammad Taqīyy: Al-Uṣūl Al-ʿāmah li al-Fiqh al-Muqāran, n.p. 1979, pp. 390-393.

²¹ See H. Kerr, Malcolm: Islamic Reform.The Political and Legal Theories of Muḥammad ʿAbduh and Rashīd Riḍa, Berkeley 1966, pp. 97ff.

²² Cf. Lubis, Nazly Hanum: Al-Ṭūfī's Concept of maṣlaḥah: A Study in Islamic legal Theory, unpublished master's thesis, Mcgill Unversität, Montreal 1995, pp. 84ff

²³ Kayadibi, Saim: Al-Ṭūfī- centered approach to al-Maṣlaḥah al-Mursalah (Public Interest) in Islamic law, p. 79 See ibid., Pp. 72.

²⁴ See ibid., Pp. 72 and 94f.

²⁵ Cf. Duran, Muhammet Sait: Zur Theorie einer teleologischen Methode in der islamischen Normenlehre. Al-Shāṭībīs (gest.790/1388) Konzept der Absichten der Scharia (maqāṣīd aš-Šārīʿa), Islam im Diskurs, herausgegeben von Ömer Özkoy, vol. 2, Frankfurt am Main 2015., pp. 160-162.

²⁶ Cf. Ibrahim, Hesham: Maṣlaḥah-Prinzip bei der ḥanbalitischen Rechtsschule Eine vergleichende Studie zwischen Al-Ṭūfī (gest.716 n. H.) und Ibn Taymīya, unpublished master's thesis, Cairo 2010., p. 51ff.

²⁷ See Zayd, pp.242-247. Here Al-Ṭūfī discusses the legal conflict between some scholars at the time.

²⁸ Alkauthrī, p. 244.

²⁹ With kutub al-sitta the most important collections of the prophetic Ḥadīthe are meant.

³⁰ Ibn Rajab, Kitāb al-Dhayl 'alā Ṭabaqāt al- Ḥanābilah, Maktabat Al-ʿUbaykān, Mecca 2005,Vol. IV, p. 404.

³¹ Muṣṭafa Zayd, Al-Maṣlaḥah fi al-Tashri' al-Islāmī Najm al-Dīn al-Ṭūfī, Cairo 2017, p.76.

³² Saʿd al-Dīn al-Ḥarithi was at the time of Al-Ṭūfī's stay in Cairo, judge of the ḥanbalitic school in Egypt and had heated discussions with Al-Ṭūfī.

³³ Ibn Rajab listed his Works in three pages. Cf. Ibn Rajab, Kitāb al-Dhayl 'alā Ṭabaqāt al-Ḥanābilah, 406ff; Zayd, p.101-103.

³⁴ Ibid., Vol. IV, pp. 404-421.

³⁵ Ibn Rajab: Al-dhayl ʿalā ṭabaqāt al-ḥanābila, Vol. IV, p.409..

³⁶ Cf.: Abū Zahra, Muḥammad: Ibn Ḥanbal, ḥayātuhu wa ʿaṣruhu ārāʾuhu wa fiqhuhu, Dār al-Fikr al-ʿArabī, pp. 311-312.

³⁷ See Zayd, p.84ff.

³⁸ See Zayd, p. 243ff.

³⁹ Hallaq, Wael: A History of Islamic legal Theories: An Introduction to Sunni Usul Al-fiqh, n.p., n.y., p. 153.

⁴⁰ See Zayd, p. 101-103.

⁴¹ See Shah, Mustafa: Muslim Exegesis of the Bible in Medieval Cairo. Najm al-Dīn al-Ṭūfīʾs (d. 716/1316) Commentary on the Christian Scriptures. A Critical Edition and Annotated Translation with an Introduction by Demiri, Journal of Near Eastern Studies, 2014, Vol. 73, No. 2, pp. 378f.

⁴² Zayd, p. 116

⁴³ Yāḥia Muḥammad (1959-) is an Islamic thinker from Iraq who is interested in the field of Ijihād.

⁴⁴ The necessity here concerns the maṣlaḥah per se concerning the human need for it, the clarity of the meaning, and the embracing of the individuals who are dependent on the common good in a particular case. Conditions of the maṣlaḥah by Al-Ghazālī are: The case must relate to a essential situation. One must be certain of the danger. The matter must be in the interests of all Muslims. See: Duran, p. 149

⁴⁵ Muḥammad, Yāḥia (2010): Naẓarīyyat Al-Ṭūfī wa al-fikr al-ʾimāmī, Alḥiwār Almutamadin, pp. 2-3. Available at: http://www.ahewar.org/debat/show.art.asp?aid=229979&r=0. (As of 09/24/2010).

⁴⁶ Duran, p.158.

⁴⁷ See Abdu l-Wahāb Khallāf: al-Ijtihād bi al-ra'ī, maṭbaʿat dār al-Kitāb al-'Arabī, Cairo 1950, p.93.

⁴⁸ Zayd, p. 222.

⁴⁹ Ibn Al-Ṣalāḥ names different definitions of the ḥadīth-ḥasan, so among others: "The ḥadīth, in whose chain of narration there is no suspected lying narrator, which has not failed as shādh, and is handed down by different ways of transmission." Maʿrifat anwāʿ ʿulūm al-ḥadīth wa yuʿraf bi-muqadimat Ibn Al-ṣalāḥ, ed. by Nūr al-Dīn ʿItr, Dār al-Fikr al-Muʿāṣir, Beirut 1986, p. 30. Also "A ḥadīth-ḥasan is a ḥadīth whose narrator (rāwī) is known for his honesty (ṣidq) and reliability (amānah) but did not reach the level of ṣaḥīḥ narrators (rijāl Al-Ṣaḥīḥ) because his ability to memorize (ḥifẓ) and accuracy (itqān) is lower than that of them (the ṣaḥīḥ narrators). Ibid., p. 31

⁵⁰ A ḥadīth-Musnad is a ḥadit with a complete chain of narrators from the reporter to the prophet, which, according to some ḥadīth scholars, occurs both continuously (muttaṣil) and interrupted (munqaṭiʿ). According to alḥakim al-Naīsābūrī, this muttaṣil-ḥadīth must be continuous and (marfūʿ) traced back to the Prophet. See Ibid., Pp. 42-43.

⁵¹ A classic work on ḥadīth and Islamic law, written by Mālik b. Anas (d. 795/179), the founder of the Maliki school of law.

⁵² A ḥadīth "mursal" has a chain of narrators that ends with a successor (tābi'īyy) without naming the companion (ṣaḥābī) who stands in the chain of narrators between the former and the prophet. A ḥadīth mursal is generally considered to be weak (ḍaʿīf). Its correctness is only considered supported when it is confirmed by another ḥadīth. Ibid., 51-53.

⁵³ Zayd, p. 221.