Ethics of Fiqh in Taha Abderrahmane

Münteha Maşalı*

As a contemporary Moroccan thinker and scholar, Taha Abderrahmane, within the scope of his analyses on the transfer of Islamic values to the present day, emphasises morality, describes human being as a moral creature and deems the fulfilment of the requirements of morality as a condition of being a human being (1). In the context of determining the position of morality within the Islamic fields of knowledge, Abderrahmane expresses the concept of intertanglement between the disciplines that constitute the Islamic intellectual tradition. According to him, this phenomenon has manifested itself in two different ways in the tradition, the first of which is ‘‘internal epistemological intertwinement’’, which refers to the mutual interaction of Islamic disciplines with each other, and ‘‘external epistemological intertwinement’’, which refers to the mutual relationship of Islamic disciplines with imported disciplines originating from Ancient Greece, Iran and India. At this point, it would not be wrong to argue that while Taha Abderrahmane describes uṣūl al-fiqh (Islamic legal theory) as the ideal example of the phenomenon of internal intertwinement due to the fact that it is a discipline that shapes the internal dynamics of the Muslim society, he also acknowledges that the phenomenon of external intertwinement is also involved in terms of the influence of external factors on uṣūl al-fiqh (2).

Taha Abderrahmane argues that the intertwinement between uṣūl al-fiqh and ethics is actualised through the concept of objectives of sharia (maqāṣid al-sharīʿa), which expresses the general objectives of religious rulings. Tāḥā Abdurrahman argues that although scholars such as al-Juwaynī (death 478/1085) and al-Ghazālī (death 505/1111) had elaborated on concept of objectives of sharia, the reason why Shāṭibī (death 790/1388) is regarded as the founder of the ‘‘discipline of objectives of sharia’’ is that he attempted to explain this subject through the intertwinement between two different disciplines and established a system of objectives of sharia intertwined with ethics (3). In other words, behind Shātibī’s achievement lies the fact that he made the objectives of sharia a discipline intertwined with ethics, and thus, through this intertwinement, the objectives of sharia gained a sophisticated structure.

According to Taha Abderrahmane, the theory of objectives of sharia essentially analyses the value content of sharia discourse(4). The name of the highest value that accompanies the sharia ruling and is the goal of the actions of the subjects of Allah is ‘‘wisdom’’. The fact that wisdom is a superior value in such a manner endows the basis of wisdom with a moral characteristic. Drawing attention to the differences of opinion on whether wisdom should be taken as a basis in the justification of judgements, Taha finds it meaningful that the scholars who accept the method of justification by wisdom are Maliki scholars who attach importance to the practical and moral aspect of judgements, as manifested in the understanding of ‘‘practices of the people of Medina’’ (Amel al-‘ahl al-Madīnah), and Shafii and Hanbali scholars such as al-Ghazālī, Izz b. ‘Abd al-Salām, Ibn Taymiyyah and Ibn Qayyim, whose mentalities are dominated by a moral inclination (5).

(1) Taha Abderrahmane, A Critique of the separation between Ethics and Religion, translated by Muhammet Ateş, 3. bs., İstanbul 2022, p. 102.
(2) Taha Abderrahmane, Tecdîdü’l-menhec fî takvîmi’t-türâs, Beirut 2001, p. 93. 
(3) Taha Abderrahmane, Tecdîdü’l-menhec, p. 97.
(4) Taha Abderrahmane, Tecdîdü’l-menhec, p. 98-99.
(5) Taha Abderrahmane, Tecdîdü’l-menhec, p. 101-102.

According to Taha Abderrahmane, who recognises that ethics encompasses the entire fiqh-based judgement and has a fundamental relationship with uṣūl al-fiqh, the fact that each shariah ruling is accompanied by a moral principle indicates that the shariah ruling is divided into two different dimensions, namely the ‘‘fiqh dimension’’ and the ‘‘moral dimension’’, and makes it obligatory to take into account not only the proposal stipulated by the shariah ruling, but also the moral element accompanying this proposal when addressing the shariah ruling. This is because each sharia ruling embodies two dimensions within itself, and therefore, a sharia ruling serves two basic functions: jurisprudential (fiqh) and ethical (6). The fiqh dimension of a sharia judgement has three fundamental characteristics: (1) It necessitates a supervision in the material sense and provides this supervision by means of punishment. (2) It controls the exoteric side of the actions of the individual, which may benefit or harm both oneself and others. (3) It utilises ‘‘justification’’ as a means of determining the judgement and establishing a coordination between the judgements. The moral dimension of a sharia judgement has also three fundamental characteristics: (1) It necessitates a moral supervision and provides this supervision through an inner drive that is inherent in the human being. (2) It keeps under control the righteousness or unrighteousness, that is, the esoteric aspect of deeds of an individual, which will reflect back to oneself and to others. (3) It utilises ‘‘justification of purpose’’ as a tool while explaining and ordering the evaluations (7).

At this point, Taha Abderrahmane analyses whether the jurisprudential dimension or the moral dimension of a sharia ruling precedes, and at this point he bases on the distinction between the means and the objective. According to him, the ‘‘justification of objective’’ based on the moral dimension is in the position of the superior, while the ‘‘justification of reason’’ based on the jurisprudential dimension is in the position of the subordinate, and this is a subordination in which the means/medium is subordinate to the purpose/objective. After explaining the relationship between means and objective, Taha Abderrahmane then addresses the issue on the basis of the following premises set forth by the scholars of discipline of objectives: (1) The objective takes precedence over the means. (2) The goodness or badness of the means is based on the goodness or badness of the objective. (3) When the objectives are not taken into account, the means are also not taken into account. All these confirm that, according to Taha Abderrahmane, the moral dimension is superior to the jurisprudential dimension in the context of sharia judgement. (8).

In terms of the fact that the moral dimension of the sharia ruling is based on ‘‘justification of objective’’ and the jurisprudential dimension is based on ‘‘justification of reason’’, the moral dimension serves as the objective of the jurisprudential dimension and the jurisprudential dimension serves as the means of the moral dimension. Since the objective is superior to the means, the moral dimension is also superior to the jurisprudential dimension. In this case, in the context of sharia rulings, the importance attached to justification of objective must be greater than the importance attached to justification of reason. The reason for this is that the moral dimension encompasses the jurisprudential dimension in two directions: firstly, the moral dimension internally encompasses the jurisprudential dimension, i.e., fiqh is shaped according to morality, and when seeking reasons for a fiqh ruling, it is assisted by moral reasons. Secondly, it encompasses the jurisprudential dimension externally, i.e. the jurisprudential dimension appeals to the arbitration of the moral dimension and the direction of the jurisprudential movement is determined by morality (9). This results in the superiority of the moral dimension as the objective over the jurisprudential dimension as the means, due to the superiority of the objective over the means, despite the fact that the jurisprudential dimension and the moral dimension of the sharia ruling are structurally similar and functionally complimentary to each other (10). Taha Abderrahmane considers the balance between the jurisprudential/legal dimension and the moral dimension of the rulings as a moderationist (vasatiyya) approach, and regards giving weight to one of these dimensions and violating the balance between the jurisprudential and moral dimensions to the detriment of one of them as extremism (tarafiyya) (11).

(6) Taha Abderrahmane, Tecdîdü’l-menhec, p, 106-107.
(7) Taha Abderrahmane, Tecdîdü’l-menhec, p. 106.
(8) Taha Abderrahmane, Tecdîdü’l-menhec, p. 107-108.
(9) Taha Abderrahmane, Tecdîdü’l-menhec, p, 108.
(10) Taha Abderrahmane, Tecdîdü’l-menhec, p, 108.
(11) Taha Abderrahmane, “Ru’ye ‛ilmiyye li-tecdîdi makâsıdi’ş-şerî‛a”, Mecelletü kadâyâ İslâmiyye muâsıra, y. 1422/2002, volume: 18, p. 223-229.

According to Taha Abderrahmane, all these points demonstrate that the involvement of ethics in uṣūl al-fiqh enables the establishment of an all-encompassing connection between ethics and uṣūl. From this perspective, it is possible to suggest that there is a connection between morality and uṣūl al-fiqh in two different ways, as listed below:

(1) The incorporation of morality into uṣūl: due to the structural similarity between the two, the ethical and jurisprudential dimensions of a sharia ruling resemble each other, so there is no element in the structure of one that is not in the structure of the other. In this respect, there is an overlap between the two dimensions. Since these two dimensions complement each other functionally, a function performed by one of the jurisprudential and moral dimensions of a sharia ruling is complemented by a function performed by the other dimension. In this sense, to the extent that fiqh encompasses the discipline of uṣūl, morality encompasses the discipline of uṣūl to the same extent. In other words, the entire aspect of fiqh that concerns uṣūl will also encompass morality; this is what Taha Abderrahmane means by the expression " incorporation".

(2) The utilisation of morality in uṣūl: Objectivity, which encompasses both the jurisprudential and ethical aspects of a sharia ruling, enables morality to play a supervisory role over the theologians in making judgements and inferring meaning from the uṣūl (12). Accordingly, the concept of ‘‘utilisation’’ refers to the fact that morality is not only included in (incorporation) the uṣūl al-fiqh but also assumes a supervisory role over it. Therefore, the relation between morality and uṣūl is not only a relation of inclusion but also a relation of encompassment; moreover, morality is not only within uṣūl but also superior to it and serves as its supervisor. According to Taha Abderrahmane, these determinations and arguments regarding the third pillar, that the relation of morality to uṣūl constitutes an encompassing relation, demonstrate that there is an internal intertwinement between morality and uṣūl al-fiqh, and in this respect, morality makes a comprehensive contribution to furū-i fiqh (branches of fiqh) (13).

(12) Taha Abderrahmane, Tecdîdü’l-menhec, p. 108.
(13) Taha Abderrahmane, Tecdîdü’l-menhec, p. 108-109.

According to Taha Abderrahmane, overlooking this intertwinement and relationship between fiqh and morality has led to the emergence of two erroneous approaches: confining morality to a very narrow field of fiqh thought and completely excluding it from the field of fiqh. According to him, the classical division of maslaha (public interest) also embodied such a reductionist and fragmentary understanding. It would not be acceptable for the theologians to limit the obligatory maslahas to five subjects such as ‘‘the protection of religion, life, intellect, generation, and property’’ based on induction. In this regard, Taha first of all proceeds from the condition that the purpose of the establishment of a religious ruling is essentially the provision of a maslaha in the form of securing a benefit or preventing a harm. Therefore, a sharia ruling is accompanied by an objective, and each objective involves a particular maslaha. While Taha Abderrahmane underlines that morality is at the basis of maslaha, he also takes its linguistic structure into consideration. According to him, the word ‘‘maslaha’’ has been derived from the verb ‘‘sa-le-ha’’ or ‘‘sa-lu-ha’’ and means the place where the action is performed, that is, ‘‘the spiritual place where the righteousness of the subject takes place’’. Consequently, maslaha is the place of the act of righteousness. The fact that righteousness constitutes a moral value, even the head of moral values, and that morality can only be defined on the basis of righteousness, ensures that the maslahas that the religion deems binding have a purely moral function and value (14). The fact that maslaha is in the position of a moral value necessitates that the sharia ruling based on maslaha must also be related to moral values, and must even embody the highest and strongest moral values (15).

Taha Abderrahmane, who claims that through this holistic reading, the maslahas cannot be reduced to five subjects, the five essential maslahas must be brought to the position of moral values surrounding all maslahas, and good morals must be included in all maslahas and not reduced to facilitating and beautifying (tahsīnī) maslahas, argues that the division of maslahas can be redefined as fundamental maslahas, rational maslahas and spiritual maslahas by taking into account the relationship between morality and uṣūl. According to him, fundamental maslahas consist of moral contents that mediate the evaluation of benefits and harms and are related to life, health, generation and property. Rational maslahas are values, which are centred on moral beauty and ugliness, and consist of moral contents that constitute the basis for the evaluation of moral beauty and ugliness. Numerous values such as safety, freedom, labour, peace, culture, etc. can be cited as examples for these kinds of maslahas. Spiritual maslahas are the moral contents that constitute the basis for the evaluation of matters involving righteousness and wickedness. Issues related to the spiritual dimension of religion such as doing favour, mercy, affection, reverence and humility fall within the scope of this group (16).

According to Taha Abderrahmane, in this new classification he introduces, a sharia ruling ceases to be a ruling that exists with a single value or is based on a single maslaha, and has the opportunity to be included under various values or to be based on many maslahas. When this perspective is adopted, it becomes possible to relate, for example, the prohibition of homicide to various maslahas, such as the preservation of life, which constitutes a fundamental value, the preservation of human society, which constitutes a rational value, and the preservation of the divine spirit, which is inherent in human nature and constitutes a spiritual value. Moreover, in the new division offered, fundamental values do not take the first place in the order of maslahas, unlike in the classical division. Because in the classical division, the majority of the necessity consists of fundamental maslahas such as life, property and generation. In the new division offered, however, the ones that will be placed in the first place, which are placed at the bottom in the classical division, are spiritual values. Because spiritual values are the values that represent the moral-centred approach, which is based on both fundamental and rational values, at the highest level. Accordingly, the need to act with spiritual values will be greater than the need to act with other values, and other values will become the servants of these spiritual values. In this case, the abandonment of acting in accordance with spiritual values will result in more chaos than the abandonment of acting in accordance with other values (17).

It is seen that the new system of division by Taha Abderrahmane takes into account the fact that a sharia ruling is not limited to a specific maslaha, but can be linked to various maslahas and the superiority of spiritual values over material values. Thanks to this classification, it will be possible to say that the essential maslahas cannot be limited to the five essentials and that the maslahas considered in the category of facilitating-beautifying (tahsīnīyyāt) and fulfilling the need (hāciyyāt) can also be included in the essentiality. For instance, although the prohibition of adultery is intended to protect a fundamental value, the prohibition of looking at the parts of a non-kin woman’s body that are obligatory to be covered is intended to protect a need-fulfilling (hācī) value, and the prohibition of women's exposure of her body and exhibitionism is intended to protect a facilitating-beautifying (tahsinī) value, they share a commonality in terms of the protection of the bloodline. Taha Abderrahmane evaluates these three rulings as different levels of the higher value of protecting the bloodline and conceptualises these levels as ‘‘dignity’’ (i'tibār), ‘‘caution’’ (ihtiyāt) and ‘‘honour’’ (takrīm). Accordingly, the prohibition of adultery corresponds to the level of dignity, the ruling not to look at non-kin women corresponds to the level of caution, and the ruling that a woman should expose her body corresponds to the level of honour (18).

(14) Taha Abderrahmane, Tecdîdü’l-menhec, p. 102-103.
(15) Taha Abderrahmane, Tecdîdü’l-menhec, p. 104.
(16) Taha Abderrahmane, Tecdîdü’l-menhec, p. 113-114; a.mlf., “Ru’ye ‛ilmiyye li-tecdîdi makâsıdi’ş-şerî‛a”, p. 219-220.
(17) Taha Abderrahmane, Tecdîdü’l-menhec, p. 114; a.mlf., “Ru’ye ‛ilmiyye li-tecdîdi makâsıdi’ş-şerî‛a”, p. 220-221.
(18) Taha Abderrahmane, “Ru’ye ‛ilmiyye li-tecdîdi makâsıdi’ş-şerî‛a”, p. 217.

In this respect, the five maslahas in the category of necessity can be considered as a common type in which all of the essential, need-fulfilling, and facilitating-beautifying maslahas intersect and can be placed in a position above the three categories of maslahas. In this case, since they will be in the position of the highest universal objectives, all of the maslahas will be based on ensuring their achievement, and they will be consulted in the determination of the action of the subject in terms of righteousness and unrighteousness. It is at this very point that it becomes necessary to position these five essentials as the highest moral values. According to Taha Abderrahmane, some theologians, most notably al-Shāṭibī, were conscious of the moral character of these five objectives. This awareness motivated them to argue that all the rulings of the sharia exhibit unity on the basis of the aforementioned essentials and to claim that these essentials are the eternal goals that are approved by the sane human disposition (19).

Taha Abderrahmane notes that the fact that most of the scholars of uṣūl have included good morals in the category of facilitating-beautifying maslahas leads to the assumption that the subject is free to fulfil them or not, or that their non-fulfilment does not pose a problem. According to him, the examples cited by the scholars of uṣūl regarding the facilitating-beautifying maslahas are the matters that are included in the group of sharia judgement, such as ‘‘cleanliness’’ (taharah), ‘‘forbidding the sale and eating of malignant things’’; therefore, there are both compulsory and forbidden ones among the facilitating-beautifying ones. Accordingly, facilitating-beautifying maslahas must be deemed as obligatory maslahas or at least as need-fulfilling maslahas. According to Taha Abderrahmane, the fact that the division of maslaha is based on material considerations and the influence of the theologians’ understanding of maslaha seems to have led to such an outcome. As a matter of fact, when the hadith quoted by Abu Hurayrah (ra.), ‘‘I have been sent only to complete good morals’, is interpreted as meaning that the prophethood of Prophet Muhammad (pbuh) was not limited to the completion of additional matters, i.e., tahsīniyyāt, to the essential and need-fulfilling ones, then, it means that good morals encompass all the benefits included in the Islamic Shariah (20).  Shāṭibī also argued that the entire legislation was devoted to the declaration of good morals, that it was the duty of fiqh to commit good deeds, and that it was the duty of uṣūl al-fiqh to reflect on the methods of branching this good morality, and that there was an inseparable relationship between the fiqh dimension and the moral dimension of sharia ruling. According to Taha Abderrahmane, Shātibī’s statement that ‘‘In the period of Mecca, good morals were established in accordance with the simple style of the invitation, and in the period of Madinah, good morals were established in accordance with the complex style of the invitation’’ implies that fiqh contains subtle and time-dependent moral codes (21).

From this perspective, Taha Abderrahmane highlights the intertwined nature of fiqh and morality and raises criticism against the exclusion of morality from fiqh. His proposals for redefining the hierarchy of the fundamental objectives of religion seem to be based on spiritual and moral values. In fact, according to him, the ultimate purpose of the creation of human beings is to obey and glorify Allah, and true servitude can only be achieved if human beings are adorned with morality. What will bring the human being closer to Allah is the moral equipment that he/she possesses. What is essential in fiqh is to act in accordance with the orders and prohibitions of religion. Acting in accordance with a sharia ruling must also serve the intention of getting closer to Allah. The intention of getting closer to Allah makes it inevitable to endeavour in the direction of fulfilment of sincere commitment. Intention and sincere commitment are also included in the moral realm. All these premises make it obligatory for a sharia ruling to bear moral conditions. Because intention and sincere commitment are prior to and superior to other moral considerations. In this respect, something that is not accompanied by sincere commitment and intention can never constitute a good deed. The hadith ‘‘deeds are according to intentions” (22) confirms this opinion. In fact, intention and sincere commitment are two of the most profound moral attributes. This is such a profoundness that if it were not for their influence on behaviour, their existence would not even be noticed (23). The benefit of a sharia ruling is that it creates a positive effect on behaviour and attitudes. If this effect was not achieved, there would be no benefit in emphasising the ruling. Therefore, every judgement in the verses contains a moral gain. The value of the ruling depends on this moral gain. In this direction, the Muslim achieves her/his objective and purifies her/his soul from evil. For instance: prayer restrains one from sexual misconduct and debauchery (Al’Ankabut 29/45); take from their wealth; charity to purify and bless them (At-Tawbah 9/103). Therefore, every fiqh ruling is accompanied by a moral value, and every moral value is accompanied by a sharia ruling. In this sense, morality and fiqh occupy the same place in terms of rank (24).

According to Taha Abderrahmane, the fact that both the indication and the sharia ruling to which the indication refers are based on the disposition, which stands as a corrective rule for behaviour, necessitates that each sharia ruling must be of a corrective nature for morality (25). In other words, the disposition refers to the moral and spiritual framework/skeleton which exists in the creation of human beings and through which the person attains the knowledge of servitude to the Creator. The conformity of the sharia indication to this framework within the human being makes it possible for the servitude of the human being to be transformed from the level of knowledge to the level of deeds (26). The fact that a large number of verses and hadiths stipulate that the sharia indications (maksūdāt) were established for the purpose of acquiring morality, and in addition to this, the fact that the indication of the civil legislation regarding judgement was founded on the morality-based indications that took place in the period of Mecca, reveals the relationship between indication and deeds and deeds with morality (27).

By emphasising the link between the concept of deeds and the attribute of morality, Taha Abderrahmane endeavours to demonstrate the ethics of fiqh on both a practical and theoretical level. According to Abderrahmane, the sensitivity of the Islamic cultural milieu in general and the field of fiqh in particular extends the intertwinement between uṣūl al-fiqh and morality to a much more advanced level than the intertwinement with other disciplines​​​​​​​ (28). The fact that morality is an indispensable and essential component of fiqh as a whole reveals the fact that it has penetrated the discipline of fiqh more than other fields of knowledge.
 

(19) Taha Abderrahmane, Tecdîdü’l-menhec, p. 111-112.
(20) According to Taha Abderrahmane, the narration ‘‘I have been sent only to complete good morals’’ (el-Muvatta’, “Hüsnü’l-huluk”, 8; Müsned, II, 381) in Bukhari's work titled Kitâbü’l-edeb’i ile Süyûtî’nin el-Câmiu’s-sağîr confirms this: The meaning that should be deduced from the preposition of restraint ‘‘inamā’’ and the word ‘‘sālih’’ (good deed) in the narration is as follows: Where there is a maslaha accompanying the sharia ruling, there is also good morals.
(21) Taha Abderrahmane, Tecdîdü’l-menhec, p. 109.
(22) Buhârî, “Bed’ü’l-vahy”, 1; Ebû Dâvûd, “Talâk”, 11.
(23) Taha Abderrahmane, Tecdîdü’l-menhec, p. 103-104.
(24) Taha Abderrahmane, A Critique of the separation between Ethics and Religion, p. 103.
(25) Taha Abderrahmane, Tecdîdü’l-menhec, p. 103.
(26) Taha Abderrahmane, Tecdîdü’l-menhec, p. 100.
(27) Taha Abderrahmane, Tecdîdü’l-menhec, p. 100.
(28) Taha Abderrahmane, Tecdîdü’l-menhec, p. 110.

Bibliography

Taha Abderrahmane, Tecdîdü’l-menhec fî takvîmi’t-türâs, Beirut 2001.
……………….., “Ru’ye ‛ilmiyye li tecdîdi makâsıdi’ş-şerî‛a”, Mecelletü kadâyâ İslâmiyye muâsıra, y. 1422/2002, volume: 18, p. 208-231.
……………….., Süâlü’l-menhec fî ufukı’t-te’sîs li-enmûzecin fikriyyin cedîd, Beirut 2015.
……………….., A Critique of the separation between Ethics and Religion (Bilgi Ahlaktan Ayrıldığında), translated by. Muhammet Ateş, 3. bs., Istanbul 2022.

​​​​​​​*Associate Professor Münteha Maşalı