Shifting Legal Authority From The Ruler To The 'Ulama'

Shifting Legal Authority from the Ruler to the Ulama# 65
Shifting Legal Authority from the Ruler to the Ulama#:

Rationalizing the Punishment for Drinking Wine During
the Saljuq Period1
Fe l i c i t a s O p w i s
Georgetown University
Abstract
This paper argues that the encroachment of the Saljuq political authorities
onto the religious arena prompted jurists to tighten their legal arguments in order
to bolster their legitimacy in determining the laws of Muslim society not established
in the textual sources of the law. A key case in the tug-of-war between the political
and religious authorities over the sphere of law was the post-prophetic ruling on
punishing the wine drinker. That this important ruling was established during the
first caliphs provided a claim for secular authorities over jurisdiction of large areas
of the law, including matters deemed of religious significance. This paper presents
the different justifications given to this ruling by al-Juwayni, al-Ghazali, and Fakhr
al-Din al-Razi, showing how this post-prophetic ruling was successively incorpor-
ated into the religious law that derived its authority from being grounded in the
textual sources of Islamic law. While al-Juwayni rationalized the punishment for
drinking wine with a counter-implication argument, al-Ghazali made a first step to-
ward deriving it in analogy (qiyas) to the authoritative texts, an intellectual move
which was successfully completed by al-Razi. Their different rationalizations re-
flect the increasing use of Greek logic in legal reasoning during that time period.
Furthermore, this case also mirrors the general efforts by legal theorists at that
time to make Islamic law a viable alternative to secular legislation (siyasa).
1) I thank Michaelle Browers, Ahmad Dallal, Frank Griffel, and Joseph Soares
for their helpful comments on earlier versions of this paper. Any remaining short-
comings are my own.
Der Islam Bd. 86, S. 6592 DOI 10.1515/ISLAM.2011.015

Walter de Gruyter 2011
ISSN 0021-1818 Brought to you by | University of Calgary
Authenticated
Download Date | 5/27/15 5:49 AM
66 Felicitas Opwis
Introduction
It is not unusual to find Muslim jurisprudents refer to the same legal

case in order to illustrate their arguments. Nor is it surprising that they
disagree over its interpretation. Sometimes, however, a close analysis of
such differences may reveal important developments in legal reasoning,
especially when the scholars involved belong to the same school of law
and span a relatively short time period. One such case is the punishment of
the wine drinker with 80 lashes. Between the middle of the 5th/11th and
early 7th/13th century, we find three considerably different interpretations
of this case in the work of the illustrious jurisprudents Imam al-Haramayn
al-Juwayni (419478/10281085), Abu Hamid al-Ghazali (450505/
10581111), and Fakhr al-Din al-Razi (543606/11491210). Each of them
was a prominent member of the Shafii school of law,2 a proponent of
Ashari theology, and active in the Eastern part of the Islamic world.
Nevertheless, each of them explained this punishment differently. The dif-
ferences do not affect the ruling but concern the rationalization they pro-
vided for its validity and legitimacy. Finding such variance in interpre-
tation raises questions about what compelled these three jurists to address
the punishment for drinking wine in their works and why did they find di-
verse solutions to justify its legitimacy. Furthermore, what are the effects
of these different rationalizations on the status of the ruling? Can an
analysis of the historical context of this case in its various reincarnations
tell us something about the factors that shape Islamic law?
The relevance of punishing the wine drinker in Islamic law derives from
the fact that the Qur#an expressly condemns the consumption of wine
(khamr) (5: 901).3 Transgressing the prohibition constitutes an offense
against the divine law. However and this is at the heart of the matter
neither the Qur#an nor the prophetic Sunna specified an unambiguous
punishment for the perpetrator of this offense. In the Qur#an, no penalty is
2) All three scholars were influential figures in the history of Islamic intellec-
tual thought. Al-Ghazali and al-Razi are both acclaimed as renewer (mujaddid) of
Islam of the fifth and sixth Muslim century, respectively (Ella Landau-Tasseron,
The Cyclical Reform: a Study of the Mujaddid Tradition, Studia Islamica 70
[1989]: 79117, see especially 8496).
3) Much controversy existed among Muslim jurists what the Arabic term khamr
designated exactly. Since in 1st/7th century Arabic khamr usually referred to fer-
mented juice of grapes (inab), disputes arose whether or not other inebriating
drinks would fall under the prohibition of consuming khamr, and if so which ones.
For a brief overview of the debate see Khamr, EI2, 4: 9948.
Brought to you by | University of Calgary

Authenticated
mentioned; and the Prophet, according to reports, had the wine drinker
sometimes rebuked and at other times beaten with sandals, palm leaves or
belts.4 The historical literature gives various accounts about the establish-
ment of flogging 80 lashes.5 One storyline, frequently found in legal litera-
ture, tells us that the first caliph Abu Bakr (r. 1113/632634) punished
the wine drinker with 40 lashes. The second caliph Umar (r. 1323/
634644) increased this punishment to 80 on account of peoples continu-
ous infraction of the prohibition;6 henceforward, 80 lashes came to be a
widely accepted penalty for this offense.7 With time, this punishment was
considered to belong to the divinely prescribed punishments, the so-called
hudud (sg. hadd), which are imposed for particular acts forbidden in the
4) Cf. Sahih al-Bukhari maa kashf al-mushkil li-l-imam Ibn al-Jawzi (ed. Mus-
tafa al-Dhahabi, Cairo: Dar al-Hadith, 1425/2000), 4: 39699; Abu l-Hasan Ali
b. Muhammad al-Mawardi, al-Ahkam al-sultaniyya wa-l-wilayat al-diniyya (Cairo:
Maktaba wa-Matbaa Mustafa al-Babi al-Halabi, 1386/1966), 228. Some reports
mention that the Prophet imposed capital punishment on the wine drinker; the ma-
jority of jurists, however, rejected or disregarded hadiths to this effect (John Bur-
ton, An Introduction to the Hadith [Edinburgh: Edinburgh University Press, 1994],
14950; Muhammad b. Idris al-Shafii, Ikhtilaf al-hadith bi-riwayat al-Rabi b. Su-
layman al-Muradi [ed. Amir Ahmad Haydar, Beirut: Muassasat al-Kutub al-
Thaqafiyya, 1405/1985], 2057 and 215).
5) See Burton, Introduction to the Hadith, 149150; The History of al-Tabari,
vol. 13: The Conquest of Iraq, Southwestern Persia, and Egypt, translated and an-
notated by Gautier H.A. Juynboll (Albany: State University of New York Press,
1989), 1523.
6) Cf. below in section on Rationalizing the Punishment for Drinking Wine;
al-Mawardi, al-Ahkam al-sultaniyya, 2289; Abu l-Hasan Ali b. Abi Bakr al-Mar-
ghinani, al-Hidaya, maa l-Diraya fi muntakhab takhrij ahadith al-hidaya of
al-Hamd b. Ali b. Muhammad al-Asqalani (ed. Muhammad Abd al-Hayy b. Abd
al-Halim al-Laknawi, Beirut: Maktabat Sharika Ilmiyya, 1980), 1: 528 on margin.
7) See, for example, Abu Yusufs (d. 182/799) statement that Hanafis agree that
the punishment for drinking wine is 80 lashes. Abu Yusuf referred to a report that
the Prophet had flogged 40 lashes and Abu Bakr and Umar 40 and 80 lashes,
respectively, but that all of this is sunna (quoted in Joseph Schacht, The Origins
of Muhammadan Jurisprudence [Oxford: Clarendon Press, 1950], 75). Some
scholars hold that the penalty should be 40 lashes. This view was in particular
prominent among Shafiis (cf. Khamr, EI2, 4: 996; Matthew Lippman, Sean
McConville and Mordechai Yerushalmi, Islamic Criminal Law and Procedure
[New York: Praeger, 1988], 41 and 47). However, despite being Shafiis, al-Juwayni,
al-Ghazali, and Fakhr al-Din al-Razi all proclaimed the punishment to be 80 lashes.

Authenticated
68 Felicitas Opwis
Qur#an,8 such as theft (sariqa), unlawful sexual intercourse (zina), wrong-

ful accusation of adultery (qadhf), and banditry (qat al-tariq, hiraba).9
While the religious origin of the prohibition to drink wine was indisput-
able, the punishment of flogging 80 lashes was not. Its post-prophetic,
extra-scriptural origin gave rise to the claim that legal issues that were not
decided in Qur#an and Sunna belonged to the prerogative of the political
authorities.10 Flogging the wine drinker 80 times, hence, raises important
questions about the relationship of the political authorities to the divine
law: Who has the right to determine the punishment for drinking wine?
More generally, who establishes the laws that regulate Muslims conduct
when scripture is silent? Is it for the political power holder to legislate ac-
cording to political expediency or do the interpreters of the divine texts
determine the laws governing Muslim society?
The balance of power between the representatives of the religious law
and the political authorities over the sphere of law shifted back and forth.
This tug-of-war influenced, for example, the application of the punish-
8) The association of the wine punishment with the other punishments pre-
scribed by the Qur#an appears to have been relatively early. In Maliks (d. 179/795)
Muwatta#, the second caliph Umar is quoted as considering it al-hadd (Malik b.
Anas, Muwatta# al-imam Malik [riwaya Muhammad b. al-Hasan al-Shaybani], ed.
Abd al-Wahhab Abd al-Latif [Cairo: Muassasat Dar al-Tahrir li-l-Tab wa-l-Nashr,
1387/1967], 1: 247). Ibn Qutayba (d. 276/889) referred to the punishment for wine
drinking as hadd when talking about persons of the first few generations of Islam
(Abdallah b. Muslim b. Qutayba, Kitab al-Ashriba [ed. Yasin Muhammad al-Saw-
was, Beirut: Dar al-Fikr al-Muasir, 1420/1999], 445).
9) Cf. Joseph Schacht, An Introduction to Islamic Law (Oxford: Clarendon
Press, 1964), 17580. Of the generally accepted hudud punishments, lapidation for
adultery also lacks Qur#anic evidence. The Qur#an specifies to punish the male and
female fornicator with 100 lashes (Qur#an 24: 2). Jurists justified their stoning on
account of the Prophets practice (cf. Islamic Jurisprudence: Shafiis Risala, trans-
lated by Majid Khadduri [Baltimore: Johns Hopkins Press, 1961], 1058). Many
modern commentators disregard the historical development of the hudud punish-
ments. Al-Awwa, for example, states that the offenses that fall under the term hadd
have been termed crimes of Hudud (determined offenses) because Allah (the Law-
maker) has irrevocably and permanently specified their punishment (Muhammad
Salim al-Awwa, The Basis of Islamic Penal Legislation, in The Islamic Criminal
Justice System [ed. M. Cherif Bassiouni, London and New York: Oceana Publi-
cations, 1982]: 12747, at 127 and 134; see also N. J. Coulson, A History of Islamic
Law [Edinburgh: Edinburgh University Press, 1964], 124).
10) See below in the discussion of al-Juwaynis reasoning; see al-Mawardi, al-
Ahkam al-sultaniyya, 21921.

Authenticated
ment for drinking. An example of the authority of the religious scholars to

enforce the punishment even against the wishes of a powerful caliph can be
read in Ibn Qutaybas Kitab al-Ashriba. The author includes an account
about the poet Ibn Harma, who appealed to the second Abbasid caliph al-
Mansur (r. 13658/75475) to prevent the governor of Medina from imple-
menting this punishment on him. The caliph, who rode to power on propa-
gating observance to Islam, had to use a trick to save Ibn Harma from
being flogged. Al-Mansur ordered that whoever brought charges of wine
drinking against Ibn Harma should receive 100 lashes, while the poet
should be flogged the divinely prescribed hadd of 80 lashes.11 Similarly,
Nizam al-Mulk recounts a story involving Mahmud of Ghazna (r. 389421/
9991030). After a night of drinking, Mahmud warned his general and
boon-companion Ali Nushtigin that he would be unable to protect him
from the whip of the market inspector (muhtasib) should he be caught
drunk in public; when the market inspector saw the general riding drunk
through town, he apprehended him and gave him 40 lashes.12 However, the
religious representatives did not always have the upper hand. In 89/707,
the court scribe of Egypts governor was convicted by the qadi Imran b.
Abdallah al-Hasani on charges of drinking wine. The governor accepted
the verdict but refused to allow the court to mete out the punishment.13
The 4th/10th century qadi of Cordoba, Muhammad b. al-Harith al-Khushani
(d. betw. 361 and 371/971 and 984), attributed the fact that many judges
refrained from punishing public drunkenness to the lack of a textual
source for the punishment of drinking wine.14
If Muslim jurists were to assert their authority in matters that were not
textually decided they had to justify such post-prophetic rulings, like the
punishment for drinking wine, in a manner that gave them religious legi-
timacy. They had to rationalize them in a manner that tied these rulings to
the legal authority of the sacred texts.15 Failure to do so would mean open-
11) Ibn Qutayba, Kitab al-Ashriba, 41.

12) The Book of Government or Rules for Kings: The Siyar al-Muluk or Siyasat-
nama of Nizam al-Mulk, transl. from the Persian by Hubert Darke (London: Rout-
ledge and Kegan Paul), 456.
13) Wael B. Hallaq, The Origins and Evolution of Islamic Law (Cambridge:
Cambridge University Press, 2005), 188.

14) David Waines, Abu Zayd al-Balkhi on the Nature of Forbidden Drink:
A Medieval Islamic Controversy, in Patterns of Everyday Life, ed. David Waines

(Aldershot, UK: Ashgate Publishing House, 2002): 32944, at 3367.
15) Many decisions of the early community that were not based on textual state-
ments and that did not follow a strict methodology (i.e., ra#y and nazar) later

Authenticated
70 Felicitas Opwis
ing the gate for state policy in all matters not textually decided. The in-
fluence of the ulama# as the (only) legitimate interpreters of the divine law
and the role of the Sharia in regulating social relations outside of explicit
textual evidence would be severely curtailed.
The punishment for drinking wine was recognized as a key case in the
competing claims of the political and religious authorities over the sphere
of law. In order to support the decision to flog the wine drinker 80 lashes
with a legal reasoning deemed religiously authoritative and binding, jur-
ists had to justify it in a manner that, on the one hand, absolved the ven-
erated caliphs Abu Bakr and Umar from the accusation of arbitrarily es-
tablishing and changing rulings of religious significance according to their
own opinion (ra#y). On the other hand, their rationalization had to have re-
ligious legal legitimacy in order to compel rulers, whose legitimacy rested
on upholding the divine law, to adhere to this punishment. Despite its rel-
evance for asserting the authority of the religious scholars over the sphere
of law, a unanimously accepted rationalization of this case has not been
put forward. Up to the present time, one finds significant differences in the
way jurists justify the legitimacy of this punishment.16
received theoretical justification in the methodologies of istihsan (juristic prefer-

ence) and istislah (decisions with the public interest in mind) (Wael B. Hallaq,
A History of Islamic Legal Theories: An Introduction to Sunni Usul al-Fiqh
[Cambridge: Cambridge University Press, 1997], 1302).
16) There are numerous rationalizations of the punishment of 80 lashes for
drinking wine. One early example is the argument that the wine drinker should re-
ceive the lightest Qur#anic penalty, which is that for false accusation of adultery.
This rationalization, recorded by the 2nd/ 8th century hadith scholar Abu Da#ud
al-Tayalisi, was attributed to the Companion Abd al-Rahman b. Awf (cf. Burton,
Introduction to the Hadith, 149). A similar line of reasoning is found in al-Shafiis
Ikhtilaf al-hadith, where it is stated that the Prophet flogged the wine drinker an
amount lower than what could kill him (al-Shafii, Ikhtilaf al-hadith, 215). This ar-
gument was also proffered by al-Ghazali (Abu Hamid Muhammad al-Ghazali, Shifa#
al-ghalil [ed. Hamd Ubayd al-Kubaysi, Baghdad: Matbaat al-Irshad, 1390/1971],
213). The 8th/14th century Andalusian jurist al-Shatibi (d. 790/1388) justified the
ruling of 80 lashes for wine drinking by saying that it was based on the independent
reasoning of the community (ijtihad al-umma) and by consensus (ijma) (Ibrahim b.
Musa al-Shatibi, al-Muwafaqat fi usul al-ahkam, 4 parts in 2 vols., vol. 2 ed. Mu-
hammad Hasanayn Makhluf [Casablanca: Dar al-Rashad al-Haditha, nd.], 4: 16).
The 14th/20th century Egyptian scholar Mustafa Zayd explained that the first ca-
liph Abu Bakr and the third caliph Uthman (not Umar!) set the punishment at 40
and 80 lashes respectively on account of considerations of maslaha. He explicitly re-
futed al-Shatibis argument that this ruling was based on consensus (Mustafa Zayd,

Authenticated
In what follows, I want to analyze the different legal interpretations of

the punishment for drinking wine in the writings of al-Juwayni, al-Gha-
zali, and al-Razi and point out what they mean for the authoritativeness of
the ruling. Analyzing the changing justifications for the punishment of 80
lashes sheds light on the development of legal theory and in particular on
the increasing logical soundness of legal reasoning between the second half
of the 5th/11th and the early 7th/13th century. This process is expressed in
the transformation of the counter-implication argument (mafhum al-mu-
khalafa) to legal analogy (qiyas) (see below). It reflects the thorough ab-
sorption of Greek logic into Islamic law that can be witnessed in the latter
half of the 4th/11th century. Furthermore, the changes in the rationaliz-
ation of the punishment for wine drinking are representative of the larger
developments that occurred in Islamic legal theory at that point in time
(to which I will return at the end of this essay). The effects of the changed
rationalization on the authoritativeness of the ruling are also part of the
story of how the balance of power between men of politics and men of re-
ligion tilted in favor of the religious intellectuals, the ulama#, as legitimate
interpreters of all matters religious, including the laws governing Muslim
society. In order to highlight this last point, I first want to briefly present
the historical context in which the changes in legal theory took place inso-
far as it was of immediate relevance to the religious scholars.
The Historical Context
The changes in legal reasoning described below occurred at a time of

important developments in the Eastern part of the Islamic world. Politi-
cally, this period saw the rise and decline of the Saljuq Empire, which
gained power in the middle of the 5th/11th century. The first part of Saljuq
rule was a period of consolidation for the Islamic East, which became
politically and administratively unified.17 The Saljuqs consciously hailed
themselves as the protectors of the almost defunct Islamic caliphate and
al-Maslaha fi l-tashri al-islami [Cairo: Dar al-Fikr al-Arabi, 1384/1964], 30, and
note 3).
17) For an overview over Saljuq history see Sal_ j ukids, EI2, 8: 93679;
C. E. Bosworth, Political and Dynastic History of the Iranian World (A.D. 1000
1217), in Cambridge History of Iran, Cambridge: Cambridge University Press,
1968, 5: 1202; A. K. S. Lambton, The Internal Structure of the Saljuq Empire,
in Cambridge History of Iran, Cambridge: Cambridge University Press, 1968, 5:
20382.

Authenticated
72 Felicitas Opwis
the champions of Sunni Islam. That the Saljuqs strove not just for political
power but also for religious authority is evident in many of their policies
and administrative measures.18 One example is the way in which they
sought marriage relationships with the caliphal household. After entering
Baghdad, the Saljuq sultan Tughril Beg (d. 455/1063) demanded to wed
the caliphs daughter. While the caliph al-Qa#im (r. 422467/10311075)
initially refused to have his daughter marry a Turk, he, after the latter cut
off his allowance, gave in to the sultans pressure.19 During the height of
Saljuq power, several marital unions were concluded between members
of the caliphal household and that of the ruling Saljuqs. On the part of
the Saljuqs, these unions were intended to strengthen the relationship
between the spiritual and political powers of the empire and to give them
the upper hand over the religious authorities. The sultan Malik Shah
(r. 46585/107392), whose daughter had married the caliphs son and heir
al-Muqtadi (r. 46778/107594), apparently intended, briefly before his
death, to depose the caliph in order to put his grandson on the caliphal
throne.20
The aspirations of the early Saljuqs to political as well as religious
power were well expressed by their influential vizier, Nizam al-Mulk,
who held this office from 45585/106392 under Alp Arslan (r. 45565/
106373) and Malik Shah. Nizam al-Mulks book on statecraft, Siyasat-
nama, fused Islamic ideals with the pre-Islamic Sasanian model of just
governance in which the ruler was responsible for religion and state (din
18)For the Saljuq religious and judicial policies see Leonard Binder, The
Political Theory of Nizam al-Mulk, Iqbal, 4 (1956): 2759; Bosworth, Political
and Dynastic History, 99102, 1679; Lambton, The Internal Structure of the
Saljuq Empire, 20617, 227, and 26981; Erika Glassen, Der mittlere Weg: Stu-
dien zur Religionspolitik und Religiositt der spteren Abbasidenzeit (Wiesbaden:
Franz Steiner Verlag, 1981), esp. 4983.
19) For a detailed account of the reasons and strategies used by the Saljuq sul-
tan and his delegates to bring about the marriage between the caliphs daughter and
Tughril see George Makdisi, The Marriage of Tughril Beg, International Journal
of Middle East Studies 1 (1970): 25975, esp. at 2603 and 2704; see also Glassen,
Der mittlere Weg, 456, who points out that the caliphs refusal was very much his
own decision in defiance of his advisors.
20) Lambton, The Internal Structure of the Saljuq Empire, 2124; Sal_ j u-
kids, EI2, 8: 9401; Wael B. Hallaq, Caliphs, Jurists and the Saljuqs in the Politi-
cal Thought of Juwayni, Muslim World 74 (1984): 2641, at 289. For a telling ac-
count of the relationship between the caliph al-Muqtadi and the Saljuq sultans see
al-Muktadi, EI2, 7: 5401.

Authenticated
wa-dawla).21 In it, Nizam al-Mulk expressed the view that right religion
constituted the foundation of a healthy state and, hence, all matters re-
lated to religion were the rulers concern.22 This ideal was put into practice
by tying several of the religious functionaries in society closer into the
political apparatus. Under the Saljuqs, the appointment and salary of the
market supervisor (muhtasib), the judge (qadi), and the preacher of the
Friday sermon (khatib) was made dependent on the sultan, as opposed to
the caliph.23
In the legal sphere, the Saljuq encroachment on religious matters was
exemplified by their expansion of the jurisdiction of the mazalim courts
civil courts which were under the direct control of the ruler and his
delegates at the expense of the Sharia courts.24 While the mazalim func-
tioned mainly as courts of redress against official and unofficial abuse,
served to appeal decisions handed down by Sharia judges, and were
the place to petition for land grants, during the Saljuq period these non-
Sharia courts also adjudicated matters concerning public order. Their ju-
risdiction included criminal matters, such as theft and drunkenness, and,
thus, stood in direct competition to the authority of the qadi.25 Langes
analysis of penal jurisdiction of this period shows that the fuqaha# were de
facto powerless in the area of criminal law.26
The glory and power of the Saljuqs was, however waning by the begin-
ning of the 6th/12th century and a slow disintegration of Saljuq rule set in.
Al-Juwayni and al-Ghazali were active when the Saljuq Empire was at the
height of its power. Both had first-hand experience with the vicissitudes of
political favor. They were patronized by powerful political figures, in par-
21) Glassen interprets Nizam al-Mulks Siyasat-nama not so much as a literary

work but as the authors personal account of his experience in politics that reflects
current incidents and events, though frequently in disguise of past figures and
popularly known narrative structures (Glassen, Der mittlere Weg, 12230).
22) See Lambton, The Internal Structure of the Saljuq Empire, 211 and 281;
The Rules of Government or Rules for Kings, esp. 911 and 5960.
23) Lambton, The Internal Structure of the Saljuq Empire, 26970; George
Makdisi, The Rise of Colleges: Institutions of Learning in Islam and the West (Edin-
burgh: Edinburgh University Press, 1981), 147.
24) Lambton, The Internal Structure of the Saljuq Empire, 227 and 269.
25) See Mahkama, EI2, 7: 135; Mazalim, EI2, 6: 9334; Daphna Ephrat,
A Learned Society in a Period of Transition: The Sunni ulama# of Eleventh Century

Baghdad (Albany: State of New York Press, 2000), 127; Christian Lange, Justice,
Punishment and the Medieval Muslim Imagination (Cambridge: Cambridge Univer-
sity Press, 2008), 40.
26) Lange, Justice, Punishment, and the Medieval Muslim Imagination, 218.

Authenticated
74 Felicitas Opwis
ticular Nizam al-Mulk, and they also were exiled in al-Ghazalis case self-
imposed when the political landscape changed.27 Not surprisingly, their
legal writings reflect the struggle between the political and religious auth-
orities over the sphere of law.28 Al-Razi, in contrast, lived during the final
days of the Saljuq principalities, when their power was challenged by the
Ghurids and Khwarizmshahs. Although al-Razi was familiar with the
realm of politics, constantly seeking patronage from various local rulers
before late in life he came to be independently wealthy,29 his writings are
devoid of hints that the political powers hold a claim over legal matters.
While this may be a function of the nature of his writings, it, in my view,
also reflects the actual situation the religious scholars had asserted their
authority over the sphere of law; the military rulers of the time could not
lay claim to legitimate legal authority, though, of course, they could use
brute force.30
Another important development in the 5th/11th century was the spread
of the madrasa, the Islamic college-mosque, in which the study of Islamic
law was the mainstay of the curriculum.31 Although the madrasa was not
the only way to receive an education, it became an important and wide-
spread institution of learning in the 5th/11th and 6th/12th century.32 The
formation of the madrasa system enhanced the institutional consolidation
of the ulama# as a group.33 Set up as pious endowments by their founders,
the madrasas gave relative financial security to professors and students
who both received lodging in the college. The specific type of endowment
used for madrasas enabled the endower to retain control over teaching ap-
pointments and type of instruction; each madrasa was usually devoted to
27)See al-_j uwayni, Abu l-Maali Abd al-Malik, EI2, 2: 6056, at 605; al-
Ghazali, Abu Hamid Muhammad b. Muhammad al-Tusi, EI2, 2: 103841, at
10389; Glassen, Der mittlere Weg, 15475.
28) Cf. Abd al-Malik b. Abdallah Imam al-Haramayn al-Juwayni, Ghiyath
al-umam fi ltiyath al-zulam (ed. Abd al-Azim al-Dib, Cairo: Matbaat Nahda
1401/1981), 2202, 224, and 37991; al-Ghazali, Shifa# al-ghalil, 22534.
29) See Famr al-Din al-Razi, EI2, 2: 7514.
30) Lange states that after the disintegration of the Saljuq unity, civil leaders
and religious scholars were left to lead their affairs with a certain degree of liberty,
yet within an environment of physical insecurity (Justice, Punishment, and the
Medieval Muslim Imagination, 79).
31) George Makdisi, The Rise of Colleges, 9.
32) For the development of the madrasa and its differentiation from earlier
types of educational institution see Madrasa, (EI2, 5: 112334), and Makdisi, The
Rise of Colleges.
33) Lange, Justice, Punishment, and the Medieval Muslim Imagination, 1556.

Authenticated
the study of law of a particular legal school (madhhab).34 Besides a pious

desire to promote learning, many powerful and wealthy patrons endowed
madrasas and appointed their professors with an eye toward gaining the
support of the scholars, as well as that of their followers, in their function
as jurisconsults and leaders of the populace.35
The madrasa education was structured around a well-organized course
of study, usually of four years, with a set curriculum educating students in
the religious sciences, in particular law.36 This new type of educational in-
stitution altered the status of professors and probably their students
from being part-time professors to full-time scholars with appointments
that could last long periods.37 Although the madrasa did not change
the traditional curriculum of study,38 one notices a vivid interest in the
rationalist sciences by madrasa professors. We know that al-Juwayni and
al-Ghazali, both holding chairs at madrasas, were well-versed in the
foreign sciences. It is said of al-Ghazali that he complained about not hav-
ing enough time to study philosophy due to the large number of students
(300) under his supervision.39 Whether rationalist sciences were actually
taught at the madrasa is not established. Prior to the rise of the madrasa,
these sciences, according to Makdisi, were discreetly taught and studied
privately or in the dar al-ilm institutions which faded by the middle of
the 5th/11th century.40
Be that as it may, one notices that the rise of the madrasa coincides with
the time when Islamic legal theory attained an unprecedented coherence
34) Madrasa, EI2, 5: 1128; Makdisi, Rise of Colleges, 28, 47, and 54.
35) Makdisi, Rise of Colleges, 32 and 40; Hallaq, Caliphs, Jurists and the Sal-
juqs, 278; Lange, Justice, Punishment, and the Medieval Muslim Imagination,
478; Glassen, Der mittlere Weg, 72.
36) See A. Bausani, Religion in the Saljuq Period, in Cambridge History of
Iran (Cambridge: Cambridge University Press, 1968), 5: 283302, at 289; Ephrat,

A Learned Society, 2 and 645.
37) Ephrat, A Learned Society, 64 and 104; Joan Elizabeth Gilbert, The
Ulama of Medieval Damascus and the International World of Islamic Scholarship

(Ph. D. thesis, University of California, Berkeley, 1977), 7.
38) Makdisi, Rise of Colleges, 31; and Ephrat, A Learned Society, 8 and 59. This
finding surprises given how changes in the institutional setting had previously
influenced students education. Makdisi himself points out that the development of
the note book (taliqa), containing a students notes of the professors lectures or
works, coincided with the establishments of inns (khans) next to mosques that
housed students and professors (Makdisi, Rise of Colleges, 122 and 126).
39) Glassen, Der mittlere Weg, 131.
40) Makdisi, Rise of Colleges, 79.

Authenticated
76 Felicitas Opwis
and systematization. Many leading works on usul al-fiqh were composed

during this time period; al-Sarakhsis (d. ca 490/1096) Usul al-fiqh, al-Gha-
zalis Mustasfa, Ibn Aqils (d. 513/1119) Wadih, and al-Razis Mahsul are
just some of the works that come to mind. A notable feature of these works
is the increasing infusion of Aristotelian logic in legal reasoning. While
most Greek works on logic were translated into Arabic by the end of the
3rd/9th century, and al-Farabi (d. 339/950) had commented extensively on
them,41 logic did not make itself felt to a significant extent in Islamic law
until the 5th/11th century.42 Al-Ghazali is usually credited to be the first
jurist introducing his legal work with a chapter on logic.43 He quite unam-
biguously exclaims that whoever does not fully comprehend logic cannot
be trusted in his knowledge.44 In al-Ghazalis writings on law, especially in
his early work Shifa# al-ghalil and to a lesser degree in his later work al-
Mustasfa, one finds a mature application of logic in legal reasoning.45 By
the time of al-Razi, Ibn Qudama (d. 620/1223), al-Amidi (d. 631/1234), and
Ibn al-Hajib (d. 646/1248) logic is deemed an integral part of usul al-
41)Cf. Mantik, EI2, 6: 44252.

42)This is not to say that Islamic law was illogical or irrational nor that
Greek logic did not leave traces in the articulation of legal theory prior to the
5th/11th century. Shafiis discussion of analogy (qiyas) was influenced by Aristotles
Topics (Mantik, EI2, 6: 4523). Yet, a comprehensive application of the Aristote-
lian rules of logic in legal reasoning is not evident until around the time of al-Gha-
zali.
43) Cf. Wael B. Hallaq, A History of Islamic Legal Theories, 39. Chehata states
that it was al-Juwayni who for the first time tried to introduce Aristotelian logic
into legal theory in his work al-Burhan (Chehata, tudes de philosophie musul-
mane du droit I: Logique juridique et droit musulman, Studia Islamica 23 ([1965]:
533, at 14).
44) Abu Hamid Muhammad al-Ghazali, al-Mustasfa min ilm al-usul, ed.
Hamza b. Zuhayr Hafiz, 4 vols. (Jidda: Sharikat al-Madina al-Munawwara lil-Tiba

wa-l-Nashr, n.d. [1993]), 1: 30. A similar sentiment is voiced by the Cairene phys-
ician Ibn Ridwan (d. 453 or 460/1061 or 1068). He remarked that anyone who wants
to study medicine on his own must first learn logic to discern what is true and false
in the books he reads (Ibn Ridwan, ber den Weg zur Glckseligkeit durch den rzt-
lichen Beruf: Arabischer Text nebst kommentierter deutscher bersetzung, ed. Albert
Dietrich [Gttingen: Vadenhoek and Ruprecht, 1982], 13).
45) See Hallaq, Logic, Formal Arguments and Formalization of Arguments,
Arabica 37 (1989): 31558 at 318 and 320. Al-Ghazali held legal analogy (qiyas) only
valid logically if it was a first figure syllogism (ibid., 320).

Authenticated
fiqh.46 The increasing use of logically sound legal arguments over the
course of the Saljuq period is reflected in the three different rationaliz-
ations for the punishment of drinking wine found in the work of al-Ju-
wayni, al-Ghazali, and al-Razi, to which I now turn.
Rationalizing the Punishment for Drinking Wine
Al-Juwayni mentioned the case of punishing the wine drinker in his

work Ghiyath al-umam, which he dedicated to his patron, Nizam al-
Mulk.47 In one chapter, he addressed the topic how to preserve Islamic so-
ciety. Al-Juwayni enjoined the ruler to uphold the prescribed punishments
(hudud), warning against decreasing or increasing them.48 He admonished
the vizier that the Sharia cannot be obtained on account of what secre-
taries ( ? ) (uqala#) and philosophers (hukama#) deem beneficial (istaslaha)
or else, the divine law would be changed according to time and circum-
stances.49 Against the argument presented in typical dialectic fashion
of an unnamed opponent that the early caliphs did just that with regard to
the punishment for drinking wine,50 al-Juwayni resorted to what techni-
cally is called an a contrario argument, or counter-implication (mafhum al-
mukhalafa).51 He argued that since during the Prophets lifetime the exact
46) Cf. Wael B. Hallaq, Logic, Formal Arguments and Formalization of Argu-
ments in Sunni Jurisprudence. Al-Razi, for example, in his work al-Mahsul, uses
almost exclusively syllogistic arguments with three terms.
47) Al-Juwayni, Ghiyath, 2246.
48) The notion that the observance of the hudud was the mark of an Islamic so-
ciety has been held since early Islamic history. However, as Hawting suggests, in the
early years after the Prophets death the call to uphold the hudud may have referred
to Gods commands in the Qur#an more generally and not in a technical sense to
the prescribed punishments (G. R. Hawting, The Significance of the Slogan
La Hukm a Illa Lillah and the References to the Hudud in the Traditions About the
Fitna and the Murder of Uthman, Bulletin of the School of Oriental and African
Studies 41 [1978]: 45363). In al-Juwaynis work, we see the preservation of an
Islamic society closely tied to the application of the hudud-punishments.
49) Al-Juwayni, Ghiyath, 2201 and 2234; see also 243 and 430.
51) In Arabic, arguments that are based on counter-implication are called
by different terms, the most common are mafhum al-mukhalafa, dalil al-khitab, and
takhsis al-shay# bi-dhikr. For discussions of this type of legal reasoning see Abou-
bekr Abdesselam Ben Choab, Largument juridique en droit musulman, Revue
du monde musulman 7 (1909): 7086; Yasin Dutton, The Origins of Islamic Law:

Authenticated
78 Felicitas Opwis
penalty was not established, it did not belong to the category of the deter-
mined punishments (hudud). Consequently, by counter-implication, it fell
into the area of discretionary punishments (tazirat), the extent of which
was entrusted to the ruler (imam).52 Al-Juwayni said that Abu Bakr and
Umar as leaders of the community and as mujtahids53 were entitled to es-
tablish the punishment at their discretion, although it was not permissible
for them to disregard the offense or go beyond the extent of the prescribed
penalties.54
By delegating the case of punishing the wine drinker to that sphere of
law over which the ruler has discretionary authority, al-Juwayni absolved
Abu Bakr and Umar from the charge of changing laws laid down in scrip-
ture. He proved that the laws of the Sharia were not derived by consider-
ations of arbitrary benefit or utility (istislah). In order to compel the cur-
rent ruler to adhere to this non-scriptural punishment, he appealed to
the authority of the Companions; current rulers should follow the decision
established by the venerated early caliphs who were knowledgeable in
matters of religious law.
Al-Juwaynis argument, however, leaves open the question on which
grounds the early caliphs, in particular Umar, decided that the punish-
ment should be 80 lashes. His remark that the first caliph, and presumably
also Umar, was a mujtahid suggests that they somehow derived it from the
textual sources of the law but he did not supply any further indication of
a link to the Islamic scripture in his 89 page discussion of this case. With
the type of reasoning used in this instance, al-Juwayni could not answer
that question because arguing by counter-implication does not provide
a reason or ratio legis (illa) for the ruling, namely why the perpetrator
should be flogged and how much. The counter-implication argument rea-
The Qur#an, the Muwatta# and Madinan Amal (Surrey: Curzon Press, 1999), 1149;
Bernard Weiss, In Search of Gods Law: Islamic Jurisprudence in the Writings
of Sayf al-Din al-Amidi (Salt Lake City: University of Utah Press, 1992), 48897;
Muhammad b. Bahadur al-Zarkashi, al-Bahr al-muhit fi usul al-fiqh, ed. Umar
Sulayman al-Ashqar (Cairo: Dar al-Safwa, 1409/1988), 1329; and Aron Zysow, The
Economy of Certainty: An Introduction to the Typology of Islamic Legal Theory
(Ph.D. thesis, Harvard University, 1984), 16275.
52) For al-Juwaynis views on tazir and hadd punishments see Ghiyath, 21720.
53) Al-Juwayni in this instance only mentioned the qualification of mujtahid
with regard to Abu Bakr. Since he elsewhere implicitly considered the early caliphs
to be imams who were able of ijtihad, it seems appropriate to extend this qualifi-
cation here to Umar as well (cf. Ghiyath, 22830 and 251).

Authenticated
sons in the following manner: If you say x about y, then x only applies to y
and not to anything other than y. And, consequently, every non-y receives
the ruling of non-x.55 If y is prohibited, then by counter-implication, every
non-y is permitted and vice versa.
Muslim jurists frequently employed counter-implication arguments to
arrive at legal rulings. For example, Qur#an 65:2 states that for the god-
fearing, God prepares a way out of a difficult situation. By counter-impli-
cation, for those who are not pious, God does not do so.56 The hadith that
expresses that alms tax (zakat) is due on freely grazing sheep (sa#imat
al-ghanam) was understood to exclude sheep that were kept and fed in a
stable.57 The same type of reasoning is, however, controversial in other
cases.58 On the rules of retaliation (qisas), Qur#an 2:178 instructs that a
free man is killed in retaliation for killing a free man, a slave for a slave, and
a woman for a woman. If one were to use the counter-implication argu-
ment, then a free man would not be killed, for example, in retaliation for
killing a woman. In this case, however, the Qur#an provides further guid-
ance, stating that a life is taken in retaliation for a life (5: 45).59 Sometimes,
the counter-implication argument clashes with legal analogy (qiyas), as in
the following example: Qur#an 4:25 states that Muslim men may marry
believing slave-girls. By counter-implication, this ruling prohibits Mus-
lim men from marrying non-Muslim slave-girls. However, regarding free
women it is permissible for a Muslim man to take a Jewish or Christian
wife. If one uses analogical reasoning, then also Christian and Jewish slave-
girls, i.e. non-Muslims, are a permissible spouse.60 Depending on the type
of reasoning applied, one arrives at two different rulings for this legal
question.
The use of counter-implications as a way of law-finding was, however,
controversial. Two objections one theological and the other logical were
leveled against it. Theologically, the counter-implication argument is prob-
lematic because it attributes religious rulings to matters about which the
Lawgiver is silent. Based on the belief that God is wise and does not utter
anything in vain, this type of reasoning presumes that when the Lawgiver
55) Dutton, Origins of Islamic Law, 64.

56) Ben Choab, Largument juridique, 74.
58) See Weiss, In Search of Gods Law, 4945.
59) Dutton, Origins of Islamic Law, 1189.
60) Dutton, Origins of Islamic Law, 100. According to Dutton, universal agree-
ment among jurists was reached that the counter-implication argument would not
apply in instances in which legal analogy was clearly valid (ibid., 118).

Authenticated
80 Felicitas Opwis
mentions a specific characteristic or condition, He must intend that what

is not specified is exempt from this ruling and, hence, receives the opposite
ruling.61 The ruling lacks, however, positive sanction from the authori-
tative texts. Logically, the counter-implication argument is incorrect be-
cause it extends not the same ruling found in a text as is done in a fortiori
arguments (mafhum al-muwafaqa) and in legal analogy (qiyas) but the
opposite of a textual ruling. When employing counter-implications, it is
the absence of a legal indicant (dalil) that leads to a legal effect.62
With a more thorough application of the rules of Greek logic in legal
reasoning, the counter-implication argument fell out of favor among Mus-
lim jurists. Even among jurists who did not reject counter-implications
per se, there was widespread disagreement over which of the various forms
of counter-implications were acceptable in legal reasoning.63 Because such
arguments go well beyond the textual evidence and depend on human
reflection about why something is mentioned but not something else, jur-
ists sought to regulate this type of reasoning and link it more directly to
the authoritative texts.64 They did so by assimilating counter-implications
to legal analogy in which the ruling hinges upon a ratio legis (illa). Look-
ing into the purpose of the expressed statement in order to infer its impli-
cation, jurists determined legal rationales for rulings which previous gen-
erations had arrived at by counter-implication.65
In analogical reasoning, the ruling for the original case (asl) is anchored
in the scriptural sources of the law and then extended to an unprecedented
case (far) because both display the same criteria or characteristics for
their legal rationale, their ratio legis. For example, the Qur#an condemns
the consumption of grape wine (khamr). From additional verses jurists in-
ferred that it is the inebriating characteristic (muskir) of wine that makes
it prohibited as opposed to its color or that it is liquid; hence, inebriation
is considered the ratio legis for the ruling. In analogy to the prohibition of
61) Weiss, In Search of Gods Law, 497.

62) Weiss, In Search of Gods Law, 492.
64) Cf. al-Ghazali, Shifa# al-ghalil, 195196; Fakhr al-Din Muhammad b. Umar
al-Husayn al-Razi, al-Mahsul fi ilm usul al-fiqh (2 vols., Beirut: Dar al-Kutub al-
Ilmiyya, 1408/1988), 1: 25; Weiss, In Search of Gods Law, 495.
65) Weiss, In Search for Gods Law, 4889. Such a development was possible by
a shift in the conception of the ratio legis. After the 4th/10th century, jurisprudents
increasingly considered the ratio legis not simply as a sign (amara) or signal (alam)
for the ruling but as an explanatory factor (baith) (cf. Zysow, Economy of Certainty,
37598).

Authenticated
grape wine, most jurists argue that other inebriating substances, such as
date wine, are likewise prohibited. When arguing in analogy to the auth-
oritative texts, the legitimacy of the ruling for the unprecedented situation
(date wine) derives from the revealed law. Subsuming the counter-impli-
cation argument under legal analogy deprives this type of reasoning from
having legal consequences on matters that are not expressed in the text be-
cause jurists determine a ratio legis for the ruling which has to be present
in both the original and the derived case; the absence of a ratio legis does
not incur a ruling expressed in the texts.66 The theological and logical ob-
jections that reasoning by counter-implication lacks a sound basis in the
textual sources of the law are thereby eliminated.
How the counter-implication argument was transformed into legal
analogy can be seen in the interpretation of the punishment for drinking
wine by al-Ghazali and al-Razi. Al-Ghazali addressed the case of punish-
ing the wine drinker in his early work Shifa# al-ghalil. He discussed it
within the context of rulings that lack a textual basis validating their
legitimacy. Such a case, according to al-Ghazali, can be incorporated into
the religious law as long as the ratio legis of the case displays suitability
(munasaba) for its ruling and is relevant (mula#im) to the way the law oper-
ates. Suitability is established when the resulting ruling corresponds to
the purposes (maqasid) of the Lawgiver for humankind, namely to preserve
peoples religion, life, intellect, offspring and property. Such a ruling
constitutes maslaha67 by attaining benefit (manfaa) for these purposes
and/or averting harm (madarra) from them.68 With the criterion of rel-
evance (mula#ama) al-Ghazali meant that textual evidence exists that the
law considers the general category of the case in question.69
To illustrate such a case, al-Ghazali referred to the punishment for
drinking wine. He explained with a more elaborate story than al-Juwayni
that when in the early years after the Prophets death people continued
drinking wine, the caliph Umar gathered the Companions of the Prophet,
consulted with them and inquired about their opinions on that matter. The
lively debate among them was ended when Ali said: Who drinks gets
intoxicated, who is intoxicated talks nonsense, who talks nonsense fabri-
66) Zysow, Economy of Certainty, 1712.

67) Literally, maslaha means a source or cause of good. It is frequently rendered
into English as public interest. Since its connotations are broader and not re-
stricted to the public sphere, I use the Arabic term throughout.
68) Al-Ghazali, Shifa# al-ghalil, 1412, 146, and 15960. For al-Ghazalis con-
cept of maslaha see also idem, al-Mustasfa, 2: 478506 and 3: 62039.

69) Al-Ghazali, Shifa# al-ghalil, 1489 and 209.

Authenticated
82 Felicitas Opwis
cates lies; therefore, I consider upon him the hadd-punishment for the
one who fabricates lies70 by which Ali meant the prescribed punishment
of 80 lashes for false accusation of adultery (qadhf).71 The Companions, al-
Ghazali stated, deemed Alis reasoning correct and adhered to it.72
Al-Ghazali further explained that Alis reasoning was suitable because
the ruling entails maslaha for some of the essential elements of human
existence that the Lawgiver intends to protect intellect and religion. In
addition, he argued that it was relevant to the way the law operates by fol-
lowing the general legal principle that the likely occurrence of something
receives the same ruling as its actual occurrence.73 This legal principle,
al-Ghazali maintained, is operative in other cases. For example, it is con-
sidered likely that minor ritual impurity (hadath) occurs during sleep.
Sleep, therefore, is legally treated equivalent to other forms of contracting
impurity (contact with or emission of urine, semen, pus, feces or gas) in
that it obliges performing ritual ablution (wudu#) before prayer, irrespec-
tive of whether impurity actually did occur.74 Another example for such
a ruling is found in marriage law. When groom and bride, after having
concluded the marriage contract, spend time alone with each other, it has
the legal effect of considering that marital relations have been established
regardless of whether or not the couple actually had intercourse because
it is likely to have happened.75 Arguing that inebriation likely leads to
70)Lit.: Man shariba sakira wa-man sakira hadha wa-man hadha ftara, fa-ara
alayhi hadd al-muftara.
71) Cf. Qur#an 24: 4.
72) Al-Ghazali, Shifa# al-ghalil, 212. Al-Ghazalis account of how the wine pun-
ishment was set at 80 lashes was not new. A similar description of this episode can be
found, for example, in Maliks Muwatta#, where, however, a measure of doubt is ex-
pressed about Alis words that he who drinks gets inebriated and then slanders by
interspersing the phrase or whatever he said (aw ka-ma qala) after Alis statement
(Malik, al-Muwatta#, 1: 247). Al-Mawardi (364450/9741058), an older contempor-
ary of al-Juwayni and also a member of the Shafii school of law, presented the same
story about Alis reasoning as al-Ghazali. Yet, in al-Mawardis version, the process
is reversed; Ali first pronounced that the wine drinker should receive the hadd-
punishment of 80 lashes and then explained that a person who drinks ultimately
slanders (al-Mawardi, al-Ahkam al-sultaniyya, 228).
73) Al-Ghazali phrased this legal principle in the following ways: iqamat maz-
ann al-umur maqam al-umur al-maqsuda or iqamat al-mazanna maqam al-shay# (al-
Ghazali, Shifa# al-ghalil, 2134 and 217).
74) Al-Ghazali, Shifa# al-ghalil, 2124.
75) Al-Ghazali, Shifa# al-ghalil, 214; al-Razi, al-Mahsul, 2: 324; Schacht, Intro-
duction to Islamic Law, 166.

Authenticated
slander, al-Ghazali rationalized the punishment for drinking wine in light

of an accepted legal principle and reasoned that it should be ruled like false
accusation of adultery.
In al-Ghazalis work, we find the first step to transforming the counter-
implication into legal analogy; he explicitly rejected the former type of
argument.76 Setting the punishment for wine drinking to 80 lashes, thus,
was not arbitrary but done for a legally relevant reason. Yet, he did not
consider Alis reasoning for the punishment of 80 lashes (and his expla-
nation thereof) a form of legal analogy. Since no specific textual source
attests to the validity of linking wine drinking with slander, which would
be the ratio legis, rather such reasoning is supported only by cases that
belong to the same general category, he called it unattested inference
(istidlal mursal), which lies outside the sphere of legal analogy.77
Al-Ghazalis rationalization of the punishment of the wine drinker was
logically and theologically on firmer grounds than al-Juwaynis reasoning.
Yet, he still did not solve the problem of connecting the punishment of
80 lashes to the textual sources of the law in a manner that precluded any
further challenge of its legitimacy from the political authorities. He only
appealed to the authority of the Companions of the Prophet they ac-
cepted and followed Alis reasoning, so later rulers should do likewise.
About a century later, in al-Razis work al-Mahsul, we find the punish-
ment for drinking wine incorporated properly into legal analogy. Like al-
Ghazali, al-Razi considered suitability a criterion to identify the ratio
legis of a ruling in the textual sources of the law within the procedure of
legal analogy.78 He, however, went a step further. Based on the understand-
ing that a general category is made up of all the specifics that fall under it,
he accepted as valid rationes legis of rulings also characteristics that are
not specifically attested in the authoritative texts as long as the general
characteristic(s) that indicates the ratio legis is effective (mu#aththir)
on the general category of the ruling. Textual evidence for the general
category sufficed al-Razi to apply it to all the specific instances that are
subsumable under this general category be they concretely attested in
scripture or not.79 And exactly this, al-Razi argued, was the case when Ali
assigned the punishment for drinking wine the same as that for slander. Al-
though the ratio legis that inebriation leads to slander is not specifically
attested in the scriptural sources of the law, the general category that the

78) Al-Razi, al-Mahsul, 2: 311.
79) Al-Razi, al-Mahsul, 2: 3234.

Authenticated
84 Felicitas Opwis
likely occurrence of something is considered equivalent to its actual occur-

rence and receives the latters ruling is confirmed as, e.g., in the case of
the newly-weds. Being subsumable under a general, attested ratio legis, al-
Razi argued that Alis ruling to punish the wine drinker like the slanderer
was determined in analogy to ruling that solitude among newly-weds is
like having consummated the marriage.80
Al-Razis reasoning brought the ruling of punishing the wine drinker
with 80 lashes into the folds of legal analogy. It was considered at least
conceptually to be based on the scriptural sources of the law because cor-
rect analogical reasoning takes its ruling and its ratio legis from a textual
statement. Al-Razi had employed legal logic and the taxonomy of genera
and species in a manner that allowed him to connect this ruling to the tex-
tual sources of the law. Umars decision to flog the wine drinker 80 lashes
was now grounded in the authoritative texts. Having its basis in the divine
law, as opposed to being the decision of a fallible caliph, the ruling was no
longer challengeable by the political authorities.
The Significance of Re-Interpreting the Punishment for Wine Drinking
The different ways in which al-Juwayni, al-Ghazali, and al-Razi ex-

plained the punishment of 80 lashes for drinking wine prompts the ques-
tion of the significance of finding different rationalizations. What can be
learned from analyzing the legal reasoning of these three jurists?
For one, their interpretations exemplify the increasing rationalization
of Islamic legal theory and the continuous effort to provide logically co-
herent explanations for rulings with challengeable legitimacy. To this end,
rulings that once were explained by counter-implication a form of reason-
ing that is logically and theologically questionable were incorporated
into legal analogy. This particular shift in legal reasoning started in the
latter part of the 5th/11th century.81 As we saw above, al-Juwayni did not
yet object to using the counter-implication in legal reasoning. For al-Gha-
zali, such arguments were unacceptable; though, regarding the punish-
ment for wine drinking, he did not incorporate this ruling into analogy
80)Al-Razi, al-Mahsul, 2: 324. Lit.: Ali aqama l-sharb maqam al-qadhf iq-
amatan li-mazannat al-shay# maqamahu qiyasan ala iqamat al-khalwa bi-l-mar#a
maqam wat#iha fi l-hurma.
81) Zysow argues that the counter-implication argument was subsumed under
legal analogy already by al-Juwaynis time (Economy of Certainty, 1712). The evi-
dence presented in this paper suggests a slightly later dating.

Authenticated
proper but accepted it as an unattested inference. In al-Razis writings, we

find the transformation from counter-implication to legal analogy com-
pleted. Al-Razi could do so because he had a slightly different conception
of legal analogy than al-Ghazali. He deemed it valid to analogize the
punishment for drinking wine via a ratio legis that is attested only in its
general form because, he argued, the general category incorporates all the
specifics that can be subsumed under it, be they attested or not. Hence, he
conceived the ruling on punishing the wine drinker as analogy to a textual
basis at least conceptually.
Rejecting the legal validity of counter-implication arguments at this
point in time is not a phenomenon restricted to the Shafii school. The
Hanbali Abu Yala (d. 458/1066), an older contemporary of al-Juwayni,
has a lengthy discussion of dalil al-khitab in his work on legal theory
arguing that this type of reasoning constitutes legal proof.82 His disciple
Ibn Aqil, however, was skeptical as to the logical soundness of such reason-
ing. In one of the places where Ibn Aqil discusses counter-implication, he
seems to understand it like juristic preference (istihsan).83 He, thus, incor-
porates the questionable reasoning of counter-implications into a method
that was acceptable to Hanbali jurists.
A second point to be derived from this development in legal reasoning is
that it represents a shift in what jurists considered legitimate grounds for
rulings, namely away from appeal to post-prophetic practice of the early
community toward textual authority of scripture. In justifying the pun-
ishment for wine drinking, al-Juwayni referred solely to the precedent of
the first caliphs. Though he called them mujtahids, he did not provide any
further insight into how Abu Bakr and Umar arrived at the number 40 or
80; their decisions remain arbitrary. To ensure compliance with this ruling,
al-Juwayni appealed to follow the decision of the early caliphs a form
of traditional authority in the Weberian sense.84 It is noteworthy that al-
Juwayni frequently justified the adherence to rulings that were not based
82) Abu Yala Muhammad b. al-Husayn al-Farra#, al-Udda fi usul al-fiqh, ed.
Ahmad b. Ali Sayr al-Mubaraki [Riyadh: n. p., 1410/1990], vol. 1: 1545 and vol. 2:
44870.
83) Abu l-Wafa# Ali b. Aqil, al-Wadih fi usul al-fiqh, ed. Abdallah b. Abd al-
Muhsin al-Turki (Beirut: Mu#assasat al-Risala, 1420/1999), vol. 1: 37, vol. 2: 105
and 1878, vol. 3: 2936 and 3968 (here, counter-implications are understood simi-
lar to istihsan).
84) See for Webers categorization of authority Max Weber, Economy and So-
ciety, 2 vols., ed. Guenther Roth and Claus Wittich (Berkeley: University of Califor-
nia Press, 1978), 1: 21254.

Authenticated
86 Felicitas Opwis
on the Qur#an or prophetic Sunna by reference to the precedent of authori-

tative figures, in particular the Companions but sometimes also by men-
tioning that a new ruling had been established by a group of Muslims
(ta#ifa min al-muslimin).85 His appeal to the precedent of past generations
in Ghiyath al-umam may have something to do with the fact that the works
addressee, Nizam al-Mulk, himself advocated the adherence to precedent
and tradition as a measure to retain stability within the empire, as ex-
pressed throughout the latters Siyasat-nama.86
For al-Ghazali, the caliph Umar had the authority to establish the
punishment for drinking wine at 80 lashes not because he was the ruler but
because his decision concurred with the scriptural law at least to the gen-
eral way in which the law operates. Not having specific textual evidence for
the ruling, al-Ghazali like al-Juwayni emphasized the authority of the
Companions to enjoin adherence to this punishment. Al-Razi relied solely
on scripture to legitimize the ruling. Punishing the wine drinker with 80
lashes was legally valid and unassailable because Ali had derived it in a
logically correct manner from the authoritative texts. He justified the rul-
ing not by reference to the precedent of the early caliphs but to a textual
ruling, thereby anchoring the rulings legitimacy in the authority of Is-
lamic scripture.
The change in rationalizing the punishment for drinking wine also af-
fects the relationship between the religious and political authorities in the
area of law. Grounding the legal legitimacy of this ruling in textual evi-
dence clearly shifts the balance of power in favor of the ulama# as the inter-
preters of the divine law and away from political rulers. This development
reflects the actual political situation of the time. When al-Juwayni wrote
his treatise Ghiyath al-umam, sometime between 465/1072 and 478/1085,87
the Saljuqs were at the height of their power, and the sultans vizier Nizam
al-Mulk was de facto the unchallenged ruler of the empire. The religious
policies of the Saljuqs, as pointed out above, were directed toward extend-
ing their sphere of influence into the religious arena. In Ghiyath al-umam,
al-Juwayni recognized, and seems to have resented, the impotence of the
caliph and the ulama# vis--vis the political power holders. Yet, he ac-
cepted that the ruler has the right to decide matters that were not settled
by the textual sources of Islamic law according to his own opinion (ra#y).
85) Al-Juwayni, Ghiyath, 22830 and 251.

86) As Hallaq points out, al-Juwayni also justified rulings governing the insti-
tution of the imamate with the practice of the community rather than with (doubt-
ful) scriptural evidence (Hallaq, Caliphs, Jurists and the Saljuqs, 41).
87) Hallaq, Caliphs, Jurists and the Saljuqs, 28.

Authenticated
He, however, also called upon the non-mujtahid ruler presumably with
Nizam al-Mulk and the Saljuqs in mind to seek counsel in legal matters
from the ulama#. The ulama#, he wrote, are the heirs of prophethood and
the leaders of religion.88 In Ghiyath al-umam, al-Juwayni breaks with pre-
vious theories on religious authority and replaces the caliph as the be-
stower of religious legitimacy with the religious scholars.89 Despite al-Ju-
waynis emphasis that the ulama# should determine the religious law of the
Muslim community, for the punishment of wine drinking he did not at-
tempt or perhaps did not have the intellectual tools to provide an unas-
sailable argument that would de-legitimize the authority of the political
ruler over the religious law.
Al-Ghazali discussed the punishment for the wine drinker in a work
that probably was written sometime between 478/1085 and 487/1094.90
While the Saljuqs were still at the height of their strength, there were,
since at least 472/1080, indications of instability, especially in the position
of Nizam al-Mulk, whose power was increasingly challenged toward the
end of his life by various factions within the ruling elite.91 When al-Gha-
zali met Nizam al-Mulk in 478/1085, the viziers supreme control over the
affairs of the empire had already come to an end.92 Al-Ghazalis rationaliz-
ation of the punishment for wine drinking, though logically not unassail-
able, nevertheless increased the religious legitimacy of flogging 80 lashes
over that of al-Juwaynis reasoning by linking the ruling to the authori-
tative texts as a probable (zanni) unattested inference. One may interpret
al-Ghazalis presentation of Alis argument as the decision of a mujtahid:
Ali determined a ruling for a situation on which the sacred texts were
silent in light of accepted legal principles; his ruling was accepted by
his peers and, one may say although al-Ghazali himself did not make that
argument constitutes a binding consensus (ijma). Al-Ghazali, thus,
moves decisions not addressed in scripture into the realm of the activity of
the ulama#, not the political rulers. His solution for the case of punishing
the wine drinker reflects his political theories. He accepted the power of
the secular ruler, the sultan, as legitimate. However, the sultans authority
was only legitimate as long as he recognized the Sharia and the ulama# as
88) Al-Juwayni, Ghiyath, 243, 37980, and 392.

89) This view is also expressed in Hallaq, Caliphs, Jurists and the Saljuqs,
41.
90)
Cf. George F. Hourani, A Revised Chronology of Ghazalis Writings, Jour-
nal of the American Oriental Society 104 (1984): 289302, at 2913.
91) Bosworth, Political and Dynastic History, 747.

Authenticated
88 Felicitas Opwis
the guarantors of the fulfillment of the religious law.93 The validity of laws
established by the political powers, which would include the caliph Umar,
was dependent on their general commensurability with the divine scrip-
ture. Quite different were the political circumstances during al-Razis
lifetime. The Saljuq empire had practically disintegrated and a multitude
of localized rulers took their place. The lack of a single, unified political
power gave the ulama# as religious leaders the opportunity to strengthen
their sphere of authority and they now had the intellectual tools to
do so.
While it is difficult to prove decisively, the historical context of the
rationalization process suggests that the claim of the early Saljuqs over the
sphere of secular and religious law might have prompted jurists to seek in-
tellectual avenues to broaden their authority, thereby preventing political
rulers from deciding on matters on which the religious texts were silent.
State encroachment on the sphere of law may be one facet in the explanation
that it was during this time period that Greek logic was absorbed more
thoroughly into Islamic jurisprudence. Why law lagged behind philosophy,
grammar and theology, which had incorporated logic earlier,94 is not exactly
known. One suggestion is that prior to this time period jurists felt no ur-
gency for basing Islamic law on the rules of logic because they were not chal-
lenged in this area. Hallaq cites sectarian competition and inner-Sunni ri-
valries as factors leading to the increased coherence of legal theory.95 The
rise of the Fatimid state in Egypt in the second half of the 4th/10th century
and its intensive missionary activities was clearly perceived as a challenge
by Sunni scholars, as evident in their verbal attacks against Ismaili doc-
93) Leonard Binder, Al-Ghazalis Theory of Islamic Government, Muslim
World 45 (1955): 22941, at 23740; A. K. S. Lambton, State and Government in

Medieval Islam: An Introduction to the Study of Islamic Political Theory: The Jur-
ists (Oxford: Oxford University Press, 1981), 111, 1135, and 1289.
94) Cf. Nicholas Rescher, The Development of Arabic Logic (Pittsburgh:
University of Pittsburgh Press, 1964), 29, 40, 46, and 5153; Michael G. Carter,
Arabic Grammar, in Cambridge History of Arabic Literature: Religion, Learning,
and Science in the Abbasid Period, eds. M. J. L. Young, J. D. Latham, and R. B. Ser-
jeant (Cambridge: Cambridge University Press, 1990), 11838, at 12631.
95) Cf. Wael B. Hallaq, Logic, Formal Arguments and Formalization of Argu-
ments in Sunni Jurisprudence, 3159 and 335; idem, The Development of Logical
Structure in Sunni Legal Theory, Der Islam 64 (1987): 4267, at 44 and 667; idem,
Considerations on the Function and Character of Sunni Legal Theory, Journal of
the American Oriental Society 104 (1984): 67989, at 6856.

Authenticated
trine.96 Glassen states that al-Ghazali introduced logic in law and theology
(kalam) in order to equip scholars with the weapon of logic against the
Ismailis, as apparent in his Mustazhiri and Fada#ih al-Batiniyya.97
Logically sound arguments also were a way for jurists to gain the upper
hand in legal disputations, especially against those who otherwise did not
accept their terms of debate. Among the latter one may count those who re-
jected the traditional authority of the early community either because
their authorities did not partake in them (e.g., various Shii sects) or be-
cause they tried to claim the same authority as the early religio-political
leaders for themselves (e.g., political authorities and administrators). If
law-finding based on Sunni religious principles was to be a serious and vi-
able alternative in mundane matters to sectarian ideologies and political
legislation then it needed to be convincingly anchored in the accepted re-
ligious texts. The legitimacy of the law had to be based on its correctness as
the mundane representation of the divine will. Only by devising correct
methods of law-finding and the ability to apply them to new situations
could Islamic law successfully integrate post-prophetic rulings into the re-
ligious law and legitimize them as being, if not revealed by God, then at
least in the spirit of His law. Correct methods of law-finding meant that
they had to be logically unassailable. Applying the logical apparatus in-
herited from the Greeks enabled legal theorists to make the intellectual
move to assert the authority of Islamic law and defend the competence of
the religious jurist to pass judgment according to the precepts of Sunni
Islam. Instead of having to admit that the political leaders of the early Is-
lamic community, even those as venerated as the first caliphs, made rulings
according to their own opinion, jurists now could claim that these deci-
sions were based on the scriptural sources of the law because they could
provide them with a coherent rationalization. The substantive law that
grew out of legal practice and administrative regulations and that had be-
come part of what was considered to be Islamic law could now be Islam-
ized and help consolidate the Islamic identity of Muslim society.
One may object that the re-interpretation of the punishment for wine is
a single piece of evidence that does not support such far-reaching con-
clusions. And I would agree, except that this case mirrors the larger pic-
ture of the changes occurring during this time in legal theory, namely to
make Islamic law a viable alternative to political legislation. Islamic jur-
96) Cf. Nizam al-Mulks The Rules of Government or Rules for Kings, 20827;
Abu Hamid Muhammad al-Ghazali, Fada#ih al-Batiniyya, ed. Abd al-Rahman
Badawi (Cairo: 1383/1964).

Authenticated
90 Felicitas Opwis
ists achieved this by rationalizing the law in a manner that enabled them to
challenge the rulers prerogative of establishing laws in the area of siyasa,
public policy,98 where decisions were largely based on political expedience
and considerations of utility and public interest.99
A key factor in jurists efforts to push back the legitimate reach of the
state was the concept of maslaha, which was articulated as a coherent legal
principle for the first time in the work of al-Ghazali and took its mature
form in al-Razis writings.100 Appropriating the sphere of siyasa, or non-re-
98) The term siyasa refers generally to statecraft, the management of state af-
fairs, and political policy. Its meaning changed over time. In early Islamic times this
term was used to denote successful conduct of public affairs; later, siyasa was under-
stood as the discretionary authority of the ruler outside of the framework of
the Sharia, secular legislation, and the non-Sharia punishments, as we can see
in al-Juwaynis work (Siyasa, EI2, 9: 6936, at 6934). Langes assertion that the
term siyasa after the 4th/10th century was narrowly defined as punishment (Justice,
Punishment and the Medieval Muslim Imagination, 42) is, in my view, overstated.
Even in Nizam al-Mulks Siyasat-nama it is clear that siyasa has multiple facets
to it, including just rulership as well as punishment to uphold public order. By
the 6th/12th century, the concept of siyasa evolved into siyasa shariyya, which
emphasized that political policies must be governed by the religious law and the
procedures of fiqh. A mature conception of siyasa shariyya can be found in Ibn Tay-
miyyas Kitab al-Siyasa al-shariyya fi islah al-rai wa-l-raiyya (Beirut: Dar al-
Afaq al-Jadida, 1983).
99) The quest for independence in the legal sphere could take various forms. As
Lange shows for the area of criminal law, Hanafi jurists aiming at mitigating the
impact of punishment by the state argued against the use of analogy in the hadd-
punishments (which Shafiis generally permitted). In addition, they defined the
rulers prerogative of tazir punishments narrowly as offenses committed in public.
The result was that the ulama# bestowed legitimacy on punishments meted out by
the state administration, not the ruler (Lange, Justice, Punishment, and the Medi-
eval Muslim Imagination, 18198, 21522, and 2478).
100) For an in-depth discussion of the development of the concept of maslaha
between the 4th/10th and 8th/14th centuries see Felicitas Opwis, Maslaha and the
Purpose of the Law: Islamic Discourse on Legal Change from the 4th/10th to the
8th/14th Century (Leiden: Brill, 2010); on al-Ghazali, 6588; on al-Razi, 88131. For
briefer synopses of the concept of maslaha in the medieval period see Wael B. Hal-
laq, A History of Islamic Legal Theories, 8890, 1123, and 16287; Muhammad
Khalid Masud, Islamic Legal Philosophy: A Study of Abu Ishaq al-Shatibis
Thought (Delhi: International Islamic Publishers, 1989), 149172; Felicitas Opwis,
Islamic Law and Legal Change: The Concept of Maslaha in Classical and Contem-
porary Islamic Legal Theory, in: Sharia: Islamic Law in the Contemporary Con-

Authenticated
ligious legislation, and incorporating it into the arena of religious law

through the principle of maslaha is exactly what we see in the recurrent
re-interpretation of the punishment for wine drinking.101 Although al-
Juwayni saw the role of the ulama# as advisors to the political rulers in
their decision-making, he associated considerations of maslaha primarily
with secular authority and siyasa. He emphasized that the religious law
(Sharia) is not the same as what secretaries and philosophers deem benefi-
cial (he used the term istaslaha and istislah).102 In contrast, al-Ghazali de-
fined maslaha in religious terms. Maslaha represents, he stated, the pur-
pose of the Sharia, namely to preserve for humanity their religion, life,
intellect, offspring, and property the so-called five necessities (al-daru-
rat al-khamsa). He took the attainment of maslaha for these essential
elements of human existence as indicants to identify the ratio legis in legal
analogy. He, thereby, appropriated the rulers claim to legitimacy that
rested on establishing the common good and public interest for the sacred
law; siyasa was subordinated to the religious law (fiqh)103 and the ulama#
text, ed. Abbas Amanat and Frank Griffel (Stanford: Stanford University Press,
2007), 6282.
101) Already al-Mawardi, in his work on political theory al-Ahkam al-sulta-
niyya, incorporated siyasa into the sphere of religious law, stating that the ordin-
ances of the Sharia take precedence over any rules made by secular authorities. In
contrast, a century earlier, the Muslim philosopher al-Farabi (d. 339/950) had given
siyasa priority over the rules of Qur#an and Sunna, a pattern followed by most later
Muslim philosophers (Fauzi M. Najjar, Siyasa in Islamic Political Philosophy,
in Islamic Theology and Philosophy: Studies in Honor of George F. Hourani, ed.
Michael E. Marmura [Albany: State University of New York Press, 1984], 92110,
at 97, 103, and 109).
102) It needs to be noted that in his work al-Burhan, al-Juwayni is less inclined to
associate maslaha with decisions made by secular authorities. There, he tries to pull
considerations of maslaha into the arena of the divine law, saying, for example, that
although the political authorities are responsible for establishing mundane masla-
has, it is the task of religious scholars to determine what this maslaha is according
to the guidelines of the Sharia (Abd al-Malik Imam al-Haramayn al-Juwayni, al-
Burhan fi usul al-fiqh, 2 vols. ed. Abd al-Azim al-Dib [Cairo: Matbaat Nahda,
1401/1981], 2: 11201). Furthermore, in al-Burhan, al-Juwayni takes first steps to
integrating maslaha, which he understands vaguely as objective of divine rulings,
into legal analogy (cf. ibid., 2: 8034, 830, 876, 8912, 9278, and 11344). Al-Juway-
nis different approaches to maslaha in Ghiyath al-umam and al-Burhan might be
the result of their serving a different audience or by his intellectual development.
103) Al-Ghazalis efforts to wrench from the political authorities the use of mas-
laha to justify political measures are well expressed in Shifa# al-ghalil where he dis-
cussed whether or not the ruler, in the area of discretionary punishments (tazirat),

Authenticated
92 Felicitas Opwis
were the ones who provided the sultan with the laws needed to govern
the community according to the guidelines of Islamic law.104 Using the con-
cept of maslaha, al-Ghazali established a religious legal standard by which
these laws could be derived. It enabled a jurist to extend a textual ruling
entailing maslaha to an unprecedented situation. Yet, when rulings were
based on the consideration of a maslaha that was not specifically attested in
the textual sources of the law (i.e., a maslaha mursala) but only expressed
in its general category as in the case of punishing the wine drinker 80
lashes al-Ghazali only permitted its use in law-finding under certain con-
ditions. Al-Razi then fully included all considerations of maslaha attested
or not into the sphere of legal analogy by arguing that the attestation of a
general category validates the use of all the specific instances that are sub-
sumable under it. In his legal thought, an unattested maslaha did not exist,
because, he said, the Qur#an and Sunna address all general maslahas.105
Making the principle of maslaha an integral part of Islamic law and
identifying it with tangible criteria (the five necessities) challenged the
authority of the political ruler over legal matters that concerned the re-
ligion, life, intellect, offspring or property of Muslims. Legal solutions for
these matters could now be found by recourse to the purpose of the divine
law as opposed to leaving them to the whims of secular rulers. Jurists no
longer had to appeal to the practice and insight of the venerated Com-
panions to legitimize (their) rulings. They grounded the jurisdiction of
their legal deliberations in the divine scripture and what higher form of
authority could a Muslim appeal to?
Last and this is a broad theme for further research the rationaliz-
ation of the punishment for the wine drinker also shows that intellectuals
in their struggle for authority vis--vis political rulers may pursue differ-
ent strategies. Contrary to the experience of Western intellectuals at late
medieval Christian universities, the increasing intellectual rationalization
of the law by Muslim scholars did not lead to more secularization but to-
ward making the law more religious.
could exceed the prescribed punishments. According to al-Ghazali, the ruler is not
allowed to go beyond the requirements for the hudud and, for example, torture a
person accused of stealth in order to compel a confession. This, he argued would be a
distortion of the sacred texts (Shifa# al-ghalil, 22534).
104) Najjar, Siyasa in Islamic Political Philosophy, 979.
105) Al-Razi, al-Mahsul, 2: 324. Al-Razi and al-Ghazali did not permit just any
type of maslaha to be used for deriving rulings; both stipulated requirements that
needed to be fulfilled in order for a maslaha to constitute a valid ratio legis (see
Opwis, Maslaha and the Purpose of the Law, 6988 and 98108).

Authenticated

Shifting Legal Authority From The Ruler To The 'Ulama'

Enviado por

Dados do documento

Título original

Direitos autorais

Formatos disponíveis

Compartilhar este documento

Compartilhar ou incorporar documento

Opções de compartilhamento

Você considera este documento útil?

Este conteúdo é inapropriado?

Direitos autorais:

Formatos disponíveis

Shifting Legal Authority From The Ruler To The 'Ulama'

Enviado por

Direitos autorais:

Formatos disponíveis

Shifting Legal Authority from the Ruler to the Ulama# 65

Shifting Legal Authority from the Ruler to the Ulama#:

Der Islam Bd. 86, S. 6592 DOI 10.1515/ISLAM.2011.015

It is not unusual to find Muslim jurisprudents refer to the same legal

Brought to you by | University of Calgary

Brought to you by | University of Calgary

Qur#an,8 such as theft (sariqa), unlawful sexual intercourse (zina), wrong-

Ahkam al-sultaniyya, 21921.

Brought to you by | University of Calgary

ment for drinking. An example of the authority of the religious scholars to

11) Ibn Qutayba, Kitab al-Ashriba, 41.

Cambridge University Press, 2005), 188.

A Medieval Islamic Controversy, in Patterns of Everyday Life, ed. David Waines

Brought to you by | University of Calgary

received theoretical justification in the methodologies of istihsan (juristic prefer-

Brought to you by | University of Calgary

In what follows, I want to analyze the different legal interpretations of

The Historical Context

The changes in legal reasoning described below occurred at a time of

Brought to you by | University of Calgary

Brought to you by | University of Calgary

21) Glassen interprets Nizam al-Mulks Siyasat-nama not so much as a literary

A Learned Society in a Period of Transition: The Sunni ulama# of Eleventh Century

Brought to you by | University of Calgary

Brought to you by | University of Calgary

the study of law of a particular legal school (madhhab).34 Besides a pious

Iran (Cambridge: Cambridge University Press, 1968), 5: 283302, at 289; Ephrat,

Ulama of Medieval Damascus and the International World of Islamic Scholarship

Brought to you by | University of Calgary

and systematization. Many leading works on usul al-fiqh were composed

41)Cf. Mantik, EI2, 6: 44252.

Hamza b. Zuhayr Hafiz, 4 vols. (Jidda: Sharikat al-Madina al-Munawwara lil-Tiba

Brought to you by | University of Calgary

Rationalizing the Punishment for Drinking Wine

Al-Juwayni mentioned the case of punishing the wine drinker in his

Brought to you by | University of Calgary

Brought to you by | University of Calgary

55) Dutton, Origins of Islamic Law, 64.

Brought to you by | University of Calgary

mentions a specific characteristic or condition, He must intend that what

61) Weiss, In Search of Gods Law, 497.

Brought to you by | University of Calgary

66) Zysow, Economy of Certainty, 1712.

cept of maslaha see also idem, al-Mustasfa, 2: 478506 and 3: 62039.

Brought to you by | University of Calgary

duction to Islamic Law, 166.

Brought to you by | University of Calgary

slander, al-Ghazali rationalized the punishment for drinking wine in light

76) Al-Ghazali, Shifa# al-ghalil, 195.

Brought to you by | University of Calgary

likely occurrence of something is considered equivalent to its actual occur-

The Significance of Re-Interpreting the Punishment for Wine Drinking

The different ways in which al-Juwayni, al-Ghazali, and al-Razi ex-

Brought to you by | University of Calgary

proper but accepted it as an unattested inference. In al-Razis writings, we

Brought to you by | University of Calgary

on the Qur#an or prophetic Sunna by reference to the precedent of authori-

85) Al-Juwayni, Ghiyath, 22830 and 251.

Brought to you by | University of Calgary

88) Al-Juwayni, Ghiyath, 243, 37980, and 392.

Brought to you by | University of Calgary

93) Leonard Binder, Al-Ghazalis Theory of Islamic Government, Muslim

World 45 (1955): 22941, at 23740; A. K. S. Lambton, State and Government in