The Search for Originality within Established Boundaries—Rereading Najm al-Dīn al-Ṭūfī (d. 716/1316) on Public Interest (maṣlaḥa) and the Purpose of the Law

Abstract

With the arrival of the twentieth century, in their legal theory, Muslim scholars began emphasizing public interest (maṣlaḥa) and the objectives (maqāṣid) of the Sharia. This stood often in contrast to the standards of traditional legal theory. To overcome this gap, scholars searched for concepts of premodern scholars, interpreted them in a way that allowed focusing on abstract categories like maṣlaḥa. An often-quoted figure in this regard is Najm al-Dīn al-Ṭūfī (d. 716/1316). In his hadith commentary entitled al-Taʿyīn, al-Ṭūfī developed a legal framework in which he gave precedence to maṣlaḥa over the Quran, Sunna, and Consensus in cases where there are conflicts between these sources concerning the ruling for a given matter. Many contemporary scholars interpret al-Ṭūfī’s concept from a modern perspective. This approach either leads to overemphasizing al-Ṭūfī’s theory or rejecting it entirely. The present study will analyze al-Ṭūfī’s theory of maṣlaḥa within the established premodern epistemological and hermeneutical boundaries that al-Ṭūfī himself accepted. In doing so, it will locate al-Ṭūfī’s conception of maṣlaḥa in its historical context and in relation to al-Ṭūfī’s biography. The study will show that al-Ṭūfī’s theory, regardless of its modern reception, and with all its pitfalls, is an original attempt to find new ways for deriving norms within the boundaries of a well-established legal theory and in a specific historical context.

1. Introduction

Contemporary Muslim legal scholars have started to direct their attention to the so-called “objectives of the Sharia” (maqāṣid al-sharīʿa) and the public interest (maṣlaḥa, pl. maṣāliḥ). Both terms are found in the premodern work of Islamic legal theory (uṣūl al-fiqh). In the premodern literature, as we will see, we detect different concepts for regarding maṣlaḥa as a factor to be considered in the process of deriving norms in order to protect the public interest. The most prominent and highly disputed of these concepts is istiṣlāḥ (i.e., deriving a norm while regarding a public interest). Briefly put, istiṣlāḥ means that maṣlaḥa can overrule an existing ruling or can be a source for deriving norms when there is no textual evidence from the religious sources Quran and Sunna or an indicant (adilla) in other accepted legal sources that could be the basis for deriving norms.

As Felicitas Opwis (2007) points out, we can detect further methods and concepts for incorporating maṣlaḥa in the process of deriving norms. The first is the prominent approach of Abū Ḥāmid al-Ghazālī (d. 505/1111) and, in his footsteps, of Fakhr al-Dīn al-Rāzī (d. 606/1210). Both are Shāfiʿī-Ashʿarī scholars who emphasize a formalized process of legal reasoning and integrate maṣlaḥa in legal analogy (qiyās), which is a wide-spread tendency that can be found inter alia among premodern Shāfiʿī scholars and some modern authors like ʿAbd al-Wahhāb Khallāf (d. 1956) and al-Būṭī, who also rely on the concept of other scholars then al-Ghazālī and al-Rāzī (cf. Opwis 2005, pp. 208–20; al-Būṭī 1982; Khallāf 1993). In this approach, it takes the place of ratio legis (ʿilla) that is suitable (munāsib) to safeguard maṣlaḥa, such as the necessary interests, i.e., protecting life (nafs), reason (ʿaql), religion (dīn), property (māl) and progeny (nasl). We find another method in the writings of the Egyptian Māliki scholar Shihāb al-Dīn al-Qarāfī (d. 684/1285). He attempts to safeguard maṣlaḥa with the help of legal principles and precepts (qawāʿid), as he focuses on eliminating pretexts to illegal ends (sadd al-dharāʾiʾ) and allowing exceptions to commit something that is ordinarily prohibited (so called-legal license, rukhṣa, pl. rukhaṣ). Further, influenced by al-Rāzī, he also integrates maṣlaḥa in the process of legal analogy. We find a third model in the writings of the Andalusian Māliki scholar Abū Isḥāq Ibrāhīm ibn Mūsā al-Shāṭibī (d. 790/1388). Al-Shāṭibī wrote extensively on the concept of maṣlaḥa and maqāṣid and made them the anchor point of his legal theory (cf. Opwis 2010, chp. 5; Hallaq 2005, chp. 5). In his view, every legal case can be judged according to maṣlaḥa if there is no textual evidence available to guide the jurists. Thus, maṣlaḥa becomes a legal source and the core point of the validity of the derived norms. We find a fourth model in the writings of the Baghdadi Ḥanbali scholar Najm al-Dīn al-Ṭūfī (d. 716/1316). Al-Ṭūfī discussed in his hadith commentary a report of the Prophet, who is quoted to have said that “There is neither harming nor receiving harm” (lā ḍarara wa-lā ḍirāra). He derives from this hadith that one should safeguard maṣlaḥa and negate harm (mafsada). Whenever a legal indicant and the idea of safeguarding maṣlaḥa collide, one should prefer safeguarding maṣlaḥa over other legal indicants, even over Consensus (ijmāʿ) and the religious texts (nuṣūṣ, sg. naṣṣ). However, al-Ṭūfī limits safeguarding maṣlaḥa and overruling other indicants to the field of interpersonal relationships (muʿāmalāt) and customs (ʿādāt); he excludes worship (pl. ʿibādāt) and fixed ordinances (muqaddarāt). At first glance, it appears that al-Ṭūfī raises maṣlaḥa to the sate of the strongest legal indicant and as the primary source of the law that allows scholars to find flexible solutions for attaining maṣlaḥa and averting harm, one of the major legal principles of Islamic law.

The views of al-Qarāfī, al-Shāṭibī, and al-Ṭūfī on maṣlaḥa have attracted the attention of modern Muslim scholars and theologians (Opwis 2005, 2007, 2017; El-Wereny 2017). However, al-Ṭūfī is the one, who attracted special attention both in a positive and negative way. Although his concept on maṣlaḥa was barely known for centuries after his death, it was rediscovered in the twentieth century and became widespread at the time, when maṣlaḥa and the objectives of the Sharia became “a main axis around which legal reform revolves” (Hallaq 2005, p. 153). In this century, scholars started focusing on the objectives of the Sharia—among which are the premodern categories of protecting life, religion, reason, property and progeny and many additional contemporary abstract concepts like justice, tolerance, and freedom. Modern authors such as Aḥmad Khamlīshī, Jamāl al-Dīn ʿAṭiyya, and Yūsuf al-Qaraḍāwī criticized premodern scholars for having reduced the categories of maṣāliḥ and maqāṣid to the five necessities of protection of live, reason, religion, progeny and property (Opwis 2017, pp. 17–24). Thus, they tend to extend them. Moreover, some scholars interpret different methods from premodern literature as part of the discourse of safeguarding maṣlaḥa or the objectives of the Sharia, like istiḥsān (Kamali 2004). Historically, however, these methods have not been part of this discourse. As a result, maṣlaḥa with its extension and its reinterpretation as maqāṣid became an important source of law, although the categories of these objectives and their definition is highly arbitrary (Opwis 2017; Bassiouni 2014, pp. 205–28).

This new scholarly environment and the socio-political situation of the Islamic world—the decline of political power, the colonial experience, the challenges with regard to concurring Western legal systems that were implemented nearly all around the Muslim world (Hallaq 2009, part III)—forced scholars to reflect on the Islamic legal tradition, either to find new methods and concepts, to reinterpret existing ones or to stick to the classical methods as they are defined in the pre-modern literature. Within this complex environment, some reform-oriented scholars like Jamāl al-Dīn al-Qāsimī (d. 1914), Rashīd Riḍā (d. 1935) and İzmirli İsmail Hakkı (d. 1946) emphasized al-Ṭūfī’s approach in their writings. It is therefore not a coincidence that al-Qāsimī and Riḍā were responsible for reviving al-Ṭūfī’s conception of maṣlaḥa by editing and publishing his commentary on the above-mentioned hadith (for this and further publications and editions see (Demiri 2013, p. 21, footnote 112)). Briefly, al-Qāsimī and Riḍā based their legal theoretical assumptions, of course among other scholars’ concepts, on al-Ṭūfī’s understanding of maṣlaḥa. Al-Ṭūfī’s insistence on the rationality of legal reasoning based on a broad understanding of maṣlaḥa served their claim that there is no contradiction between rational arguments and the revelation. Al-Ṭūfī’s approach allowed al-Qāsimī and Riḍā to focus on the interest of people so that they could argue that one has to regard the historical circumstances in which Muslims live, which allowed them to derive norms flexibly. By referring to al-Ṭūfī, they understood their own approach as part of the legal theoretical tradition, however, they could go beyond the constraints of the legal schools (madhāhib) and emphasize independent reasoning, i.e., ijtihad, which resembles the spirit of that time. This approach enabled them further to emphasize the importance of religious scholarship in times when the authority of religious scholars was challenged in the Muslim world (Riḍā 1906 (al-Qāsimī’s notes on al-Ṭūfī’s hadith commentary concerning maṣlaḥa); 1984; Kerr 1960, 1966; Opwis 2005).

On the other hand, scholars like Zāhid al-Kawtharī (d. 1952) heavily criticized al-Ṭūfī’s approach, since they understood his concept as gateway for setting aside legal rulings derived from the accepted legal sources and the religious texts (Al-Kawtharī 1968, pp. 119–21, 332–33). Al-Ṭūfī’s approach has also been interpreted as part of al-Ṭūfī’s Shiʿi tendencies (Demiri 2013, p. 11). The main criticism of al-Ṭūfī’s understanding of maṣlaḥa is e.g., that he prefers safeguarding maṣlaḥa over the religious sources Quran and Sunna so that he dismisses and ignores them in the process of deriving norms, which would mean to abrogate the religious text based on reasoning, which is not permitted (e.g., Khallāf 1993, p. 101). Additionally, basing legal reasoning on maṣlaḥa would mean, according to critics of al-Ṭūfī’s approach, changing the Shariah by desire and whim, although only the revelation can show, what actually maṣlaḥa is (Al-Kawtharī 1968, pp. 118f., 332). Scholars like Saʿīd Ramaḍān al-Būṭī (d. 2013) also emphasize that the idea that maṣlaḥa can contradict religious text is baseless, since the religious sources, according to al-Būṭī, would not contradict an actual maṣlaḥa that should be regarded while deriving norms. Al-Ṭūfī’s approach is also challenged as a result of his idea, as we will see it below, that maṣlaḥa can specify the religious texts in Quran and Sunna as well as the consensus of the scholars. According to his critics, maṣlaḥa, as al-Ṭūfī understands, does not have the ability, i.e., the probative value to specify the scriptural sources as well as the consensus of the scholars (ijmāʿ) (al-Būṭī 1982, pp. 209–13. For further detailed criticism see Zayd 1964; cf. Koca 1996a).

In general, al-Ṭūfī attracted much attention among scholars, who used his concept of safeguarding maṣlaḥa for developing a contemporary legal theory (Demiri 2013, pp. 21–22). This led to several studies and translations of his work (e.g., Zayd 1964; Al-ʿĀmirī 1982; Koca 1996a; Hallaq 2005, pp. 151–53; Kayadibi 2007; Opwis 2010, chp. 4.III; El-Wereny 2016; Ateş n.d., pp. 46–68). However, many scholars criticized his approach (cf. Opwis 2010, p. 200 and footnote 88; Demiri 2013, pp. 21–22; cf. Zayd 1964; Koca 1996a). It would not be an exaggeration to state that al-Ṭūfī is one of the most controversially discussed scholars in modern times. As mentioned before, these contradicting receptions of al-Ṭūfī’s approach reflect the theological debates and socio-political situation of the modern Islamic world. Scholars who wanted to find new ways and solutions within the Islamic legal tradition focused inter alia on al-Ṭūfī’s approach. In their interpretation of al-Ṭūfī’s approach, maṣlaḥa becomes the main source of the law and one can derive norms with regard to maṣlaḥa in the wider field of muʿāmalāt. The adversaries, however, interpret al-Ṭūfī in the same way and criticize his approach as being radically opposed to traditional Islamic legal theory. In their views, al-Ṭūfī’s approach goes beyond the boundaries of the Islamic tradition; to adopt it would result in setting aside the religious sources and create, somehow, a humanly designed Sharia. Hence, al-Ṭūfī’s theory is an important part of the modern discussion on maṣlaḥa and maqāṣid, and Islamic law in general.

The present article will, in contrast to the above-mentioned reception, analyze al-Ṭūfī’s concept within its own scholarly and historical circumstances. However, it is not the first attempt to analyze al-Ṭūfī’s theory. The most extensive and detailed analysis of al-Ṭūfī’s writings with a focus on the internal logic of his argumentation and also to the historical context can be found in Opwis’ (2010, Chp. 4.III) study. Still, Opwis does not focus on al-Ṭūfī’s understanding of specification in general, rather in a limited sense within the discussion of legal license (rukhṣa), and is only indirectly concerned with epistemological questions and jurisprudential principles that are relevant for al-Ṭūfī. Although she illustrates that al-Ṭūfī develops the idea of regarding maṣlaḥa as a legal principle (Opwis 2010, p. 204), she does not pursue this idea further and does not locate it within the scholarly development of the genre of legal principles (qawāʿid) in the 7th/13th and 8th/14th century. Other studies (Zayd 1964; Koca 1996a) are more concerned with the consistency of al-Ṭūfī’s approach with regard to the established legal theory. Their main focus is not to understand how al-Ṭūfī tries to find new ways within these boundaries of classical legal theory compared to his other legal theoretical writings; rather they emphasize inconsistencies (and sometimes in an apologetical manner), and this in a very detailed analysis.

The present article aims to analyze al-Ṭūfī’s concept of maṣlaḥa with regard to the established epistemological and hermeneutical standards of traditional legal theory (uṣūl al-fiqh), which are also present in al-Ṭūfī’s own jurisprudential writings. This will enable us to understand why al-Ṭūfī chose to frame maṣlaḥa within the method of specification (takhṣīṣ)—an approach that is unclear to nearly every scholar, who studied it (cf. Khallāf 1993, p. 99; Zayd 1964, pp. 135f., 144, 159–61; Opwis 2010, pp. 204, 241–46). It will also help us ti understand why he deals extensively with the hierarchy of the legal sources of law and does not consider maṣlaḥa as the ultimate legal source. The present study does not focus on the consistency—or lack thereof—of al-Ṭūfī’s arguments one by one, since we can find them discussed in the secondary literature (e.g., Zayd 1964; Koca 1996a). Nevertheless, I will refer to some major inconsistencies when they are pertinent to the issues raised here. I will argue that in contrast to its modern reception, al-Ṭūfī’s concept does not enable us to establish maṣlaḥa as an independent source of law, since safeguarding maṣlaḥa for al-Ṭūfī is restricted to specific constellations of colliding legal indicants in particular areas of the law.

Opwis (2010, p. 232) has shown that there is a continuous development of al-Ṭūfī’s concept of safeguarding maṣlaḥa in his legal theoretical writings. Agreeing with this assessment, I take into consideration al-Ṭūfī’s entire legal corpus to further highlight the continuous development of his conceptualization of maṣlaḥa. Before dealing with al-Ṭūfī’s concept, in Section 2, I summarize al-Ṭūfī’s biography and describes his works that are relevant for us. In Section 3, I will deal with al-Ṭūfī’s theory of safeguarding maṣlaḥa by first presenting the hadith that is the bases for al-Ṭūfī’s concept (Section 3.1), followed by his definition and categorization of maṣlaḥa (Section 3.2). Having established the meaning of maṣlaḥa, the article will present how al-Ṭūfī argues for its probative value and its epistemic status (Section 3.3). Since al-Ṭūfī places his theory within the context of colliding legal indicants and specification, Section 3.4 will deal his understanding of these two concepts and explains his manner of resolving any conflict that may arise between the legal indicants (adilla). Section 3.5 will highlight the historical circumstances and al-Ṭūfī’s personal experience that could have led him to emphasize maṣlaḥa, since he himself complains about the disagreement of legal scholars and requests unity. Finally, Section 3.6 highlights the development of legal principles during the 7th/13th and 8th/14th century, and examines al-Ṭūfī’s concept of safeguarding maṣlaḥa within this development. The article ends with a conclusion (Section 4).

2. Najm al-Dīn al-Ṭūfī’s Short Biography and His Legal Works

Al-Ṭūfī’s full name is Abū al-Rabīʿ Najm al-Dīn Sulaymān ibn ʿAbd al-Qawiyy ibn ʿAbd al-Karīm ibn Saʿīd al-Ṭūfī. He was born after 670/1271 near Bagdad in the village Ṭūfa. Al-Ṭūfī went through different stages of studies: First, he studied at the madrasa (Islamic [high] school) Mustanṣiriyya in Baghdad in 691/1292 and moved to Damascus in 704/1304. There, he studied with prominent scholars like Ibn Taymiyya (d. 728/1328). Later in 705/1306, al-Ṭūfī moved to Cairo, where he worked as repetitor (muʿīd) at different madrasas. In 711/1311, he was imprisoned and accused of being Shiʿi—Lejla Demiri (2013, pp. 8–15) has shown, that there is no clear evidence for al-Ṭūfī being Shiʿi, rather there could be different reasons to accuse him in order to get rid of him by his colleagues in Egypt. Al-Ṭūfī was first expelled to Damascus, however, he could not enter the city, “due to the satirical poems he had directed against its inhabitants” (Demiri 2013, p. 7). After having spend some time in Damietta (Dimyāṭ), he eventually settled in Qūṣ in Upper Egypt. He left Qūṣ in 714/1315 to perform the pilgrimage in Mecca, visited Medina and rested there for a year. After his second pilgrimage, he moved to Palestine. In 716/1316, al-Ṭūfī passed away in Hebron (al-Khalīl) (Demiri 2013, pp. 3–28; Ibn Rajab 2005, vol. 4, pp. 404–21).

Bio-bibliographical entries describe al-Ṭūfī as a prolific author, who belonged to the Ḥanbali school of law (madhhab). He wrote in several disciplines including Quranic exegesis (tafsīr), Quranic studies (ʿulūm al-Qurʾān), dialectics (jadal), systematic theology (kalām), hadith sciences, Arabic literature, and Islamic law and legal theory. Not all of his works are extent. Nevertheless, many of them are preserved in manuscripts or have been edited and published. Demiri lists al-Ṭūfī’s works in thematic groups, reveals whether they are extent, and mentions where they were published or where they can be found as manuscripts. She also gives the dates when al-Ṭūfī completed his woks. The following short presentation of al-Ṭūfī’s legal works is mainly based on Demiri’s (2013, pp. 529–35) contributions. Going beyond these legal works, I want to present first his hadith commentary al-Taʿyīn fī Sharḥ al-Arbaʿīn where he developed his idea on safeguarding maṣlaḥa.

The main source, where al-Ṭūfī describes his approach that is both prominently quoted and criticized by modern authors is his hadith commentary al-Taʿyīn fī Sharḥ al-Arbaʿīn. In 713/1313–14, when he was in Qūṣ, al-Ṭūfī wrote his commentary on the compilation of Forty Hadith, written by the Shāfiʿī scholar Abū Zakariyyā Yaḥyā ibn Sharaf al-Nawawī (d. 676/1277). Compiling Forty Hadiths compendia goes back to the idea to give the wider audience examples from the rich hadith literature that should function as a guide for the believers. It is also reported from a report attributed to the Prophet in which he encouraged people to learn forty hadiths from his Sunna. It is common to link the earliest Forty Hadiths compilation with ʿAbdallāh ibn Mubārak (d. 181/797), although there is litte evidence to substantiate this. While works on Forty Hadiths began to be prominent in the 4th/10th century, they became particularly popular after al-Nawawī compiled his book in 668/1270. Among the rich literature on Forty Hadiths, al-Nawawī’s is one of the most prominent compilations (Al-Nawawī 2007, pp. 308–324; Brown 2009, p. 56; for Forty Hadiths works in general, Bartschat 2023). Al-Ṭūfī wrote a commentary on al-Nawawī’s Forty Hadiths (which in fact contains forty-two hadiths). It is in his reflections on the 32nd hadith—“There should be neither harming nor receiving harm” (lā ḍarara wa-lā ḍirāra)—that al-Ṭūfī developed a unique approach to safeguarding maṣlaḥa as a means of deriving norms or changing the existing rulings (Al-Ṭūfī n.d., p. 234).

As Opwis already explained, there is a coherence in the legal theoretical writings of al-Ṭūfī in relation to the positions he advocates (Opwis 2010, pp. 201, 227f.). Hence, we can explain unclear passages in his hadith commentary with recourse to his legal works and elaborate further his line of argumentation in his hadith commentary. In 704/1304, during the earlier days of his career, al-Ṭūfī wrote a short work on legal theory often known as al-Bulbul (Al-Ṭūfī 1990). He abridged the work Rawḍat al-Nāẓir wa-Junnat al-Munāẓir of the famous Ḥanbalī scholar Muwaffaq al-Dīn Ibn Qudāma al-Maqdisī (d. 620/1233). Ibn Qudāma’s Rawḍa was a well-known textbook in madrasas. Four years later, in 708/1308–09, al-Ṭūfī completed his commentary on this abridgement with the title Sharḥ Mukhtaṣar al-Rawḍa when he was in Cairo. There are two more works on law that al-Ṭūfī wrote; Nihāyat al-Sūl fī ʿIlm al-Uṣūl, which (partially?) survived as a manuscript (Demiri 2013, p. 529) and al-Ṣaʿqa al-Ghaḍabiyya fī al-Radd ʿalā Munkirī al-ʿArabiyya, written in 695/1296 on the importance of Arabic grammar by analyzing the Ḥanbali substantive law (Al-Ṭūfī 1997).

For the present study, besides the hadith commentary, the main reference works concerning al-Ṭūfī’s legal theoretical views will be Mukhtaṣar al-Rawḍa and its commentary Sharḥ Mukhtaṣar al-Rawḍa. Here, al-Ṭūfī deals with the standard topics within Islamic legal theory to which the question of safeguarding maṣlaḥa belongs to as well. For the sake of the context, it is noteworthy that Ibn Qudāma’s Rawḍat al-Nāẓir is based on the work of the influential Shāfiʿī scholar Abū Ḥāmid al-Ghazālī (d. 505/1111) (Al-Ṭūfī 2011, vol. 3, p. 751). Rawḍa, on the other hand, deals with the Ḥanbali uṣūl tradition as well. Thus, by abbreviating this work, al-Ṭūfī regards both the Ḥanbali and Shāfiʿī tradition with a Ḥanbali reception. However, in his commentary on Mukhtaṣar al-Rawḍa, al-Ṭūfī relied on further sources. Interestingly, these sources do not belong to the Ḥanbalī tradition directly. He based his commentaries on the former Ḥanbali, later Shāfiʿi scholar Sayf al-Dīn al-Āmidī’s (d. 631/1233) non-extant Muntahā al-Sūl, which is an abridgement of the extant al-Iḥkām fī Uṣūl al-Aḥkām. Further, al-Ṭūfī refers to the prominent Egyptian Māliki scholar Shihāb al-Dīn al-Qarāfī (d. 684/1285), his Tanqīḥ al-fuṣūl and its commentary Sharḥ Tanqīḥ al-fuṣūl (Al-Ṭūfī 2011, vol. 3, p. 751).

What unites al-Āmidī and al-Qarāfī, despite belonging to different schools of law, is that they both are influenced by the Shāfiʿī-Ashʿarī theologian, philosopher, legal theorist, and exegete Fakhr al-Dīn al-Rāzī (d. 606/1210). One of al-Āmidī’s sources for his legal theoretical works is al-Rāzī’s al-Maḥṣūl. Al-Rāzī himself based his work on al-Ghazālī’s Mustaṣfā; his other sources include the works of ʿAbd al-Jabbār (d. 415/1025), Abū al-Ḥusayn al-Baṣrī (d. 436/1044) and Abū al-Maʿālī al-Juwaynī (d. 478/1085), (cf. Koca n.d.). Al-Qarāfī is also heavily influenced by this Shāfiʿī polymath and wrote am extensive commentary on al-Rāzī’s al-Maḥṣūl with the title Nafāʾis al-Uṣūl fī Sharḥ al-Maḥṣūl (Al-Qarāfī 1995, vol. 1, pp. 90–96). Additionally, he wrote a short introduction to legal theory in his work on substantial law (al-Dhakhīra), where he made use of al-Maḥṣūl among other, mainly Māliki, sources. He gave a separate title to this introduction: Tanqīḥ al-Fuṣūl fī ʿIlm al-Uṣūl. He did this, al-Qarāfī remarks, so that those who wanted to copy it separately from the whole book on substantive law, could do so (Al-Qarāfī 2008, vol. 1, p. 39f.). Later, he noticed that many students read and copied this introduction and felt the need for more explanation. Al-Qarāfī answered this demand and wrote his commentary on Tanqīḥ (Al-Qarāfī 2007, p. 32). This work is among the sources of al-Ṭūfī. Since al-Rāzī’s work was used by almost all of al-Ṭūfī’s own sources, it is not a coincidence that al-Ṭūfī himself used al-Rāzī’s Maḥṣūl directly, at least while writing the first chapters of his own book (Al-Ṭūfī 2011, vol. 3, p. 751). Besides sources from the field of dialectics (jadal), al-Ṭūfī mentions Abū Yaʿlā al-Farrā’s (d. 458/1066) al-ʿUdda—the influential Ḥanbalī legal theoretical work—as his other source (Al-Ṭūfī 2011, vol. 3, p. 751).

In examining al-Ṭūfī’s legal thought one must have the above context in mind, since all of the mentioned figures were engaged in systematic theology (kalām) and some of them, such as al-Āmidī and al-Rāzī, in philosophy. For them, consistency with theological assumptions and coherence with respect to legal theory stood at the core point of their respective works—although David Vishanoff (2011, pp. 190–253) could show that for Abū Yaʿlā, a law-oriented approach was much more important rather than having theological assumptions in mind. Al-Ṭūfī refers to a set of sources that frames his scholarly endeavor. When he makes use of ideas and tries to find new ways to conceptualize them, he has primarily these legal theoretical works in mind for which theological consistency is an important factor. This frame is a combination of Shāfiʿī dominated legal theoretical works, with Ashʿari theological concepts at their theoretical background. Al-Ṭūfī refers thus to a set of legal theoretical works that refer to each other and are based more or less—or are influenced by—the same sources.

3. Al-Ṭūfī’s Theory on maṣlaḥa

3.1. “There Should Be Neither Harming nor Receiving Harm”

The hadith “There should be neither harming nor receiving harm” is the 32nd hadith in al-Nawawī’s collection of Forty Hadiths. Al-Ṭūfī starts commenting on this hadith by first reviewing its chain (isnād) of transmitters. For him, the hadith is “good” (ḥasan), which means it is a sound hadith, but not on the highest level of authenticity. However, the hadith is for al-Ṭūfī based on chains of transmission that either lead without a break in the chain to the Prophet (the chain is than musnad, uninterrupted) or lack a chain and is interrupted (mursal). Al-Ṭūfī deals with this problem and shows that the interruption does not harm the trustworthiness of the hadith, since there are enough uninterrupted chains to proof its reliability. Again, even if there was a loose (layyin) or weak (ḍaʿīf) transmitter in the chain, other hadiths have trustworthy and strong transmitters in the chain so that these can underly the hadith’s trustworthiness. Thus, he concludes, the hadith is established (thābit) and should be used as a valid argument and one is obliged to act according to its content (lit. yajib al-ʿamal bi-mūjabihi) (Al-Ṭūfī n.d., pp. 234–35).

Having established the probative value of this hadith, al-Ṭūfī next focuses on its interpretation. It is his interpretation of this hadith that made al-Ṭūfī particularly appealing to modern scholars who focus on maṣlaḥa and the objectives (maqāṣid) of the Sharia. For al-Ṭūfī, the hadith refers to a general principle: averting harm (mafsada, maḍarra), since the hadith says that there should be neither harming nor receiving harm. Harm, however, refers to inflicting damage. Thus, one should avoid damaging someone or should not receive any damage. Although this is true as a general principle, the law can inflict harm to people with a specific reference in the religious sources, for instance, concerning punishments (al-ḥudūd wa-l-ʿuqūbāt). In these cases, the lawgiver shows with a specific reference (dalīl khāṣṣ) the validity of such infliction of harm and makes an exception to the general rule of avoiding harm. Hence, harm (ḍarar) is forbidden, unless there is an indicator that specifies this general statement through a specific ruling. Al-Ṭūfī refers to Quran and hadiths to underly his point that avoiding harm is the basic principle such as Q 4:29, 5:7 and 22:78. Put positively, the mentioned hadith requires establishing the beneficial, since the lawgiver requires avoiding harm, which in turn leads to establishing the beneficial (ithbāt al-nafʿ) (Al-Ṭūfī n.d., pp. 236–38; Opwis 2010, pp. 202–3).

Al-Ṭūfī refers to the method of specification (takhṣīṣ) when he underlies his understanding of the hadith: “There should be neither harming nor receiving harm” is a general statement that can be specified by more specific rulings, which can lead to harm if the specific ruling states a punishment. However, as shown in the secondary literature, al-Ṭūfī contradicts the usual understanding of specification and interprets it in a different way: “the general imperative of averting harm specifies other rulings that cause harm to the believer” (Opwis 2010, p. 204). Al-Ṭūfī underlies that this general hadith specifies different sources of law (adillat al-sharʿ) in order to prevent harm and reach or defend public interest (lit. taḥṣīl al-maṣalaḥa). This, though, would mean to turn specification upside down: A hadith, which is considered being general, specifies further legal indicants. An usual specification is rather the other way around, as al-Ṭūfī himself describes in his earlier work Sharḥ Mukhtaṣar al-Rawḍa: A general statement can be specified with regard to specific legal indicants (Al-Ṭūfī 2011, vol. 2, pp. 550–51). Thus, al-Ṭūfī’s understanding of specification here would have make sense, if he had referred only to the idea that punishments in the Quran specify the general rule of averting harm, since they inflict harm upon humans, and make an exception to that general rule.

The main point for al-Ṭūfī at the beginning of his commentary is, apparently, that he attempts to establish his approach among the theoretical boundaries and standards of the mainstream legal theory. For him, it is preferable to combine two colliding legal indicants (lit. “two references”, dalīlayn) rather than accepting only one of them and setting the conflicting indicant aside. This is, what al-Ṭūfī and other scholars call harmonization (al-jamʿ): If we consider that some legal indicants lead to harm and if we specify these with respect to the hadith at hand, then we argue with respect to both of them while framing them in the realm of specification (Al-Ṭūfī n.d., p. 237). In Section 3.4, we will take a closer look and discuss further points of his theory of specification and harmonization.

Having outlined his theory, al-Ṭūfī needs to show the probative value of maṣlaḥa and why it can contradict other legal indicants (al-adilla al-sharʿiyya). This is necessary for him, since al-Ṭūfī accepts several legal theoretical principles and the general frame of uṣūl al-fiqh. Thus, he is forced to give maṣlaḥa a proper place among the legal indicants that are either accepted or disputed among the Islamic schools of law. But, before presenting his line of argumentation, we should first elaborate al-Ṭūfī’s understanding of maṣlaḥa.

3.2. Meaning and Categories of maṣlaḥa

As premodern scholars do in general, al-Ṭūfī first mentions the literal, customary and technical meaning of maṣlaḥa. In its literal use, maṣlaḥa means for al-Ṭūfī the perfect state of something. Put differently, when something is in a perfect state for which it is intended, then this state is maṣlaḥa, like a pen when it is in the state that is useful for writing and a sword in a state that is useful for fighting. If we look at the customary meaning (lit. bi-ḥasab al-ʿurf) of maṣlaḥa, it is the cause or occasion (sabab) that leads to wellbeing (ṣalāḥ) and benefit (nafʿ) like trading (tijāra) that leads to profit (ribḥ). According to the legal definition and meaning, maṣlaḥa is the cause or occasion that leads to the objectives of the lawgiver either in form of an act of worship (ʿibādatan) or of custom (ʿādatan). These are the two categories of maṣlaḥa, which al-Ṭūfī mentions here: the objective, which the lawgiver intends for his own right like the acts of worship (e.g., prayer, fasting) and the objectives, which the lawgiver intends for the benefit of humans and their ordering of their states and affairs like the customs (Al-Ṭūfī n.d., p. 239; Opwis 2010, p. 205).

At a later passage in his commentary, when al-Ṭūfī discusses the contradiction between the religious texts and Consensus with safeguarding maṣlaḥa, he briefly refers to the categories of maṣlaḥa (I will discuss this later in Section 3.4). He mentions that maṣlaḥa is based on the “five universal necessary rulings” (al-aḥkām al-khamsa al-kulliyya al-ḍārūriyya). These are the death penalty for murder and apostates (murtadd), the punishment for theft, for slander, for consuming alcohol and similar rulings (lit. naḥwa dhālika) (Al-Ṭūfī n.d., p. 277). It is striking that al-Ṭūfī mentions here five necessary universal rulings, but does not mention them conclusively—he says “and similar rulings”, which can imply, as Opwis (2010, p. 226) suggests, that there are more categories of maṣlaḥa going beyond five necessities. He also does not refer here to the well-known five necessary interest, the ḍarūriyyāt, which are the protection of life, religion, reason, property and progeny; instead, he refers to those Quranic verses from which scholars like al-Ghazālī (Al-Ghazālī n.d., vol. 2, p. 482f.) derived these “necessities”. The phrase “and similar rulings” could refer to those rulings to which al-Ghazālī refers in order to determine the five necessities or it could imply that al-Ṭūfī regards more than the five necessities and does not conclusively limit them to five elements.

For the latter interpretation, Opwis finds support in al-Ṭūfī’s earlier works Mukhtaṣar al-Rawḍa and its commentary. In the Mukhtaṣar, al-Ṭūfī seems to follow Ibn Qudāma’s position, which is based on al-Ghazālī’s theory on maṣlaḥa. Al-Ghazālī divides maṣlaḥa in three categories: First, maṣāliḥ (interests), that are accepted by the religious sources (lit. shahida al-sharʿ li-ʿtibārihā, also called maṣāliḥ muʿtabara); second maṣāliḥ, which are negated by the religious sources (lit. shahida al-sharʿ li-buṭlānihā, also called maṣāliḥ mulghā); third maṣāliḥ, which the religious sources neither affirm nor negate (lit. lam yashhad al-sharʿ lā li-buṭlānihā wa-lā li-ʿtibārihā, also called maṣāliḥ mursala). This last category has again three subcategories: necessities (ḍarūriyyāt), needs (ḥājiyyāt) and improvements (taḥsīniyyāt). In al-Ghazālī’s view, only the necessities among the unattested interests could be regarded as valid legal indicants from which legal rulings can be derived. The proper method for deriving norms with respect to those maṣāliḥ is for al-Ghazālī legal analogy (qiyās) (Al-Ghazālī n.d., vol. 2, pp. 478–506; cf. for his approach Opwis 2010, pp. 65–88). The Ḥanbali scholar Ibn Qudāma, who wrote his work based on al-Ghazālī’s Mustaṣfā, follows al-Ghazālī and discusses the categories of maṣlaḥa under the chapter of istiṣlāḥ. For him, maṣlaḥa can only be regarded under legal analogy and not within the method of istiṣlāḥ. Ibn Qudāma rejects using maṣlaḥa mursala for deriving norms in general (Ibn Qudāma 1981, pp. 86–87).

In his Mukhtaṣar, al-Ṭūfī does not deviate much from Ibn Qudāma and lists the categories of maṣlaḥa under istiṣlāḥ as well (Al-Ṭūfī 1990, p. 144). However, al-Ṭūfī seems to follow al-Ghazālī who reduces safeguarding maṣlaḥa to necessities—he does not state his position clearly; concerning the other two categories, he says, one is not allowed to rule accordingly since this would be mean to find a ruling solely based on rational arguments (lit. “rational reflection”, “considered opinion”, Arab. raʾy). He also says that some Ḥanbali scholars do not accept maṣlaḥa mursala at all. One further deviation from Ibn Qudāma’s approach is that in contrast to him and al-Ghazālī, al-Ṭūfī apparently does not restrict necessities to the protection of life, religion, reason, property and progeny. Rather, he mentions that necessities are “like” (ka) these five necessities (Al-Ṭūfī 1990, p. 144). Opwis interprets the omission of the number five and his decision to say “like” (ka) as a deliberate decision on al-Ṭūfī’s part. For her, it is not a reduction due to the mere fact that al-Ṭūfī abridges Ibn Qudāma’s work. “Al-Ṭūfī intentionally distances himself from limiting the criteria by which a jurist determines a maṣlaḥa that can validly be used to derive rulings” (Opwis 2010, p. 228).

I share Opwis’ observation, who regards al-Ṭūfī’s commentary on his abridgement that underlines this interpretation. Looking at his commentary, al-Ṭūfī first describes the different categories of maṣlaḥa as we know them from scholars before him (Al-Ṭūfī 2011, vol. 3, pp. 204–14). When he comments on the necessary maṣāliḥ, he says that he discussed them in his non-extant work al-Qawāʿid al-Ṣughrā (Al-Ṭūfī 2011, vol. 3, p. 209; for this work see Demiri 2013, p. 534). This is already a hint that al-Ṭūfī does not want to limit maṣlaḥa to the three categories mentioned before; he interprets maṣāliḥ in terms of legal precepts and principles—we will see this approach in his later hadith commentary and his idea of safeguarding maṣlaḥa later in Section 3.4. Al-Ṭūfī also engages with the Ḥanbali rejection of maṣlaḥa and istiṣlāḥ in general as does Ibn Qudāma. He tries to argue for the validity of maṣlaḥa as scholars like al-Qarāfī and al-Ghazālī accept it. He also engages with the question of sadd al-dharāʾiʿ (“obstruction of legal remedies/eliminating pretexts”) (Al-Ṭūfī 2011, vol. 3, p. 214).

Al-Ṭūfī proceeds and comments the division of maṣlaḥa in three categories and criticizes this division. For him, dividing maṣlaḥa in accepted (muʿtabara), negated (mulghā), unattested and necessary (mursala ḍarūrīya) and non-necessary (ghayr ḍarūriyya, which comprises ḥājiyyāt and taḥsīniyyāt) is arbitrary. He proposes a more general and direct (aʿamm wa-aqrab) approach: one should consider maṣlaḥa and mafsada (harm) both together. Looking from that perspective, for al-Ṭūfī, we have different possibilities to deal with maṣlaḥa. As he points out, an act can contain pure maṣlaḥa; in this case, one should act accordingly. It could, however, contain pure mafsada, then one should avoid it. As a third option, an act can comprise both maṣlaḥa and mafsada. If they are equal, and cannot attain maṣlaḥa alone or avert mafsada, one should choose among them. If one aspect of both is preponderant, one should rule accordingly. This is for al-Ṭūfī a legal principle or maxim (qāʿida) that allows to comprise all cases of maṣlaḥa mentioned by jurists in their works. For him, maṣlaḥa muʿtabara can be subsumed under his division of maṣlaḥa, when acts have a pure and evident or a preponderant maṣlaḥa. Accordingly, maṣlaḥa mulghā corresponds with that category, where maṣlaḥa and mafsada contradict, simultaneously the maṣlaḥa is weak and mafsada is strong. Then, one should prohibit such actions (Al-Ṭūfī 2011, vol. 3, p. 214f.; Opwis 2010, p. 228f.). There is no place for maṣlaḥa mursala; maṣlaḥa can only be accepted or negated, but not be unattested. It is yet not clear under which circumstance maṣlaḥa and mafsada respectively, can be regarded as pure or preponderant.

Al-Ṭūfī mentions many examples to illustrate and validate his point (Al-Ṭūfī 2011, vol. 3, pp. 215–17; Opwis 2010, pp. 229–32). For instance, the prohibition of growing grapes and shared residence where both contain an illusory harm (mafsada mawhūma), which is the production of wine and the danger of fornication (zinā). This mafsada is, however, only probable and not definitive. The maṣlaḥa, on the other hand, that could be attained by shared residence and growing grapes is for al-Ṭūfī definitive. This means for him that growing grapes and having shared residence will certainly result in a maṣlaḥa. “Consequently, al-Ṭūfī argues, obtaining the certain maṣlaḥa with the concomitant (bi-ltizām) of the probable mafsada is more appropriate than vice versa.” (Opwis 2010, p. 229) Al-Ṭūfī demonstrates the result of maṣlaḥa for growing grapes by literally counting the benefits. In his view, there are at least five benefits: One can eat grapes raw, either unripe (ḥiṣriman) and mellow (ʿinaban), cooked, dried as raisins, and drink its juice. All of these benefits stand in contrast to one harm, that is wine production (Al-Ṭūfī 2011, vol. 3, p. 215). Nonetheless, this is not the only way to invalidate the prohibition of growing grapes as al-Ṭūfī does. Al-Qarāfī, for instance, invalidates it based on Consensus of the scholars (Opwis 2010, p. 229).

Again, while discussing different cases of safeguarding maṣlaḥa, al-Ṭūfī refers to specification (takhṣīṣ) in order to argue for the validity of maṣlaḥa as legal indicant. He refers to the famous case of violating fasting during Ramadan, having conducted sexual intercourse. For this transgression, as it is stated in a Hadith, one should either free a slave, fast two consecutive months or feed sixty poor (Muslim 2010, p. 358, Hadith No 1111). One could now argue that, for instance, a wealthy king, who broke his fast, should not be given the privilege to choose among these options. Rather, he should have only one choice: fast for two consecutive months. Since the king is wealthy and can easily afford to either free a slave or feed sixty poor indiviuals; these two opsions, however would not improve his behavior. Al-Ṭūfī now says that by way of specification one could specify the general ruling for the reparation (kaffāra) with regard to an ijtihād relying on a maṣlaḥa that is suitable and argue that the king should be forced to fast as reparation for his transgression (Al-Ṭūfī 2011, vol. 3, p. 216). In Section 3.4, we will have a closer look at al-Ṭūfī’s understanding of specification with regard to safeguarding maṣlaḥa; here, we should notice that in his Sharḥ Mukthasar ar-Rawḍa, he does not list ijtihad or maṣlaḥa as a valid legal indicant that can specify a general utterance or ruling (so-called specificator, mukhaṣṣis) (Al-Ṭūfī 2011, vol. 2, pp. 552–75). In general, maṣlaḥa in Islamic legal theory is one of the disputed legal indicants that could specify general utterances in Quran and Sunna (Koca 1996a, p. 21f.; Koca 1996b, pp. 265–81). We will turn back to specification later in Section 3.4 and see al-Ṭūfī’s more nuanced method for safeguarding maṣlaḥa. However, we should first deal with al-Ṭūfī’s arguments for the probative value of maṣlaḥa in order to establish it as a valid legal indicant. He does not deal with this question in his Sharḥ Mukhtaṣar, but rather in his hadith commentary al-Taʿyīn.

In conclusion, the division of maṣlaḥa into different categories leads, according to al-Ṭufī, to disagreement among scholars. Once one sets the division aside and focuses on the precept that one should attain maṣlaḥa and avoid mafsada, scholars could unite and find reasonable solutions, since any intelligent person would reject this method (Al-Ṭūfī 2011, vol. 3, p. 217). As we will see below, al-Ṭūfī will refer to this argument in his hadith commentary al-Taʿyīn as well. This is probably the reason why we do not find categories of maṣlaḥa in al-Taʿyīn, where he extensively argues for the probative value of maṣlaḥa as the strongest legal indicant. We can detect a continuous development of his theory of maṣlaḥa in his writings, which has its peak in al-Taʿyīn and his discussion in the probative value of safeguarding maṣlaḥa.

3.3. The Probative Value of maṣlaḥa

To prove the probative value of maṣlaḥa, al-Ṭūfī lists nineteen different legal indicants. This list correlates with al-Qarāfī’s list in his Tanqīḥ (Al-Qarāfī 2008, vol. 1, pp. 145–55) and Sharḥ Tanqīḥ (Al-Qarāfī 2007, pp. 434–43), which are among al-Ṭūfī’s sources. As al-Ṭūfī himself states, some of these nineteen sources are disputed and others are agreed upon. Among them, the strongest ones are the authoritative texts (al-nuṣūṣ, sg. al-naṣṣ) of the Quran and the Sunna, and the scholar’s Consensus (ijmāʿ). Al-Ṭūfī now turns towards the idea of preventing/avoiding harm: These three sources either can safeguard maṣlaḥa or diverge from it. If they safeguard it, then there is no dispute. One should rule according to these sources, since they do not contradict the general rule in the hadith “There should be neither harming nor receiving harm”. Whenever these sources undermine safeguarding maṣlaḥa, then one should rather prefer safeguarding maṣlaḥa than holding to these three sources. Al-Ṭūfī frames this preference by the method of specification (takhṣīṣ), as we saw above, and within the method of “clarification” (bayān) of the sources with respect to maṣlaḥa. This enables the scholars, according to al-Ṭūfī, to harmonize between the contradicting sources without setting aside a legal indicant or source. He compares this preference of maṣlaḥa to preferring Sunna over the Quran by clarifying (lit. bayān) the Quran through hadiths (Al-Ṭūfī n.d., p. 237f.).

Al-Ṭūfī does not explain here, why the Quran, Sunna, and Consensus are the strongest indicants. In his earlier work Sharḥ Mukhtaṣar al-Rawḍa, he lists several criteria for the hierarchy among legal indicants and sources (tartīb al-adilla) that should guide scholars in cases where they should prefer one among the colliding sources (this is the question of selection of the preponderant, tarjīḥ). Here, he underlies, that consensus is to be preferred (muqaddam) to the rest of the legal indicants due to its definitive probative value (lit. qaṭʿiyyatihi), its infallibility (ʿiṣma) and its immunity to abrogation (naskh) and interpretation (taʾwīl). The next two in the hierarchy of the legal indicants are the Quran and mutawātir (“successive”, conclusive) hadiths, since both are definitive (qaṭʿiyya) in their probative value. Scholars have to prefer them to solitary or inconclusive reports (khabar al-wāḥid) and legal analogy (qiyās), since their probative value is presumptive/conjectural (ẓannī) (Al-Ṭūfī 2011, vol. 3, pp. 673, 675).

Al-Ṭūfī clearly follows here the standard epistemology of uṣūl al-fiqh. In general, scholars divide the epistemic value of legal indicants into two levels: First, detectability (thubūt): the degree to which a ruling can be traced back to references/statements from the Lawgiver, second, indicative character (dalāla): the probability of a meaning that one can derive from the legal indicant at hand. The main question is thus, before finding probable meanings in the Quran and Sunna, how probable it is to argue with regard to the Quran and Sunna, since one has to prove that the legal indicant stems from the Lawgiver, i.e., God and His Prophet (Kurnaz 2017). The two possible epistemic status are definitive (qaṭʿī) and presumptive (ẓannī). Accordingly, definitively proven utterances (the so called qaṭʿī al-thubūt) must be preferred to presumptively proven ones (the so called ẓannī al-thubūt). Al-Ṭufī’s hierarchy stems from these epistemological principles of legal theory (uṣūl al-fiqh). Definitive in their detectability are only Consensus, the Quran, and the mutawātir Sunna. The main differentiation for al-Ṭūfī between consensus and the other two is that Consensus is immune to abrogation. Once scholars have a consensus, they cannot be wrong; consensus is infallible (Al-Ṭūfī 2011, vol. 3, p. 275). This goes back to a hadith, which al-Ṭūfī regards as mutawātir, stating that Muslims will not consent on an error or fallacy (Al-Ṭūfī 2011, vol. 3, p. 19; cf. Al-Ṭūfī n.d., p. 253). Thus, since considering that Consensus is immune to error and abrogation, it is a stronger source than the Quran and mutawātir Sunna, since the latter two can be abrogated by another Quranic verse or by a mutawātir Sunna (Al-Ṭūfī 2011, vol. 3, p. 675).

Al-Ṭūfī is consistent with his overall approach to the uṣūl al-fiqh and develops his theory of safeguarding maṣlaḥa according to these rules. Since considered Consensus as the strongest legal source, now he has to prove that safeguarding maṣlaḥa is as strong or even stronger than Consensus. The reason is that there can only be a collision among legal indicants when they are, as he states in his Sharḥ, contradictory and equal in their epistemic value (Al-Ṭūfī 2011, vol. 3, p. 673). As we will see in the next section, collision of legal indicant is the default status for safeguarding maṣlaḥa. For him, the hadith “There should be neither harming nor receiving harm” can specify a Consensus or clarify it when Consensus, the religious texts and safeguarding maṣlaḥa collide. In al-Taʿyīn, al-Ṭūfī himself formulates an objection by referring to the differing epistemic values. The contra argument reads as follows: The hadith “There should be neither harming nor receiving harm” is not definitively proven, however, Consensus is. Therefore, there can be no collision and no case of specification between these two indicants. Al-Ṭūfī answers that safeguarding maṣlaḥa is stronger than Consensus and is therefore the strongest legal indicant, since, as he says, the stronger than the strongest is stronger (al-aqwā min al-aqwā aqwā) (Al-Ṭūfī n.d., p. 239).

To prove this last statement and the probative value of maṣlaḥa, al-Ṭūfī underlines that he refers to general and detailed arguments. In general, from different angles, Q 10:57f. refers to safeguarding maṣlaḥa: “O people, an admonition has come to you from your Lord, a cure for what afflicts the hearts and guidance and mercy for the believers. Say: In God’s graciousness and mercy therein let them rejoice. That is better than what they gather.” (Quran translation according to Opwis 2010, p. 205) As Opwis summarizes: “Referring to the Qurʾān as admonition, guidance, and mercy clearly means that it constitutes the greatest maṣlaḥa for humans; curing doubt in people’s hearts cannot but be considered maṣlaḥa; and rejoicing is only due to the great maṣlaḥa that stems from God’s graciousness and mercy.” (Opwis 2010, p. 205; cf. Al-Ṭūfī n.d., pp. 240–41). Al-Ṭūfī proceeds with the detailed arguments and summarizes the major theological topic, whether God’s actions pertain to causality. He affirms causality and remarks that God’s commands are based on purposeful wisdom (ḥikam ghāʾiyya) or purposeful reason. Another related theological question is whether God is obliged to safeguarding maṣlaḥa (Al-Ṭūfī n.d., pp. 241–43; Opwis 2010, p. 206f.). Al-Ṭūfī answers that “safeguarding maṣlaḥa is obligatory from God (min Allāh) insofar as it is a logical consequence of [His] grace—it is not obligatory upon him (ʿalayhi)” (Opwis 2010, p. 207). To place this obligation on God was a core doctrine of Muʿtazili theology. Thus, he tries not to cross the boarders of Sunni theology by obliging God to do the best for humans. Notably, al-Ṭūfī does not discuss these questions in detail, since it is very well-known and the different views are somehow fixed. Therefore, he decides quickly and does not argue in detail. Having established these theological positions, al-Ṭūfī focuses on proofs in the Quran, Sunna and Consensus for the probative value of maṣlaḥa. Since these three sources are the strongest ones, it is imperative for him to find indications for the validity of maṣlaḥa after having solved theological problems.

Al-Ṭūfī refers to Q 3:179, 5:38 and 24:2 to show that the rulings in the Quran are based on the idea of safeguarding people’s maṣlaḥa, such as protecting their lives, property and honor. As we saw above, al-Ṭūfī refers here to the common understanding of these verses that they stand for protecting people’s maṣlaḥa and represent objectives on a higher level than the literal wording implies. For al-Ṭūfī, the same is true for specific cases from the Sunna of the Prophet and his rulings concerning, for instance, financial transactions and marriage. Al-Ṭūfī now turns to Consensus of the scholars, that they agreed upon safeguarding maṣlaḥa except for scholars from the Ẓāhirī school of law, who deny causality in legal rulings and that rulings are based on safeguarding maṣlaḥa and preventing harm (darʾ al-mafāsid). In many cases of legal discussions, al-Ṭūfī says, one can observe that the majority of scholars agreed on safeguarding maṣlaḥa such as allowing forward purchase (salam) and leasing (ijāra), although it contradicts the general rule (qiyās) since they would lead to the prohibited exchange of something existent with something non-existent (lit. muʿāwaḍa ʿalā maʿdūm). Even the adversaries of Consensus agree to such rulings that safeguard people’s maṣlaḥa, al-Ṭūfī underlines (Al-Ṭūfī n.d., p. 243f.; cf. Opwis 2010, p. 208).

Al-Ṭūfī provides further arguments, inter alia rational arguments for safeguarding maṣlaḥa (Al-Ṭūfī n.d., pp. 244–46; Opwis 2010, p. 208f.) so that he can establish the view that safeguarding maṣlaḥa is demonstratively proven (mubarhana) (Al-Ṭūfī n.d., p. 246; he mentions this before on p. 239). He combines theological and rational arguments with arguments from the strongest legal indicants Quran, Sunna, and Consensus. Using the term demonstratively proven (mubarhana) is not common among the vocabulary of legal scholars. However, al-Ṭūfī does this effort and uses this terminology to prove and imply that safeguarding maṣlaḥa is, as he mentioned before, stronger than Consensus. Thus, he deals with this question in some detail, since Consensus is both important for him as the strongest legal source and for the Sunni tradition in general. He tries to show that Consensus is still a strong argument but does not prevent scholars from referring to safeguarding maṣlaḥa and finding new rulings that can contradict Consensus and specify it. Safeguarding maṣlaḥa cannot negate a Consensus, since this would mean that the Muslim community was wrong, and this is according to the above-mentioned hadith for the validity of Consensus impossible. Thus, safeguarding maṣlaḥa can only specify Consensus and explain it. Once it can collide with Consensus, safeguarding maṣlaḥa can be in collision with the other sources, since they are weaker than Consensus, if we follow al-Ṭūfī’s theory. For him, it is probably an important personal question to deal with the validity of Consensus in a quite lengthy discussion to illustrate his knowledge on Consensus, since he has been accused of being Shiʿi—they usually reject Consensus as a valid source of knowledge—and had been exiled to Qūṣ (Demiri 2013, pp. 6, 8–15), where he wrote this hadith commentary al-Taʿyīn (Demiri 2013, p. 531).

Al-Ṭūfī’s strategy to tackle the question of safeguarding maṣlaḥa without undermining Consensus is twofold. First, he underlines the strength of Consensus, refers to Quranic verses and hadith in order to verify its probative value and high epistemological level of certainty (Al-Ṭūfī n.d., pp. 247–56; cf. Opwis 2010, pp. 211–12). Second, al-Ṭūfī discusses objections to Consensus that will help him to state safeguarding maṣlaḥa as the strongest legal indicant and source. Among these objections he mentions that it is not conclusively proven that Muslims are infallible when they agree upon a ruling, since we also know from a report that the Prophet said that Muslims will be divided in 73 groups. In this case, the hadith, which deals with the Muslim’s agreement, should comprise all groups, including those, who reject the validity of Consensus or establish renewal (bidʿa) in the religion and thus fall in unbelief (kufr). Then, there is no way for Consensus; it becomes impossible. Or, the hadith comprises only one group among Muslims. In this case, Consensus cannot comprise the whole community and cannot be a Consensus per se. al-Ṭūfī also quotes some evidences from the practice of the Righteous Caliphs and the Companions in general and shows that some of them contradicted the agreement of the rest (Al-Ṭūfī n.d., pp. 256–59; Opwis 2010, pp. 212–13).

Al-Ṭūfī underlines that his purpose by mentioning these objections is not to invalidate Consensus in general. Rather, he states that he argues with respect to Consensus in cases of worship (ʿibādāt, like prayer and pilgrimage) and fixed ordinances (muqaddarāt). Fixed ordinances are specifically mentioned reparations (kaffārāt, sg. kaffāra) like giving alms, and the particular shares of inheritance mentioned in the Quran (cf. Q 4:11–12) or the period, which women have to wait after divorce for a new marriage (the so-called ʿidda, cf. Q 2:228, 2:234, 65:4) (Koca 1996a, p. 11). Thus, Consensus for him is important as a strong legal indicant. His point is only that safeguarding maṣlaḥa is stronger than Consensus in cases of collision in the larger field of interpersonal relationship (muʿāmalāt) and customs (ʿādāt), since the majority of scholars agree on safeguarding maṣlaḥa, although they dispute the probability of having a Consensus at all. For al-Ṭūfī, even the adversaries of Consensus accept safeguarding maṣlaḥa, and this makes it stronger than Consensus. Going beyond Consensus, al-Ṭūfī emphasizes that there are several cases, where the religious texts (nuṣūṣ) are contradictory. This contradiction is for al-Ṭūfī the reason for the disagreement (sabab al-khilāf), which is disfavored by Law (madhmūm sharʿan). Safeguarding maṣlaḥa, however, is according to al-Ṭūfī a real existing thing by itself and there are no disagremments over it. Thus, it is the reason for agreement, which is favored by Law (maṭlūb sharʿan, he refers to the Quran, for instance to Q 3:104 and to some hadiths, see Al-Ṭūfī n.d., p. 260). Therefore, following maṣlaḥa is preferable to following Consensus and the scriptural sources when they contradict the principle of safeguarding maṣlaḥa (Al-Ṭūfī n.d., p. 258f.). Al-Ṭūfī next refers to the disagreement amongst the schools of law in order to underline his point—we are going to deal with it in Section 3.5.

To conclude, al-Ṭūfī deals quite lengthy with the question of the epistemic value of the principle of safeguarding maṣlaḥa, since he seeks to find a place for it within the established frame of the mainstream Islamic legal theory (uṣūl al-fiqh). He does so by referring to epistemological concepts of presumption (ẓann), certainty (qaṭʿ) and detectability (thubūt). He does not show that Consensus is useless, rather he accepts that Consensus is the strongest indicant and argues that safeguarding maṣlaḥa is even stronger than Consensus by referring to the latter. The second principle that he unquestionably accepts is that if there is a conflict between them, one should argue with all available legal indicants and harmonize them. This is the best way for him also in his earlier work Sharḥ Mukhtaṣar al-Rawḍa (for example Al-Ṭūfī 2011, vol. 3, p. 688 on two conflicting religious texts). As we have seen above, the ideal way is that the principle of safeguarding maṣlaḥa, derived from the hadith “There should be neither harming nor receiving harm” specifies colliding legal indicants and clarifies them. Al-Ṭūfī, therefore, does not want to set aside a legal argument; hence, he adheres to a third principle that was commonly accepted in the legal theory of his time: legal rulings should be derived as closely as possible from the religious texts (Kurnaz 2017)—Consensus, according to Sunni scholars, must have its basis in either the Quran or Sunna and is therefore closely linked to them. Al-Ṭūfī accepts further a fourth commonly held principle: the division between acts of worship (ʿibādāt) and interpersonal relationship (muʿāmalāt). He mentions that the method he proposes is not in the sense of applying unattested interests (maṣlaḥa mursala) as, according to him, Mālik ibn Anas (d. 179/795) proposes. It is superior (ablagh) to that, since it regards the texts and Consensus for the acts of worship and fixed ordinances, but safeguards and regards maṣlaḥa for the acts of interpersonal relationship and other related branches of law (Al-Ṭūfī n.d., p. 274). Due to this epistemological boundary of the uṣūl al-fiqh, al-Ṭūfī reduces the preference for safeguarding maṣlaḥa as a legal indicant to cases of custom and interpersonal relationship, since it is, as he himself points out, the linchpin of the objectives of the Lawgiver. In contrast to that, the acts of worship are a right (ḥaqq) of the Lawgiver and, according to al-Ṭūfī, no one has knowledge about them except through the religious texts and Consensus (Al-Ṭūfī n.d., p. 239).

3.4. The Default Status for Preferring maṣlaḥa: Collision and Resolving

For the sake of safeguarding maṣlaḥa, al-Ṭūfī defines collision and its resolving as the default status of his approach. Only in cases of collision, he makes use of safeguarding maṣlaḥa and prefers it over Consensus and the religious texts (Hallaq 2005, pp. 151–52). Al-Ṭūfī considers neither in Sharḥ Mukhtaṣar al-Rawḍa nor in al-Taʿyīn the principle of safeguarding maṣlaḥa at the starting point for deriving norms at the first place. In his legal commentary Sharḥ Mukhtaṣar al-Rawḍa, he refers to maṣlaḥa, as we have seen it, in the realm of istiṣlāḥ. In al-Taʿyīn, he refers to maṣlaḥa independently, however, restricts his approach to resolving collisions. This is due to his understanding of specification and clarification (bayān). Both terms imply a close link to the religious sources, which is important for al-Ṭūfī. Especially bayān is the key epistemological bases for legal theory in order to underline the supremacy of the religious sources Quran and Sunna (Kurnaz 2017). It is therefore not a coincidence that al-Ṭūfī compares his approach to interpreting the Quran with regard to Sunna (Al-Ṭūfī n.d., p. 238). Hence, al-Ṭūfī strives to show that he does not question the importance of Quran, Sunna, and Consensus, rather he argues within the commonly accepted principles of the standards of legal theory.

Unfortunately, in al-Taʿyīn, al-Ṭūfī does not explain his understanding of specification and clarification in terms of safeguarding maṣlaḥa (cf. Hallaq 2005, p. 151; Opwis 2010, p. 204). However, he deals with specification in his Sharḥ Mukhtaṣar al-Rawḍa where he discusses the standard issues pertaining to specification. There, we find valuable information about his concept of specification, clarification, collision, and reconciliation that helps us to better grasp his concept of safeguarding maṣlaḥa as outlined in al-Taʿyīn.

3.4.1. Specification as Interpretative Tool for Resolving Collision

In Sharḥ Mukhtaṣar al-Rawḍa, al-Ṭūfī defines specification (al-takhṣīṣ) as the clarification/notification (bayān) of the intention of the utterance (bayān murād al-lafẓ) or the clarification/notification that some meanings of the utterance is not intended as ruling. Al-Ṭūfī’s gives the following example: Q 2:221 forbids Muslim men marrying polytheist women (mushrikāt)—al-Ṭūfī probably means non-Muslim women in general. Q 5:5 specifies this verse and allows Muslim men to marry Jewish and Christian women. Thus, Q 5:5 clarifies (it is mubayyan) that the word mushrikāt in Q 2:221 does not comprise Jewish and Christian women. Therefore, Muslim men are allowed to marry them (Al-Ṭūfī 2011, vol. 2, pp. 550–551).

Specification as a method for deriving norms is commonly accepted by Muslim scholars, since it is, as al-Ṭūfī points out, a process of explanation and clarification rather than setting aside or negating a legal indicant. For al-Ṭūfī, abrogation (naskh) sets aside a legal indicant, why scholars disagree on abrogation. Specification, however, is only allowed if there is an indicator or reference for such a process—we need a valid legal indicant (dalīl) for a valid specification (Al-Ṭūfī 2011, vol. 2, p. 551). This legal indicant is called “specificator” (mukhaṣṣiṣ). For al-Ṭūfī, there are nine valid specificators that can specify a general utterance and reduce its scope of application. The first is sense perception (ḥiss), such as that we know that God has not destroyed everything although Q 46:25 states that God has destroyed everything. We see that heaven and earth continue existing. Thus, sense perception specifies this general statement of destruction. Second, reason (ʿaql) can specify general utterances such as Q 2:21 that obliges humans to obey God. Reason shows that intellectually uncapable people and children are not subject to this statement, since they cannot understand their obligations. The third to the ninth specificator are the following: Consensus, religious texts, the argumentum a fortiori (mafhūm), the reported actions (Sg. fiʿl) of the Prophet, his silent approval (taqrīr), the report of a view of a Companion (qawl al-ṣaḥābī), and legal analogy (Al-Ṭūfī 2011, vol. 2, pp. 552–75).

As the example above already showed, we need a general statement for a specification that can be specified by a more specific legal indicant with the same subject. Therefore, scholars discuss the different types and modes of general (āmm) and specific (khāṣṣ) utterances, their epistemic value and how they are related to each other (Al-Ṭūfī 2011, vol. 2, pp. 448–629). We do not have the space to present the various discussions on specification with respect to the listed specificators above; our focus will be on al-Ṭūfī’s understanding of specification as a type of clarification and harmonization (jamʿ) of colliding legal indicants and how to understand specification with regard to Consensus and the religious texts. To recall, al-Ṭūfī refers to specification in al-Taʿyīn when Consensus and the religious texts (nuṣūṣ) collide with the idea of safeguarding maṣlaḥa.

We have seen so far that for al-Ṭūfī Consensus is the stronger legal indicant than the religious texts. Thus, al-Ṭūfī discusses in Sharḥ Mukhtaṣar al-Rawḍa the specification through Consensus before specification through religious texts—before discussing Consensus, he describes sense perception and reason as specificators not due to their strength, rather to the fact that we first specify with regard to these two before dealing with the legal indicants. Specification through Consensus is different from the usual process of specification (reduction of the scope of a general utterance) as we have seen in the above-mentioned example on marriage. In general, Consensus, since its probative value is certainty, can specify a general utterance, since the latter’s probative value is presumptive (ẓannī). Thus, that, which is certain, specifies that, which is presumptive (Al-Ṭūfī 2011, vol. 2, pp. 555–56).

The reason why the general is presumptive lies in the possibility that general utterances can always have been specified when there is a valid specificator. Therefore, one can only presume that the general utterance is used in its literal general sense. The crucial point is, however, that Consensus does not actually specify a religious text. Rather, it confirms that there is a religious text (naṣṣ) that specifies the general, like Consensus can confirm that a religious text is abrogated. Then one knows with certainty that the general utterance is specified and cannot be interpreted in its wider general meaning. This concept goes back to the idea that Consensus must always have a bases in the religious texts. Eventually, Consensus has a confirming function: the religious sources can be interpreted in terms of specification that is confirmed by Consensus. Al-Ṭūfī mentions the following example for this type of specification: In transactions (muʿāwaḍāt), it is actually necessary that the service in return (ʿiwaḍ) is exactly defined (maʿlūm). However, people have agreed to use public baths and travel with ships without defining the service exactly, such as the use of the exact amount of water in the bath. This shows for al-Ṭūfī that there is a specific legal indicant that specifies the general rule of defining the “service in return” exactly (Al-Ṭūfī 2011, vol. 2, p. 556).

At the beginning of this section, we have already seen how a specific utterance in the religious text can specify a general utterance. The crucial point here again is that al-Ṭūfī, while relying on the epistemic values of the general and the specific utterance, holds that the Quran can specify the Sunna and vice versa, regardless of their chronology (i.e., whether the general utterance was ruled first or not). For him, there is a discrepancy of the indicative character (dalāla) of both utterances; the specific, the epistemic value of which is certainty, should be preferred to the general utterance, since the epistemic value of its indicative character is presumptive. The constellation of the varying times of the general and specific utterance is highly disputed among the schools of law since the later utterance could have abrogated the former rather than specified it. If the later utterance is specific, then this is for most scholars a specification of the general utterance. If the later one is the general utterance, then it could abrogate the specific utterance. According to al-Ṭūfī, it is better to favor the specific since preferring the specific can be interpreted as specification of the general utterance. Thus, the general utterance would not be abrogated, rather would continue to be a valid legal argument in order to derive further norms. Still, it would be reduced in its scope of application due to previous specification. Favoring the specific means therefore for al-Ṭūfī arguing with both of the colliding legal indicants. Al-Ṭūfī points out that we cannot favor abrogation to solve the collision, since for abrogation there are two conditions: collision (taʿāruḍ) and the impossibility of harmonization (jamʿ). Since specification harmonizes the colliding legal indicants, al-Ṭūfī prefers specification regardless of the chronology of the utterances. Consequently, al-Ṭūfī prefers using specification when it collides with abrogation, since specification is clarification and explanation (bayān), while abrogation is negation (ibṭāl) of one of the colliding indicants and means to set it aside (lit. taʿṭīl). Further, abrogation contradicts the general rule (aṣl), since for al-Ṭūfī, the general rule is that a ruling (ḥukm) should persist as long as possible, which is guaranteed by the interpretative method of clarification and explanation (Al-Ṭūfī 2011, vol. 2, pp. 557–67).

There are further discussions regarding the epistemic value of the colliding utterances, for instance: Can an inconclusive or solitary report (khabar al-wāḥid) specify a general utterance in the Quran? It is true that the specific utterance in the solitary report has the epistemic value of certainty regarding its indicative character and is stronger than the Quranic general utterance. However, a solitary report is weaker in its thubūt, the detectability whether it in fact goes back to the Prophet. Solitary reports can be traced back to the Prophet only presumptively (hence, their reliability is epistemologically inconclusive); the Quran however, can be traced back with certainty, since its textual transmission is mutawātir (i.e., its reliability is epistemologically conclusive). Like most scholars, al-Ṭūfī permits specification here: he focuses on the epistemic value concerning the indicative character of the legal indicants and prefers the certain (i.e., the specific) over the presumptive (i.e., the general) (Al-Ṭūfī 2011, vol. 2, pp. 563–67).

We see clearly that al-Ṭūfī uses specification as a method for harmonizing colliding utterances. In al-Taʿyīn, in the section where he discusses the collision of Consensus and the religious texts with the principle of safeguarding maṣlaḥa, he refers to specification and clarification as methods for his approach to resolve the collision. This is not a coincidence. Al-Ṭūfī would not refer to other methods in order to argue for safeguarding maṣlaḥa like istiṣlāḥ and istiḥsān, since they are among the disputed legal indicants. Further, both istiṣlāḥ and istiḥsān are not (always) related to the religious sources directly. We should recall that al-Ṭūfī saw Consensus as the strongest legal indicant. Consensus, however, is directly related to the religious sources. Thus, when the principle of safeguarding maṣlaḥa is stronger than Consensus, it should also be related to the religious sources directly. Therefore, al-Ṭūfī related it directly to the hadith “There is neither harming nor receiving harm”. It also has to be on the epistemic level of certainty. This is the reason why al-Ṭūfī made a great effort to prove the validity of the principle of safeguarding maṣlaḥa by pointing to evidence from the Quran, Sunna, and Consensus. Consequently, in order to imply that safeguarding maṣlaḥa is related to the religious sources/texts, al-Ṭūfī relates its application to specification and clarification (bayān). Both the religious texts and Consensus can be specified by a precept that is derived from or is a direct application of the above-mentioned hadith. Thus, in his view, this hadith specifies the Quran, Sunna, and Consensus (or can be specified by them) when the positions they affirm conflict with safeguarding maṣlaḥa. The underlying rationale thereby is harmonizing colliding legal indicants. Al-Ṭūfī cleverly makes use of the commonly accepted principles of uṣūl al-fiqh and choses a method (i.e., the specification) that is accepted by all schools of law (although with differing approaches) and matches the need for a high degree of probability concerning the epistemic status in contrast to methods such as istiṣlāḥ and istiḥsān.

Looking at his concept of specification in al-Taʿyīn, however, it does not correlate with the method of specification in Sharḥ Mukhtaṣar al-Rawḍa as presented above. Rather, al-Ṭūfī contradicts himself by interpreting the hadith in two different ways with regard to being specific or general. His first understanding of specification in terms of safeguarding maṣlaḥa does fall under specification in general. Al-Ṭūfī says that negating harm derived from the hadith “There is neither harming nor receiving harm” is a general negation if harm unless there is a legal indicant that specifies it. Hence, in his view, the meaning of the hadith should always be preferred to the rest of the legal indicants in terms of negating harm and safeguarding maṣlaḥa. This allows arguing with respect to two legal indicants that are colliding, especially when some legal indicants could lead to harm (Al-Ṭūfī n.d., p. 237). Here, al-Ṭūfī sees the hadith and the derived precept as general (ʿāmm). However, he does not explain how this general hadith should be preferred in terms of specification when a specific legal indicant leads to harm: a general utterance cannot specify a specific utterance. It cannot specify Consensus. Probably therefore, he uses here also the term harmonization (jamʿ).

The contradiction lies especially in his second interpretation of specification in terms of safeguarding maṣlaḥa, since he later refers to the same hadith as being specific. Here, al-Ṭūfī discusses colliding rulings within the realm of interpersonal relationship (muʿāmalāt). If safeguarding maṣlaḥa collides with the Quran, Sunna, and Consensus in muʿāmalāt, and if a harmonization is not possible (!), then one should prefer safeguarding maṣlaḥa, since the hadith “There is neither harming nor receiving harm” is specific (!) in negating harm and consequently in safeguarding maṣlaḥa, so one should follow this hadith (Al-Ṭūfī n.d., p. 277). Two points here are important: First, al-Ṭūfī admits that safeguarding maṣlaḥa is not necessarily a way of harmonization through specification as he emphasized before. Secondly, he interprets the hadith as being specific with which he implies that safeguarding maṣlaḥa through this hadith has the epistemic value of certainty regarding its indicative character (dalāla). The problem is that according to the standards of legal theory an utterance like “There is neither harming nor receiving harm” cannot be easily categorized as specific. The negation of indetermined words (lit. an-nakira fī siyāq al-nafy aw al-amr) can either be a general utterance or an absolute (muṭlaq) one (Al-Ṭūfī 2011, vol. 2, p. 473). On the other hand, al-Ṭūfī shows that not all general and specific utterances are absolutely general or specific. Many words are relatively (iḍāfiyyan) general or specific (al-Ṭūfī vol. 2, pp. 448, 462–63). We can mention the word “women” as an example: “Women” is general in relation to “woman”, but it is specific in relation to the word “humans”. Thus, al-Ṭūfī is able to argue that the above-mentioned hadith appears to be general, but it is specific related to avoiding harm (fī nafy al-ḍarar). Be it as it may, al-Ṭūfī contradicts himself here clearly: The hadith was first general, now, it is specific. Hence, it either can specify general rulings in Consensus and religious texts or should be preferred when it collides with the latter. This contradiction occurs apparently due to epistemological concerns, since al-Ṭūfī mentions at the end of al-Taʿyīn that safeguarding maṣlaḥa should be preferred since it is the strongest and the most specific (akhaṣṣ) of the legal indicants (Al-Ṭūfī n.d., p. 280), which could mean that it must be at the highest epistemic status of certainty. That this hadith is a solitary report does not contradict his idea of specification, since for him, as we have seen above, solitary reports can specify general utterances in the religious sources. Besides of that, we should recall that he proved the idea of safeguarding maṣlaḥa demonstratively (mubarhana).

Another problem occurs with regard to the chronology of the colliding indicants. Although al-Ṭūfī does not require immediacy between the general and the specific as some (especially Ḥanafi and Muʿtazili) scholars do; there can be some diverging time between these two. Nevertheless, the scope of the separate time is limited. If a general rule, for instance, is established as a result of a general utterance, a specific utterance afterwards cannot specify it. This would then be a case of abrogation, once one acted upon the ruling inherent in the general statement (Kurnaz 2016, p. 167). Thus, it is highly problematic to argue with specification when one cannot answer the question of the chronology, since both the colliding legal indicants could be interpreted within the method of specification or abrogation. We know that al-Ṭūfī decides to argue with respect to specification when it collides with abrogation (Al-Ṭūfī 2011, vol. 2, p. 561). This, however, does not solve the problem when the hadith “There is neither harming nor receiving harm” specifies other religious texts and Consensus. Then, one would transgress the time boundaries of a specification, since there are already rules gained from the religious sources and Consensus that would be specified by a hadith much later. This would mean then that the hadith or the principle of safeguarding maṣlaḥa abrogates the other sources (cf. Khallāf 1993, p. 99; Koca 1996a, p. 21). However, this is not possible since we do not know the chronology of the colliding indicants that is required for abrogation; additionally, safeguarding maṣlaḥa has not the ability to abrogate other legal indicants (Koca 1996a, p. 21). Further, if not the hadith on harming and receiving harm specifies the other legal indicants, and if it is the principle to safeguard maṣlaḥa, we have again the same problem of chronology—the time of detecting a maṣlaḥa varies significantly from the general rulings derived from the colliding legal indicants. Further, legal principles are not among the valid specifying legal indicants, the so-called specificators. At least, we would have here a process of abrogation that is not valid according to legal theory. Hence, al-Ṭūfī refers to other concepts like clarification (bayān) as a type of interpretation in order to avoid inconsistencies within specification.

Besides of what have been discussed so far, al-Ṭūfī also gives us some hints why he tries to interpret the hadith for safeguarding maṣlaḥa within the methods of specification and clarification. This also underlines that the mainstream standards of legal theory are important for him. In the introduction of al-Taʿyīn, he states that he will comment on the hadiths both by interpreting their wording and the implied meanings regarding lexical analysis, juristic interpretation (both from the perspective of legal theory and substantive law), and by regarding rational and revelational concepts and ideas (al-maʿqūl wa-l-manqūl). Further, when he interprets the hadiths, he refers to the relevant verses of the Quran by using the principles (sg. qānūn) of legal theory (uṣūl al-fiqh) like specification of general utterances (takhṣīṣ ʿāmm), generalizing the specific (taʿmīm khāṣṣ), concretizing the absolute (taqyīd muṭlaq), absolutize the concrete (iṭlāq muqayyad), and clarifying the summarized (i.e., the obscure, tabyīn mujmal). He also engages with colliding hadiths and seeks to resolve the collision (Al-Ṭūfī n.d., p. 3). Hence, al-Ṭūfī interprets the hadith “There is neither harming nor receiving harm” with respect to juristic interpretation by using mainstream methods and principles from legal theory.

To conclude: al-Ṭūfī’s idea of specification, besides its inconsistencies, stems from his concerns regarding the epistemological standards of Islamic legal theory, the hierarchy of sources and the commonly accepted methods for deriving norms. However, his idea of specification does not work out (for a different interpretation with regard to legal licenses (rukhaṣ) and specification, see Opwis 2010, pp. 236–41). Nevertheless, al-Ṭūfī’s main concern is harmonizing the contradicting legal indicants. He seemingly uses safeguarding maṣlaḥa as a legal principle (Opwis 2010, p. 204) rather than as a specificator for the method of specification or a general utterance that should be specified, if there is a valid legal indicant. For al-Ṭūfī, harmonizing legal indicants is the best way to solve collisions between them, as we see it both in his hadith commentary (al-Taʿyīn) and his commentary on legal theory, Sharḥ Mukhtaṣar al-Rawḍa (see for example Al-Ṭūfī 2011, vol. 3, pp. 688–89). Thus, his main endeavor in al-Taʿyīn is to discover, whether safeguarding maṣlaḥa can be preferred to regarding the religious sources and Consensus when they collide.

3.4.2. Principles of Resolving Collision between Consensus, Religious Texts, and Safeguarding maṣlaḥa

In order to establish a mechanism for solving collisions, al-Ṭūfī distinguishes between the fields of worship (ʿibādāt) and fixed ordinances (muqaddarāt) on the one hand and interpersonal relationship (muʿāmalāt) and custom (ʿādāt) on the other, since he excludes safeguarding maṣlaḥa by preferring it over Quran, Sunna, and Consensus in the first two fields. Thus, when there are colliding legal indicants within the realm of worship, the general rule is that Consensus is to be preferred over the religious texts. His general approach here is again harmonization. Wherever harmonization is possible without overworking the boundaries of interpretation, it should be preferred. Al-Ṭūfī goes extensively through the different possibilities of collision in this field of law (Al-Ṭūfī n.d., pp. 274–77). Opwis (2010, pp. 220–24) summarized al-Ṭūfī’s approach; I will not deal with it here, since his principle of safeguarding maṣlaḥa is not subject to this field of law.

For cases of interpersonal relationship and customs, al-Ṭūfī does not give, as one would have expected, “unrestricted priority over textual rulings” (Opwis 2010, p. 217). Opwis (2010, pp. 217–18) pointed out the general outline of his approach as follows: “Al-Ṭūfī explains that when an indicant of Qurʾān, Sunna or Consensus leads to harm and mafsada, the indicant falls into one of two categories. Either all of the indicated entails harm or the harm is only part of the indicated. Rulings that entail only harm, such as the legal punishments, are rulings that are exempted from the Prophet’s words that no harm shall be inflicted. When the harm is only part of the indicated, then one has to look at the indicants. If a specific indicant necessitates the harm, then this indicant is followed; if not, then the imperative of prohibiting harm specifies this indicant, which is thereby restricted in its application. This rather brief statement appears to be the core of al-Ṭūfī’s understanding of how safeguarding maṣlaḥa is preponderant over textual indicants. Maṣlaḥa has priority over indicants of the Qurʾān, Sunna, and Consensus when these indicants are general. When a textually attested ruling entails a specific type of harm, the general imperative of safeguarding maṣlaḥas does not specify or overrule it. When, however, an attested ruling results in harm that is not specifically condoned by the law, then the prohibition of inflicting harm weighs stronger and specifies this ruling.”

Opwis’ passage delineates the general concept of safeguarding maṣlaḥa. al-Ṭūfī further concretizes his approach with respect to different constellations: Maṣlaḥa and the rest of the legal indicants can coincide or collide. If they coincide as it is the case for the above-mentioned five universal necessary rulings (see above Section 3.2), like the punishment of murder or theft, then there is no dispute regarding the sources and maṣlaḥa together. If they do collide, one should try to reconcile them, such as interpreting some legal indicants as being coined for specific situation (aḥwāl) so that it would not undermine maṣlaḥa. Al-Ṭūfī is cautious here: one should not exceed the boundaries of interpretation by modifying arguments in order to achieve a preconvinced conclusion and enforce a desired ruling. If one cannot reconcile the demands of maṣlaḥa with the other available legal indicants, then one should safeguard maṣlaḥa and prefer it over others, since according to the hadith upon which the concept of maṣlaḥa is based, the guiding principle is to negate harm, which in turn is achieved by safeguarding maṣlaḥa. In this context, maṣlaḥa for al-Ṭūfī is the objective (maqṣūd) of legal rulings concerning the daily life of the believers (he says: siyāsat al-mukallafīn) in the realm of interpersonal relationships and customs. The rest of the legal indicants are only “means” (wasāʾil); it is imperative for al-Ṭūfī to prefer “objectives” (maqāṣid) over “means” (wasāʾil) that lead to these objectives (Al-Ṭūfī n.d., pp. 277–78; cf. Opwis 2010, pp. 225–26).

Now, al-Ṭūfī turns to the question how to decide to safeguard maṣlaḥa, when maṣlaḥa and mafsada collide. He shows the need for precepts (ḍawābiṭ, sg. ḍābiṭ), which should enable scholars to decide how to proceed. Al-Ṭūfī creates a list for decisions in different constellations, which resembles his categories of maṣlaḥa mentioned before in his legal theoretical work (see above Section 3.2). Put briefly: There can be only one maṣlaḥa, thus one should obtain it. If there are more maṣāliḥ, one should try to safeguard all, and if this is not possible, one should prefer the most important one. If they are equal, one can choose one of them. The same is true for mafsada: if there is one mafsada, one should avoid it. If there are multiple mafāsid, then one should first try to avoid it all together, if that is not possible, one should avoid so much as one is able to. If one is able to avert only one mafsada, one should avoid the severest. If they are equal, one should choose avoiding one of them. If there are maṣlaḥa and mafsada both together, one should try safeguarding maṣlaḥa and avoiding maṣlaḥa together. If this is not possible, one should choose the more important of these two options. If they are equal in their relevance, one should choose one of them (Al-Ṭūfī n.d., pp. 278–79; for a diagram see Opwis 2010, p. 233).

To summarize, al-Ṭūfī tries to find ways to harmonize his approach with the familiar principles and methods in the mainstream paradigm of legal theory (uṣūl al-fiqh), such as harmonization (jamʿ), specification (takhṣīṣ), clarification (bayān) and selection of the preponderant (tarjīḥ). Therefore, he is forced to restrict his approach to the field of interpersonal relationship and customs and here again on cases where safeguarding maṣlaḥa collides with Consensus and the religious texts/textual indicants. His primarily endeavor lies in his desire to bring agreement among legal scholars; he thinks this is achieved by safeguarding maṣlaḥa rather than by applying Consensus and interpreting the textual indicants at all cost.

3.5. Why Focusing on maṣlaḥa?

Al-Ṭūfī’s concept of safeguarding maṣlaḥa is apparently inspired by his ideal of the unity of legal scholars and jurists (cf. Opwis 2010, p. 244). Already in his earlier work on legal theory, Sharḥ Mukhtaṣar al-Rawḍa, he implies a wish for unity when he criticizes the categorization of maṣlaḥa proposed by other scholars. As mentioned before, al-Ṭūfī does not accept dividing maṣlaḥa into accepted, negated, and unattested maṣlaḥa and the division of the latter into necessities, needs, and improvements. He thinks that striping maṣlaḥa from the above categorizations and instead focusing on pure and preponderant maṣlaḥa and mafsada, will lead to unity. Disagreements will vanish, he remarks, if one focuses on maṣlaḥa and mafsada. In his view, the division of the maṣāliḥ into distinct categories leads to further disagreement (Al-Ṭūfī 2011, vol. 3, p. 217). In his later hadith commentary, al-Taʿyīn, he is more explicit in stating his desire for unity. This is important, since, as Swantje Bartschat (2023, pp. 112–13) points out, “[n]ext to the function of providing an overview of a specific topic and advising believers on religious matters or guiding through them, the forty hadith serve as a mirror of time, reflecting the circumstances a scholar lives in and indicating the problems he has to deal with.”

To underline the importance of unity, al-Ṭūfī refers in al-Taʿyīn to Quraninc verses like Q 3:104, 7:160 and 8:64, all of which support the idea of unity, and to hadiths that state that all Muslims are brothers and sisters and that they shall not disagree. With these references from the religious sources, al-Ṭūfī attempts to illustrate that safeguarding maṣlaḥa, which is an actual existing thing (amr ḥaqīqī fī nafsih) on which one does not disagree (lā yukhtalafu fīhi), can be the reason for unity. It is preferable to the idea of strictly following the religious texts, which are subject to contentions and often the reason for disagreement. Disagreement for him is, however, disfavored by Law. In contrast to that, agreement is something that the Law approves; one should therefore follow it (Al-Ṭūfī n.d., pp. 259–60).

Hence, al-Ṭūfī criticizes in much details, those scholars who fanatically cling to their chosen legal schools and engage in mutual defamations (Al-Ṭūfī n.d., pp. 260–66). He critically remarks that fanatism led to the fact that in some regions there are only few people of different schools and in general, one school could dominate that region. This dominance led for him to heavy suppression of the members of other schools and the inhabitants of the region, who belong to that minority. “Al-Ṭūfī recounts that in the Northern Iranian region of Jīlān the Ḥanbalī majority treat Ḥanafīs like infidels, kill them, and take their property as booty. In Ḥanafī-dominated Transoxania, he tells, the only Shāfiʿī mosque that existed was reviled by the local ruler as a church and shut down on his instigation.” (Opwis 2010, p. 214) Al-Ṭūfī also criticizes that each school of law tries to show that their eponym is the best one—so far that they quote hadiths from the Prophet and interpret it in favor of their eponym—and that they speak negatively about the other eponyms. All of this enforce for al-Ṭūfī disagreement among scholars. The solution for this disagreement, which lies in their differing methods and the interpretation of the religious texts, as al-Ṭūfī states, is his principle of safeguarding maṣlaḥa as outlined above.

If we go back to al-Ṭūfī’s biograpy, we can find some indications as reasons for his wish for unity. Al-Ṭūfī has been accused of being Shiʿi during his time in Cairo, which went back to personal quarrels between him and his colleagues. Accusations of Shiʿi affiliation forced him to exile after having been prisoned in 711/1311. After leaving Cairo and moving to Qūṣ in Upper Egypt, he wrote his hadith commentary al-Taʿyīn in 713/1313–14. Having his personal quarrels in mind and probably heaving experienced quarrels among scholars in Egypt, he expressed his desire for unity more explicitly in this work in contrast to his Sharḥ Mukhtaṣar al-Rawḍa, which he wrote earlier in 708/1308–09 during his time in Cairo. Cairo was during that time one of the rising centers of Islamic intellectual activities, since it became the melting pot for scholars coming from the East and the West. Māliki scholars from Andalusia arrived their while fleeing from the Christian conquerors on the Iberian Peninsula. Scholars from the East fled from the Mongolian invasion and suppression. Scholars from different schools met in Cairo where al-Ṭūfī probably felt the need and, beyond having experienced quarrels, saw a potential for unity; a desire that goes beyond his personal experience of exile.

Al-Ṭūfī’s own approach to law does not allow him to bring about unity among scholars by using his method. Both in his Sharḥ Mukhtaṣar al-Rawḍa and al-Taʿyīn fī Sharḥ al-Arbaʿīn, he does not elaborate a set of criteria for determining what should be regarded as maṣlaḥa and mafsada. To uphold the principle of safeguarding maṣlaḥa proposing without well-defined criteria could lead to more quarrels instead of averting them. Al-Ṭūfī probably seeks to steer the scholars’ focus to the people’s actual circumstances and their interests, which the scholars could discover together; he seems to think that rather than subjecting them to endless theoretical discussions, maṣlaḥa and mafsada can be identified in light of the real existing needs at hand. Nevertheless, with al-Ṭūfī’s method, one cannot determine maṣlaḥa and mafsada “objectively” with regard to some formal criteria (cf. Hallaq 2005, pp. 152–153; Opwis 2010, p. 245); the idea of safeguarding maṣlaḥa and averting mafsada can be highly subjective. Hence, al-Ṭūfī’s approach does not match the epistemological requirements of the established legal theory and practice.

3.6. Interpreting al-Ṭūfī’s Approach as Legal Precept within the Developments of the 7th/13th and 8th/14th Century

Al-Ṭūfī’s approach does actually fit in the scholarly development of his own time, particularly with the emergence of the systematic analysis of legal precepts. We have seen that it is possible to interpret al-Ṭūfī’s understanding of safeguarding maṣlaḥa as a legal principle. He himself says that in his earlier work on legal theory (written in 708/1308–09 in Cairo), he dealt with the question of necessary maṣlaḥa in his work on legal principles, al-Qawāʿid al-Ṣughrā (Al-Ṭūfī 2011, vol. 3, p. 209). As Demiri (2013, p. 534, footnote 45) points out, he refers to this work in further writings, in al-Intiṣārāt (cf. Al-Ṭūfī 1999, vol. 1, p. 235) and Ḥallāl al-ʿUqad (cf. Al-Ṭūfī 2016, p. 84), both written on doctrinal theology (kalām) in Cairo in 707–708/1308–09 and in 711/1311 (during his imprisonment) respectively (for these works, see Demiri 2013, p. 532). Al-Ṭūfī refers to his al-Qawāʿid al-Ṣughrā also with a differing title, al-Qawāʿid al-Dimashqiyya (cf. Al-Ṭūfī 1999, vol. 2, pp. 619, 670). It should be the same work on legal principles since he says, as he does with reference to al-Qawāʿid al-Ṣughrā in Sharḥ Mukhtaṣar al-Rawḍa (Al-Ṭūfī 2011, vol. 3, p. 209), that he dealt with the people’s general and specific interest (maṣāliḥ al-ʿibād al-ʿāmma wa-l-khāṣṣa) and the necessities (ḍarūriyyāt) in al-Qawāʿid al-Dimashqiyya (Al-Ṭūfī 1999, vol. 2, p. 619). Apparently, al-Ṭūfī wrote/completed this work on legal principles before he moved to Cairo or immediately after moving there in 705/1306, since he refers to it in his Cairene works. It is reported that he wrote another, more extensive work on legal principles (i.e., al-Qawāʿid al-Kubrā)—we do not have any information where and when he authored it, or whether it is the same work on legal principles under a different title. Unfortunately, his work(s) on legal principles are not extant (Demiri 2013, p. 534).

Al-Ṭūfī probably engaged with legal principles, since he lived during a period where scholars started dealing with legal principles in a systematic way. This does not mean that legal principles did not exist before, however, they have not been systematized yet. Many scholars, who engaged in this field and wrote works and were decisive for its development, were, of course among others, such as the Algerian Māliki scholar Abū ʿAbdallāh Muḥammad al-Maqqarī (d. 758/1357), especially Damascene and Cairene scholars; two cities that played an important role in al-Ṭūfī’s life and in the 7th-10th/13th-16th century. Among these scholars are the Damascene Shāfiʿī scholars Ibn al-Wakīl (d. 716/1317) and Ṣalāḥ al-Dīn al-Kaykaldī (d. 761/1359), and the Cairene Shāfiʿī scholar Tāj al-Dīn al-Subkī (d. 771/1370), who later lived and worked in Damascus. Although these two scholars influenced the scholarly circles after al-Ṭūfī’s death, their works show that scholars engaged systematically with legal principles in the 7th/13th and 8th/14th century (Heinrichs 2002; Musa 2014).

There are further Cairene scholars who worked on legal principles and emphasized them. One of these scholars is al-Qarāfī, whose works al-Ṭūfī knew very well (see above Section 2). Al-Qarāfī wrote specifically on legal principles (the title of his book is Anwār al-Burūq fī Anwāʿ al-Furūq), especially for cases that seem to be similar but should be evaluated differently; these cases are called furūq (“distinctions”; cf. Saba 2019). Al-Qarāfī underlies the importance of the knowledge on legal principles, to which he already referred to in his work on substantive law (al-Dhakhīra). He wanted to systematize them in his furūq-work and add some further legal principles (Al-Qarāfī 1998, vol. 1, pp. 8–11). We can say that he emphasizes the knowledge on legal principles in order to understand the law.

Al-Qarāfī refers also to works that dealt with legal principles before him. For instance, at one occasion (Al-Qarāfī 1998, vol. 3, p. 419), he refers to the Andalusian philosopher and Mālikī jurist Abū al-Walīd ibn Rushd (d. 595/1198) and his work on substantive law, the Bidāyat al-mujtahid wa-nihāyat al-muqtaṣid. He refers to Ibn Rushd’s work as a Book of Legal Principles (Kitāb al-Qawāʿid). This is a not a mistake, rather describes Ibn Rushd’s purpose of writing his book. Ibn Rushd wrote it with regard to the widely known legal questions, analyzing them in order to find the reason for disagreement and detect the legal principles (Ibn Rushd uses both the technical terms uṣūl and qawāʿid) underlying them (Ibn Rushd 2007, p. 17; cf. Dutton 1994). Remarkably, al-Ṭūfī refers to this work in his Sharḥ Mukhtaṣar al-Rawḍa as well. He mentions it, as al-Qarāfī did before him, as a book on legal principles (he says: “in his Legal Principles” (fī qawāʿidihi), when he discusses that it is preferable to harmonize colliding legal textual indicants rather than preferring one of them (Al-Ṭūfī 2011, vol. 3, p. 688f.). Since he wrote his Sharḥ Mukhtaṣar al-Rawḍa in Cairo and al-Qarāfī was a well-known Cairene scholar, Ibn Rushd’s work must have been known there and al-Ṭūfī should have had access to it. Additionally, as Opwis (2010, chp. 3) demonstrated convincingly, al-Qarāfī saw in legal precepts a well-argued concept for incorporating maṣlaḥa for the process of deriving norms. Thus, it seems that discussing legal precepts and principles was a prominent discussion among scholars in Cairo, which al-Ṭūfī followed.

The idea of implementing maṣlaḥa in legal principles was also followed by other scholars. We find this endeavour in al-Qarāfī’s Damascene Shāfiʿī teacher and influential scholar ʿIzz al-Dīn ibn ʿAbd al-Salām’s (d. 660/1262) work on legal principles, entitled Qawāʿid al-Aḥkām fī Iṣlāḥ al-Anām. Ibn ʿAbd al-Salām left Damascus and settled later in Cairo; there he was one of the most influential Shāfiʿī scholars of the time (cf. Apaydın n.d.). His work differs from other writings on legal principles. Ibn ʿAbd al-Salām says that all of the legal rulings and principles are based on one major principle: Averting harm (mafsada) and safeguarding or achieving maṣlaḥa. Therefore, he deals with the definition and types of maṣlaḥa and mafsada, engages with different principles and analyzes them with regard to cases from substantive law (furūʿ al-fiqh) (Ibn ʿAbd al-Salām 2000).

Al-Ṭūfī might have known these differing approaches to legal principles through al-Qarāfī’s works and also the scholarly discussions in Cairo and Damascus that allowed scholars after him to write extensively on legal principles. For instance, the influential Ḥanbalī scholar Ibn Rajab (d. 795/1393) wrote his work Taqrīr al-Qawāʿid wa-Taḥrīr al-Fawāʾid on legal principles. Ibn Rajab belonged to the famous scholars from the Mamluk period (648–923/1250–1517), “which was characterized by a concentration of scholars in Syria and Egypt, a steady output of written scholarship, and numerous schools and centres of higher learning supported by official patronage and private endowments” (Al-Matroudi). He spent a considerable time studying in different regions (Baghdad, Cairo, Damascus, Mecca, Palestine), and finally settled in Damascus (with Cairo, one of the two influential centers of Islamic scholarship), where he was among the chief Ḥanabalī scholars (cf. Al-Matroudi n.d.; Kallek n.d.; Gharaibeh 2023, pp. 134–36). Interestingly, Ibn Rajab is among those biographers who openly criticize al-Ṭūfī for being Shiʿi (Ibn Rajab 2005, vol. 4, pp. 404–21; cf. Demiri 2013, pp. 9–10). However, Ibn Rajab himself wrote a commentary on al-Nawawī’s Forty Hadiths like al-Ṭūfī. In addition to commenting on the hadiths included in al-Nawawī’s work, he added eight more hadiths to the forty-two of al-Nawawī; hence, his commentary, comprises fifty hadiths. Briefly put, “he sets his work apart from other commentaries and—most importantly—implies that the collection of al-Nawawī was originally intended to collect those narrations that can be subsumed under the categoriy of jawāmiʿ al-kalim. Consequently, he interprets or extends al-Nawawī’s intention to collect hadiths that each represent a principle of the religion (qāʿida ʿaẓīma min qawāʿid al-dīn)” (Gharaibeh 2023, p. 139). Jawāmiʿ al-kalim is a concept that “describes the prophetic sayings as conveying the widest meanings despite their dense expressions” (Gharaibeh 2023, p. 139). Hence, the reason why Ibn Rajab comments on those hadiths is that they are like general principles that also comprise many legal cases. Thus, he refers to legal issues in particular when he comments on the hadiths (Ibn Rajab 2008), a peculiarity already shown by Mohammad Gharaibeh, who interpreted Ibn Rajab’s juristic commentaries with the Ḥanbalī scholarly circle that Ibn Rajab had in mind when writing his commentary (Gharaibeh 2023, pp. 142–44, 148).

The interesting point for us is, whether Ibn Rajab refers to al-Ṭūfī’s concept on maṣlaḥa while commenting on hadith No 32. Looking at its commentary, Ibn Rajab does not refer to al-Ṭūfī or to maṣlaḥa at all when he comments on “There is neither harming nor harm receiving” (Ibn Rajab 2008, pp. 667–83). However, he does make some theological statements in his commentary. He emphasizes that God does not oblige His servants with commands that could harm them. Each of God’s commands constitutes wellbeing in itself and abiding by them leads to people’s wellbeing in this life and in the hereafter. Likewise, God’s prohibitions are harmful by themselves both for people’s worldly existence and in the hereafter. Thus, there are many legal licenses, such as skipping fasting for ill people, although the believers are obliged with fasting in general (Ibn Rajab 2008, p. 681). We can conclude that Ibn Rajab treats this and further hadiths as principles for various legal issues. That both Ibn Rajab and al-Ṭūfī commented on al-Nawawī’s Forty Hadith is thus not a coincidence. For those who were interested in basic principles with regard to hadith, al-Nawawī’s compilation was a perfect base-text. Al-Nawawī himself chose hadiths in his view to address the most significant basic principles of religion (qāʿida ʿaẓīma min qawāʿid al-dīn), so that scholars saw them as linchpin of Islam (madār al-Islām), or the half or third of it (Al-Nawawī 1984, p. 5). Al-Nawawī book influenced numerous forty-hadiths works that were compiled after him (Bartschat 2023, p. 107).

Bearing all this in mind, it is not surprising that al-Ṭūfī both wrote works on legal principles and dealt within these works with the question of maṣlaḥa as he states himself in his legal theoretical work (Al-Ṭūfī 2011, vol. 3, p. 209). He also relates his efforts in al-Taʿyīn to the discussions on principles. Al-Ṭūfī underlines in the introduction to his hadith commentary that he wishes that his work becomes, he means apparently that it should be treated as a “universal principle in the religion” (ka-l-qāʿida al-kulliyya fī al-dīn) (Al-Ṭūfī n.d., p. 2). One can now ask, why he does not refer to the hadith “There is neither harming nor receiving harm” directly as a legal precept for safeguarding maṣlaḥa and forces himself to argue within the realm of specification? We can assume that legal principles during his time had not yet been systematically analyzed, so that he binds himself in his introduction with the commonly accepted methods. Legal principles were not part of the standard arguments and methods within legal theory. This is probably also the reason why al-Qarāfī before him engaged with this question explicitly. His efforts could be read, besides of the obvious systematization, as an effort of standardization. This was probably necessary, since the migration of scholars from the Eastern and the Western parts of the Muslim world to centers such as Cairo, gave rise to the plurality of legal and theological viewpoints; scholars needed to both justify legal plurality and find principles that allowed dealing with plurality within and outside a legal school (madhhab) and also sideline views that were contradictory. Therefore, it is not surprising that al-Qarāfī and other scholars focused on analyzing similar appearing rulings that should be treated differently while regarding legal principles. Additionally, legal principles helped organizing and standardizing the applied legal rulings (Oberauer 2018, p. 166), within a legal school or with respect to others. They had also a didactic value for teaching Islamic law (Musa 2014, pp. 356–65). Hence, legal precepts and principles gained more and more importance in the course of time (Heinrichs 2002; Musa 2014). Having all of these developments in mind, although al-Ṭūfī treats the hadith on harm as a legal precept, he refers to more commonly accepted and standardized methods, yet risking inconsistencies.

4. Conclusions

Al-Ṭūfī’s main concern in his jurisprudential writings is to find new methodological ways within the established boundaries and standardized methods of the legal theoretical tradition to which he belongs to. He emphasizes safeguarding maṣlaḥa in order to find solutions that allow to unite scholars. His endeavors in his hadith commentary (al-Taʿyīn fī Sharḥ al-Arbaʿīn) are framed by the principles (sg. qānūn) of Islamic legal theory. Moreoever, al-Ṭūfī is keen to incorporate the Quran in his hadith commentary (Al-Ṭūfī n.d., p. 3). This is not the only occasion where the Quran—besides his exegetical works—plays an important role in al-Ṭūfī’s engagements with theological and legal theoretical questions. In his work al-Ishārāt al-ilāhiyya, which he wrote a few months before his death in 716/1316 (Demiri 2013, p. 530), he reads the Quran with regard to doctrinal principles (so-called uṣūl al-dīn) and legal theory (uṣūl al-fiqh) (Al-Ṭūfī 2002, vol. 1, pp. 206–12). Also, his work on dialectics (al-jadal), which he wrote in 709/1310 in Cairo (Demiri 2013, p. 530) is structured similarly; he analyzes the Quranic verses with regard to the questions of dialectics (Al-Ṭūfī 1987). This stance and attitude of al-Ṭūfī in his works, as he mentions in al-Taʿyīn fī Sharḥ al-Arbaʿīn, is the reason why he was determined to locate his approach to safeguarding maṣlaḥa within the realm of specification and clarification, especially by commenting on the widely known hadith that he takes as the most justification for the principle of maṣlaḥa. Therefore, he does not criticize these boundaries in his hadith commentary, neither sets them aside nor tries to overemphasize maṣlaḥa while arguing for safeguarding it in formulating legal rulings. He situates himself clearly within the known common boundaries and standards of the mainstream legal theory.

Besides al-Ṭūfī’s introduction, we can discover this attitude in his argumentation for the probative value of safeguarding maṣlaḥa in relation to Consensus as well as in his reliance on collision and the principles for resolving it, his division between the fields of worship, fixed ordinances, interpersonal relationship and customs, and his insistence on the epistemological status of legal indicants. Hence, al-Ṭūfī’s approach is not a radical turn to safeguarding maṣlaḥa as the strongest legal indicant and source, rather it has a limited scope of application within the mainstream legal theory. Yes, his approach has many inconsistencies as shown in the case of specification. His criticism that the religious texts are highly disagreed upon, while using them for his own argumentation for the validity of safeguarding maṣlaḥa is also an important inconsistency in his theory. However, it coincides with the approach that he explicitly mentions in the introduction to al-Taʿyīn. It is also true that al-Ṭūfī’s understanding of maṣlaḥa is vague and that he does not articulate a clear set of criteria for determining what constitutes the maṣlaḥa in any given case. While his chief aim was to reduce widespread disagreements amongst the jurists of his time, the lack of clear criteria contributes to these disagreements rather than diminishing them; each jurist can argue for a different maṣlaḥa concerning the same legal case. For instance, if maṣlaḥa and mafsada were easy to grasp, one would not have to choose almost randomly (qurʿa, lit. “lottery”) one among the colliding maṣlaḥa and mafsada (Al-Ṭūfī n.d., p. 278f.).

Al-Ṭūfī’s attempt for safeguarding maṣlaḥa is, however, a remarkable example of finding new ways within a highly sophisticated scholarly environment. The most appropriate reading of his theory seems to be that safeguarding maṣlaḥa is a precept, a legal principle for finding a solution among colliding legal indicants. Therefore, as Opwis points out, al-Ṭūfī’s approach resembles al-Qarāfī’s and Ibn Taymiyya’s (d. 728/1328) concept of regarding maṣlaḥa (Opwis 2010, p. 204) in formulating legal rulings. Al-Ṭūfī’s concept could also be regarded as a means for deriving new rulings, although he himself does not mention this explicitly. Maṣlaḥa, hence, becomes an independent legal indicant, which allows flexibility in the processes of formulating rulings; as such, it had a great potential for breaking through the formalism in legal theory. Al-Ṭūfī’s theory also helps to regard maṣlaḥa at any level, and avoids disputes about maṣlaḥa at least within the discussion of how to subsume them under the known categories in legal theory (Opwis 2010, p. 242f.). However, as pointed out above, there is a risk of scholarly disagreement while focusing on maṣlaḥa due to the lack of criteria for determining what should be regarded as maṣlaḥa. As Opwis observes, a pivotal aspect of al-Ṭūfī’s legal approach is that it allows to incorporate “matters of public policies (siyāsa) into the sphere of the religious law. (…) Siyāsa is subsumed under the religious law, it is not separate from it” (Opwis 2010, p. 244f.). We see this in his legal theoretical work Sharḥ Mukhtaṣar al-Rawḍa as well, where he relates the necessary interest among maṣlaḥa to “public policy (lit. siyāsat al-ʿālam)”, and the continuous existence of the public (baqāʾihi) and structuring its condition (intiẓām aḥwālih) (Al-Ṭūfī 2011, vol. 3, p. 209). This could be one of the reasons why scholars from the twentieth century (e.g., Riḍā), who emphasized renewal in religious thought and practice relied heavily on al-Ṭūfī’ approach. Those scholars probably saw a potential for their reform approaches in al-Ṭūfī’s concept, since it comprises politics and the sphere of the daily life of the believers. Such concepts could help regaining religious authority which the religious scholars feared to lose with the developments in the twentieth century.

In contrast to that, al-Ṭūfī’s efforts on safeguarding maṣlaḥa does actually fit in the development of the systematization of legal precepts, starting with the 7th-8th/13th-14th century (Heinrichs 2002; Musa 2014). Scholars like Ibn ʿAbd al-Salām and al-Qarāfī engaged with legal principles incorporating the idea of maṣlaḥa. Systematic works on legal precepts emerged and were widely accepted. Legal precepts and principles helped to facilitate one’s understanding of the law, applying already established rulings properly, and deciding which of the colliding rulings should be applied. They were not a source of law, rather a guideline for the application of law and resolving collisions. Al-Ṭūfī engaged with these principles. During his lifetime, they had not been yet established so that he probably did not refer to legal principles directly, rather than to methods such as specification and clarification. This again underlines his aim to stay within the boundaries of the standards of the mainstream legal theory.

We can conclude further that al-Ṭūfī’s approach was not received not since it was completely an anomaly to the mainstream legal tradition; he had much interest in regarding the “rules of the game”. His approach within the mainstream legal theoretical standards was too vague to deal with and, epistemologically speaking, weak (Opwis 2010, p. 245; Hallaq 2005, p. 152f.). This vagueness proved useful to those modern scholars who attempted to incorporate al-Ṭūfī’s views in the service of creating new ways for deriving norms, reviving the premodern legal tradition, and for their political theories. Whereas al-Ṭūfī’s approach—and also all of the other premodern concepts mentioned in the introduction of the present article—was case-based, and safeguarding maṣlaḥa or even applying legal precepts were applied case-by-case, modern scholars use maṣlaḥa and maqāṣid as abstract categories for deriving norms and deciding whether legal solutions and rulings are valid or not (Opwis 2017). Al-Ṭūfī’s concept fitted in this trend and gained much attention; it was interpreted in this way both by his advocates and adversaries. Al-Ṭūfī’s own concerns and context, the study of which would lead to a better understanding of his objectives and contribution, were and still are often set aside.