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The Legal Philosophy of Al-Ghazali

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The Legal Philosophy of Al-Ghazali TJ{'EL'Efj.91.£ P!J{JLOSO'P'l{'YO'f YIL-tj!H.9l.Z.91£l: L!itW, LJ49{{j'l1Jll(j'E.9l9(1J TJ{'E{)LO(j'Y 19( Jll.£-!M'l1S'I9l.5~Jt • 'Ebraliim '£I.Moosa to in partia[julfifm!nt of tlie requiremmts for tfie tfegree of University of Cape Town 'Doctor of 1fzifosoplig in tfie su.iject of 9(efigious Stuaies 'llnioersitg of Cape 'IO'llht 9(ontfe6oscli, 'Western Cape Mardi 1995/Sliawwiil 1415 The copyright of this thesis vests in the author. No quotation from it or information derived from it is to be published without full acknowledgement of the source. The thesis is to be used for private study or non- commercial research purposes only. Published by the University of Cape Town (UCT) in terms of the non-exclusive license granted to UCT by the author. University of Cape Town 11 DEDICATION In the Name of Allah, the Most Gracious, the Dispenser of Grace. To my parents, Ishaq and }:liin, and all my teachers. 1ll ABSTRACT Abu ~amid al-Ghaza.11 is a major figure in Muslim thought and famous for his writings on theology and mysticism. Al-Ghazaff' s first career was that of a jurist and he had made major contributions to the jurisprudence of the Shafii school. As time goes on his juristic contributions are increasingly being relegated to a secondary level. This thesis attempts to place one of al-Ghazali' s last writings on legal theory (Uful ,al-.fiqh), al-Musta,sf<i, in perspective and evaluate its significance in the genre of u~ul al­ fiqh literature. The focus ofthis thesis is the interface between law, language and theology as it manifests itself in a 'close reading' of al-Mustaefa and his biography as a jurist.. Al-Ghazali' s legal theory was very much shaped by his personal biography, intellectual, political and social contexts, which in tum were constituted by the language of theology and law. The controversies centered around the use of philosophical theology and 'foreign knowledge" in the discourse of religion. Al-Ghazaff attempted to negotiate the tension-ridden ideological chasms between traditionalist and rationalist tendencies by fusing and synthesising the disparate intellectual disciplines. The battlefield for these ideological conflicts was the discipline of legal theory and law. In his role as synthesiser of disciplines, a bricoleur, al-Ghazal1 often ended up vacillating between binary opposites, and was caught between stability and instability, order and disorder. Despite his attempts to stabilise language by means of a metaphysics, it waJ the semiotic nature of language that continuously destabilised his juridical and theological discourses. IV ACKNOWLEDGEMENTS It is a pleasure to acknowledge the many people and institutions that have made a contribution to this thesis. Firstly, I owe a debt to all those of my teachers who introduced me to the joys of learning. Debts to first-teachers are impossible to discharge. At the risk of omission, I must mention Mawlana Yosuf Karaan, an excellent story-teller and first-teacher who inspired me to explore the world of Islam as a child, as well as Mr Adam Peerbhai in my early teens. To the late Shaykh Abu Bakr Najaar, I owe a great deal for sharing with me his vast knowledge and experience. His unexpected death left many of us the poorer. Most of all, I miss the memorable discussions and debates I could have with him, even though at times we would vehemently disagree. At the seminary of Deoband the dedication of two excellent teachers and conversation partners, Mawlfuia Badr al-}:Iasan al-Qasinn and Mawlana cAbd al-Klialiq Madrasi steered me in the direction of critical thinking and reflection. To the Nadwatul cUlania' for showing me the diversity of discourses in Islamic thought. Professor Fattii cUthman served as a role model in many of my early intellectual choices, both as an employer in London and discussion partner. The comradely solidarity and friendship of dozens of people in the Muslim Youth Movement of South Africa can never be adequately acknowledged. cAbd al-Rashid cUmar, a close friend and associate for more than a decade has been an unflinching bastion of support even in the most trying times. One learns a great deal from former students and associates for their critical appraisal that re-cast some of my own mis-apprehended ideas. For this I would be amiss if I do not mention Sac diya Shaikh, Soraya Bosch, Gary Wilson and Aslam Fataar for their contributions to my own thinking. My thanks to Mu~ammad cAli Moosagie for generously making available his excellent library and for listening to some of my ideas, even though for the most of times our conversations appeared to be heated debates. Mu~ammad Sa{d 'MS' Kagie has over the years been a staunch and intimate friend. Without the dedicated assistance of the extra pair of eyes of my friend and bookseller Abdul Aleem Somers I would have been deprived of great treasures of knowledge. Shamiel Jeppie has been an intellectual soul-mate for more than a decade and remains a source of inspiration and committed friendship. Farid Esack has been a childhood friend who has been a pillar of strength and encouragement in v. times of great adversity. To all these friends, and others not mentioned, I owe a debt that can hardly be repaid and thanks is insufficient a term. The University of Chicago awarded me their South African Fellowship during 1990-91 which gave me access to their excellent resources. The Centre for Middle Eastern Studies, particularly, its director Professor John Woods, did not allow me to feel like a stranger for a single day. I deeply appreciate his generosity and that of his colleagues, Professors Rashid Khalidi and Wadad al-~a~f who gave freely of their valuable time. Some lasting friendships were made during my brief stay in Chicago with Marda Dunsky, Jefferson Gray, Annie Campbell Higgins and Mu~ammad Fatjil. I would also like to thank the Islamic Academy of South Africa for their support during my years as a graduate student and their on-going support for the promotion of the discipline of Islamic Studies in this country. Mr Sulayman 'Solly' Ghoor and Mr Akhtar Thokan deserve special mention. My colleagues in the Department of Religious Studies at the University of Cape Town were particularly considerate in letting me pursue my doctoral research. Associate Professor Charles 'Chuck' Wanamaker was determined to see this thesis through during his term as head of department and creatively facilitated teaching relief for me. Dr Abdul Kader I. Tayob, my supervisor and colleague, deserves an award for his patience and gentle motivation. No student could hope to have a more careful and attentive thesis supervisor than him. I have profited enormously from his friendship, erudition and counsel over the years, and especially, while writing this thesis. As one of his first doctoral students, I can only pray: allahumma iftalJ /aka bi al-khayr. Last, but not least, is my gratitude to my family, parents, brothers, sisters, uncles, aunts, in-laws and the extended family network, for their steadfast support for my intellectual and social endeavours over the years. Even if they disagreed, they never lost faith in what I was doing. I am indebted to my eldest uncle, Muhammad I. Moosa who has not only been a pillar of strength to me but whose care and advice I deeply appreciate. To my wife Fahimoenisa, for her silent support and for assuming some of my responsibilities during my long absences from home, I owe a great deal. To Lamya (7), who regularly monitored my progress, and Shibli (3) who had to suffer the deprivations of my attention, there will hopefully be more time, now that the "pieces" (Shibli' s perhaps not incorrect construction of thesis) is out of the way. VI TABLE OF CONTENTS ... Abstract ...................................................................................................... 111 Acknowledgements..................................................................................... iv Table of Contents ....................................................................................... vi Title Abbreviations and Transliteration ................................................... ix Introduction ................................................................................................. 1 Chapter One _ The Absent 'Text': Al-Ghazali the Jurist................................................... 7 Introduction ............................... ·.... ~ ................................................................................. 7 The Role of the Jurist in the Saljuq Era............................................................................. 9 Early life and Family History .......................................................................................... 10 Education ....................................................................................................................... 12 The Beginning of a Career.. ............................................................................................ 14 al-Ghazali the Theologian (Mutakallim) and the Saljiiq Era ............................................ 18 al-Ghazali the Ideologue ................................................................................................. 21 al-Ghazali the Jurist (Faq1h) ································:.··································· ....................... 23 Key Role of al-Ghazali in the Genealogy of Shaffi Jurisprudence (Diagram) ................. 25a Remembering the Dramatic ............................................................................................ 26 Reading the
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