ابن رشد فقيهاً / Ibn Rushd as a Jurist


Hassan Hanafi



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حنفي, حسن; Hanafi, Hassan

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Research Article

Publication Title

Alif: Journal of Comparative Poetics

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[The author asserts that the general orientation or spirit which pervades the corpus of Ibn Rushd helps in deciphering the more specifically legal writing of the Judge of Cordoba (Bidāyat al-mujtahid wa-nihāyat al-muqtaṣid (Inception of Interpretation and the Perfection of Concision). This Averroist spirit consists in examining and distinguishing opposing claims and extricating the nature of the issue, while taking into consideration various opinions, in order to reach first principles. This spirit can be summed up as the way of ijtihād (reflective interpretation), away from taqlīd (unreflective adoption). Ijtihād is based on analogy between the unspelled and the spelled out, thus the two conditions for such interpretation are sound linguistic knowledge and methodology of jurisprudence. The article concentrates on the structure of Bidāyat al-mujtahid in terms of the underlying logic of its organization. In it Ibn Rushd reviews the four legal schools of the Mashreq as well as the Zahirite schools of the Maghreb. He divides his work into a binary structure, a vertical axis relating the human kind to heaven ('ibadāt) and a horizontal axis relating the members of the human kind to each other (mu'āmalāt)-each of which is divided into eight subdivisions, which in turn are subdivided into other smaller units and up to the twelfth branching. The objective of Ibn Rushd is to reduce the particulars to their principles (preponderance, abrogation, choice between alternatives and concordance) in order to solve the contradiction between scriptural and rational arguments, that is between Text and Reason. A fifth principle is sometime added and that is fitra (innate constitution). The sources of Law are four: The Book (Quran), the tradition (Sunna) of the Prophet, consensus (ijmā') and analogic reasoning (qiyās). However, Ibn Rushd does not consider consensus an independent source. He also condenses the four poles of al-Ghazālī's-the tree, the fruit, the gardener, the gardening-into the last one. This tendency of Ibn Rushd as examined here shows that he tends to go beyond the spirit of the laws as pertinent to nomadic and mercantile society to uncover the spirit of the laws by distinguishing between their core and their circumstantial manifestation.]

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