The Ethical Turn in Legal Analogy
Imbuing the Ratio Legis with Maṣlaḥa
Al-Ghazālī’s articulation that the purposes of the divine Law (maqāṣid al-sharīʿa) are to attain maṣlaḥa for the five necessary elements of human existence was not only novel but had long-lasting influence on the way Muslim jurists understood the procedure of analogy (qiyās). The correctness of the ratio legis was determinable by its consequences in bringing about maṣlaḥa. This shift was possible only by intellectual shifts in understanding the relationship between ethics and law. This paper traces the development in conceptions of ethics and its impact on the procedure of analogy in three 5th/11th century predecessors of al-Ghazālī, namely al-Baṣrī, al-Dabbūsī, and al-Juwaynī. It shows that al-Ghazālī’s definition of the purposes of the Law was developed based on previous conceptual shifts in the ratio legis from being a sign for the ruling to reflecting the ethical content of the divine injunction.
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