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.