The Jurist Who Said a Text Could Be Set Aside for the Public Good

Najm al-Din al-Tufi, a Hanbali jurist writing in Damascus and Cairo in the decades around 1300, pushed unstated benefit further than any jurist before or after him found comfortable. Commenting on a single hadith, that there is to be no harm and no reciprocal harm, Tufi argued that when a clear public benefit and an explicit text pointed in different directions outside matters of ritual worship, the benefit should be given priority and the text reinterpreted or set aside. Earlier Maliki use of the device had always operated inside the texts, filling gaps the sources left open. Tufi proposed something else, a benefit standing in judgment over a text rather than working alongside it, and he said so plainly rather than disguising the claim. The treatise earned him a reputation as an outlier even within his own school, cited far more often by later critics of legal reasoning than by jurists willing to follow him, and Hanbali colleagues treated it as close to conceding that revelation could be overruled by human judgment of what is good. The claim resurfaced in the twentieth century almost unchanged, as reformist jurists searching for a wide, textually independent notion of benefit to answer modern legal questions found in Tufi a predecessor bold enough to have already made their case, several centuries before they needed it.