We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 15 March 2016
The question of the sources of legal normativity continues to haunt legal theorists to this day. While it is largely uncontroversial that modern legal systems claim to produce normative propositions, whether or not there are independent reasons to obey the law remains a contested issue. Those views, as varied as they may be, appear to largely agree that the law is a social phenomenon of definite ontological presence. In this article, I argue, through an analysis of the theories of three prominent ninth- to eleventh-century Muslim jurists, that early Muslim theories of lawmaking did not incorporate any ontologically coherent concept of law. Rather, lawmaking was understood as the case-by-case formulation of legal opinions by individual jurists who were presumed to be driven by the same moral drive, and therefore occupy the same moral order, as all subjects of law. In spite of this ad hoc epistemological view, Islamic jurisprudence conceived of legal pronouncements as fully normative. The normativity of those unstructured ad hoc individual pronouncements, I maintain, is the result of the centrality of moral purpose to early Muslim theories of law. It was the presumption of a common moral drive that gave the legal system structural coherence and allowed the advancement of those pronouncements as normative claims. Whereas recent historical and anthropological work shows that moral motivation was central to the manner in which sharīʿa operated as a system of social regulation, this article argues, along the same lines, that the pietistic drive was both conceptually and structurally indispensable for the normative coherence of early Islamic jurisprudence.
1 David Enoch, “Reason-Giving and the Law,” in Oxford Studies in Philosophy of Law, ed. Leslie Green and Brian Leiter (Oxford: Oxford University Press, 2011), 1:1–38.
2 See, for example, Raz, Joseph, “The Obligation to Obey: Revision and Tradition,” Notre Dame Journal of Law, Ethics and Public Policy 1, no. 1 (1984–1985): 139–156Google Scholar; see also Smith, M. B. E., “Is There a Prima Facie Obligation to Obey the Law?,” Yale Law Journal 82, no. 5 (1973): 950–76CrossRefGoogle Scholar.
3 For example, see Regan, Donald H.'s argument that the duty to obey the law is an “indicator-rule,” not a robust rule in “Authority and Value: Reflections on Raz's Morality of Freedom,” Southern California Law Review, 62, nos. 3 and 4 (1989): 995–1095Google Scholar. The argument that the existence of a legal system is in itself valuable is made in Finnis, John, “The Authority of Law in the Predicament of Contemporary Social Theory,” Notre Dame Journal of Law, Ethics and Public Policy 1, no. 1 (1984–1985): 115–38Google Scholar. This, Finnis argues, reflects the human need to coordinate collective action in society. Ibid., 133.
4 Enoch, “Reason-Giving and the Law,” 1–38.
5 Ibid.
6 The view that “[t]he central problem of much of [modern] jurisprudence has been that of the definition of law or the specification of the appropriate meaning of the word ‘law’” appears to be a largely accepted proposition. Cotterrell, Roger, “The Sociological Concept of Law,” Journal of Law and Society 10, no. 2 (1983): 241CrossRefGoogle Scholar.
7 Joseph Raz, The Authority of Law (Oxford: Clarendon Press, 1979), 37–40.
8 An account of law as a union of primary and secondary norms can be found in H. L. A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961), 79–99.
9 The concept of a customary rule of recognition was famously introduced in Hart. Ibid., 94–99.
10 John Austin, The Province of Jurisprudence Determined, and The Uses of the Study of Jurisprudence (London: Weidenfeld and Nicolson, 1968), 9–33. The distinction between law as identifiable by a socially accepted rule of recognition as offered by Hart, and law as the command of a sovereign as advanced by Austin, are often seen as representative of the “soft” and “hard” versions of legal positivism, respectively. For a helpful overview of this and other distinctions, see Brian H. Bix, “Legal Positivism,” in The Blackwell Guide to the Philosophy of Law and Legal Theory, ed. Martin P. Golding and William A. Edmundson (Malden: Blackwell Publishing, 2005), 29–49.
11 For an elaborate account of the theories of natural law, see George, Robert P., “Natural Law,” Harvard Journal of Law and Public Policy 31, no. 1 (2008): 171–96Google Scholar.
12 The concept of law as an instrument for the promotion of human good is expounded at lengths in John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980), 371–410 passim.
13 The notion that concepts are structured ideas is sometimes referred to as the “prototype theory” of concepts. This notion, it has been argued, “goes hand in hand with the claim that there is a relation between concepts and perceptual states.” Edwards, Kevan, “What Concepts Do,” Synthese 170, no. 2 (2009): 293CrossRefGoogle Scholar. Concepts of law are examples of prototypical structures coupled with conceptual empiricism. They advocate the presence of a given connection between the elements of the concept in question, many of which are based on empirical observation of social phenomena. Moreover, legal philosophers often claim to rely on a form of conceptual analysis, which presupposes that concepts are types of definitions.
14 For a helpful account of the different possible connections between law and morality, see Green, Leslie, “Positivism and the Inseparability of Law and Morals,” New York University Law Review 83, no. 4 (2008): 1035Google Scholar. John Finnis also confirms the weakness of this claim. See Finnis, Natural Law and Natural Rights, 351.
15 That this common and somewhat intuitive assumption does not appear to receive much attention from legal philosophers can be attributed to the tendency to view matters that pertain to the legal system “from the outside” as beyond the realm of jurisprudence and more pertinent to legal history, sociology, or political theory. See Field, G. L., “Law as an Objective Political Concept,” American Political Science Review 43, no. 2 (1949): 229–49CrossRefGoogle Scholar.
16 Joseph Raz argues that normative claims about the law can only be made on the basis of certain factual assumptions about it. See “Two Views of the Nature of the Theory of Law: A Partial Comparison,” Legal Theory 4, no. 3 (1998): 249–82CrossRefGoogle Scholar.
17 Schauer, Frederick, “The Social Construction of the Concept of Law: A Reply to Julie Dickson,” Oxford Journal of Legal Studies 25, no. 3 (2005): 495CrossRefGoogle Scholar.
18 Ronald Dworkin's main formulation of his theory of law as an interpretive phenomenon can be found in his Law's Empire (Cambridge: Belknap Press, 1986), 44–86. For a critique of positivism that nonetheless advances a specific conception of law as a “purposeful enterprise” see Lon L. Fuller, The Morality of Law (New Haven: Yale University Press, 1964), 98–151 passim.
19 On the justification of reason as a search for its source, or for a general principle from which it follows, see Joseph Raz, Engaging Reason: On the Theory of Value and Action (New York: Oxford University Press, 2002), 78.
20 The jurisprudence of John Finnis is a case in point. Like Fuller to some extent, Finnis argued at lengths that the existence and validity of the law depend on its ability to meet certain natural social requirements, but he formulated, nonetheless, a particular view of law as a distinct social phenomenon:
The central case of law and legal system is the law and legal system of a complete community, purporting to have authority to provide comprehensive and supreme direction for human behavior in that community, and to grant legal validity to all other normative arrangements affecting the members of that community. Such large claims, advanced by or on behalf of mere men, would have no plausibility unless those said to be subject to legal authority had reason to think that compliance with the law and with the directions of its officers would not leave them subject to the assaults and depredations of their enemies, inside or outside of the community.
Finnis, Natural Law and Natural Rights, 260.
21 The understanding of normativity as the production of reasons for action is explained by Joseph Raz, who argues, “The normativity of all that is normative consists in the way it is, or provides, or is otherwise related to reasons. The normativity of rules, or of authority, or of morality, for example, consists in the fact that rules are reasons of a special kind, the fact that directives issued by legitimate authorities are reasons, and in the fact that moral considerations are valid reasons.” Raz, Engaging Reason, 67.
22 The idea that the exercise of legal reasoning is in itself an act of obedience that follows the same moral ideal as any other act of compliance was expressed (albeit not in the context of systematic analysis of classical sources) by Khaled Abou El Fadl in the following terms:
Islamic law is founded on the logic of a Principal who guides through the instructions set out in texts. Those instructions are issued to the agents who have inherited the earth and who are bound to the Principal by a covenant. The point of the covenant is not to live according to the instructions, but to attempt to do so. Searching the instructions is a core value in itself—regardless of the results, searching the instructions is a moral virtue. This is not because the instructions are pointless, but because the instructions must remain vibrant, dynamic open and relevant. It is impossible for a human being to represent God's Truth—a human being can only represent his or her efforts in search of this truth. The ultimate and unwavering value in the relationship between human beings and God is summarised in the Islamic statement, “And, God knows best.”
Khaled Abou El Fadl, “Islamic Authority,” in New Directions in Islamic Thought: Exploring Reform and Muslim Tradition, ed. Kari Vogt, Lena Larsen, and Christian Moe (New York: I. B. Tauris, 2009), 129 (emphasis partially added after the first two sentences). As I argue in this article, the early epistemological discussions in Islamic works of legal theories and methodologies confirm this view on a number of accounts, particularly the fact that reasoning aimed at making a normative judgment is an act of obedience in itself, that one can only attempt to approach the ultimate divine moral ideal as much as possible, and that all judgments, regardless of their degree of certainty, were seen as fallible human constructs.
23 An elaborate treatment of this notion of objectivity in the context of Islamic legal theories was offered by Weiss. See Bernard Weiss, “Exotericism and Objectivity in Islamic Jurisprudence,” in Islamic Law and Jurisprudence, ed. Nicholas Heer (Seattle: University of Washington Press, 1990), 57.
24 Abū ʿAbdullāh Muḥammad b. Idrīs al-Shāfiʿī, a very prominent scholar and eponym of one of the four surviving Sunnī schools of law. He was most probably born in Gaza in AH 150/767 CE. He moved to Mecca as a child, and lived in Baghdad, Yemen, and finally Cairo. He is famous for his mastery of juridical sciences and erudition in sciences of the Quran, ḥadīth, linguistics, and poetry. He was also reportedly a strong opponent of speculative theology (kalām) and its scholars. Shāfiʿī died in Egypt in AH 204/820 CE. ʿAbd al-Raḥmān ibn Muḥammad Ibn Abī Ḥātim, Ādāb al-Shāfiʿī wa Manāqibihi (Beirut: Dār al-Kutub al-ʿIlmiyya, 1953), 17–32.
25 Abū Bakr Aḥmad b. ʿAlī al-Rāzī al-Jaṣṣāṣ, a major Ḥanafī jurisprudent. He was born in AH 305/917 CE. Jaṣṣāṣ lived and studied with Ḥanafī scholars in Baghdad, including the famed al-Karkhī, who was his mentor. He attained the leadership of the school in Baghdad. Jaṣṣāṣ is known to have repeatedly declined prestigious judgeship offers. He wrote in various disciplines, including Quranic studies, fiqh (notably, his commentary on Kharkhī's Mukhtaṣar), and uṣūl al-fiqh. He died in Baghdad in AH 370/981 CE. ʿAbd al-Q ̄dir ibn Muhammad ibn Abī l-Wafā al-Qurashī, al-Jawahir al-Muḍiyya fi Ṭabaqāt al-Ḥanafiyya (Cairo: Dar Iḥyāʾ al-Kutub al-ʿArabiyya, 1978), 1:220–24.
26 Abū l-Ḥasan ʿAbd al-Jabbār b. Aḥmad al-Hamadhānī al-Asadabādī, a prominent Muʿtazilī theologian who attained the top of the Muʿtazilī school in his lifetime. In law he was a follower of the Shāfiʿī school. Born around AH 325/ 937 CE, he lived in Baghdad, until called to Rayy, in AH 367/978 CE, by Ṣāḥib b. ʿAbbād. He was subsequently appointed chief qāḍī of the province; hence he is usually referred to in later Muʿtazilī literature as Qāḍī l-quḍā. He died in Rayy in AH 415/1024 CE. ʿAbd al-Wahhāb b. ʿAlī al- Subkī, Ṭabaqāt al-Shāfiʿiyya l-Kubrā (Cairo: ʿĪsā al-Bābī al-Ḥalabī, 1964), 5:97–98.
27 The fact that those works represent attempts to elaborate a legal methodology does not mean that they belong to the same genre of legal writing. The Risāla's status as the oldest work in the genre of uṣūl al-fiqh, to which Jaṣṣāṣ's work belongs, has been challenged in Hallaq, Wael B., “Was al-Shafiʿī the Master Architect of Islamic Jurisprudence?,” International Journal of Middle East Studies 25, no. 4 (1993): 587–605CrossRefGoogle Scholar. In addition, while it is obvious that uṣūl al-fiqh was a well-established discipline in the time of al-Qāḍī ʿAbd al-Jabbār, the seventeenth volume of his encyclopedic al-Mughnī, which overall is a major treatise on Muʿtazilī doctrine, is referred to as al-Sharʿiyyāt, a reference to matters of legal-moral knowledge and compliance. This volume's structure is designed to fit into the larger structure of al-Mughnī, rather than follow the conventional orders of the genre of uṣūl al-fiqh, although it does treat extensively the major topics that uṣūl al-fiqh is concerned with.
28 On early ijtihād and the construction of authority in Muslim schools of law, see Wael B. Hallaq, Authority, Continuity and Change in Islamic Law (Cambridge: Cambridge University Press, 2001), 24–56. On the history of the schools of law generally, see Christopher Melchert, The Formation of the Sunni Schools of Law, 9th–10th Centuries C.E. (Leiden: Brill, 1997).
29 Muḥammad b. Idrīs Shāfiʿī, al-Risāla, ed. Ahmed Shakir (Cairo: al-Bābī al-Ḥalabī, 1940), 206. Here and elsewhere in this article, unless otherwise stated, all translations from the Arabic sources are mine. In translated passages, I ocassionaly provide transliterations of key words in parentheses.
30 Ibid.
31 Ibid., 207.
32 Ibid., 206.
33 Ibid.
34 Tahanāwī clearly explains that ẓāhir is only obvious inasmuch as it directly conveys the conventional linguistic meaning of the term, rather than the meaning intended by the speaker, to which the category “naṣṣ” is reserved. See Muḥammad b. ʿAlī al-Tahānawī, Kashshāf iṣṭilāḥāt al-funūn (Beirut: Dār Ṣādir, 1980), 2:929–30.
35 The most elaborate study of Shāfiʿī's Risāla in modern scholarship is without a doubt Joseph Lowry's Early Islamic Legal Theory: The Risāla of Muḥammad Ibn Idrīs Al-Shāfiʿī (Leiden: Brill, 2007). Lowry cogently explains the centrality of the concept of bayān, which he translates as “announcement,” to Shāfiʿī's theory. While the centrality of this concept is beyond doubt, it is not entirely clear that Shāfiʿi in fact used the term “to denote a mechanical or architectural feature of the divine law.” Ibid., 24. In my reading, bayān is an important concept in Shāfiʿī's theory primarily for its epistemological implications, and not its structural features. In other words, bayān is the effect of the event of revelation by virtue of which proper behavior became potentially knowable to humans, rather than a once-and-for-all establishment of some persistent structure of the law. It is no coincidence that ẓāhir and bayān stem from synonymous roots (ẓahara and bāna) which denote becoming apparent or uncovered (in this context, bayān would be making something apparent to the mind). While this difference may appear minor, it is of importance for the understanding of the structural (or nonstructural) features of early legal theory, which is my concern here. The problem with the “architectural” understanding of bayān, in my view, is that it opens the door for the persistence of ontological language in our study of a purely epistemological phenomenon. Thus, because Lowry insists on bayān's structural nature, he concludes that “Shāfiʿī's concept of bayān offers a description of the divine law as an all-encompassing system. The individual rules in this system derive exclusively from the two sources of revelatory material, the Qurʾān and the Sunna.” Ibid., 32. While this is an accurate representation of the role of the Quran and Sunna in the process of formulation of legal rulings, the insistence on ontological concepts such as “system,” “derivation,” and “sources,” I maintain, is anachronistic. For an elaborate premodern treatment of the notion of acquisition of knowledge as a consequence of bayān, see Muḥammad b. al-Ḥusayn Abū Yaʿlā al-Farrāʾ, al-ʿUdda fī uṣūl al-fiqh, ed. Aḥmad b. ʿAlī Sīr al-Mubārakī (Riyadh, 1990), 1:76–78.
36 The etymological roots of iḥāṭa confirm this conclusion. Iḥāṭa stems from the root ḥ-w-ṭ, which, in its basic form, ḥawaṭa, means to safeguard and protect, which is why a wall built for protection is a ḥāʾiṭ. Thus, iḥāṭa is the act of surrounding a thing from all directions, in order to prevent any of it from being lost. Muhammad b. Mukarram Ibn-Manẓūr, Lisān al-ʿArab (Cairo: Dar al-Maʿārif, 1982), 1052. Loss, in the juristic sense, is of course a moral-epistemic one, namely the possibility of making a false pronouncement.
37 An equivalent of iḥāṭa can be found in Ghazālī's concept of ḥaṣr, or manʿ, which suggests that true knowledge sharply distinguishes between the object of knowledge and everything else, in a way that mirrors but does not equate its objective truth, or its truth in itself (ḥaqīqatihi fī nafsihi). Ghazālī, al-Mustaṣfā min ʿilm al-uṣūl (Baghdād: Maktabat al-Muthanná, 1970), 32–33.
38 Shāfiʿī, Risāla, 207.
39 Ibid. More on the ẓāhir/bāṭin distinction can be found in Robert Gleave, Islam and Literalism: Literal Meaning and Interpretation in Islamic Legal Theory (Edinburgh: Edinburgh University Press, 2012), 99–112. Gleave analyzes those concepts with respect to their place in Shāfiʿī's “hermeneutical system.”
40 Bernard Weiss aptly explains the importance of the notion of “hidden” truths that become manifest to humans through language. Based on this analysis, Weiss moves to what appears to be an unwarranted conclusion:
That which becomes manifest through the dalīl ʿaqlī and the dalīl lafẓī enters the public domain and thus stands in contrast to that which becomes manifest exclusively within the closed private world of individual experience. Accordingly, the word ẓāhir takes on in Muslim usage the sense of “exoteric,” for the exoteric is precisely that which is manifest within the public domain. Since objectivity entails availability beyond the confines of an intrinsically private experience, “objective” becomes virtually synonymous with exoteric.
Bernard Weiss, “Exotericism and Objectivity in Islamic Jurisprudence,” in Islamic Law and Jurisprudence, ed. Nicholas Heer (Seattle: University of Washington Press, 1990), 57, 62–63, 70.
However, nothing in the writings of the jurists we are concerned with here, nor in the evidence provided by Weiss, suggests any conception of public as opposed to private domain. As I discuss later, it was emphasized that a legal ruling must be communicable in the form of an argument, which constitutes the currency that can be exchanged within the social realm of collective reasoning. However, a matter that is cogently arguable and fathomable is not necessarily “objective” in the sense employed by Weiss.
41 Joseph Lowry quotes B. Leiter and J. Coleman to argue that Shāfiʿī was a “metaphysical realist”: see Lowry, Early Islamic Legal Theory, 247. But in modern law, the “objects of legal discourse” are all that there is, which justifies the identification of legal discourse with metaphysical realities; there is no transcendent law elsewhere beyond what is produced by legal institutions. This is clearly not the case in Islamic law.
42 Presenting the highest level of certainty (yaqīn) as a matter internal to the agent's mind is amply evident in the work of Abū Ḥāmid al-Ghazālī (d. 1111 CE), which suggests that this view of legal reasoning may have persisted well after the period with which this study is concerned. In his Mustaṣfā, Ghazālī explains, “certainty, understood as the state in which the mind settles on believing a certain matter, occurs in three forms: being certain of this matter in addition to being certain that this certainty in that case is valid, and cannot be the result of oversight, error or confusion … believing in the matter strongly without sensing the possibility of the opposite … or tending to believe and feel confident in this conviction” Ghazālī, Mustaṣfā, 61–62.
43 Shāfiʿī, Risāla, 207, 208.
44 Ibid., 16–17. According to Joseph Lowry, “finding the correct direction in which to pray (qibla) represents the example par excellence of this kind of legal interpretation.” Lowry, Early Islamic Legal Theory, 32 (emphasis added).
45 The absence of a conceptual separation between the factual and the normative in those early theories is indeed a matter that caused perplexity in modern studies of Islamic jurisprudence; a perplexity, I believe, that stems from the persistence of the assumption of ontological notions of law. On the “conflation of problems of law and fact,” see Lowry, Early Islamic Legal Theory, 247.
46 Shāfiʿī, Risāla, 16. This idea was aptly expressed by Khaled Abou El Fadl as follows: “God knows the righteous path, but humans do not—they need God's guidance and revelation to reach out towards what the Quran describes as ‘al-sirat al-mustaqim’ (the righteous path).” El Fadl, Khaled Abou, “The Place of Ethical Obligations in Islamic Law,” UCLA Journal of Islamic and Near Eastern Law 4, no. 1 (2004–2005): 4Google Scholar.
47 Shāfiʿī, Risāla, 208.
48 Ibid., 209.
49 The reverse of this is also true. Just as each factual situation warrants a search for the relevant indicants, each legal-moral pronouncement can be founded using a wide range of signs and arguments. In Shafiʿī's words, “the same judgment may be reached in different ways” on the basis of “different justifications.” Ibid., 219.
50 Ibid., 17.
51 Ibid.
52 As has been repeatedly mentioned, this excludes the widespread cases in which reasoning was based on prior authority.
53 Ibid., 205.
54 Ibid., 219.
55 Ibid.
56 Ibid., 224.
57 Ibid.
58 For an elaborate account of the role of reasoning in establishing legal rulings, see Emon, Anver M., “Toward a Natural Law Theory in Islamic Law: Muslim Juristic Debates on Reason as a Source of Obligation,” UCLA Journal of Islamic and Near Eastern Law 3 (2003–2004): 13–27Google Scholar. While my analysis confirms Emon's conclusions regarding the expansive role Jaṣṣāṣ attributes to revelation-independent reasoning, as I discuss below, I believe the claim that reason was seen as fully independent in the process of construction of legal positions should be qualified. The role of revelation-independent reasoning in Jaṣṣāṣ's jurisprudence was further elaborated in Emon's Islamic Natural Law Theories. Emon explains that Jaṣṣāṣ held the view that actions prior to (that is, independently of) revelation should be considered permissible, and that some actions are evidently evil with or without revelation, and the status of those cannot change through revelation. He concludes that Jaṣṣāṣ “started from a view of God and nature that allowed him to fuse fact and value in the created world to render reason an authoritative source of law.” Anver M. Emon, Islamic Natural Law Theories (New York: Oxford University Press, 2010), 49. I suggest that we should consider this, possibly, is too broad a conclusion. On my reading, Jaṣṣāṣ was not offering an apodictic view of what God or nature are like objectively in an absolute sense; rather, he offered a view of what presumptions about epistemic elements obtained through, among other methods, empirical investigation of the natural world, the jurist could morally make in the process of constructing norms. On this reading, Jaṣṣāṣ is not saying that there are values “out there” that we can simply discover (which would still not be the same thing as saying that reason is an “authoritative source of law”) but only saying that, in the absence of proof to the contrary among indicants revealed by God, we can morally, as jurists, adhere to the presumption that actions are permissible by default or to the presumption that obviously harmful acts are prohibited. It is an argument in moral-epistemology intended for the purposes of juristic methodology, not an absolute claim about the world. For an extensive study of the question of the status of actions prior to (and independently of) revelation, see A. Kevin Reinhart, Before Revelation: The Boundaries of Muslim Moral Thought (New York: State University of New York Press, 1995).
59 Wael Hallaq argues that uṣūl al-fiqh did not emerge as a genre until the AH fourth/tenth CE century. Wael B. Hallaq, A History of Islamic Legal Theories: An Introduction to Sunni Uṣūl al-fiqh (Cambridge: Cambridge University Press, 1997), 30–35.
60 In Lisān al-ʿArab, adalla and tadallala mean “to spread,” “to expand.” The verb form dalla means to assist someone in the direction of something, and dalīl is precisely what accomplishes that action: a sign or a guide. If we keep the root in mind, it should be understood that the point of guiding, indicating, helping attain knowledge, is essentially ethical: to reach a state of balance, serenity, and righteousness. Ibn Manẓūr, Lisān, 1413–14.
61 Jaṣṣāṣ, Uṣūl al-Jaṣṣāṣ al-musammā al-fuṣūl fī l-uṣūl (Beirut: Dār al-Kutub al-ʿIlmiyya, n.d.), 2:198. For an example of joining both dalīl and ʿilla under the rubric of sabab (literally, “cause”) see Abū Yaʿlā al-Farrāʾ, ʿUdda, 182–83. Another common distinction is the one between signs that can lead to certainty (dalāla) and those that can lead to probability (amāra). See Usmandī, Badhl al-naẓar, 8.
62 Jaṣṣāṣ, Fuṣūl, 199.
63 The view that legal rulings are arguments was presented most elaborately by Ghazālī, who holds that “articulating meanings in a way that warrants belief or disbelief . . . stems from reason's ability to join the knowledge of two separate entities by attributing one to the other. . . . Jurists call one of them a judgment (ḥukm) and the other an object of judgment (maḥkūman ʿalayh).” Ghazālī, Mustaṣfā, 50–51.
64 A modern formulation of this principle was offered by Khaled Abou El Fadl:
Each and every human being has a moral obligation or responsibility to seek out and recognize al-sirat al-mustaqim (the righteous path) or objective ethical precepts, which are inseparable from divinity itself. The Qurʾan describes the realization or recognition of the path, which includes believing in God, as an act rising out of rational cognition or a matter of common sense. The Qurʾan describes itself as a book of remembrance (dhikr), and maintains that its most essential function is to remind people of the reality of Divinity—a reality that includes the presence of God and all that this presence implies. The Qurʾan emphasizes repeatedly that the instruments for realizing or recognizing the truth is cognition (fikr), reason (ʿaql), and remembrance (dhikr). In this context, the truth is Divinity and Divinity is the truth, but, as already mentioned, recognition of Divinity necessitates the recognition of the values that attach themselves to the Divine—values such as justice, fairness, compassion, mercy, honesty, and goodness.
Abou El Fadl, “The Place of Ethical Obligations in Islamic Law,” 5.
65 Jaṣṣāṣ, Fuṣūl, 199.
66 I use the rather literal “cause” to denote ʿilla, as opposed to the more common “rationale” because my intention is to highlight the technical epistemic role an indicant of the sort plays in the generation of particular forms of knowledge. “Rationale” is often used to liken ʿilla to an overarching standard or purpose (usually prudential in nature) from which particular norms can follow. My argument is precisely that pronouncements were not seen to linearly follow from some objective overarching principles or reasons but were constructed on a case-by-case basis using the epistemic tools at hand.
67 Ibid.
68 An example of a general sign would be the claim “it is going to rain because meteorologists said so.” This is a sign that justifies knowledge, but it has no causal link with the phenomenon in question. A cause that also works as a sign would be the claim “it is going to rain because I see dense clouds.” In that case, clouds function as a cause for rain and, for the same reason, a basis for the knowledge claim that it is going to rain.
69 Ibid., 200.
70 In this typology, the example, offered in note 68, of anticipating rain on the basis of seeing the clouds would constitute a qiyās.
71 Jaṣṣāṣ, Fuṣūl, 200.
72 Ibid., 201. For a similar view of ʿilla, see Ghazālī, Mustaṣfā, 527; Juwaynī, Burhān, 2:24. A similar distinction between natural and legal causes can be found in Usmandī, Badhl al-naẓar, 588. For a modern account of legal judgment as a dalīl-based epistemic enterprise, see Wael B. Hallaq, Shariʿa: Theory, Practice, Transformations (Cambridge: Cambridge University Press, 2009), 82.
73 For an account of the formation of objective knowledge (that is, knowledge that claims independence of the state of knowledge of any particular individual) that relies on the concept of “uniformity of nature” and persistence in time, see Yehezkel, Gal, “Objectivity and Natural Laws,” Analysis and Metaphysics 12 (2013): 116–32Google Scholar. It is clear from the present analysis that Jaṣṣāṣ nowhere claims that legal rulings are universal truths that should apply uniformly at all times.
74 Jaṣṣāṣ, Fuṣūl, 201. Emon reaches a different conclusion in that regard. See Emon, “Toward a Natural Law Theory in Islamic Law,” 13–27.
75 Jaṣṣāṣ, Fuṣūl, 201.
76 Ibid., 202.
77 Ibid., 201–02.
78 Ibid., 207.
79 Ibid., 208.
80 An interesting illustration of the principle that all acts driven by faithfulness to revelation are acts of worship regardless of their normative status comes in the writing of Ghazālī, who maintains that “if they said: the judge cannot be required to worship (taʿabbada) by [knowing] the truthfulness of both witnesses because this is beyond his capacity, rather he must issue a judgment when he believes that they are truthful; we say: he similarly has to face the direction he believes to be the qibla, rather than the qibla itself. The same applies to the worship of the jurist who has to pronounce that the indicant leads to the conclusion if that is what he believes.” Ghazālī, Mustaṣfā, 526 (emphasis added).
81 Jaṣṣāṣ, Fuṣūl, 209.
82 Ibid., 211.
83 Ibid.
84 Ibid.
85 Ibid., 262.
86 Dawūd b. ʿAlī al-Ẓāhirī (d. 884 CE) is known as the founder of the Ẓāhirī school. He advocated strict adherence to the letter of revealed texts and rejected inferential reasoning. For a brief biography and an elaborate bibliography of Ẓāhirī, see Muḥammad b. Isḥāq Ibn al-Nadīm, Kitāb al-Fihrist (Tehran: Maktabat al-Asadī wa-Maktabat al-Jaʿfarī al-Tibrīzī, 1971), 271–72. For more on Dawūd's anti-qiyāṣ doctrines, see Aron Zysow, “The Economy of Certainty: An Introduction to the Typology of Islamic Legal Theory” (PhD diss. Harvard University, 1984), 174–82.
87 Jaṣṣāṣ, Fuṣūl, 262.
88 Ibid.
89 Ibid.
90 Ibid. A similar point on the premise-conclusion dichotomy in relation to qiyās can be found in Rāzī, Maḥṣūl, 2:217–18; see also Fakhr al-Dīn al-Rāzī, al-Maʿālim fī ʿilm uṣūl al-fiqh, ed. ʿAlī Muḥammad ʿAwaḍ and ʿĀdil Aḥmad ʿAbd al-Mawjūd (Cairo: Muʾassasat Mukhtār, Dār ʿĀlam al-Maʿrifah li-Nashr wa-Tawziʿ al-Kitāb, 1994), 154.
91 Abū al-Ḥasan ʿAbd al-Jabbār al-Asadābādī, al-Mughnī fī abwāb al-tawḥīd wal-ʿadl, ed. Taha Husayn (Cairo: Wizārat al-Thaqāfah wal-Irshād al-Qawmī), 17:93.
92 An explanation of ʿAbd al-Jabbār's theory that the rational proof of divine revelation must be established before revealed indicants can be used as evidence is found in Ibrahim, Mohd Radhi, “Immediate Knowledge According to al-Qāḍī ʿAbd al-Jabbār,” Arabic Sciences and Philosophy 23, no. 1 (2013): 112–13CrossRefGoogle Scholar. On the centrality of epistemology to ʿAbd al-Jabbār's moral concepts in general, see GhaneaBassiri, Kambiz, “The Epistemological Foundation of Conceptions of Justice in Classical Kalām: A Study of ʿAbd Al-Jabbār's al-Mughnī and Ibn Al-Bāqillānī's al-Tamhīd,” Journal of Islamic Studies 19, no. 1 (2008): 71–96CrossRefGoogle Scholar. For more on the necessity of reflection for the attainment of knowledge of obligations, see Mariam Attar, Islamic Ethics: Divine Command Theory in Arabo-Islamic Thought (New York: Routledge, 2010), 70–75.
93 ʿAbd al-Jabbār, Mughnī, 17:87.
94 Ibid., 88.
95 Ibid., 81.
96 Ibid., 82.
97 Ibid., 86.
98 The notion that all legal concepts are purely epistemic was emphatically put by ʿAbd al-Jabbār's contemporary Ashʿarī rival al-Bāqillānī as follows: “everything (except knowledge itself) that we deal with and define its essence, including the existent and nonexistent, the old and the created, the definition and the defined, the indicant and the indicated, rational and revelational verdicts, their effective cause (ʿilla) and proof (dalīl), statements and stated matters, are all kinds of knowable matters, and some of the branches of knowledge.” Abū Bakr Muḥammad b. al-Ṭayyib b. al-Bāqillānī, al-Taqrīb wal-Irshād al-Ṣaghīr, ed. ʿAbd al-Ḥamīd b. ʿAlī Abū Zunayd (Beirut: Muʾassasat al-Risāla, 1998), 1:173.
99 ʿAbd al-Jabbār, Mughnī, 17:276.
100 Ibid.
101 Ibid.
102 Ibid., 279 (emphasis added). For more on the attainment of legal rulings through human action, see Usmandī, Badhl al-naẓar, 588.
103 ʿAbd al-Jabbār, Mughnī, 17:279. The view that all legal rulings, including definitive ones, are the result of a process of reasoning, is clearly explained by Usmandī: “opinion is a conviction or belief attained through reasoning or reflection on the basis of a rational evidence or indecisive sign. What is attained through investigation (istidlāl) on the basis of a clear or ambiguous text is not called an opinion.” Usmandī, Badhl al-naẓar, 596. See also Abū Bāqillānī, Taqrīb, 1:172.
104 ʿAbd al-Jabbār, Mughnī, 17:279.
105 Ibid., 277.
106 Ibid.
107 Ibid., 280.
108 Ibid., 281.
109 Ibid.
110 Ibid., 280. A similar discussion of the manner of operation of ʿilla can be found in Usmandī, Badhl al-naẓar, 590.
111 It is noteworthy that the same view was advanced in a prescriptive rather than analytical context by Khaled Abou El Fadl, who argued that, in the context of Muslims in the modern state “given the purpose of Islamic law, Muslims should not treat the technical legal determinations of Islamic law as the objective truth of God. In this context, I assume that the God-given truth is by nature objective in that it is unconditional, unwavering, absolute, and eternal. Meanwhile, human beliefs and judgments, regardless of how firmly and absolutely they may be held or asserted, are by nature subjective in that they are relative, conditional, and imperfect.” Abou El Fadl, “Place of Ethical Obligations in Islamic Law,” 2. Abou El Fadl, based on this prescription, argued that “those [divine] objective moral principles are subjectively realized and understood. Islamic law attempts to subjectively implement those objective principles, and thus, there is no moral duty to obey the subjectively based Islamic law.” This is a very interesting argument, albeit pertaining to a question that is slightly different from the one presented in the present article. My analysis has shown that, in the classical legal theory of the jurists studied in this essay, jurists and non-jurists alike were seen to be bound to a central devotional aim, which Abou El Fadl refers to as divine and “objective.” His view is that, at a horizontal level, legal subjects have no independent obligation to obey specific injunctions formulated by jurists because any such injunction is agent-specific and limited. Abou El Fadl's characterization of pronouncements as “subjective,” with minor variation in terminology, is largely in line with my findings with respect to the classical theory, although his prescriptive propositions to modern Muslims are outside of the scope of the present study. Abou El Fadl himself appears to admit the fact that his observations, while formulated as prescriptions to modern Muslims, are largely in line with the classical theory: “the purpose of this essay, while ironically not original by traditional standards, is novel by modem standards.” Ibid., 4.
112 The view that reflecting about God's revelation is an act of worship was in fact a matter expounded in works of theology. For example, see Muḥammad b. al-Ṭayyib al-Bāqillānī, al-Insāf fī mā yajibu iʿtiqāduh wa-lā yujawaza al-jahl bihi (Cairo: Maktabat Nashr al-Thaqāfah al-Islāmīyah, 1950), 79.
113 This, precisely, is what is meant by Islamic jurisprudence as a “moral epistemology.” See Moad, Edward Omar, “A Path to the Oasis: Shariʿah and Reason in Islamic Moral Epistemology,” International Journal for Philosophy of Religion 62, no. 3 (2007): 135–48CrossRefGoogle Scholar.
114 For an account of ijtihād as exertion of the scholar's best intellectual efforts, see Zysow, “The Economy of Uncertainty,” 459–83.
115 The problem of seeing legal formulation through the lens of the narrow dichotomy of either arbitrarily creating or mechanically discovering the law was aptly identified by Emon, “Toward a Natural Law Theory in Islamic Law,” 4.
116 For example, the claim that Islamic legal theories must be seen as Islamic ethics has been elaborately made in Reinhart, A. Kevin, “Islamic Law as Islamic Ethics,” Journal of Religious Ethics 11, no. 2 (1983): 186–203Google Scholar. This view was adopted by John Kelsay, who argued that al-Shāfiʿī was “a pivotal figure in Islamic ethics.” Kelsay, John, “Divine Command Ethics in Early Islam: Al-Shafi‘i and the Problem of Guidance,” Journal of Religious Ethics 22, no. 1 (1994): 101–26Google Scholar. More to the point, the argument that uṣūl al-fiqh is a “moral epistemology of obligation” was directly made by Moad, “A Path to the Oasis.”
117 This conclusion was reached by Leslie P. Peirce in Morality Tales: Law and Gender in the Ottoman Court of Aintab (Berkeley: University of California Press, 2003). The same view was formulated in Wael Hallaq's historical account of the development of the sharīʿa in emphatic terms: “It turns out that Islamic law's presumed ‘failure’ to distinguish between law and morality equipped it with efficient, communally based, socially embedded, bottom-top methods of control that rendered it remarkably efficient in commanding willing obedience and—as one consequence—less coercive than any imperial law Europe had known since the fall of the Roman Empire.” Hallaq, Sharīʿa, 2. Hallaq most recently elaborated on this argument in an explicitly comparative context. See Wael Hallaq, The Impossible State: Islam, Politics, and Modernity's Moral Predicament (New York: Columbia University Press, 2013), 110–35. On the question of the nature of legal reasoning, Hallaq's historical findings also coincided with what this essay attempts to argue from the standpoint of legal theory: “God did not reveal a law but only texts containing what the jurists characterize as indications (or indicants: adilla). These indicants guide the jurist and allow him to infer what he thinks to be a particular rule for a particular case at hand. And since each qualified jurist (mujtahid) employs his own tools of interpretation in undertaking the search for God's law, his conclusions may well differ from those of another.” Hallaq, Sharīʿa, 82.
