Imām al‑Ḥaramayn al-Juwaynī
Kitāb al‑Waraqāt fī uṣūl al‑fiqh
translated by David R. Vishanoff
Arabic text and commentary at waraqat.vishanoff.com
A Leaflet on the Sources of Law
In the name of God, the merciful, the compassionate.
1 — Legal Science and Its Roots
Here are some pages encompassing information on various subdivisions of ‘the roots1 of legal science’. That is a phrase composed of two distinct parts, ‘roots’ and ‘legal science’. A root is that on which something else is built, whereas a branch is that which is built on something else. Legal science is awareness of those revealed legal values that are arrived at by diligent inquiry.
2 — Legal values
There are seven legal values: obligatory, recommended, permitted, forbidden, disapproved, valid, and invalid. Obligatory means what one is rewarded for doing and punished for omitting. Recommended means what one is rewarded for doing but not punished for omitting. Permissible means what one is neither rewarded for doing nor punished for omitting. Forbidden means what one is rewarded for omitting and punished for doing. Disapproved means what one is rewarded for omitting but not punished for doing. Valid means effective and relied upon. Invalid means neither effective nor relied upon.
3 — Knowledge and its opposites
Legal science is a subcategory of knowledge.
Knowledge is awareness of the thing known as it actually is.
Ignorance is to imagine something as other than what it actually is.
Immediate knowledge is that which does not arise through rational or evidentiary inquiry,2 such as knowledge arising from one of the five senses (hearing, sight, smell, taste, and touch) or from collective transmission.
Acquired knowledge depends on rational and evidentiary inquiry.
Rational inquiry is reflection on what is true of the object of inquiry.
Evidentiary inquiry is the search for evidence. Evidence is that which leads to what is sought.
Belief is acknowledging two possibilities, one of which is more likely than the other.
Doubt is acknowledging two possibilities, neither of which is superior to the other.
4 — Subdivisions of the discipline of legal theory3
The roots of legal science are the paths to it, considered generally, and the manner of using them in evidentiary inquiry, as well as what follows from that. By ‘the manner of using them in evidentiary inquiry’ we mean the prioritizing of some pieces of evidence before others. By ‘what follows from that’ we mean the status of those who engage in diligent inquiry.
The roots of legal science fall under the following headings:
5 — Types of speech
6 — Commands and prohibitions
7 — General and particular expressions
8 — Summarized, clarified, apparent, and reinterpreted speech
9 — Actions
10 — Abrogating and abrogated speech
12 — Consensus
13 — Reports
14 — Analogy
15 — Forbiddance and permission
16 — The prioritizing of evidence
17 — The characteristics of the issuer of legal opinions and the seeker of legal opinions
18 — The status of those who engage in diligent inquiry
5 — Types of Speech
At the very least, speech must consist of two nouns, a noun and a verb, a verb and a particle, or a noun and a particle.
It is divided into command, prohibition, statement, and question.4
In another respect, it is divided into literal and figurative speech. Literal usage is that which retains the sense for which words were coined, or alternatively, usage according to the conventions of speech. Figurative usage is that which goes beyond the sense for which words were coined. Literal usage can be linguistic, revealed, or customary. Figurative usage can be based on surplus, deficiency, transference, or borrowing of meaning. Figurative usage by surplus of meaning is like God’s saying “There is nothing like his likeness.”5 Figurative usage by deficiency of meaning is like God’s saying “Ask the town.”6 Figurative usage by transference of meaning is like ‘hollow’ being used for what comes out of a person.7 Figurative usage by borrowing of meaning is like God’s saying “a wall that wants to collapse.”8
6 — Commands and Prohibitions9
A command is a verbal request obliging an inferior to perform an act. Its verbal form, when unqualified and in the absence of contextual indications to the contrary, is ifʿal,10 so that verbal form is interpreted as a command, except when some evidence indicates that what is intended is a recommendation or a granting of permission, in which case it is interpreted accordingly.
The correct view is that command does not require the repetition of the act, unless some evidence indicates that repetition is intended; nor does it require immediate action, because its aim is to bring the action into being without specifying one time rather than another. The command to bring about an action is a command to perform both the act and whatever is required for the completion of the act, just as the command to perform the prayers is a command enjoining the purity that paves the way for them. If the act is performed, then the person to whom the command is addressed is released from the charge laid upon him.
Who is included in command and prohibition, and who is not: The believers are included in God’s command, but the inattentive, young people, and the possessed are not addressed by it. Unbelievers are addressed concerning the branches of the revealed laws, and concerning that without which their performance is invalid, namely islām, because God has said “What has landed you in hell? They said, we did not pray.”11
The command to do something is the prohibition of its opposite, and the prohibition of something is the command to do its opposite.
A prohibition is a verbal request obliging an inferior to omit an act, and it indicates that the prohibited act is invalid.
7 — General and Particular Expressions
A general expression includes (ʿamma) two or more things. (This is the sense that ʿamma has when one says “I included both Zayd and ʿAmr14 in my gift,” or “I included everyone in my gift.”) It can be expressed using four verbal forms: a singular noun made definite by a lām;15 a plural noun made definite by a lām; pronouns such as ‘who’ for rational beings, ‘what’ for non-rational things, ‘any’ for both of these, ‘where’ for place, ‘when’ for time, ‘what’ for inquiry and partition16 and other things; and ‘no’ applied to indefinite nouns, as when one says “there is no man in the house.” Generality is an attribute of utterances, and it is not permissible to claim generality for other things such as actions or the like.
Particular expressions are all those that are not general.
Particularization is to distinguish part of a whole. It is divided into connected and disconnected particularization.17 Connected particularization comprises exception, condition, and qualification by an attribute.
Exception is the exclusion of that which an expression would otherwise include. Exception is only valid on condition that there remains something of that from which the exception was made. Another condition is that the exception be connected to the expression from which exception is being made. That which is excepted can be mentioned before that from which it is excepted. A thing can be excepted from the class to which it belongs or from another class.
A condition can precede that which is made conditional upon it.
Unqualified expressions are interpreted in accordance with those that are qualified by some attribute. For example, the word ‘slave’ is qualified by the attribute of faith in some passages but is unqualified in others, so the unqualified passages are interpreted in accordance with the qualified ones.18
The Book19 can be particularized by the Book, the Book by the Sunna, the Sunna by the Book, the Sunna by the Sunna, and utterance by analogy, where by utterance we mean the speech of God (He is exalted) and the speech of the Prophet (God’s blessing and peace be upon him).
8 — Summarized, Clarified, Apparent, and Reinterpreted Speech
Summarized speech stands in need of clarification. Clarification means removing something from the domain of the problematic into the domain of the evident.
Definite speech admits of only one meaning. Some say it is speech whose interpretation is its revelation. The word definite (naṣṣ) is derived from the minaṣṣa, or throne, of the bride.
Speech with an apparent meaning is that which admits of two meanings, one of which is more apparent than the other. Speech with an apparent meaning can be reinterpreted, and its new meaning is then called apparent because of some evidence.
General speech has already been explained.
9 — The Actions of the Prophet as a Form of Revelation
An action of the bearer of the revealed law20 either is performed as a matter of piety and obedience or is not. If it is, then if some evidence indicates that it is peculiar to him, it is understood as peculiar to him; but if no evidence so indicates, then the action is not peculiar to him, because God (He is exalted) has said “In the Prophet of God you have had a good example.” Such an act is understood as obligatory by some of our colleagues, while some of them say it is understood as recommended, and others say one should suspend judgment about it. If, however, the action is not performed as a matter of piety and obedience, it is understood as permissible.
The acquiescence of the bearer of the revealed law in a saying constitutes a saying of the bearer of the revealed law, and his acquiescence in an act is as his own act. Whatever was done during his lifetime outside his presence, that he came to know of and did not disown, has the same legal value as an act done in his presence.
10 — Abrogating and Abrogated Speech
The ordinary meaning of abrogation is to cause to pass away. One says “the sun has abrogated the shade” if it removes it and makes it disappear. Some say its meaning is to copy, because people say “I have abrogated21 what is in this book,” meaning I have copied it.
Abrogation is defined technically as speech that indicates the removal of a legal value established by previous speech, in such a way that without the second speech the legal value would still be in force. There must be a delay between the first speech and the second.22
A text can be abrogated while the legal value it indicates remains, and a legal value can be abrogated while the text remains.23 Some abrogation substitutes a new requirement for the old one, and some does not. Some abrogation results in a tougher requirement, and some in a lighter requirement.
The Book can be abrogated by the Book, and the Sunna can be abrogated by the Book and by the Sunna. What is collectively transmitted can be abrogated by what is collectively transmitted, and what is individually transmitted can be abrogated by what is individually or collectively transmitted, but what is collectively transmitted cannot be abrogated by what is individually transmitted.24
11 — Section on Contradictions
If two utterances contradict one another, then they must be either both general, or both particular, or one general and the other particular, or each general in one respect and particular in another respect.
If they are both general, then if they can be reconciled one reconciles them, but if they cannot be reconciled one suspends judgment concerning them if their dates are unknown, but if their dates are known the earlier is abrogated by the later. Likewise if they are both particular. If one is general and the other particular, the general is particularized by the particular. If each is general in one respect and particular in another respect, then the generality of each is particularized by the particularity of the other.
12 — Consensus
Consensus is the agreement of a generation of scholars concerning the legal value of an event. By scholars we mean jurists, and by event we mean a legal event.25 The consensus of this community, and no other, is an authoritative proof, because the Prophet (peace be upon him) has said “my community does not agree upon an error,” so revelation has affirmed the infallibility of this community. Consensus is an authoritative proof for the following generation, and for every generation.
The correct view is that the probative authority of consensus is not conditional upon the passing of the generation in which it is reached. If we made it conditional on the passing of the generation, then one would take into consideration the dissenting statement of someone who was born during their lifetime and studied law and became one of the people of diligent inquiry, and they could then revoke the agreement they had reached.
Valid consensus can be established by the scholars’ words, or by their actions, or by the words or actions of only some of them if those words or actions are disseminated and the others remain silent about them.
13 — Reports
A report is that which can be characterized by truthfulness or lying.
Reports are of two types: individually transmitted and collectively transmitted.
A collectively transmitted report makes knowledge obligatory. It is related, at every stage of its transmission all the way back to the one from whom it is reported, by a group the likes of which could not conspire to lie. It must originate in eye-witnessing or hearing, not in diligent inquiry.
Individually transmitted reports make action obligatory, but do not make knowledge obligatory. They are of two types: those that are merely attributed to the Prophet, and those that are actually traced to the Prophet. A traced report has a continuous chain of transmission. If an attributed report is attributed to the Prophet by anyone other than a Companion, it is not an authoritative proof, except for the reports attributed by Saʿīd ibn al-Musayyab, which have been scrutinized and found to be traceable to the Prophet.
Relating a report as “from so and so”28 counts as a form of tracing. If a teacher read a report, the one who later relates it from him may say “he told me” or “he informed me.” If the one who relates the report read it to the teacher, he says “he informed me,” but does not say “he told me.” If the teacher authorized him to relate traditions from him, the one who relates from him says “he authorized me,” or “he informed me by authorization.”
14 — Reasoning by Analogy
Reasoning by analogy means assigning to a branch the same legal value as the root, by means of a characteristic that they have in common.
There are three kinds of analogy: analogy by common characteristic, by indication, and by resemblance. Analogy by common characteristic is analogy in which the common characteristic entails the legal value. Analogy by indication is using one case as evidence for a parallel case; it is when the common characteristic indicates the legal value but does not entail it. Analogy by resemblance is when a branch could be related to either of two roots, so it is related to the one that most resembles it.
The branch must correspond to the root. The root must be established by evidence that is accepted by both parties.29 The common characteristic must be consistent in what it entails, without exception either in expression or in meaning. The legal value must be coextensive with the common characteristic, absent where it is absent and present where it is present. The common characteristic brings about the legal value, and the legal value is brought about by the common characteristic.
15 — Forbiddance and Permission
Some people say that the default state of things is that they are forbidden unless revelation permits them, so that if one does not find evidence of permissibility in revelation, one sticks to the default of forbiddance. Some people say the opposite: that the default state of things is that they are permitted unless revelation forbids them.
Presumption of continuity means that in the absence of revealed evidence, one presumes that the default remains in effect.
16 — The Prioritizing of Evidence
Clear pieces of evidence are given priority over obscure ones, and those that produce knowledge over those that produce belief. Utterance is given priority over analogy, and clear analogy over obscure analogy. If one finds an utterance that alters the default, then the default is altered, but if not then one presumes continuity.
17 — Characteristics of the Issuer of Legal Opinions and the Seeker of Legal Opinions
The issuer of legal opinions must be knowledgeable of the roots and branches of legal science, including the opinions of his own school of law and the disagreements of other schools. He must be fully competent in diligent inquiry. He must know all that he needs to know for determining legal values, in several fields: grammar, language, the science of the men who related traditions, the explanation of verses concerning legal values, and reports concerning legal values.
The seeker of legal opinion must be one who follows existing opinions, and he must follow the opinion of the issuer.
A scholar may not follow existing opinion, though some say that he may.
To follow existing opinion is to accept without proof what someone has said. According to this definition, to accept what the Prophet (God’s blessing and peace be upon him) said is called following existing opinion.30 Some say that to follow existing opinion is to accept what someone has said without knowing where he got it. On this definition, if we hold that the Prophet (God’s blessing and peace be upon him) used to speak on the basis of analogy,31 then accepting what he said can be called following existing opinion.
18 — The Status of Those Who Engage in Diligent Inquiry
Diligent inquiry is to go to the limits of one’s ability to achieve one’s objective. If a fully competent practitioner of diligent inquiry inquires diligently into the branches of law and judges correctly, he is rewarded twice. If he inquires diligently and errs, he is rewarded once. Some say that all who inquire diligently into the branches of law judge correctly, but it cannot be said that all who inquire diligently into fundamental issues judge correctly, because that would require us to declare correct those who are in error – Christians, Magians, infidels and atheists. The proof of those who say that not all who exercise diligent inquiry concerning the branches of law judge correctly is that the Prophet (peace be upon him) said “whoever inquires diligently and judges correctly is rewarded twice, and whoever inquires diligently and errs is rewarded once.” This is a proof because the Prophet (God’s prayers and peace be upon him) declared the practitioner of diligent inquiry to be in error in one instance and declared him to be correct in another.
- Uṣūl could be translated in many ways, including sources, roots, foundations, or principles. I have rendered it roots so that the contrast with branches will make sense, but al Juwaynī’s own definition suggests instead the idea of foundations.
- ‘Evidentiary inquiry’ (istidlāl) is the process of establishing a proposition or legal value on the basis of something (such as a revealed text) that indicates it or gives evidence of it (yadullu ʿalayh). When so used, a text is called an indicator or evidence (dalīl). Its indicating or giving evidence is called its dalāla.
- This paragraph, which lays out the structure of the rest of the treatise, is the source of all but one of the headings I insert into the text below.
- Many copies add “as well as wish, offer, and oath,” but this is an addition by a commentator.
- Qurʾān 42:11. The surplus is the redundancy of saying “like his likeness” (ka-mithlihi), when “like him” (mithlahu) already expresses the meaning fully.
- Qurʾān 12:82. The deficiency is that the meaning “ask the people of the town” is not fully stated, but is understood.
- Ghāʾiṭ means a hollow or depression in the land, and is also used to mean excrement. The transference from one meaning to another is explained by the fact that people would defecate in a hollow in order to screen themselves from view.
- Qurʾān 18:77. To say that a wall wants or wills something is to borrow an expression that is ordinarily used of animate beings.
- This section provides for translating imperatives, which are ambiguous, into unambiguous indicative statements of the legal values (obligation, recommendation, or permission) of particular acts for particular people. Note that the meaning of an imperative depends on the speaker’s intent, which must be made known by some indicator if something other than obligation is meant.
- The imperative form of the verb, represented by the verb “do!”
- Qurʾān 74:42-43.
- Taswiya, literally ‘making equal.’
- God creates by command, as in Qurʾān 3:47: “If He decrees a thing, He only says to it “be!” and it is.”
- Zayd and ʿAmr are the personal names most often used in generic examples, like Dick and Jane in old American grammar books, or John Doe and Jane Doe in legal documents.
- The definite article al-.
- This refers to mā (that) used, often in conjunction with min (of), to designate an indefinite portion of a larger set, as in mā ṭālaʿtu min al-kitāb, “that [part] of the book which I read.”
- That is, particularization by an expression adjacent to the one particularized, or by something not adjacent to it (as when the Book is particularized by the Sunna, or in any of the other cases mentioned in the last paragraph of this section).
- That is, Qurʾānic passages that ordain the freeing of a slave are interpreted as referring to a believing slave, because other passages specify the freeing of a believing slave.
- The Qurʾān.
- I.e., the Prophet Muḥammad.
- The Arabic nasakha means to copy as well as to abrogate. ‘Copy’ here translates naqala.
- If the second speech followed the first speech immediately, it would constitute something other than abrogation, such as one of the forms of connected particularization described above.
- Certain verses which were once included in the Qurʾān, but are not now part of it, are said to have been abrogated as text, whereas other verses were left in the Qurʾān even though their legal implications were superseded by later revelations.
- Collective and individual transmission are defined in Section 13 on Reports.
- The event is a legally relevant act, and what is agreed upon is its legal value.
- That is, one who saw the Prophet.
- That is, the opinion al-Shāfiʿī expressed in the latter part of his life.
- Al-ʿanʿana, the practice of indicating the chain of transmission by saying “from (ʿan) so and so,” instead of using a more complete form such as “so and so told me.”
- It is assumed that the analogy is being put forward as an argument in the context of a debate.
- Some copies correct this to “is not called following existing opinion,” presumably to avoid the consequence that a scholar may not accept what the Prophet said without proof. This correction is not necessary; it may be that al-Juwaynī mentions this consequence of the first definition to show that the second definition is preferable.
- The question of whether the prophet sometimes relied on analogy or engaged in diligent inquiry, as opposed to speaking solely on the basis of revelation, is debated.