Firstly, thank you for putting this up for public reading and comment. In principle, I think this is an example we should all follow. I am in two minds as to whether to do the same for my forthcoming book on Mālikism, so I would be very interested to hear how the experiment goes for you. A minor quibble which I wouldn’t think to raise if it didn’t have to do with the way you translate the title: “Leaflet” captures well the Arabic sense of “waraqāt” as “leaves of [material on which one writes]”, but I wonder whether it connotes a cheapness or populism that is a little out-of-step with the work in question. I suppose the relevant question to ask is what its intended readership was. You say that it was “intended for students in the Shāfiʿī school of law”, so I take it that it was a school-text, intended for circulation not among the masses but within an educated elite, albeit one of whom knowledge of the finer points of legal theory was not assumed. Have you considered “pamphlet”? “Scholarly pamphlet” is quite common whereas “scholarly leaflet” is not.

Good question! An example I am most familiar with is the theologian al-Naẓẓām (d. ca. 221/836), who limited revealed law to the explicit dictates of the Qur’an and therefore left most areas of law and ethics to human discretion (see Vishanoff, The Formation of Islamic Hermeneutics, 71-73). But from what I have read about the still earlier history of Islamic law (I am no expert on that history) it sounds like there were lots of people in government who thought of most areas of law (taxation, etc.) as a pragmatic tool of the state, largely inherited from prior governments, rather than as a matter of Islamic piety. The notion that all of law, and not just ritual, should be distinctly religious and Islamic, seems to have taken some centuries to take hold.

Thanks for your question! I’d be glad to hear your thoughts on the matter.

Hi Dr. Vishanoff.  First, I appreciate your work and am enjoying this read.  I hope you’ll entertain a question.  When you say: “Early in Islamic history it was not at all obvious whether law should be distinctly Islamic at all, or whether it should be just a continuation of preislamic laws…”, Can you point me to an example or illustrate how this was the case?  Did early Muslims distinguish between the laws of society and the do’s and don’ts of their new religion?  In other words, are there instances in early Islamic history of Muslims not attaching an Islamic identity to the laws of their society.

I want to thank Kevin Reinhart for pointing out to me privately that paragraphs 3 and 4 reinforce a common but egregious misrepresentation: they make it sound like 11th-century Shāfiʿī legal theory of the kind articulated by al-Juwaynī was the final summation of all Sunnī legal theory. But it wasn’t. The structure and terminology of legal theory continued to change, and Ḥanafīs especially (not to mention Shīʿīs) developed alternative systems.

That’s very true, and it matters, both for historical accuracy and for philosophical reflection. My blind spot reflects the limitations of my own reading, which has focused on the period leading up to al-Juwaynī to the neglect of subsequent thinkers. It is true that by al-Juwaynī’s time all the schools of legal theory shared a great deal of common thought and vocabulary, and that they still do, so that studying this little book is good background for studying just about any subsequent form of legal theory. And in the commentary I do point out some of the major differences in the systems of other schools. But what I have not done is to tease out all the potential consequences that those differences—even the most subtle differences in framing and phrasing—can have for one’s understanding of law, ethics, revelation, knowledge, authority, etc. This means that my critical comments on al-Juwaynī’s Waraqāt do not necessarily apply to systems of uṣūl al-fiqh that define or frame their terms in even subtly different ways.

So I want to take Kevin Reinhart’s objection as a challenge to make this commentary a more thorough exploration of how al-Juwaynī’s questions could be asked or answered differently, and what that might mean for ethics and epistemology. I invite you, the reader, to point out specific alternative views that I have overlooked, as well as their potential implications, throughout this web site!

Good point, Chris. I meant the present tense, but I wonder how often it is actually memorized these days. The Kitāb al-Waraqāt is still used for teaching–that is clear from the number of textbooks being published on it–but what about memorization? Is that a thing of the past? Does anyone have any anecdotal evidence of memorization?

Should be “memorized”

Think of the effect that the medium of publication has on our perception of a communication: whether it is published in an academic book, on the front page or in the opinion section of a newspaper, in a TV commercial, etc.

Am I right in thinking that al‑Juwaynī regards all ijtihād as fallible? If a ḥukm were based on unquestionable interpretation of unquestionable evidence, would he still consider it the result of ijtihād, so that it still qualifies as fiqh? Or would it be part of that generally knowable category of aḥkām that do not constitute fiqh because they are not arrived at by ijtihād?

In his Burhān al-Juwaynī quotes this definition from al-Bāqillānī and criticizes it, but refuses to give his own definition of knowledge.