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Studying Legal Theory with al-Juwaynī

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For an English-speaking student who wishes to understand the theory behind Islamic law, the first step is to read an introductory legal theory text such as Muslim students traditionally read and memorize in the Arab world. The Kitāb al-Waraqāt fī uṣūl al-fiqh, or Leaflet on the Sources of Law, attributed to the Khurāsānī Shāfiʿī Ashʿarī scholar Imām al-Ḥaramayn Abū al-Maʿālī ʿAbd al-Malik ibn Abī Muḥammad al-Juwaynī (d. 1085), is a good choice, for two reasons.

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First, it is brief, yet covers all the main concepts, terms, and principles of the classical Islamic discipline of legal theory (uṣūl al-fiqh), which explains the scriptural “roots” or “sources” (uṣūl) from which the detailed rules of Islamic law (fiqh) derive their authority, and the interpretive process that connects each rule to its sources. It defines what law and legal theory are, then explains how to analyze the language of Muslim scriptures (how to translate commands into laws, and various ways to resolve contradictions between texts), and then goes on to describe several other tools that one can use when scripture does not provide a clear rule (e.g. textual criticism and reasoning by analogy). It concludes with a description of who is qualified to use legal theory, and how certain they can be about the conclusions they reach.

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Second, it is representative of mainstream Sunnī views that dominated legal thought in al-Juwaynī’s day and that are still widely accepted today. It is not a statement of al-Juwaynī’s own creative solutions to the puzzles of legal theory. For that one must look to his larger writings, beginning with his summary (Talkhīṣ al-Taqrīb) of the highly innovative but not very influential legal theory of the great Ashʿarī scholar al-Bāqillānī (d. 1013), and culminating with his own masterpiece al-Burhān (“the compelling proof”), which is so insightful, rigorous, eloquent, and difficult that it has been dubbed “the puzzle of the Muslim community.” The Leaflet is not meant to take us along the path of al-Juwaynī’s own intellectual inquiry, but to give students a starting point for their own. It is mainstream, uncontroversial, and uncomplicated, reflecting not the turmoil and debates that characterized legal theory in the ninth and tenth centuries, but the relative homogeneity and broad consensus that were achieved in the eleventh century. It glosses over disputes and alternative positions, and gives the student just enough to understand what most scholars mean when they use a term, and what interpretive principles they assume should govern a legal argument. It is intended, of course, for students in the Shāfiʿī school of law, and therefore differs at points from what one would find in a Mālikī or Ḥanafī textbook; but those differences are matters of emphasis or detail, not fundamental differences of approach. Overall the Leaflet reflects what virtually everyone agrees on, leaving room for teachers of various legal schools to discuss disputed points with their students as they see fit. This has made it immensely popular: it has been copied thousands of times, and since the advent of printing has been printed dozens if not hundreds of times. Today it is available in full color and on CD, with diagrams and questions for class discussion. It has been the object of dozens of commentaries, some of which have themselves been explained by supercommentaries. It has even been rendered in poetic form, for easy memorization. It is not an archive of one man’s thought, but a tool for generations and generations of teachers and students. What you learn from al-Juwaynī’s Leaflet is just what students all over the Muslim world learn in their final years of legal studies. To understand it, therefore, is to take a big step toward understanding what Islamic law is today, and perhaps even toward predicting what it will be or can become in the future.

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All by itself, however, the Leaflet is likely to leave the uninitiated student more puzzled than enlightened. It lists the main concepts, terms, and principles of legal theory, but does not explain how to apply them or why they matter. The student is handed a list of ingredients without a recipe. I found this quite frustrating when I took my own first lessons on uṣūl al-fiqh and began to learn the definitions of terms like “general,” “particular,” and “summarized.” I understood the words well enough, but I could not for the life of me figure out what purpose they were supposed to serve! Reading al-Juwaynī’s Leaflet, therefore, is only a first step, and an unsatisfying one at that. A second necessary step is to seek help from a teacher, or from a commentary that illustrates each term and rule, and explains its purpose. There are several book-length English textbooks on legal theory, by modern Muslim authors, that give standard illustrations of the main concepts, but they do little to elucidate their function or importance. This book, therefore, provides not only an English translation of the Leaflet but also a new kind of commentary that explains legal theory in terms of the interests and concerns of contemporary Western thought. It does not ask today’s students to jettison their own mental frameworks in exchange for a medieval Islamic one; instead it invites them, as they are, into a two-sided conversation with al-Juwaynī, and with the whole discourse of Islamic law, asking questions that al-Juwaynī never thought to ask, and identifying tacit assumptions and patterns of thought that al-Juwaynī took for granted but that today’s students may not think are obvious at all.

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If our conversation with al-Juwaynī is to be genuinely two-sided, however, it must not end with translating and explaining Islamic legal theory in Western vocabulary to answer Western questions. Ultimately, a student truly committed to understanding al-Juwaynī and his world of thought must take a third step, learning to speak his language and ask his questions as well. This requires effort, but it is not as difficult as it may sound. Even a second-year student of Arabic will find much reward in studying the Arabic text of the Waraqāt, of which a new critical edition is also given in this book. Once familiar with the Arabic terminology, a student can easily move on to more advanced Arabic works, and begin to discover the dilemmas and concerns that motivated al-Juwaynī and his peers. His intellectual world was very different from ours, and it behooves us to sketch it at least briefly.

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Source: http://waraqat.vishanoff.com/i/i-studying/