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2 — Legal Values

(Arabic text and English translation in separate tabs.)

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The legal value function

Al‑Juwaynī has just defined the science that results from legal theory as “awareness of the revealed legal values that are arrived at by diligent inquiry.” The rest of the treatise will deal with revelation and diligent inquiry, but what are legal values? They are properties of human actions. Every action you could ever think of doing is either obligatory or recommended or permitted or disapproved or outright forbidden. (Some kinds of actions, like contracts, may also be valid or invalid, but we will come back to that later.) Which of these five main legal values an action has may vary depending on circumstances, so to be more precise we should say that every action, performed by a specific person at a certain time under a given set of circumstances, is characterized by exactly one of the five main legal values. Eating is, generally speaking, permitted; but law is concerned with specifics: if the hot dog I am eating contains pork, or if I stole it, or if I eat it during the Ramadan fast, then my action is forbidden—unless I am starving, in which case my action might be permissible or even obligatory. Each act-person-time-circumstance combination represents a different branch or twig on the tree of legal science, and each one bears its own legal value—the “fruit” of diligent inquiry.

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If you are mathematically inclined, you can think of the divine law (the Sharia) as a function f that maps a set A containing all possible act-person-time-circumstance combinations onto a set V that contains just the five legal values. To every member of A, f assigns one member of V, and we represent that assignment as f(a)=v. This function exists in God’s mind, and the goal of the human science of law is to diagram as much of that divine function as possible (or as much as needed) through diligent inquiry, just as a mathematician plots a function on a graph by calculating the y value that f assigns to each x value.

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Al‑Juwaynī’s list of the five main legal values was pretty standard by his time, but earlier generations had used a wider range of terms, and had not defined them so systematically. Ḥanafī jurists famously distinguished between obligatory (wājib) and absolutely obligatory (farḍ), the latter implying that an act is known with certainty to be obligatory. Terms like “sunna” and “preferred” (mustaḥabb) referred originally to what the community deemed proper and what a jurist thought best, but in time they came to be used as rough equivalents of “recommended,” meaning approved or preferred by God (not by the community or the jurist). The distinction between obligatory and merely recommended emerged early on, as a way to recognize that not everyone could be expected to do every possible good deed; but for some time the opposite category of disapproved acts was not formally recognized, and all acts the Prophet said not to do were taken to be strictly forbidden. By including the intermediate categories of recommended and disapproved, legal theorists allowed law to describe not just the limits of what one can and cannot do, but also various degrees of what one should and should not do. Legal science is the study not only of absolute legal limits, but also of relative degrees of piety—what we might call morals, piety, or religious virtue rather than law.

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The law’s comprehensiveness

This makes Islamic law remarkably comprehensive: since all human actions have one of those five legal values, all of life is the subject of legal science. This includes what we might call private morality, as well as the practice of religious rituals, which occupy a large place in any encyclopedia of Islamic law. This law is broader than the English term law implies; it is more like an Islamic system of ethics. The only parts of life that escape from the demands of this ethic are those that it deems “permitted,” which means that they are neutral, resulting in neither reward nor punishment. Yet even those acts are carefully regulated, because they are only permitted if I perform them in certain ways. I am free to buy or not to buy, eat or not eat, sleep or stay awake—but my buying must fulfill the conditions of a valid purchase, my eating must follow dietary laws, and I must not sleep through the dawn prayer.

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Not all Muslims have thought Islamic law should be so all-encompassing. The Qurʾān itself suggested that the many details of Jewish law (which resemble Islamic law on numerous points) were an unfortunate distortion of God’s requirements, or a punishment for disobeying them, and that God’s demands on Muslims were much simpler. Q 6:153 gave a list of basic commands remarkably similar to the Ten Commandments of Moses, and insisted these were all that God required. Some early Muslim scripturalists, such as the Khārijiyya and some Muʿtazila, insisted that only those relatively few requirements found in the Qurʾān were binding. The Ẓāhiriyya (a now defunct Sunnī school of law) admitted that the commands of the Prophet were also binding, and took them quite literally, but argued that no part of life should be subject to religious regulation except those which the Qurʾān and the Prophet regulated explicitly; other things should be permitted by default. Thus they forbade the practice of charging interest (ribā, unequal amounts or delay) only in exchanges of six specific kinds of commercial goods that the Prophet had explicitly named (gold, silver, wheat, barley, dates, and salt); they refused to conclude, on the basis of analogy (qiyās), that other forms of interests must be forbidden as well.

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The idea that Islamic law should govern all of life, however, was appealing to those who wanted Islam to be their main source of personal and communal identity. Al‑Shāfiʿī (d. 820), the Imam of al‑Juwaynī’s school of law, was but one of many who argued successfully that God did not leave humans to roam freely, but provided guidance for every situation that would ever befall them. If the words of revelation were not deemed specific enough to address a certain situation adequately, then their ruling on some comparable situation could be extended to it by analogy (as al‑Juwaynī will explain in Chapter 14). In this way the finite corpus of revealed texts could be said to provide a complete and infinitely extendable blueprint for life.

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This idea of comprehensiveness lies behind the idea that in Islam there is no distinction between religious and secular aspects of life, or between religion and politics. It motivates modern attempts to create Islamic states, and modern reform movements calling for a return to the Prophet’s Sunna in everything from the rules of banking to the length of one’s beard. This is not a new or radical idea; to al‑Juwaynī it seemed obvious that all of society and culture was, or at least should be, regulated by Islamic law.

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Eternal or earthly consequences

Notice, however, what it means for an action to be regulated. Al‑Juwaynī defines his five main legal values in terms of what reward or punishment one will receive for each action. Who rewards and punishes? Al‑Juwaynī does not say, but the understood answer is God. My punishment for eating during the month-long daytime fast of Ramadan is not immediate; it will take place in the afterlife, when God has promised to reward and punish each person according to his or her own deeds, weighing them in a balance to within a fraction of a milligram—though he may also forego some punishment out of sheer mercy, at the request of the Prophet Muḥammad.

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This way of defining legal values defers enforcement of the law until the afterlife. That makes obedience a strictly private matter between each individual and God. Can such a law have any traction in this life, besides motivating individuals to live piously? To function in daily life—to regulate social relationships and do justice—a law must have some immediate mechanism of enforcement. Of course Islamic law can and often has regulated real societies in concrete ways. In many places at many times in history the judges (singular qāḍī) appointed by Muslim rulers have resolved real disputes, entered real financial judgments, and imposed real physical punishments such as imprisonment or lashes, or the famous but rarely applied penalty of stoning for adultery. Their decisions had the force of law because a political ruler delegated that power to them, and backed it up with his army and police force. But significantly, those judgments and penalties are not the reward and punishment al‑Juwaynī is talking about. The penalty of stoning is not God’s punishment (ʿiqāb) for adultery; it is just another human action, which would ordinarily be forbidden but which, because adultery has been established by the testimony of four witnesses, becomes permitted or even obligatory for the ruler to carry out. Technically, according to al‑Juwaynī’s definitions, legal science is not the knowledge that one who commits adultery should be stoned; it is the knowledge that God will punish adulterers in the afterlife, and that he will also reward rulers who apply the penalty of stoning to those whose adultery is properly established in court. This amounts to the same thing in practice; but technically, the legal value of any action is defined not by its consequences in this life, but by its consequences in the hereafter, and this tells us that al‑Juwaynī understood law as primarily about eternal rather than earthly consequences.

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The two remaining legal values that al‑Juwaynī defines, valid and invalid, likewise point ultimately to punishment in the hereafter. These terms apply both to devotional acts such as prayer, and to contracts such as sale and marriage. An obligatory prayer is valid if one meets all the required conditions, such as being ritually pure and intending to fulfill thereby one’s obligation to pray; this means that the prayer “counts”—it fulfills one’s obligation, thus gaining future reward and avoiding future punishment. To say that it is invalid means that it did not fulfill the required conditions, and therefore does not fulfill one’s obligation, leaving one open to punishment if one does not get to it and perform a valid prayer. To say that a sale is valid means that it effectively transfers ownership, which seems to be a more immediate consequence that can be enforced in this life; but this too is really about consequences in the afterlife: what it really means is that I will not be punished (or rewarded) for eating the hot dog I acquired through that valid sale, whereas if I ate a hot dog acquired through a sale I knew was invalid (or had sexual relations with a person on the basis of a marriage I knew was invalid) that act would be prohibited, and I would be subject to punishment in the afterlife. Again, what appears to be about immediate consequences (whether or not I am now married) is ultimately about eternal consequences (whether or not I will be punished for sexual intercourse).

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The same is true for other properties of actions that al‑Juwaynī does not mention, but which are sometimes called legal values. One act can be a “condition” (sharṭ) of another, as having the proper intention is a condition of a valid prayer. One act or event can be an “occasion” (sabab) of another, as my owning sufficient property is the occasion of my obligation to pay the alms tax on it. Or one act or situation can be the “obstacle” (māniʿ) to another, as my murdering my father would prevent my inheriting from him. These properties of actions have immediate implications, but ultimately all they do is help determine which actions (by which persons at which times under which circumstances) will be punished and which rewarded in the afterlife. Only that knowledge technically constitutes legal science.

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Al‑Juwaynī’s way of defining legal values, then, defines law as a set of statements about the consequences our present actions will have in the afterlife. For those whose first priority is their eternal happiness, and who believe the law’s promises and threats are real, such a law may effectively regulate behavior. But for those members of society who do not share that conviction, or are unwilling to make the sacrifices it requires, law as al‑Juwaynī defines it is all pie in the sky; it has no teeth. The law does not refer directly to reward and punishment in this life. It provides for its own this-worldly enforcement only indirectly, by promising that authorities who enforce it in this life will be rewarded in the afterlife. When al‑Juwaynī discusses the role of jurists in Chapters 17 and 18, he does not discuss how they might enforce the law; he only asks how certain they can be about what will happen in the afterlife. Legal science has legal and moral content, but that content can only have a social impact if individuals appropriate it as personal morality, or if enough of society appropriates it that it becomes a cultural norm and shapes what people expect from each other, or if some de facto governmental or non-governmental power decides to carry out on others the kinds of judgments and penalties that the law says God will reward.

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The precise mechanism by which the law affects society is thus left largely undefined by the law itself. Look through a classical manual of legal science and you will find little or nothing about the structures of government—what we would call constitutional law, dealing with legislative, executive, and judicial powers. You will find some details of court procedure, and in the separate literature on Islamic political theory you will find idealized scenarios for how governments should enforce Islamic law; but the overall shape of government is left strangely undefined. This may be due to the fact that the Prophet did not need an elaborate governmental structure during his own lifetime. It may also be due to the fact that Islamic law was first systematized by scholars who did not themselves have the political power to enforce their own legal opinions. Whatever the reason, al‑Juwaynī defined Islamic law as a set of predictions about heavenly reward and punishment, not as a constitution or a set of procedures for governmental enforcement.

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This feature of Islamic law has meant that while the content of classical Islamic law has remained remarkably stable over time, the means of its implementation (or the lack thereof) has varied considerably from one society and one government to the next. Today Muslims have many competing visions of what institutional form Islamic law should take. Should legal scholars hold political power directly, as the Iranian revolution proposed? Should diligent inquiry take place within an elected legislative body and be enforced by independent judicial and executive branches? Or should political structures remain secular, while Islamic law shapes society as a persuasive private morality, by motivating individuals to pursue divine reward and avoid eternal chastisement?

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In al‑Juwaynī’s world, legal science had an immediate impact thanks partly to rulers who appointed judges and backed them up with the power of the sword, and thanks even more to the community’s collective respect for the law and for legal scholars. But he did not define the law as either a political reality or a cultural norm. He defined it abstractly, as an exercise in determining what will happen after death. Of course knowledge about the afterlife should shape present behavior, and of course Muslims have had many ways of ensuring that it does; but how they do so is an open question. Legal science itself only predicts what will happen if they do, and what will happen if they don’t.

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The nature of law

This way of defining law puts al‑Juwaynī in a certain philosophical camp on the nature of ethics. Of all the possible ways to define right and wrong, al‑Juwaynī focuses on God’s statement that he will reward some actions and punish others.

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There has been a longstanding debate among Muslims about whether God commands and rewards certain actions because they are good, or whether they are good because God commands them and promises to reward them. Muʿtazilī theologians argued that since God is wise and good and self-sufficient, the only possible motivation for him to command certain acts is that he knows they will be beneficial to his creatures—either by their very nature, or because he will reward them. Hence God’s commands do tell us that certain acts are good and will be rewarded, but they do not make them good; God will reward them because they already are good. On the other side, Ashʿarī theologians argued that God is not subject to any higher criterion of right or wrong, but that actions become right and wrong only when God commands or prohibits them. God’s revealed commands and prohibitions themselves determine what is good and bad, and what will be rewarded and punished. For both parties to the debate, revelation gives information about what actions will be rewarded and punished in the hereafter, so both sides could and did define legal values in terms of reward and punishment. But a Muʿtazilī legal theorist would feel compelled to point out that reward and punishment do not themselves define right and wrong, whereas al‑Juwaynī, being an Ashʿarī, is content to define legal science as knowledge of what actions God will reward and punish. Law and even ethics are concerned only with what God will reward, not with why he will reward it, because in al‑Juwaynī’s mind there is no reason why. God does not do things “for a reason.”

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This means that al‑Juwaynī’s ethics is what Western philosophers would call a divine command theory of ethics. He is not an advocate of natural law, in contrast to the Muʿtazila, who can be understood as natural law theorists despite their insistence that much of the law can be known only with the help of revelation. His ethic is also utilitarian, not in the Western philosophical sense of seeking the greatest good for the greatest number of people, but in the more individualistic sense that the goal of law is for the individual to gain reward and avoid punishment. This is not to say that he does not care about others; the content of Islamic law is in many respects more oriented toward the benefit of society than that of the individual. But by the way he defines law he makes it ultimately an individual concern, just as the Qurʾān declares that each individual will ultimately be judged alone, solely on the basis of his or her own deeds. The goal is individualistic, even if the rules are altruistic.

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It is also noteworthy that al‑Juwaynī’s definition of law is about particular actions rather than general principles. His chapter on analogy will show that he does believe there is a certain coherence about the law, which permits us to extrapolate what the law would say about something revelation does not explicitly address. But it is coherent only to the extent that God chooses to give similar actions similar legal values. It is not defined by overarching moral values like fairness or duty or love. Western ethical philosophy has become accustomed to the search for general moral principles that can guide decisions in specific cases. Alternatively, some Western ethical systems focus on virtues—stable traits that define a good character. Virtues receive much attention in other Islamic literature, such but as books on akhlāq (manners or morals), but not in law. Al‑Juwaynī’s vision of law is not about general principles or guiding values or personal virtues, but about the consequences of particular actions. Other legal theorists—most famously al‑Ghazālī (d. 1111) and al‑Shāṭibī (d. 1388)—made an important contribution by identifying five major goals that Islamic law seeks to promote: the preservation of life, religion, intellect, wealth, and family lineage. Al‑Shāṭibī even argued that particular revealed commands could be overridden or at least reinterpreted if they seemed to go against these overarching “objectives of the Sharia.” This concept has received much attention in modern times, perhaps because it fits better with the Western preoccupation with general principles; but it clashes with the fundamental orientation of classical legal theory toward the evaluation of particular actions.

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The indicative function of revelation

Finally, al‑Juwaynī’s way of imagining law has several implications for hermeneutics—for how one approaches and interprets the texts of revelation.

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To begin with, al‑Juwaynī makes law a set of statements, and thus reduces revelation to its informative dimension. The subject of each sentence is an action, and the predicate in each sentence is a legal value: eating beef hot dogs is permitted; eating pork hot dogs is forbidden; eating anything when one has already had too much to eat is disapproved; etc. This may seem like a simple observation, but it has important implications for how one interprets revelation. If legal science, the goal that one pursues through diligent inquiry, consists of statements, then the words of revelation must always be translated into statements about the legal values (i.e., the eternal consequences) of acts. That is why, in the chapters that follow, we will find that one of al‑Juwaynī’s main concerns is to determine precisely what action-person-time-circumstance combinations are referred to by the subject of a revealed legal statement, and exactly which legal value is indicated by its predicate. If the Prophet says “wash yourselves before Friday prayer,” should that be translated “washing before Friday prayer is obligatory,” or “washing before Friday prayer is recommended?” And who exactly is the “you” in “yourselves,” and what kind of washing does he have in mind? In other words, exactly which act-person-time-circumstance combinations is he talking about, and what legal value is he giving them?

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Defining law as statements of legal values means that whatever form the language of the Qurʾān may have—and it takes many forms, from tragic stories and dire warnings to vivid natural images and tender words of comfort—the jurist’s job will be to extract from each sentence whatever propositional content it may yield regarding the consequences of human actions. Because law has been such a dominant part of Muslim intellectual life, the Qurʾān has often been treated as a book of legal information. Indeed one legal theorist (ʿAbd al-Jabbār, d. 1025) who thought out very carefully the implications of this view of law concluded that the Qurʾān is only about law: it may seem to tell stories and preach sermons of warning, but the only beneficial information God can possibly intend to convey to us through those stories and sermons is what actions he will reward and which he will punish. The Qurʾān is, or must be reduced to, a statement of the law.

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This is not the only way one can imagine the Qurʾān revealing law. For instance, it is often pointed out that God’s speech does not just convey information, it also frequently serves to create or bring things into being. “When He decrees something, he merely says to it ‘be!’ and it is” (Q 2:117, 3:47, 19:35, 40:68). If law or ethics were imagined instead as a set of relationships between people, the Qurʾān could be viewed as the speech by which God brought certain relationships into existence, performatively binding people to each other in covenants of mutual responsibility and submission, just as the words used to perform a marriage bring about a new bond of authority and mutual obligation between husband and wife. Many Islamic societies have relied heavily on networks of carefully defined relationships of responsibility, loyalty, and authority between people, and it might seem natural for al‑Juwaynī to conceive of God’s lawgiving as the creation of such networks of relationships. But he and the whole legal tradition opted instead for the idea that God’s speech contains information about how God will judge each individual for his or her own actions. This is a quite reasonable way—but only one of several possible ways—of translating the Qurʾān into law.

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The irrelevance of context

This reduction of revelation to indicative statements of legal values has the perhaps unintended effect of making the context in which God originally revealed his law all but irrelevant to its interpretation. Imperatives, oaths, and requests are meaningful only in interpersonal situations, whereas statements of fact are true or false regardless of the circumstances of the speaker, the listener, or the relationship between them. Reducing revelation to statements therefore makes the context of the speech less relevant to its interpretation.

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This has important practical implications. If God’s command to “marry those women who seem good to you, two or three or four” (Q 4:3) represents just one moment in his relationship with the community he was forming, at a time when that community was facing devastating losses of fighting men and the existing institution of polygamous marriage provided a means to reintegrate orphans and widows into a protective social network, then it makes sense to take that context into account in seeking the legal implications of that verse. Some modern interpreters have done just that, in support of their attempts to limit or even outlaw polygamy. But if that command is just a statement of timeless and situation-neutral legal fact—that the act of marrying up to four women has the legal value “permitted”—then that legal fact is simply true, and the situation in which God happened to mention it does not restrict its application to other situations. This is in fact an interpretive rule that legal theorists often state explicitly: “what matters is the generality of a verbal expression, not the particularity of the occasion of its revelation.”

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The human orientation of interpretation

Al‑Juwaynī’s view of law also implies that revelation is to be regarded not as about God, but as about humans. In the process of interpretation called for by al-Juwaynī’s definition of legal science, humans come to the text with a question about their own actions, and the text provides an answer about the consequences of that action. This means that the situation and concerns of the human interpreter—rather than the situation and concerns of the speaker or original audience—define the purpose of the text, and the kind of meaning the text can have. This is a good thing in the eyes of those modern Muslim thinkers whose goal is to make the Qurʾān relevant to modern life. It is also a good thing in the eyes of modern Western thought about religion generally, which over the last century has taken an “anthropological turn,” arguing that religion is really an expression of human aspirations and concerns, not a reflection of a transcendent reality. But this raises red flags for my hermeneutical values, which call for sacrificing the interpreter’s concerns to listen to those of the speaker. It also raises flags for those Muslims who want to believe that Islamic law is a matter of listening to and submitting to God, not of bringing the Qurʾān into line with modern human concerns and values.

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The impossibility of testing interpretation

Finally, because the legal information conveyed by revelation is all about the afterlife, there is no way to test whether one has understood it correctly. In human communication, as Ludwig Wittgenstein has pointed out, the “cash value” of language lies in the human interaction that accompanies speech. The way we know whether we are understanding others is that we interact with them in concrete ways, and we can assume that we are understanding them as long as we are able to interact with them successfully. For example, when a buyer and seller agree on the price of a house, the seller does in fact vacate the house, and the buyer does provide a check for that amount and proceeds to move in, and no one comes to evict her; but she would know she had misunderstood something if she showed up with the moving van and the seller was still living there. Our confidence in human communication stems from our experience of successful interaction, and from our experience that misunderstandings lead to concrete problems. But how do we know whether we are understanding God’s speech? If we misunderstood his commands and he then punished us for disobeying them, we would realize we had misunderstood. But if he only tells us what he will do in the afterlife, then we can’t be sure we have understood him until we get there. For now, we have no direct personal interaction with God through which we could detect our misunderstandings and gain confidence in our interpretations. God is the author of the text, but he is absent from the process of interpretation, so we are left to our own devices. We can interact with a legal scholar, or with a judge, and find out quickly whether we have understood what he or she thinks the law is; but we cannot interact directly with God, and so may never find out (until it is too late) whether we have just been taking him to say what we wanted to hear. By defining legal values in terms of eternal reward and punishment, al‑Juwaynī makes it vitally important that humans really hear what God is saying, but provides no feedback mechanism to tell them when they are reading their own desires into the words of revelation.

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Al‑Juwaynī’s definition of legal values seals several fateful choices about how we are to imagine law and how we are to interpret texts. By defining law as information about how God will reward or punish our actions in the afterlife, he puts all of life under divine regulation, yet leaves open the question of how that regulation might be given the force of law in this life. He also grounds law in a utilitarian and individualistic ethic of divine command. Finally, he severs the meaning of God’s speech from the interpersonal situation in which it was revealed, setting it loose from its context so that it can be made to address the concerns and goals of its contemporary reader, but without any possibility of feedback about whether his interpretations are correct. Al‑Juwaynī will face these hermeneutical challenges at several points in his treatise, and will provide an ingenious solution to the problem of uncertainty in his final chapter.

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Further reading

On Islamic views of the nature of law, see George F. Hourani, Islamic Rationalism: The Ethics of ʿAbd al-Jabbār (Oxford: Clarendon Press, 1971), and Anver M. Emon, Islamic Natural Law Theories (Oxford: Oxford University Press, 2010).

On the reduction of revelation to its indicative dimension, see David Vishanoff, The Formation of Islamic Hermeneutics: How Sunni Legal Theorists Imagined a Revealed Law (New Haven, Connecticut: American Oriental Society, 2011).

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Source: http://waraqat.vishanoff.com/v/v-2-legal-values/