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David Vishanoff’s Commentary

on Imām al-Ḥaramayn al-Juwaynī’s
Leaflet on the Sources of Law

with traditional examples
and contemporary reflections

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Introduction to the Commentary

The shortest book ever written on Islamic legal theory, the Leaflet on the Sources of Law of Imām al‑Ḥaramayn Abū al‑Maʿālī ʿAbd al‑Malik al‑Juwaynī (b. 1028, d. 1085) has generated an enormous body of commentaries, translations, poetic renditions, commentaries upon commentaries, and even commentaries upon those supercommentaries. By my count, this Critical Introduction to Islamic Legal Theory is the sixtieth work to be written based on al‑Juwaynī’s Leaflet.1 The real number is undoubtedly much higher.

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No excuse is needed, therefore, for the writing of yet another commentary. The Leaflet’s status as a classic has made commenting upon it a prime medium of expression for each generation’s views on Islamic legal theory. Even legal theorists outside al‑Juwaynī’s own Shāfiʿī school of legal thought have felt free to add their voices, sometimes expanding his text to include sources of law al‑Juwaynī himself would have rejected.2 As Islam becomes increasingly globalized, and as Muslim scholars engage more and more with other religious and scholarly traditions, it is only natural that a non-Muslim American, trained in Western academic approaches to the study of religions, should reinterpret this classic text once again for a new generation of English-speaking students of Islam.

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This commentary’s perspective

The reader will soon discern what questions I think Western students can most profitably ask of Islamic legal theory. Those questions do not concern law and its functioning so much as textual interpretation. The classical discipline of Islamic legal theory, or uṣūl al‑fiqh (“the sources of law”), is not a theory about legislation or courts or precedent or the application of statutes, but about a process of textual interpretation. Its whole concern is how laws may be derived from (or justified by) the body of texts that Muslims regard as sacred and revealed—the Qurʾān and the Ḥadīth (reports about the Prophet Muḥammad). Legal theory is, or purports to be, an explanation for why Islamic law says what it says, given what the Qurʾān and Ḥadīth say.

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One question we may want to ask of Islamic legal theory, therefore, is what opportunities it affords for reforming Islamic law, as so many Muslims and non-Muslims are keen to do. My commentary will argue that classical legal theory is indeed a powerful intellectual tool holding great potential for reform. I believe, however, that such a purely utilitarian approach to legal theory is both dangerous and morally dubious. The same interpretive power that makes Islamic legal theory so useful for reform also makes it useful for justifying injustice.

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I therefore try to ask questions that probe deeper, asking not just how this interpretive theory might serve a certain moral vision, but also what it means to have a moral vision in the first place, what it means to interpret a text, and what it means to claim that God has communicated His moral vision through a text. How does language convey meaning? What is meaning—is it a matter of what a speaker or an author intends, or how words are defined, or how a reader chooses to interpret them? Is language understood intuitively, or through a process of interpretive reasoning? How can a human being claim to understand God’s language? Is such a claim realistic, or is it just a way of claiming authority over others? How can God’s revelations be translated into detailed norms? And what is a legal or moral norm anyway? Only by asking these kinds of fundamental question can we get beneath the polemics of “my interpretation is better than your interpretation,” and begin to understand why Muslims have come to view such arguments as meaningful in the first place. These are the kinds of questions that will help us to understand not just what Islamic law says, but what it is, or at least what Muslim scholars imagine it to be. Granted, these are not the kinds of questions al‑Juwaynī addresses explicitly in his Leaflet; but then the questions he does ask and answer are, in and of themselves, of very little interest to most modern Western students. If, however, we search beneath the surface of al‑Juwaynī’s text for answers to these more fundamental (or simply more modern) questions, I expect we will find that al‑Juwaynī himself was indeed answering them, in his own way and in his own terms.

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This commentary will go one step beyond merely trying to uncover al‑Juwaynī’s tacit answers to these questions. Sometimes, I will compare his answers critically with my own moral values, and my own convictions about hermeneutics (the theory of interpretation). I do not expect you, the reader, to share all of my convictions, but I hope that as I bring my own values into conversation with al‑Juwaynī’s, you will add yours to the conversation, joining a respectful but critical dialogue that is essential to a healthy relationship between followers and other students of Islamic law.

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Let me state my own hermeneutical values up front. I believe that the act of listening attentively to another person is of fundamental moral value, but is more difficult than it sounds because humans naturally tend to interpret others’ words so as to get what they want out of a conversation. The same applies to words people believe to be divine: those who believe in divine revelation regard themselves as subject to that revelation, and may even desire to have their own preconceptions and agendas challenged and transformed by that revelation, but they are remarkably adept at interpreting it in such a way that it does not threaten their own sense of identity and way of life. Since I value the act of listening sacrificially—that is, attentively and humbly enough that one allows one’s own preconceptions and desires to be challenged and transformed—I believe that a good hermeneutic must enable and encourage such sacrificial listening, while combatting those self-serving interpretive strategies by which humans instinctively seek to preserve and justify their own sense of identity and way of life. This conviction defines the fundamental question lurking behind my entire analysis of al‑Juwaynī’s Leaflet: how well does his legal theory help Muslims to listen to those textual sources of law that they believe come ultimately from God? Does it encourage them to listen to those texts so attentively that they are willing to let their own preconceptions be challenged, and let their own moral values and their own lives be transformed by those texts? Or does al‑Juwaynī’s legal theory facilitate the natural human drive to shape texts to one’s own preconceptions, objectives, and desires? I expect to conclude that although his legal theory attempts to put some limits on readers’ ability to construct revealed texts (and God) in their own image, at the end of the day it cannot compel readers to hear what they do not want to hear, or recognize meaning they do not wish to see, or acknowledge commands they do not wish to obey. Islamic legal theory is a human construct, designed to serve the natural human drive to shape the world to one’s own ends.

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A two-edged sword

I will conclude, therefore, that Islamic legal theory is a two-edged sword. It is designed to demonstrate that the entire body of Islamic law is compatible with and derived from the texts of revelation. Depending on the jurist who uses the theory, that process can work in either of two directions. On the one hand, a jurist (legal scholar) can start with texts, and use the rules to resolve contradictions and discover what law fits the texts best. This is how legal theorists often say their rules should be used, but it seldom happens quite this way, because rarely is a jurist ever free to simply consult the texts and come up with a law from scratch. On most points of law, a jurist is bound to take into account what previous jurists have decided, and that precedent inevitably affects how the texts are interpreted. At the other extreme, a jurist can start with a predetermined view of what the law should be, and use the powerful and flexible rules of mainstream legal theory to interpret the texts to fit that view. There has been considerable debate among Western scholars over which way Muslim jurists actually use their legal theory.

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My commentary will point out that al‑Juwaynī’s legal theory, and with it Islamic legal theory in general, is well designed for justifying preconceived views, and has sometimes been used that way quite blatantly. This is not surprising, if we consider the intellectual context in which al‑Juwaynī wrote. He was living at a time when Islamic law was already largely codified. He felt that his job was not to create new law, but to defend the old.

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As mentioned in the section on “Al-Juwaynī’s Life and Thought” in the Introduction, al‑Juwaynī’s thought was highly rationalistic. He insisted that each person must use his3 own reasoning to reach his own conclusions in both theology and law. Yet he did not think that human reason actually had the capacity to create new knowledge, either in theology or in law. Instead, he regarded reasoning as a process that each individual must go through in order to experience the certainty that his inherited beliefs were in fact true and that by following his inherited moral code he was in fact submitting to God’s will. Al‑Juwaynī lived at a time when the intellectual competition between Islamic and non-Islamic thought had largely subsided, and he no longer felt the need to prove his beliefs to an unbeliever from scratch. Rather, to use the words of al‑Juwaynī’s modern German biographer Tilman Nagel, his goal was to build a fortress around Islamic thought, an airtight intellectual system that could be defended from within. The content of both theology and law was already taken for granted, and needed only to be justified.

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That, I will argue, is what al‑Juwaynī’s legal theory was designed for. I will concur with Nagel’s assessment that the jurists of al‑Juwaynī’s school of law, the Shāfiʿiyya, in their drive for certainty about their beliefs, tried to find every aspect of the law somehow encoded in the texts of revelation, and that this drove them to some very arbitrary interpretations of texts. Nagel argues that even though their legal opinions were actually evolving slowly to fit the needs of their changing culture, this change occurred so slowly that they did not realize what they were doing. Even though they believed their law came from revelation, in accordance with the interpretive principles of legal theory, it was actually their own creation, which they continually justified by claiming it had come straight from revelation.

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Of course, legal theory can be used not only to justify law, but also to discover it. Many scholars of legal theory, including most Muslim scholars, have insisted that this is its true purpose. I disagree, but I invite you to test my position as you study al‑Juwaynī’s text, and reach your own conclusions on this and many other questions that will be raised along the way.

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  1. For an overview of this literature, see “The Impact of al‑Juwaynī’s Leaflet” in the Introduction. ↩
  2. The Tatimmat Naẓm al‑Waraqāt of ʿAbd Allāh al‑Baytī is an appendix, in verse form, to the verse rendition of al‑ʿAmrīṭī, adding sources of law such as custom and public welfare. It is published, with commentary, by ʿUmar ʿAbd Allāh Kāmil at the end of his commentary on al‑ʿAmrīṭī’s Tashīl al‑ṭuruqāt fī Naẓm matn al‑Waraqāt (Beirut: Bīsān, 2004). ↩
  3. Like his contemporaries, al‑Juwaynī spoke and thought of scholars as male. ↩
Page 44

Source: http://waraqat.vishanoff.com/v/v-introduction/