15 — Forbiddance and Permission
Another way to fill in the gaps in revelation
Analogy is, ostensibly, a means of filling in gaps in revelation: a way to create law where no law exists, by extending the meaning of revealed texts to topics about which they are silent. The presumption of continuity appears to serve a similar function: where revelation is silent, we can determine the legal value of an act by presuming it still has the same legal value it would have in the absence of divine legislation. For example, revelation commands fasting in the month of Ramaḍān, but what is the legal value of fasting in the month of Rajab? Since one finds no evidence that it is required, one may conclude with certainty that it is not required. Depending on which position one adopts—the default of forbiddance or the default of permission—one will assume that it is either forbidden or permitted.
Al‑Juwaynī himself does not actually side with either of these two defaults. The most common view is that actions are permissible by default. Nevertheless, it is noteworthy that al-Juwaynī does not seem to think it matters too much: the student of law will be able to reach appropriate conclusions no matter which default he chooses. It seems a momentous choice, that could affect a wide swath of human actions. Why does al‑Juwaynī seem so unconcerned?
It might be that al‑Juwaynī regards this as a purely hypothetical question: revelation does in fact govern every aspect of life, thanks to devices like analogy which can extend it to any topic, so it will never actually be necessary to fall back on the default of forbiddance or permission. A statement in the next chapter, however, shows that al‑Juwaynī does not actually think that analogy takes precedence over the default legal value of an action: only an “utterance”—the language of revelation—can alter that default. That implies that a great many human actions are still governed by the default legal values that all actions have if God never says anything about them. In fact, this seems to run directly counter to analogy, since the point of analogy is to assign legal values to precisely those actions God has said nothing about. This is not a merely hypothetical question.
The question of legal values before revelation
Perhaps it is rather a purely philosophical question. There is a verse in the Qurʾān that says God has “created for you all that is in the earth” (Q 2:29; cf. 45:13), and this was taken by most scholars as indicating that at least since the time of the Qurʾān’s revelation, all human actions have been explicitly made permissible by this very general statement, except for those that have been assigned different legal values by more particular statements. There remained, however, a philosophical debate over what legal values actions would have had if God had never revealed that verse or anything else at all. Before the Prophet Muḥammad, or before the very first prophet, were humans allowed to eat, drink, buy, and sell, or was it wrong for them to do so, by virtue of some unwritten natural or rational ethic? This question is moot today, and indeed has been for virtually all of human history, since the first prophet was also the first man, Adam. But it remains an interesting philosophical question, because its answer affects how we imagine God’s law today: is the Sharīʿa a vast blessing by which God authorizes us to make free use of things that otherwise were not ours to use; or is it a grand restriction that limits humanity’s original freedom?
Historically, a minority of the Muʿtazila took the view that all creation is God’s property, and that humans know without the help of revelation that it is wrong to use someone else’s property without permission; hence all actions would be morally wrong and legally forbidden if God had not graciously permitted them. The more successful Baṣra branch of the Muʿtazila argued the opposite, that God’s only possible motive in creating is to benefit his creatures, hence we know without the help of revelation that all beneficial actions are at the very least permissible; the only forbidden actions are those that reason itself teaches us are wrong, such as lying or inflicting needless pain.
Remember, however, that al‑Juwaynī and the rest of the Ashʿariyya did not believe in natural law. They held that actions become right or wrong, and obligatory, permitted, or forbidden, when and if God commands or forbids them. Before revelation, or in the absence of revelation, actions have no moral or legal value at all. It is only by virtue of the Qurʾān’s general statement of permissibility, therefore, that we can assume everything is permissible unless God indicates otherwise.
Al‑Juwaynī can therefore leave unresolved the question of whether actions are forbidden or permitted in the absence of revelation, because to his mind they are neither; only with the advent of revelation itself do actions acquire a default legal value, which is generally thought to be permissibility.
Presumption of continuity in individual cases
Some kinds of actions, such as sex, are often treated as forbidden by default, but this represents a confusion between different senses of the expression “presumption of continuity.” Jurists used this technical term, istiṣḥāb al‑ḥāl, to refer to the continuity of several kinds of facts: a child is presumed to remain such until he is shown to have reached legal maturity; the accused is presumed innocent until proven guilty; a person in a state of ritual purity is presumed to remain so unless he knows his purity has been broken; two people are presumed not to be in a relationship that makes sex lawful unless the existence of a marriage contract or of slave ownership is established. But these are rules for deciding the facts in individual legal cases. Here, in the context of legal theory, al‑Juwaynī is concerned only with rules for the interpretation of revelation, and for the establishment of general rules of law that apply to whole classes of human actions. In determining such abstract legal rules, the revealed default of permissibility can be presumed to remain in force as long as no revealed utterance has indicated otherwise. Sex would in fact be lawful between any two persons, if God had not limited it to marriage and slave ownership; once he has restricted it, however, it is presumed to be forbidden except under those conditions explicitly set forth by revelation.
A source of law or a justification for preconceived views?
The presumption of continuity therefore has all the appearance of a powerful tool for filling in the gaps of revelation, and answering any legal question which God has not directly addressed. Mohammad Hashim Kamali has pointed out insightfully that this principle is especially valuable for those who are most reticent about relying on human reasoning to establish law. Hence the Ẓāhiriyya and some Shīʿa, who rejected reasoning by analogy, have appealed to the default of permissibility on many points where others relied on analogy. Likewise the Shāfiʿiyya, though they accept analogy, make relatively frequent appeal to the default of permissibility because they do not accept other methods of legal reasoning such as juristic preference (istiḥsān) and considerations of public welfare (maṣlaḥa).1
We have seen, however, that al‑Juwaynī is not afraid of human reasoning in law, as long as he can regard that reasoning as interpretive. He also does not seem too concerned to set up strict guidelines for the presumption of continuity, since he leaves open one’s choice of default.
If we assume that al‑Juwaynī is listing the sources of law, in descending hierarchy of authority, and is listing presumption of continuity as a last resort in case the other sources do not provide sufficient guidance, his writing does not make sense. He does not say which legal value presumption of continuity assigns to actions, and in the next chapter he will actually say that presumption of continuity should be given precedence over analogy, which would undermine one of the main pillars of Sunnī law.
His brief, open-ended discussion of presumption of continuity makes more sense if we understand it as we have understood his other interpretive devices: he is not presenting it as a source, root, or foundation for the construction of law, but as a tool to be used in argument in defense of a predetermined legal opinion. With that perspective, we can see that al‑Juwaynī’s terse and open-ended discussion of presumption of continuity is a very flexible tool that can be used to argue for all kinds of rules. It is not that al‑Juwaynī imagines us ever running out of evidence and needing to fall back on a default; after all, the whole point of analogy was to allow us to extend the evidence of revelation indefinitely to any conceivable legal question. Rather, he allows us to appeal to presumption of continuity if that is what our legal position demands. He even allows us to appeal to a default legal value in preference to our opponent’s reliance on analogy. Yet if we ourselves rely on analogy, we can still be claiming to be extending the meaning of revelation itself, since he defined analogy not as a source in its own right but as an interpretive device.
Moreover, because he left our choice of default open, he allows us to claim permissibility where that suits our views, and forbiddenness where that suits us. By not siding with one side in the debate, he suggests that the default itself is a matter on which one should suspend judgment (as some theorists actually held). This means that different defaults could be used in different areas of law. This is, in fact, how jurists actually argue: despite the Qurʾānic statement that all things were created for humans, jurists nevertheless distinguish between things such as foods, which are permissible by default, and things like sex, which are forbidden by default.2 Even if one sides with the majority and opts for the general default of permissibility, it is easy enough to argue that revelation established a default of forbiddenness for some narrower aspect of life such as sex.
Conservative or progressive?
Like al‑Juwaynī’s other interpretive devices, then, the presumption of continuity is highly flexible, and can be used to argue for many different legal opinions, especially if it is set off against other kinds of evidence as needed. As we have seen before, this flexibility is especially useful for defending a conservative view of the law: it is easier to claim that a given food has always been permissible by default, or that sex has always been forbidden by default, if that is the way one’s society and one’s legal tradition regards them. The very concept of “presumption of continuity” expresses the essence of conservatism.
Nevertheless, this device also has the potential to undergird changes in the law. In modern times, innovations such as new foods (tomatoes, coffee) or new business practices have often been justified by appeal to the presumption that all things are permissible unless revelation specifically says otherwise. This increasing use of the device of presumption of continuity is a sign that Muslims today are increasingly willing to leave more and more areas of life outside the specific jurisdiction of Islamic law, and leave them up to human mores and legislation. In this respect the scripturalist spirit of the Ẓāhiriyya, who wanted to restrict law to those domains explicitly addressed in revelation and leave other aspects of life open to human governance, seems to be regaining ground. Perhaps that is one reason why the legal theory of the great Ẓāhirī Ibn Ḥazm has received so much attention in recent decades.
One modern reformer, Hasan Turabi (d. 2016), has appealed to the presumption of continuity to make a still more fundamental point about the nature of Islamic law. He argued that the notion of presumption of continuity expresses the continuing validity of human cultures and norms: when God sent the Prophet Muḥammad, he did not overturn every aspect of Arabian society, but instead adopted most of its customary sense of morality, urged adherence to that understood morality, and changed it only in some specific areas where the culture was inadequate or corrupt. This shows, according to Turabi, that Islamic law is not intended to completely replace a culture, but rather to build upon and preserve its strong points, while reforming its weak points. This suggests, in turn, that even modern cultures do not need to be completely replaced with an Islamic legal system, but that their moral intuitions can be used as the basis for Islamic law, which need only modify them where they are directly incompatible with the basic moral imperatives of the Qurʾān.
See Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, rev. ed. (Cambridge: Islamic Texts Society, 1991), ch. 15.
On the question of legal value before revelation, see A. Kevin Reinhart, Before Revelation: The Boundaries of Muslim Moral Thought (Albany: State University of New York Press, 1995).