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16 — The Prioritizing of Evidence

(Arabic text and English translation in separate tabs.)

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Contradictions revisited

The argument “from default” was the last of al‑Juwaynī’s methods of interpretation. His next two chapters will move to an entirely new level: who interprets for whom, and why their interpretations are authoritative. This present section is just a wrap-up in which al‑Juwaynī states how the interpretive mechanisms he has just defined can be used together to give the interpreter a wide range of interpretive options.

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Recall that after he had finished giving his preliminary definitions and describing the stuff of revelation itself, just when he was changing gears to talk about interpretive method, al‑Juwaynī inserted a little section on contradictions. We determined at the time that the purpose of that section was to explain how to make use of his description of the stuff of revelation in one’s interpretive work. He had defined several kinds of intertextual relationship—particularization, clarification, and abrogation—and he felt it necessary to point out that these relationships could be used to resolve contradictions between texts: if one is more general than the other, it is particularized; if it is revealed earlier, it is abrogated. This was an explicit statement of why al‑Juwaynī’s description of the stuff of revelation mattered: it set up multiple mechanisms that interpreters could use to modify the meanings of texts by playing them off against one another. Al‑Juwaynī’s description of the revealed sources of law was really about interpretive method.

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Since then, al‑Juwaynī has given us several new interpretive devices: claiming consensus, evaluating the transmission of a report, reasoning by analogy, and argument by default. He therefore pauses once again to restate how all these devices, as well as those he defined previously, can function together as a toolbox of interpretive mechanisms from which to choose. Last time he spoke of resolving contradictions, and this time he speaks of giving priority to certain kinds of evidence over others, but both amount to the same thing: finding evidence that points to several different legal rules, and then arguing for one of those alternative interpretations by choosing which evidence modifies or overrules which other evidence.

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Clarity revisited

He returns first to the notion of clarity, which he described in the first part of the treatise but failed to mention in his section on contradictions. He now says explicitly how his categories of clear and ambiguous speech can be used to define intertextual relationships: a definite text (naṣṣ) is to be given precedence over one with an apparent meaning (ẓāhir), which in turn is preferable to a summarized text (mujmal). To give one text precedence over another means simply that the first one’s meaning governs the other. Recall, however, that to know whether a text is definite, apparent, or summarized, we must already know what it means: we call it clear if it fits the legal rule we want it to support, but we call it obscure if it needs to be modified by other evidence to make it fit the law. To say that clear texts are given priority over unclear texts is therefore a tautology: clear texts, by definition, are those which we choose to take at face value, thus giving them priority over conflicting texts; and unclear texts are those we say must be modified by others. The point of analyzing clarity and ambiguity, therefore, is simply to provide a theoretical vocabulary and a justification for the interpretive practice of using one text to modify the meaning of another.

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Epistemological superiority

Next al‑Juwaynī refers back to two terms he defined at the very beginning of the treatise: knowledge and belief. He now states how those terms are useful for interpretation: they allow us to define an intertextual relationship of epistemological superiority. This kind of intertextual relationship is more like abrogation than clarification, in that the preferred text trumps the other text altogether, rendering it legally irrelevant, instead of just modifying its meaning. Al‑Juwaynī would rather modify a text’s meaning than declare it irrelevant, but if clarification and particularization prove inadequate for dealing with a problematic text, the next best thing is to marginalize it by declaring it abrogated, or, failing that, declaring it to be less certain and therefore overruled by another text.

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This, you recall, was the whole point of al‑Juwaynī’s discussion of reports. Multilaterally transmitted reports give knowledge, whereas individually transmitted reports could be inauthentic and therefore require only obedience; they provide only belief, which means that they lead us to think that one legal ruling is “more likely than the other” and therefore should be followed even though it may be incorrect. Since even individually transmitted reports are transmitted with varying degrees of epistemological assurance, and we have multiple ways of evaluating their transmission, it will not be difficult to find fault with just about any individually transmitted report, and declare it to be overruled by a Qurʾānic verse or a claimed consensus, or even by another individually transmitted report that we claim has a slightly better chance of being authentic. The intertextual relationship of epistemological superiority is therefore a very flexible tool for choosing evidence that supports one’s view of the law. The only limit to the flexibility of this device is that some reports and transmitters have come to be so widely accepted that any attempt to question them would fall on deaf ears. Epistemological evaluation will not be a useful tool for getting around such ḥadīth in the short term. In the long run, however, as the community’s values shift, reports that were once deemed unobjectionable will come to be seen as morally objectionable, and more and more Muslims will be willing to listen to arguments against their authenticity, as is now happening with certain ḥadīth demeaning to women.1

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Revelation over analogy

Epistemological analysis can also be used to discredit an analogy: the uncertainty that is almost always involved in identifying the “common characteristic” renders its conclusions uncertain, and hence of lower epistemological status than a Qurʾānic text or an interpretation validated by consensus. Al‑Juwaynī goes a step further when he says that any utterance is given precedence over analogy: this implies that even a relatively weak Prophetic report can be used as an argument against an analogy.

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He also provides a means of preferring one analogy over another: those he calls clear presumably include what he called “analogy by common characteristic,” while obscure analogy includes “analogy by resemblance,” with “analogy by indication” falling in between. Recall, however, that since there are always several possible analogies by which one could evaluate a given action, all analogies can be classified as “analogy by resemblance,” and therefore can be outweighed by less “obscure” evidence. Which analogies appear most obvious will depend on the cultural and moral horizons of the interpretive community.

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It is noteworthy that al‑Juwaynī gives such a low priority to analogy. He insists that revealed utterances are the true source of law, and therefore should be given priority, even if they must be reinterpreted. Even a default legal value is preferable to an analogy, since it can be modified only by an utterance, not by an analogy. This reflects al‑Juwaynī’s preference for revealed sources: the default of permissibility is established by a Qurʾānic verse, so the default is itself revealed, not a product of human reasoning. This fits al‑Juwaynī’s attempt to keep revelation distinct from human interpretation, and his vision of the law as springing entirely from, or founded entirely upon, the textual material of revelation, without any substantive human contribution.

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Interpretation over revelation

Has al‑Juwaynī succeeded, however, in keeping revelation in control of the law? We have seen that most of his definitions, distinctions, classifications, and interpretive rules do not really serve to bind interpreters to the intended meaning of the author of revelation; they do not really dictate which interpretation one must follow or which evidence one must prefer. On the contrary, his legal theory usually maximizes the possibilities for interpretive argument, and gives the interpreter great flexibility to use one piece of evidence to modify or displace another. On the whole, his hermeneutic makes meaning far more dependent on the choices of the interpreter than on the wording of revelation. Could this also be true of his distinction between revelation and interpretation? When he says utterance should be given priority over analogy, does this successfully rein in the interpreter’s drive to impose his own meaning on revelation?

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It certainly has that effect on our way of imagining the law. It reinforces the idea that human reasoning is always subservient to revelation, serving only to elucidate revelation when it is ambiguous or incomplete. We must grant that al‑Juwaynī is committed to this view of the law in principle: he genuinely believes the law is revealed by God, and that interpretation is only a matter of uncovering its meaning following predefined rules. Yet when one considers the range of interpretive arguments that his legal theory makes possible, it is not clear how the words of revelation could possibly retain control over the law. He provides so many ways of modifying or discounting revealed texts that it seems unlikely an interpreter using his legal theory would ever be compelled by a text to surrender his preferred view of the law. He may not allow an analogy to completely overrule a text through abrogation or epistemological superiority, but he does allow an analogy to particularize a text, or to clarify its meaning, which is almost the same thing; and an analogy can by elevated above other evidence if it is ratified by a claim of consensus. Even the default of permissibility, which al‑Juwaynī says can only be modified by an utterance, can in practice by modified by an analogy. For instance, the Prophet only explicitly prohibited interest in transactions involving six specific commodities, so by default interest should remain permissible in other transactions, but most Sunnī jurists (except the Ẓāhiriyya) agreed that the Prophet listed those six commodities only by way of example, and that by analogy the prohibition should be extended to others as well. If one were to challenge al‑Juwaynī on this point, however, he could easily come up with some other evidence (perhaps Q 2:275 , “God has permitted sale and forbidden interest”) that modifies the default of permissibility, and argue that the analogy is not trumping the default but merely clarifying the meaning of the Qurʾānic prohibition.

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In principle, then, and in his imagined concept of the law, al‑Juwaynī maintains a clear distinction between revelation, which is the source or foundation, and interpretation, which merely elaborates or builds upon revelation. In principle, interpretation is like a flowchart of interpretive decisions, each of which is governed by the rules of legal theory, so that the end result is predetermined by the textual input and by the rules of the game. By the way he defines those rules, however, al‑Juwaynī actually opens up, rather than narrowing down, the interpretive possibilities presented by any given passage. It is always possible to argue, if one so desires, that the textual evidence is uncertain, or can be interpreted to fit one’s human reasoning, rather than surrendering one’s opinion to the dictates of scripture. Ultimately the jurist has wide latitude to choose whichever argument he finds best suited to his purpose, even if that argument involves human reasoning rather than direct application of texts. Of the several metaphors for the law that al‑Juwaynī offered at the outset, the one most suited to his legal theory is not that of the gardener who lets the revealed roots grow organically into the tree of law; it is that of the builder, who erects a human edifice on top of the foundation revelation, which all but disappears in the process.

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  1. See Khaled Abou El Fadl, Speaking in God’s Name: Islamic Law, Authority and Women (Oxford: Oneworld, 2001), 222–232. ↩
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Source: http://waraqat.vishanoff.com/v/v16/