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18 — The Status of Those Who Engage in Diligent Inquiry

(Arabic text and English translation in separate tabs.)

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Truth lies in doing’s one’s best

Since the very first chapter, we have been tracing a tension in al‑Juwaynī’s legal theory. On the one hand, law is an objective truth established by God; it cannot be known by human reasoning but only through revelation; the language of revealed texts means precisely what God intends it to mean; and humans must discern that intent correctly, or else their conclusions do not even qualify as legal science. On the other hand, legal science is entirely a human construct; by definition it always involves debatable interpretive reasoning; and the tools al‑Juwaynī provides for that reasoning allow for multiple interpretations, limited only by the gradual evolution of human culture and opinion. Which is it: is Islamic law divine or human? Clearly it is both; but how?

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Al‑Juwaynī addresses that problem in this closing chapter with an astounding definition of diligent inquiry. He has been describing the tools and arguments of diligent inquiry all along, but has not yet defined it. The methods he had described look anything but sure-fire, but his definition of legal science as objective knowledge leads us to expect that he must at least imagine diligent inquiry as a path to the truth. Having declared that to have legal science one has to know the legal values of acts as they actually are, having stated that erroneous interpretation is not legal science at all but outright ignorance, and having insisted that legal science can only be arrived at through diligent inquiry, it seems that he cannot help but define diligent inquiry as a process that produces true knowledge of legal values. Instead, al‑Juwaynī declares that diligent inquiry is simply a matter of effort: doing one’s best.

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This is hardly astounding from a linguistic point of view. Effort is simply what the Arabic term ijtihād means. But al‑Juwaynī does not mention this linguistic definition merely as background to a more sophisticated technical definition. This is his technical definition: doing one’s best. Considering that the whole edifice of Islamic law rests on ijtihād, this is an astounding definition.

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Granted, not just any effort will do. Competence, as defined in the previous chapter, is also required to ensure that one’s effort is not in vain. But given competence and effort, the interpreter is guaranteed a reward, even if he reaches the wrong conclusion. And remember: gaining reward and avoiding punishment is the whole point of knowing the legal values of acts.

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This does not make al-Juwaynī a subjectivist

This validates the profound subjectivity that al‑Juwaynī’s legal theory gives to interpretive reasoning. It means that multiple interpretations, resulting from different uses of different interpretive tools by interpreters with different perspectives, are not only inevitable but good and rewarded by God. That helps to explain why al‑Juwaynī sought to standardize the framework of interpretation, but not the conclusions interpreters should reach. He was not so concerned with whether one gets one’s interpretations right, as with whether one gets one’s hermeneutic right.

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This does not make al‑Juwaynī a subjectivist, however. He still believes in objective truth. One early jurist, al‑ʿAnbārī (d. 168/785), argued that even on theological questions like predestination and free will, if several different views could be supported by revelation, a Muslim was correct whichever conclusion he reached, as long as he still met the minimal requirements of being a Muslim. Al‑Juwaynī rejects this view entirely, arguing that this would imply that even atheists are correct in their beliefs—though al‑ʿAnbārī never intended to go that far. Al‑Juwaynī mentions more favorably the minority view, held especially by some Muʿtazilī theologians, that every qualified interpreter is correct in the field of law. They reasoned that in matters that depended on diligent inquiry and were open to debate, God had not assigned specific legal values to each action, but had delegated that task to jurists. God left such legal values open, to be determined for each person by his own diligent inquiry, or by the diligent inquiry of the scholar from whom he seeks a legal opinion. Although al‑Juwaynī mentions this as a legitimate view, he gives a proof against it, and clearly prefers the view that there is only one right answer to any legal question. Legal facts, like theological facts, are objective facts about the way things are, and getting them right matters: it entitles the interpreter to a double reward.

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The gist of al‑Juwaynī’s strategy here is to distinguish truth from reward. Legal science is truth, and one can only attain that by interpreting revelation correctly; but the object of legal science is the legal values of acts, which are simply statements about future reward and punishment. The aim of legal science, therefore, is to gain reward and avoid punishment, and that can be achieved though diligent inquiry, even if one misses the truth about which acts will be rewarded and which ones punished. The jurist will be rewarded for his diligent inquiry, because that fulfills the duty God has laid on him, even if his conclusions are wrong. Moreover, since al‑Juwaynī says God has laid on laypeople the duty of following the opinions of jurists, it seems that they too must be rewarded for following even an erroneous legal opinion.

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Al-Juwaynī’s paradoxes

It seems paradoxical that one could be rewarded for performing an act one believes will be rewarded, if the objective truth about that act is that it will not be rewarded. It is difficult to reconcile al‑Juwaynī’s subjective criterion for reward with his objective criterion for truth, when that truth itself declares what acts will be rewarded. This paradox, however, encapsulates and helps us to understand a number of other paradoxes we have encountered in al‑Juwaynī’s book.

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One puzzle we encountered early on was that al‑Juwaynī defined legal science as a kind of knowledge, which by definition is true, but also said that legal science includes only debatable and uncertain knowledge—what he calls belief. This left open the troubling possibility that some or all of legal science might turn out not to be knowledge at all, but ignorance—in which case it would no longer be legal science. We can now resolve this puzzle as follows: legal science is by definition the result of diligent inquiry and is therefore always uncertain, but it can still be true by definition, because not all conclusions of diligent inquiry are legal science. In fact, one never knows whether a given statement of a legal rule constitutes legal science or not. The human constructs that we are accustomed to calling legal science (fiqh) may or may not actually be legal science. Legal science is not the product of diligent inquiry, but only its goal. Yet that is okay, because the legal belief that actually results from diligent inquiry is all that one really needs for gaining reward and avoiding punishment.

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Another paradox we encountered was al‑Juwaynī’s use of two very different metaphors for the law: that of the tree which springs organically and without much human intervention from revealed roots, and that of the building that is erected through human labor on the foundation of revelation. We may understand that tension thus: the truth about the law is fully encoded in revelation and cannot be the product of human reasoning, yet God’s response to human actions is determined by the effort and competence of those who attempt to construct their own imperfect replicas of that truth.

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This paradox also appears in al‑Juwaynī’s tendency to regard law as both divine and human. We can now understand this as follows. He regards the objective truth of law and morality as a purely divine pronouncement—he does not believe that law is in any way a product of nature or of human reason. Yet he regards God’s reward and punishment of human actions as a response to the human construct of law that results from scholars’ flawed interpretations of his proclamations, rather than as a response to God’s own proclamations per se. The human construct of law does not have any intrinsic truth or binding authority in its own right, but because God has commanded us to construct it, and to follow it, regardless of whether it is completely true, he will reward and punish based on how well we follow that human construct.

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We also noted that al‑Juwaynī spoke of meaning as something that is determined by the speaker’s intent, yet seemed to give complete control over meaning to the reader. I even suggested that al‑Juwaynī might be just claiming that God’s intent governs meaning so as to give human interpretations the aura of divine authority. Now, however, we can understand this paradox as follows. The actual meaning of each word in revelation is in fact controlled by God’s intent, but like any human speaker, he knows that his hearers will not always grasp his intent correctly, so in his interaction with them he does not expect them to read his mind; he only expects them to be competent speakers of their own language (which he has condescended to use in addressing them) and to make an honest effort to grasp what he is saying. He expects humans to care about his intent, but he does not necessarily expect them to perceive it accurately, so he does not punish them for honest misunderstandings.

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This puts in perspective what we observed earlier about al‑Juwaynī’s tendency to disregard the interpersonal context of God’s speech. We noted that he did not regard speech as bringing about new situations performatively in interpersonal relationships, nor did he make meaning dependent on the interpersonal situation in which revelation took place. Instead he reduced revelation to its informative dimension, and focused on the timeless linguistic denotations of words while filtering out any reference to historical context. Now, however, we can see that there is an interpersonal dimension to his view of law and revelation. Law is not just about knowing factual information; it is also about seeking to understand what someone expects of us, in a particular relationship with concrete consequences. And revelation is more than just informative. Correct interpretation does indeed require treating revelation as timeless and purely informative, but responding properly to revelation is a different matter. Every interpreter’s response to revelation is shaped by his personal context and his understanding of his own relationship to God; but that response is proper, and God will reward it, even if it misses some of the information God’s speech was intended to convey.

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Al-Juwaynī’s existentialism

In Chapter 5 I contrasted al-Juwaynī’s informative view of the law with the modern existentialist idea that ethics is not so much concerned with what one chooses to do, or what the consequences are, as with the authenticity of one’s response to the choices life presents. I said that al-Juwaynī was interested in legal information, not existential challenge, and I asked us to consider how different Islamic law would be if it treated revelation as a direct personal challenge rather than as a timeless and impersonal statement about the eternal consequences of human actions. Now it turns out that al-Juwaynī is ultimately more concerned with the authenticity of the individual’s response to revelation than with the correctness of his interpretation. He is not quite a modern existentialist—he is too focused on the future, and he speaks of effort and competence rather than “authenticity”—but the general idea is similar: what matters is the individual’s striving to act in response to a challenge, not his knowledge or belief about something external to himself. He does not call every authentic response “true” or “correct,” but he recognizes that there is another goal beyond truth, a very personal and existential goal—one’s ultimate destiny. That is the goal that gives revelation existential meaning and practical significance. The way to that goal is through effort, action, choice, and response—not through information. Erroneous interpretations may be false, but they are not merely “good enough” for God to let them pass; they are pragmatically true, in the sense that they achieve their ultimate purpose. Correct information would lead to greater reward, but unless one is obsessed with counting up reward points, the exact size of one’s reward pales beside the all-important fact that one will be rewarded in heaven rather than punished in hell.

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The consequences of shifting one’s focus from objective truth to subjective authenticity (or competence and effort) are momentous. This shift means that the uncertainty that al‑Juwaynī says always characterizes legal science, and even the haunting possibility that our legal science might turn out to be sheer ignorance, need not paralyze the interpreter. It means that the legitimacy of the interpretive enterprise is not in the least undermined by all the flexibility al‑Juwaynī has provided for interpreters to pursue divergent and even opposite interpretations. And it means that the evolution of Islamic law in response to new social circumstances and cultural attitudes is not contrary to the ultimate purpose of the law—even if it does sometimes run contrary to the truth of the law God intended to communicate.

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Certainly, al‑Juwaynī wants interpretive flexibility and evolution to be restrained and slowed down by the inherited interpretive framework and horizon of the scholarly tradition. He does not want interpretation to serve the selfish motives of an individual or a whole society. His requirements of competence and sincere effort are intended to guard against precisely these dangers. But as long as those requirements are met, he is perfectly willing for the human construct of legal science to be uncertain, flexible, and evolving.

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It turns out, therefore, that al‑Juwaynī’s view of the interpretive process is not fundamentally incompatible with that of Khaled Abou El Fadl, who has argued that true legal science consists not in actually reading God’s mind, but in striving to do so with honesty, diligence, comprehensiveness, reasonableness, and self-restraint.1 Abou El Fadl states his case more starkly than al‑Juwaynī, because he is willing to redefine truth and imagine that God has actually invited interpreters to let their own moral presuppositions contribute substantially to defining legal truth. Al‑Juwaynī is not willing to say that properly conducted human interpretation always achieves knowledge of the truth, but he is willing to say that it always achieves success, which is perhaps the only objective more important to Muslim jurists than knowledge. With that caveat, we can say that al‑Juwaynī’s legal theory has a great deal in common with Abou El Fadl’s: it aspires to understand God’s intent through disciplined and communally accountable interpretation, even as it allows wide latitude for human presuppositions to shape and change the law over time. The most important difference between their legal theories is that Abou El Fadl is very forthright about the fact that interpretation is ultimately controlled by the values and assumptions of the Muslim community at large, whereas al‑Juwaynī seeks to maintain the illusion that the scholarly class, despite all the human choices that enter into its interpretations, is actually discovering the true meaning of God’s speech, and that its pronouncements therefore actually constitute “legal science.”

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  1. Khaled Abou El Fadl, Speaking in God’s Name: Islamic Law, Authority, and Women (Oxford: Oneworld, 2001). ↩
Page 62

Source: http://waraqat.vishanoff.com/v/v18/