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3 — Knowledge and Its Opposites

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Law is raw information

Al‑Juwaynī has now explained what legal science is knowledge of (the legal values of acts), but before he tells us how to get that knowledge he wants to get clear just what it means to “know” a legal value. Legal science, he says, is a kind of knowledge, which means “awareness of a thing as it actually is.” There are things, and then there is “the way things are,” and knowledge is awareness of the latter: what is true about this thing, what facts can be asserted about it, what is it like, what properties does it have? To know an apple is not to have an experience of appleness; it is to be aware that this particular apple is red and sweet and juicy (or not). In the special kind of knowledge called legal science, the things known are actions, and the facts known about them are their legal values. Legal science is not knowing how to pray, or knowing the nature or purpose of prayer, or being a prayerful person; it is knowing the fact that a certain kind of prayer, by certain people at certain times, is obligatory—i.e., that it will be rewarded and that its omission will be punished.

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This fits perfectly with what we learned previously from al‑Juwaynī’s definition of legal values: legal science is not knowing general moral principles, or having certain moral traits, or understanding what people mean when they speak; it is knowing the consequences of particular actions. Like all knowledge, legal science is expressed in indicative, predicative statements that are either true or false: prayer is obligatory; fornication is forbidden; polygamy is permitted. That is why revelation must be reduced to its informative dimension (statements about actions), while ignoring its performative dimension (the purposes its author wanted it to accomplish in the context of his relationship with his audience).

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There were many other ways al‑Juwaynī could have defined knowledge. Al‑Ashʿarī defined knowledge as “that quality by virtue of which a person is knowledgeable.” That rather unsatisfying definition did not really say much about the nature of knowledge, which left room for al‑Ashʿarī to define legal science any way he wanted. He chose to define it as a kind of interpersonal knowledge—understanding what God and his prophet said. That definition in turn suggested that the relational context in which speech takes place should be an important factor in its interpretation, and in fact al‑Ashʿarī did take the unusual stance that speech revealed in response to a specific circumstance only applied to that circumstance, and should not be extended to different circumstances without some kind of further proof that it was meant to apply to them as well. Defining knowledge broadly enough to include interpersonal understanding encouraged a greater attention to context.

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Another common definition was that “knowledge is that quality which enables a person to perform an act well”—a practical kind of “knowing how.” If legal science were defined as that kind of knowledge, then knowledge of the law would not be knowing facts about acts, it would be having some kind of character trait that enables virtuous action. I do not know of any legal theorist who pursued that possibility.

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Another definition of knowledge, advanced by the Muʿtazila, was “believing a thing to be as it is, while having a sense of assurance about it.” This is similar to al‑Juwaynī’s definition, but it raises the question of certainty. We saw earlier that al‑Juwaynī’s definition of legal science actually excluded those parts of the law that no one could possibly doubt, and included only those that were debatable and uncertain because they were reached by diligent inquiry. In English to say that legal science is “knowledge” gives it the aura of certainty, but according to al‑Juwaynī’s definition, to know something one does not actually have to be certain, one just has to be right.

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Law is a fallible construct

Accordingly, when al‑Juwaynī goes on to define immediate and acquired knowledge, we know that legal science is only of the latter kind. By immediate knowledge he means knowledge we can’t help having, like self-evident truths (one plus one equals two) or things we learn by sensory perception (this coffee is hot). Such knowledge is certain and indubitable, whereas law by definition includes only debatable knowledge arrived at through diligent inquiry. It is possible for acquired knowledge to be certain as well, if one arrives at it through a valid process of rational inquiry using evidence that gives epistemological certainty. But as we will see below, al‑Juwaynī regards most ḥadīth as of uncertain authenticity, and he regards the process of reasoning by analogy as uncertain as well. Consequently the knowledge of legal values that is “acquired” by diligent inquiry (which is the kind of “evidentiary inquiry” used in law) based on the revealed sources (the kind of “evidence” used in law) is only (or at least primarily) the uncertain or probable (ẓannī) kind of acquired knowledge—what al‑Juwaynī calls belief (ẓann).

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Al‑Juwaynī’s willingness to recognize and even emphasize the human and uncertain character of legal knowledge has not been shared by all. One of the most significant divisions in legal theory is that between “formalists” like al‑Juwaynī and most other Sunnī theorists, who claim that even though diligent inquiry is uncertain it still yields legally valid and binding results as long as it follows proper form, and “materialists” like the Ẓāhiriyya and the Shīʿa, who require that the actual truth of the law be determined with certainty, and therefore reject less-than-certain forms of reasoning such as analogy.

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Meaning is not known intuitively but only through a process of reasoning

Even among Sunnī formalists, however, some theorists were more comfortable with uncertainty than others. Some, in an effort to avoid relying on analogical reasoning any more than necessary, preferred to say that some of the laws deduced from scripture were actually part of the implied meaning of scripture itself, rather than the result of human reasoning. For example, Q 17:23 says “do not speak disrespectfully to your parents,” and everyone would agree that something worse, such as beating them, would be all the more forbidden. It would be easy to argue that insulting is forbidden because it is a form of harm, so since beating is also a form of harm it too must be forbidden. But as we will see in Chapter 14, that is an argument “by analogy,” which means its conclusion is uncertain. So most theorists said that not beating your parents is implicit in the command not to insult them, and that this implicit command is known with certainty by anyone who hears the explicit command. Such “positively implied meaning” (mafhūm al‑muwāfaqa) is recognized by most legal theorists. “Negatively implied meaning” (mafhūm al‑mukhālafa or dalīl al‑khiṭāb) is more controversial: not everyone agrees, for instance, that when the Prophet said “alms tax is due on freely grazing livestock,” this implied that alms tax was not due on other livestock, such as that fed in the stable at its owner’s expense. Nevertheless, there is widespread agreement on the notion that scripture can communicate, with certainty, more than it explicitly says.

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Al‑Juwaynī, however, never mentions implied meaning in his treatise. He does not deny interpreters the right to claim they have found implicit meaning, and in fact he recognizes this interpretive move in his Burhān. But in the Waraqāt he is curiously silent about it, thus leaving open the door for others to rely upon implied meaning, but showing that, for his part, he is not embarrassed by the uncertainty of human reasoning.

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One strand of legal theory that is especially shy of human reasoning may be found among the Ḥanbaliyya. Abū Yaʿlā (d. 458/1066) and Ibn Taymiyya (d. 728/1328) both argued that implicit meaning and indeed all the meaning of God’s speech is known without any process of rational thought. When a human being hears a divine command, he realizes immediately, without having to stop and reflect, that he is now under an obligation. The obligation does not have to be deduced from God’s words; it is brought into being by those words, just as a human master who tells his servant to get him a drink brings about a sense of obligation in the mind of his servant simply by the sound of his voice. Many modern jurists likewise tend to assume that the meaning of scripture is immediately obvious, and does not need to be figured out or debated; hence they simply dismiss interpretations they disagree with as linguistically incompetent, and affirm that they are following the sole obvious meaning of revelation.

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This intuitive, performative view of how commands produce legal science is at odds with the much more deductive legal theory of Muʿtazilī and Ashʿarī theologians, who said that the words of revelation do not bring about obligations performatively; instead they serve as verbal pieces of evidence, from which interpreters must deduce, through a process of evidentiary inquiry, their uncertain knowledge of what they are probably required to do. The Muʿtazilī ʿAbd al‑Jabbār, for example, would reason that since God is just and wise, his purpose in saying “pray!” can only be to communicate to us that prayer will be beneficial for us, therefore it must be at least recommended and perhaps obligatory. The great Ashʿarī al‑Bāqillānī would reason that the imperative verb “pray!” does not necessarily express the idea of command, but that if we can find other evidence showing that it does, then we may conclude that such a command does exist in God’s mind, and the very existence of that command makes prayer obligatory or at least recommended. Al‑Juwaynī would have followed al‑Bāqillānī’s reasoning rather than ʿAbd al‑Jabbār’s, but either way, legal science depends on a whole chain of human reasoning, starting with the words of revelation and ending with legal values.

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Revelation is text not speech

One reason al‑Bāqillānī and ʿAbd al‑Jabbār thought God’s speech could not communicate directly and immediately was God’s transcendence. When one human addresses another face to face, any ambiguity in his words is usually cleared up by his intonation, his gestures, and the whole context of the relationship and situation in which the interaction takes place. When God speaks, however, he cannot be seen face to face, and humans hear him only at second hand, via others (such as the Prophet and the angel Gabriel who brought the revelations to him) who report what God has said. God’s speech must therefore be interpreted like a letter, or even, we might say, like a person’s last will and testament, which must be deciphered without all the contextual cues that ordinarily help us understand the speech of other human beings, and without any possibility of asking God what he meant. God, the author, is absent from the interpretive process, which is therefore controlled by the reader. The master gardener who planted the tree is not there to supervise its growth; the architect who drafted the blueprints is not there to oversee construction. His speech has become a text, whose meaning must be constructed in the author’s absence. This gives the reader more leeway in constructing meaning, and allows for more possible interpretations than face to face speech.

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The French postmodernist Jacques Derrida argued that writing is the paradigmatic form of language use, because the author and the things the author was talking about are both absent when one reads a text, so that meaning is constructed freely by the reader. Derrida argued that face to face speech is really no different, and that we are kidding ourselves when we think that we understand immediately what someone really means. Al‑Juwaynī was no postmodernist—he believed that face to face speech can convey meaning directly and immediately—but he did not think God’s speech could do that, so he treated it as a text rather than as speech. A similar point was made by Nasr Hamid Abu Zayd (d. 2010), who argued that revelation must be regarded as a literary text, subject to all the same kinds of interpretive analysis as other literature. Some of his opponents saw this as a grave threat, and insisted that revelation be called speech rather than text; they, like the Ḥanbalī theorists Abū Yaʿlā and Ibn Taymiyya, thought that revelation still addresses people directly today, and has only a single obvious meaning that can be grasped without any rational interpretive process or any possibility of debate. This claim is plausible if one supposes that each interpreter has his or her own direct relationship with God, and that God’s speech is directed to him or her in the context of that relationship, as if it were face to face address, so that its meaning is made immediately clear by that relational context. But that relational context is private, known only to the individual and God; hence a person’s claim to know the obvious single meaning of God’s speech, thanks to the context of his or her private relationship with God, is for others an unverifiable claim to interpretive authority.

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Al‑Juwaynī claims no such direct access to the meaning of God’s speech. He treats revelation as a text whose author is absent, so that legal science must be built upon it through such a rational, deliberative, evidence-based process of diligent inquiry. This makes it much harder for him to claim that his own interpretation is the only possible one.

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Interpretation is uncertain but objective

In fact, al‑Juwaynī’s way of defining knowledge and legal science seem to imply quite the opposite—almost a lack of confidence in human interpretation. Since one can never be certain that one’s interpretation is correct, yet knowing requires being aware of things “as they actually are,” al‑Juwaynī seems to labor under the fear that the results of one’s diligent inquiry may turn out not be knowledge at all, but ignorance: one’s evidentiary inquiry might not be valid, or it might start from faulty evidence, so that one ends up imagining that washing before Friday prayer is recommended when it is actually obligatory—a situation that al‑Juwaynī calls “ignorance.” Indeed it may be that much of the human construct we call fiqh is not legal science at all, but sheer ignorance: a disturbing possibility.

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The Muʿtazilī definition of knowledge as “believing a thing to be as it is, while having a sense of assurance about it” expresses a greater sense of confidence: legal science may not give us certainty, but by definition it includes only beliefs about which we have a sense of assurance. This confidence was possible for the Muʿtazila because they believed God is necessarily just and wise, and therefore must always reveal the law clearly. Ashʿarī theologians like al‑Juwaynī, however, had no such doctrine of necessary divine justice, and therefore had no theological basis for believing that God must reveal everything clearly. Hence al‑Juwaynī’s definition of law as a highly uncertain human construct. How he manages to live with that uncertainty will become clear in his final chapter.

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On the other hand, even if law is an uncertain human construct, it is not at all subjective. According to al-Juwaynī, law is a completely objective truth: to know the legal value of an act is to know something about it “as it actually is.” We have legal science only if our interpretations correspond to the way things actually are.

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Not that legal values exist in the acts themselves, by virtue of the nature of each act. Remember, al‑Juwaynī does not believe in natural law. The Muʿtazila did believe that the legal values of acts stemmed from the natural properties of the acts themselves, but in his Burhān al‑Juwaynī objects that the forbiddenness of drinking wine cannot be an inherent property of the act of drinking wine, for that would make such drinking forbidden at all times and under all circumstances, whereas in fact it is permitted if one is compelled to do so for survival or under duress. The objectivity of the law, therefore, resides not in the objective natures of actions, but in the objective existence of God’s command to perform certain actions. That command exists; it is part of God’s eternal attribute of speech, and is thus as objective as God’s own nature. Legal science may be a human construct, but it is not open to multiple interpretations. As al‑Juwaynī will say in Chapter 18, if jurists disagree, at most one of them can be right.

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This is a significant affirmation of the idea that only God, the author of revelation, determines the legal meaning of revelation. Interpretation may start from human questions and concerns, and it may proceed by human reasoning that sometimes bends the text to fit human desires, but it is only correct interpretation—it is only legal science—if it accords with what God intended to command.

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This objectivism calls the reader to listen carefully to the author of revelation. But al‑Juwaynī has not yet shown how humans are to avoid inserting their own moral values into their interpretations. It is going to be difficult for him to defend the idea that knowledge can be both humanly constructed and objective at the same time.

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Objectivism is not the only way to think of legal truth. Khaled Abou El Fadl, a brilliant modern jurist who has studied al‑Juwaynī carefully, argues that truth in law is not objective but subjective. He locates truth not in the correctness of one’s beliefs but in the search for truth: 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. Unlike al‑Juwaynī, who regards revelation as the only material basis for Islamic law, Abou El Fadl argues that the moral intuitions of interpreters, which stem from their personal relationship with God, should make a substantial contribution to their interpretation of God’s speech. By affirming that human interpreters contribute substantially to law, and then arguing that this is precisely what God has commanded interpreters to do, Abou El Fadl overcomes the tension in al‑Juwaynī’s thought between the claim that law is purely revealed and the claim that it is a human construct. But this requires him to redefine legal science, knowledge, and truth itself: legal science is not defined as awareness of some external and independent fact about what acts God will and reward and punish, but as being true to one’s own most basic values while striving to let those values be reshaped by what God says to us through revelation, in the context of our relationship with him.

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According to that way of imagining Islamic law, it is possible for two interpreters to disagree, yet both be right. Abou El Fadl studied al‑Juwaynī, and thought that he was open to that idea; but we will see in Chapter 18 that he was not. He was an objectivist, at least with regard to knowledge, legal science, and the correctness of one’s interpretations.

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Further reading

On the question of certainty and the formalist/materialist distinction, see the penetrating survey of legal theory in Aron Zysow’s classic dissertation, “The Economy of Certainty: An Introduction to the Typology of Islamic Legal Theory” (Ph.D. diss., Harvard University, 1984), which has now been published (Atlanta: Lockwood Press, 2013).

On the question of whether revelation can be understood intuitively or only through a process of interpretive reasoning, see David Vishanoff, The Formation of Islamic Hermeneutics: How Sunni Legal Theorists Imagined a Revealed Law (New Haven, Connecticut: American Oriental Society, 2011).

On Abou El Fadl’s principled subjectivism, see Khaled Abou El Fadl, Speaking in God’s Name: Islamic Law, Authority and Women (Oxford: Oneworld, 2001).

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Source: http://waraqat.vishanoff.com/v/v3/