1 Leave a comment on block 1 0

7 — General and Particular Expressions

(Arabic text and English translation in separate tabs.)

2 Leave a comment on block 2 0

The flexible interpretive device of particularization

This next section deals with a similar question of scope—not “to whom does this command apply,” but “to what does this word refer?” Words that refer to specific individual persons, actions, or objects are called particular, whereas words that refer to whole classes of things are called general. The point of making this distinction is to legitimate a certain kind of interpretive maneuver called particularization, in which conflicting revealed texts are reconciled by reducing the scope of a general word in one of the texts.

3 Leave a comment on block 3 0

For example, when the Qurʾān says not to eat carrion, the word ‘carrion’ is a general expression because it refers not to just one animal, but to all animals that are found dead rather than being properly slaughtered as required by Islamic food laws. Here al-Juwaynī leaves unstated an important but disputed rule: if the Qurʾān uses a general expression like ‘carrion,’ one must assume it intends to refer to all carrion, unless one finds specific evidence showing that it meant only some carrion. (This principal was disputed by previous theorists, because of an old theological disagreement over whether the Qurʾān’s threats of eternal punishment for “evildoers”—a general term—applied to all evildoers or only unbelievers; but this was no longer a live issue by al‑Juwaynī’s time.) Now in another text we find that “the fish of the sea are permissible for you,” and this appears to contradict the prohibition against eating carrion, because fish caught in a net are not individually killed for food using the proper method of slaughtering animals, and therefore should technically be considered carrion. But the distinction between general and particular expressions, and the notion of particularization, give legal theorists a vocabulary and a method for dealing with this contradiction. Like ‘carrion,’ the expression ‘the fish of the sea’ is general, encompassing many fish and many kinds of fish. But it is not quite as general as ‘carrion,’ because fish are only one of many subcategories of carrion. (Living fishes, of course, are not carrion, but they would be carrion by the time we tried to eat them, and that is what concerns us here.) So relatively speaking, ‘fish’ is less general and more particular than ‘carrion.’ This allows us to resolve the contradiction between the two texts by the interpretive maneuver al-Juwaynī calls ‘particularization:’ one takes the more particular expression, fish, as ‘particularizing’ evidence that “distinguishes part of the whole” category of carrion. The text about fish makes that one subset of carrion permissible to eat, and it demonstrates that the text prohibiting carrion was only intended to prohibit “all carrion except fish.” Our apparent contradiction turns out not to be a contradiction at all, and the textual evidence turns out to be compatible with a coherent food law. By defining these three terms—general, particular, and particularization—al-Juwaynī has established a very useful interpretive device that serves to reconcile conflicting textual evidence and thus helps maintain a coherent law.

4 Leave a comment on block 4 0

This interpretive maneuver was first formally spelled out by al-Shāfiʿī (d. 820). He needed it because he was making what was at the time a radical claim: Islamic law should be based entirely on the textual evidence of the Qurʾān and ḥadīth from the Prophet. Having made this claim, he found himself facing a massive body of evidence that often contradicted itself, so he proposed several ways of reconciling such contradictions, chief among them particularization. He defined this so broadly that it could resolve just about any contradiction: any time one text appeared to assign a certain legal value to a certain set of act-person-time-circumstance combinations, and another text seemed to assign a different legal value to some of those same act-person-time-circumstance combinations, al‑Shāfiʿī would point out that the first text might not really be intended to apply to all those combinations. He would then use the second text as a proof that indeed the first text was not intended to apply to all those combinations, and, more specifically, that it was never intended to apply to those specific combinations covered by the second text. For example, in one ḥadīth the Prophet said not to make a marriage proposal to a woman to whom someone else had already made a marriage proposal, but in another ḥadīth the Prophet himself appeared to do just that (not for himself, but on behalf of another man). Al‑Shāfiʿī reasoned that the woman the Prophet proposed to must have already indicated she was not favorably disposed to the proposal she had received previously, and that this kind of situation must constitute a legitimate exception to the general prohibition against competing proposals. The texts themselves did not say this was the case, but supposing it to be the case allowed al‑Shāfiʿī to resolve the apparent contradiction, and to come up with a coherent statement of which proposal-circumstance combinations were allowed and which were forbidden.

5 Leave a comment on block 5 0

This was a powerful interpretive device, and it opened the door for interpreters not just to resolve contradictions, but to make the law say just about anything they wanted. Any time revelation said something an interpreter did not like, he could simply say that the text applied only to some situations, and not to those situations to which he wanted to assign a different legal value; all this required was to find some evidence, however vague, to support his position, and then to argue that this evidence “particularized” the problematic text.

6 Leave a comment on block 6 0

This device gives the interpreter a great deal of control over the meaning of revelation because it allows him to determine the “intertextual relationships” between the different parts of revelation. Modern philosophers of interpretation have pointed out that the meaning of any text is shaped by the “intertextual domain” in which it is read—the set of other texts that are read alongside it, and that contrast or qualify or lend meaning to the words in the main text. To claim that text A is particularized by text B is simply to define the intertextual domain of A as including B (rather than any number of other texts that might be chosen), and to define a certain intertextual relationship between them: B particularizes A (rather than contradicting it or showing it to be outdated or something else). If the meaning of text A is greatly dependent on the intertextual domain within which it is read, then allowing the reader (rather than the author or the organization of the text itself) to define the intertextual domain and the intertextual relationships governing a text means giving the reader great control over the meaning of that text. Defining different intertextual relationships can result in radically different interpretations. For example, Q 2:190 appears to command Muslims to fight only in self defense and not to initiate hostilities, while Q 9:29 appears to say they should fight against Jews and Christians who do not affirm the doctrines and laws of Islam. Some modern interpreters say that 2:190 particularizes 9:29, and shows that it applies only to Jews and Christians who reject Islam and who attack Muslims. But others say that 9:29 particularizes 2:190, so that Muslims should not initiate hostilities against anyone except Jews and Christians who reject Islam (or, citing 9:5, against other unbelievers as well). Alternatively, they might argue that 9:29 simply supersedes 2:190 because it was revealed later in the Prophet’s life. Al‑Juwaynī will discuss this kind of intertextual relationship, called “abrogation,” in Chapter 10. An important point of Islamic law, which is debated much more heatedly now than it was in al‑Juwaynī’s time, thus hinges on how one chooses to define the intertextual relationship between Q 2:190 and 9:29. Giving the reader the ability to define intertextual relationships such as particularization gives him a powerful hermeneutical tool and a great deal of control over the meaning of revelation.

7 Leave a comment on block 7 0

Disciplining interpreters’ use of particularization

After al‑Shāfiʿī’s time, later legal theorists (to their credit, I think) found his freewheeling use of particularization too undisciplined, so they required that it follow more formal rules. First of all, they said that particularization cannot modify the act-person-time-circumstance combinations to which a text applies in any way the interpreter wishes; it can only restrict the scope of reference of a specific word in the text—the set of actions a verb refers to (e.g. eating carrion), or a set of people that are actually named (e.g. the unbelievers), or a circumstance that is actually described. This means that in order for al‑Shāfiʿī to argue that the Prophet only forbade competing marriage proposals under certain circumstances, he would have to point to a specific word that refers generally to a certain range of circumstances, and claim that that specific word was particularized. Particularization can only be used to resolve verbal contradictions in which two overlapping categories of things verbally mentioned in revelation (e.g. carrion and fish) are assigned different legal values (e.g. forbidden and permitted).

8 Leave a comment on block 8 0

That is why al‑Juwaynī says that only speech can be called general. The prophet’s action, or the circumstances under which it takes place, cannot be said to “refer” generally to a whole range of actions or circumstances. They do not refer to anything, because they are not words or signs; they just are what they are. Actions and situations cannot be particularized, nor do they need to be, because in and of themselves they are just individual actions and situations; they do not assign legal values to any actions or situations other than themselves. Al‑Juwaynī will say in section 9 that the Prophet’s actions can have implications for the legal values of other people’s actions. In such cases we might say that his actions are serving as signs that refer to other actions. But we will see in section 9 that the legal values they indicate are not very strong, and that those legal values have to be deduced by a process of reasoning. The Prophet’s actions do not directly assign legal values to whole classes of actions the way his commands do.

9 Leave a comment on block 9 0

That is also why al‑Juwaynī mentions four specific verbal forms that can refer generally to whole classes of things: the names of classes (e.g. al‑insān, humanity, which is a definite singular noun in Arabic); definite plural nouns (e.g. al‑kāfirūn, the unbelievers); indefinite pronouns and interrogative particles (who, what, where, when, etc., which are general because then mean whoever, whatever, wherever, whenever, etc.); and negations such as “there is no money in my wallet” (which is general because it is equally true of all money: none of it is in my wallet). Other legal theorists had slightly different lists, but that is a grammatical dispute for Arabists. What matters for al‑Juwaynī’s conception of law and hermeneutics is that he focused exclusively on language and the scope of reference of words. This fits what we have seen previously: legal science results from translating revelation into statements about the consequences of particular act-person-time-circumstance combinations, so the interpreter needs to determine exactly which acts, which persons, which times, or which circumstances are referred to by each word in revelation. Revelation is not a performative action that brings about law; it is a piece of indicative evidence that describes the properties of particular human actions.

10 Leave a comment on block 10 0

Law evaluates actions, not qualities

This concern with defining which particular actions are referred to by which words illustrates again that al‑Juwaynī conceives of law as about individual actions, not about personal virtues or general moral principles.

11 Leave a comment on block 11 0

It is true that individual historical events are not assigned legal values one at a time; instead whole classes of actions are named and evaluated together: the law speaks of “eating carrion,” not of “Jack eating from the carcass of a sheep on July 28, 1993,” and “Jill eating salmon on August 1, 2010.” But that is just shorthand; broad categories of acts such as “eating carrion” can always be subdivided, and subsets given different legal values (as when eating fish was given a different legal value than eating other kinds of carrion). The final goal of legal science is not to know the properties of whole classes of actions, but to know the legal value of any individual action that one might consider doing.

12 Leave a comment on block 12 0

Furthermore, it is the actions themselves, not certain qualities of the actions, or of the people who perform them, that have legal values. Properties like “intoxicating” do not have legal values; only the acts of “drinking grape wine,” “drinking date wine,” and “drinking beer” have legal values. There were a few early legal theorists who tried to shift the discourse away from classes of actions to the qualities of actions, people, and things. The Muʿtazilī Abū Hāshim, for example, made the unusual claim that a definite plural noun like “the believers” is not actually general, because it does not refer to a group of people at all, it refers primarily to the quality of belief, and only secondarily indicates the group of people who happen to share that quality. That way of understanding words—as referring to qualities rather than things—could have resulted in a very different kind of law consisting of statements of values: quality A is valued, quality B is not, etc. But that view of language fell by the wayside, and so law came to focus on individual actions, and the interpreter’s only task became to figure out which actions are included in the linguistic denotation of a term, not to judge actions by their qualities. Certainly al‑Juwaynī and other legal theorists recognize that the qualities of things and actions do sometimes form the “rationale” behind a law; that is the basis for their use of reasoning by analogy. But the purpose of analogy is not to arrive at statements about what personal or active qualities God values; its purpose is simply to infer the legal value of one class of actions from the already established legal value of another class of actions. Knowing the rationale behind legal values is not the goal of legal science; it is just a mechanism for knowing more legal values.

13 Leave a comment on block 13 0

General principles are trumped by particular exceptions

This concern with evaluating particular actions, rather than identifying and applying general moral values or virtues or principles, cannot be overemphasized, because failure to understand this feature of Islamic law leads to considerable head scratching among modern Westerners, particularly when they come to discuss thorny issues like human rights. The Western intellectual tradition, stemming from the Platonic and Aristotelian concern with universal truths, tends to operate on the assumption that general principles govern particular cases. If all bachelors are male, and Socrates is a bachelor, then Socrates must be male. More pertinently, if Islamic law guarantees religious freedom (as many Muslims insist it does), and conversion is a religious act, then Islamic law must guarantee the freedom to convert. Not so, say many Muslims involved in human rights debates: Islamic law does guarantee religious freedom, because the Qurʾān says that there is no compulsion in religion; it also forbids conversion from Islam to another religion, but this cannot be considered a violation of religious freedom because the Qurʾān clearly says there is no compulsion in religion. Such logic is enough to bring Western negotiators to tears if they do not understand that the logic—the legal theory—behind Islamic law does not make the legal values of particular actions subject to general moral principles like “freedom of religion.” To many modern Westerners “being consistent” means applying one’s general principles to all particular cases, whereas to al‑Juwaynī “being consistent” means reconciling conflicting texts to avoid inconsistencies within the corpus of revelation, and this requires modifying general rules to accommodate more particular ones. Apart from a few legal theorists like al‑Shāṭibī (d. 1388), who sought to subject detailed rules to general Qurʾānic principles, legal theory has almost unanimously sided with al‑Juwaynī in declaring that narrower and more particular rules always trump more general principles. That’s why the permissibility of eating fish trumps the prohibition against eating carrion, and not vice versa. Muslim thinkers like al‑Juwaynī have long been aware of Aristotelian logic—indeed it was thanks to them that Europeans first rediscovered it during the Renaissance—but that logic was not the basis of their legal theory (despite attempts by some classical and modern legal theorists to reconcile the two disciplines).

14 Leave a comment on block 14 0

This classical tendency to prioritize the particular over the general has been challenged by many modern and even some premodern Muslims. Al‑Shāṭibī argued that five overarching goals of Islamic law—the preservation of religion, life, reason, wealth, and lineage—could be extracted from revelation by inductive reasoning, and could in turn be used to interpret and even override more particular rules. Al‑Ṭūfī (d. 1316) argued that the general text “there is to be no harm and no reciprocating harm” modifies numerous more specific rules, rather than being particularized by them. Many modern Muslims such as Fazlur Rahman have tried to filter out the situation-specific rules that the Prophet implemented and modified as his community grew and his circumstances changed, and isolate the general moral principles behind those rules, so as to reimplement those general principles in the form of new rules for contemporary societies. Such modernists often argue that they are reading the Qurʾān holistically rather than atomistically. They argue that the kind of legal theory articulated by al‑Juwaynī unjustifiably strips individual verses from the larger context of revelation when it translates them into rules.

15 Leave a comment on block 15 0

This criticism is quite on target: for al‑Juwaynī the basic unit of interpretation is not the whole Qurʾān, or a chapter or verse or sentence or word, but rather a particular point of law—the assignment of a legal value to a particular class of actions. Interpretation is imagined to proceed by isolating all the texts relevant to a particular class of actions from their textual and historical contexts, gathering them together, and interpreting them in such a way that they all agree with a consistent set of act–to–legal value assignments. The several texts involved are artificially treated as a single text, each acting like part of the context that shapes the meaning of the others. Nevertheless, we might also ask whether the modern drive to isolate general principles does anything more to restrain the reader’s interpretive choices, and give the divine author more control over the meaning of his speech. If particularization allows the interpreter to choose the intertextual relationships that determine a text’s meaning, the task of filtering out the situation-specific elements in the law and identifying the universal principles behind them is just as likely to be governed by the interpreter’s preconceptions and predispositions.

16 Leave a comment on block 16 0

Connected particularization is maximally flexible

Besides laying out the nature of particularization in general, al‑Juwaynī devotes several lines to what he calls “connected particularization.” This means particularization of one part of a sentence by another part of the same sentence. These are the most obvious and undisputable forms of particularization, so they need not detain us. All that we need to notice is that in his answers to the usual questions that legal theorists asked about such particularization, al‑Juwaynī is as liberal as possible: you cannot say “kill all the unbelievers except all the unbelievers,” but “kill all the unbelievers except all of them but Zayd” is a valid exception resulting in the command to kill Zayd only. An exception can come anywhere in the sentence, as can a condition. It is even legitimate to except something from a larger group of which it is not technically a part—the usual example is God’s saying that the angels all bowed down to Adam, except Iblīs (the Devil), when other verses indicate that Iblīs is not an angel but a jinn (genie). This last point is of no particular legal relevance; al‑Juwaynī’s goal here is simply to assert that connected particularization is a very flexible device.

17 Leave a comment on block 17 0

Disconnected qualification—a separate interpretive device

Next al-Juwaynī discusses qualification by an attribute, which simply means, for example, that the People of the Book who are to be fought according to Q 9:29 are restricted to those with certain qualities including “not following the religion of truth.” Here al-Juwaynī slips into what is really a completely different interpretive device: interpreting an unqualified expression in one text as though it shared the qualification attached to the same expression in another text. The most common example is Qurʾānic verses which say that to expiate for breaking an oath (Q 5:89), or to go back on a certain pronouncement of divorce (Q 58:3), one should free a slave, whereas another verse (Q 4:92) says that to expiate for killing a believer by mistake one must free a believing slave. For some reason that I have never understood, many legal theorists, including al-Juwaynī, supposed that the slave should be a believer in all three cases—even though these texts are not about the same topic or action, and do not overlap or conflict with each other in any way. I suppose that the motivation must be a certain drive for internal coherence: the jurists like law to have a systematic feel, so they argue that similar situations call for similar forms of expiation. They could establish this point by analogy, but by including this principle here, al‑Juwaynī is saying that no analogical reasoning is needed: the existence of the qualified reference to slaves in and of itself shows, to anyone who understands Arabic, that the unqualified references to slaves were also meant to be qualified. I must have missed that lesson in my studies of Arabic, because this does not seem linguistically obvious to me at all; more importantly, it also does not seem obvious to a great many native speakers of Arabic, including some legal theorists. Nevertheless, we can chalk it up as another example of al‑Juwaynī taking a conclusion that might have been reached by analogy, and claiming that it can be directly understood from the language of revelation itself.

18 Leave a comment on block 18 0

Disconnected particularization is maximally flexible

Finally al‑Juwaynī gets to the real heart of the matter: disconnected particularization, that is, particularization of any word or phrase in revelation by any other word or phrase anywhere else in the corpus of revelation. Al‑Shāfiʿī, who introduced particularization as an interpretive device for law, would allow particularization of just about any text by just about any other text, though he never really considered the possibility of the Qurʾān particularizing the Sunna because he thought it was the Sunna’s role to clarify the Qurʾān, rather than vice versa. Others, however—especially the Muʿtazila, who had a vested theological interest in not letting anyone particularize God’s general threats against evildoers—argued that God could not possibly say “the believers” when he really meant “some believers,” unless he had already revealed something else that allowed the interpreter to know what he meant. The Muʿtazila therefore denied what they called “delayed particularization.” This meant that whatever evidence a jurist wanted to use to particularize a general text had to have been revealed before or at the same time as the text it was supposed to particularize. Some, particularly among the Ḥanafiyya, even insisted that all particularization must be “connected” (like exception, condition, and qualification by an attribute): the particularizing evidence must be revealed in the same breath, as it were, as the general expression. Thus a particular text revealed at an early date would be completely superseded by a later general text: if God said in March that eating fish was permitted, but then said in May that eating carrion was forbidden, that was the end of eating fish. They reasoned that a wise and just God had to say what he meant, so if he didn’t mean all carrion he should have said so when he prohibited carrion, not at some other time. This view seriously undermined the usefulness of particularization as a device for reconciling contradictions: since the law was revealed over the last twenty-two years of the Prophet’s life, and not all in one moment, contradictions almost always involved texts revealed at different times.

19 Leave a comment on block 19 0

Al‑Juwaynī, however, sides with what became the mainstream view, which is that particularization is as flexible as any interpreter could wish: any kind of text, and even human reasoning by analogy, can particularize any other kind of text or evidence. Furthermore, as al‑Juwaynī will say in Chapter 11, it matters not which evidence was revealed first; any evidence, no matter when it was revealed, can be used to particularize any other evidence, as if all revelation had been revealed in one breath, as one timeless speech event or speech-meaning (which is indeed how al‑Juwaynī imagined God’s speech). Particularization is the interpreter’s weapon of choice, and it gives him many options, since he gets to choose which texts to put in relation to which other texts.

20 Leave a comment on block 20 0

Particularization abused?

We might say that this flexibility helps the interpreter to hear God’s voice more clearly, since it allows him to resolve apparent contradictions and thus come up with a coherent understanding of what God says—and most Muslims would presume that a correct understanding of God’s speech must be a coherent one. On the other hand, the flexibility of particularization can also be used to make revelation say whatever one thinks it should say. One example will suffice to make the point: al-Shāfiʿī’s defense of the commonly held classical legal doctrine that if a husband wishes he may prevent his wife from leaving the house, even to go to the mosque. This doctrine was already widespread in al‑Shāfiʿī’s day (ca. 800), but it was in blatant contradiction to several ḥadīth, including one in which the Prophet said “do not bar the maidservants of God from the mosques of God.” Al‑Shāfiʿī argued that the term ‘mosques’ in this ḥadīth appears general, but was really meant to apply to only one mosque, the Sacred Mosque in Mecca, which is the only mosque a woman is religiously obligated to visit at least once in her lifetime (for pilgrimage). The ‘particularizing evidence’ to which he appealed included ḥadīth forbidding women to travel alone, and also the general agreement of jurists that a husband could forbid his wife to go to a local mosque. Al‑Juwaynī would have objected to this appeal to the consensus of jurists, because he allows a text to be particularized only by another text or by ‘reasoning by analogy,’ but he would have allowed al‑Shāfiʿī’s use of ḥadīth evidence. Transforming ‘the mosques of God’ into ‘the sacred mosque in Mecca’ may seem like a much more radical reinterpretation than simply excluding fish from carrion, but al-Juwaynī would not have objected. If he allows “the unbelievers” to be subject to an exception that excludes all unbelievers but Zayd, so that only Zayd is to be killed, then he would not object to particularizing “the mosques of God” until it means only “the sacred mosque in Mecca.” It would have been much less radical to claim some other intertextual relationship of particularization: al‑Shāfiʿī could have said that the prohibition against travelling alone meant “travelling except to mosques,” which would have left the meaning of “travelling” mostly intact. But that would have gone against the mainstream view of a husband’s authority, and al-Shāfiʿī had no need to choose that interpretation. There is no rule dictating that one must choose the least radical of several possible particularizations. Al‑Shāfiʿī’s choice was perfectly legitimate according to his and al‑Juwaynī’s legal theory. As defined by mainstream classical legal theorists, particularization is indeed a very powerful interpretive tool that subjects the meaning of revealed texts to the inclinations of the reader.

21 Leave a comment on block 21 0

Further reading

An insightful history of the development of this aspect of legal theory is Hans-Thomas Tillschneider, Die Entstehung der juristischen Hermeneutik (uṣūl al–fiqh) im frühen Islam (Würzburg: Ergon Verlag, 2006).

For an English compilation of many legal theorists’ views on the topic, see Muḥammad Bin ʿĀrifīn, “The Principles of ʿUmūm and Takhṣīṣ in Islamic Jurisprudence” (Ph.D. diss., University of Edinburgh, 1988). Unfortunately this dissertation makes no attempt to explain why the debate mattered.

Page 51

Source: http://waraqat.vishanoff.com/v/v7/